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500	S. Baldev Singh Mann Vs. S. Gurcharan Singh	there were incidents of a large number of booth capturing by Respondent 1, his agent and supporters who are alleged to be variously armed but surprisingly enough neither any oral nor a written complaint was made to the Returning Officer, Presiding Officers or other officers and police personnel who were on election duty at the respective polling booths. There was not even a whisper about the alleged incidents to the members of Central Reserve Police who according to the appellants own evidence were very much present outside the polling station. There is no contemporaneous material or any record to indicate that the appellant or anyone on his behalf had raised even a finger on any of the alleged incidents while admittedly the Returning Officer, Presiding Officers and the Senior Superintendent of Police were available to entertain the complaints if the respondent, his election agent or his supporters had committed acts of corrupt practice. 11. Respondent 1 has examined the Sub-Divisional Magistrate, Shri Meghraj, RW 2 who was the Returning Officer of Dirba Assembly Constituency in the said election. The respondent also examined the Senior Superintendent of Police, Shri Jaswinder Singh, RW 16 who categorically deposed that the polling was peaceful throughout the day and there were proper security arrangements outside the polling booths. They also stated that there were absolutely no such incidents as are alleged by the appellant in any of the polling booths and no protest was lodged by any of the contesting candidates either with regard to the booth capturing or regarding illegal casting of votes. Respondent 1 had also examined Dayal Chand, RW 8, Gurmail Singh, RW 9, Ram Prakash, RW 10, Karam Singh, RW 11, Sohan Singh, RW 12, Chiranjit Julka, RW 13, Govinder Singh, RW 14 and Manjit Singh, RW 15 who were the Presiding Officers of the Polling Booths Nos. 63 to 69. They all made a consistent and categorical statement that the polling agents of all the contesting candidates were present inside the polling booths and none of them had disputed the identity of any elector who had come to cast their votes. They stated that the polling was peaceful and there was no untoward incident. On a critical examination of the record and the impugned judgment of the High Court we find that the appellant had miserably failed to bring home the allegations of corrupt practice either by Respondent 1, his agent or any other person with his consent or at his instance. On the contrary there is consistent, convincing and satisfactory evidence adduced by Respondent 1 to show that the polling was peaceful throughout the day and no complaint of any nature whatsoever oral or in writing was received from any quarter. In view of these facts and circumstances the High Court has taken a view consistent with the evidence on record and there are no reasons to take a different view. 12. Learned counsel for the appellant next urged that there is evidence to show that the returned candidate Respondent 1 herein had made expenditure far beyond the permissible limit and the High Court fell in serious error in taking a different view. Rule 90 of Conduct of Election Rules, 1961 provides that the total expenditure of which account is to be maintained under Section 77 of the Act, and which is incurred in connection with an election, shall not exceed the amount as specified in the corresponding column of the table given therein. But on going through the evidence and the judgment of the High Court in that behalf, we find that there is absolutely no substance in this submission also. The High Court has made a detailed scrutiny of the evidence on record in this behalf and has arrived at a definite conclusion that the allegation is groundless. We have also gone through the relevant evidence and find that the evidence adduced by the appellant does not establish the charge of overspending. 13. Learned counsel for the appellant then urged that before recording of evidence an application was made on behalf of the appellant under Rule 93 of the Election Rules read with Section 151 CPC for inspection of marked copies of electoral rolls as well as the packets of counterfoils of used ballot papers, in order to prove booth capturing and casting of bogus votes by persons in place of real electors, but it was erroneously rejected by the High Court which caused great prejudice to the appellants case. He also submitted that the appellant had also moved an application for summoning various documents for purposes of cross-examining Respondent 1 but it was also unreasonably rejected by the High Court. We have perused the orders of the High Court dated 14-5-1993 and 23-8-1993 and find that the High Court was fully justified in rejecting both the applications for valid and sound reasons. The appellant had failed to show even prima facie that there was any booth capturing and, therefore, the question of inspection of the desired electoral rolls and packets of counterfoils did not arise at that stage of the case. The documents sought to be summoned also could not be allowed in view of the fact that the said application was made when the appellant had already concluded his evidence and the election petition was posted for respondents evidence. Secondly, the said application was not maintainable for non-compliance of the rules contained in Chapter 4-GG of the Rules and Orders of Punjab & Haryana High Court, Volume V, of which prescribes rules of procedure on the non-compliance of which the documents sought to be summoned for purpose of cross-examination cannot be ordered. In this view of the matter, the order of the High Court dated 23-8-1993 rejecting the application, cannot be said to be erroneous. As discussed above, the appellant has miserably failed to prove the allegations made in the election petition and the evidence adduced by the appellant has been found to be unworthy of placing any reliance, the appeal deserves to be dismissed.	0[ds]8. It is well-settled that an allegation of corrupt practice within the meaning of sub-section (1) to (8) of Section 123 of the Act, made in the election petition are regarded quasi-criminal in nature requiring a strict proof of the same because the consequences are not only very serious but also penal in nature. It may be pointed out that on the proof of any of the corrupt practices as alleged in the election petition it is not only the election of the returned candidate which is declared void and set aside but besides the disqualification of the returned candidate, the candidate himself or his agent or any other person as the case may be, if found to have committed corrupt practice may be punished with imprisonment under Section 135-A of the Act. It is for these reasons that the Court insists upon a strict proof of such allegation of corrupt practice and not to decide the case on preponderance or probabilities. The evidence has, therefore, to be judged having regard to these well-settledIn sub-para (i) of para 3 of the election petition the allegation made is that on 19-2-1992 at about 7.30 a.m. Respondent 1 in the company of 50 supporters went to the Government High School Building, Dirba where Polling Booths Nos. 62 to 69 were located and threatened Joginder Singh, polling agent of the appellant in the presence of some lectors and asked him not to go inside the polling station and not to raise objections regarding the identity of persons. The High Court took the view that these allegations cannot be treated to be a corrupt practice of booth capturing. Learned counsel for the appellant was unable to specify as to under which sub-section of Section 123 these allegations amount to a corrupt practice. In our opinion the alleged threat may be an offence but certainly it does not fall within the ambit of corrupt practice as defined in sub-section (8) of Section 123. This apart it is interesting to note that Joginder Singh the election agent of the appellant who is said to have been threatened was not examined by the appellant as a witness to support the saida critical examination of the record and the impugned judgment of the High Court we find that the appellant had miserably failed to bring home the allegations of corrupt practice either by Respondent 1, his agent or any other person with his consent or at his instance. On the contrary there is consistent, convincing and satisfactory evidence adduced by Respondent 1 to show that the polling was peaceful throughout the day and no complaint of any nature whatsoever oral or in writing was received from any quarter. In view of these facts and circumstances the High Court has taken a view consistent with the evidence on record and there are no reasons to take a different90 of Conduct of Election Rules, 1961 provides that the total expenditure of which account is to be maintained under Section 77 of the Act, and which is incurred in connection with an election, shall not exceed the amount as specified in the corresponding column of the table given therein. But on going through the evidence and the judgment of the High Court in that behalf, we find that there is absolutely no substance in this submission also. The High Court has made a detailed scrutiny of the evidence on record in this behalf and has arrived at a definite conclusion that the allegation is groundless. We have also gone through the relevant evidence and find that the evidence adduced by the appellant does not establish the charge ofhave perused the orders of the High Court dated 14-5-1993 and 23-8-1993 and find that the High Court was fully justified in rejecting both the applications for valid and sound reasons. The appellant had failed to show even prima facie that there was any booth capturing and, therefore, the question of inspection of the desired electoral rolls and packets of counterfoils did not arise at that stage of the case. The documents sought to be summoned also could not be allowed in view of the fact that the said application was made when the appellant had already concluded his evidence and the election petition was posted for respondents evidence. Secondly, the said application was not maintainable for non-compliance of the rules contained in Chapter 4-GG of the Rules and Orders of Punjab & Haryana High Court, Volume V, of which prescribes rules of procedure on the non-compliance of which the documents sought to be summoned for purpose of cross-examination cannot be ordered. In this view of the matter, the order of the High Court dated 23-8-1993 rejecting the application, cannot be said to bediscussed above, the appellant has miserably failed to prove the allegations made in the election petition and the evidence adduced by the appellant has been found to be unworthy of placing any reliance, the appeal deserves to be dismissed	0	2,894	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: there were incidents of a large number of booth capturing by Respondent 1, his agent and supporters who are alleged to be variously armed but surprisingly enough neither any oral nor a written complaint was made to the Returning Officer, Presiding Officers or other officers and police personnel who were on election duty at the respective polling booths. There was not even a whisper about the alleged incidents to the members of Central Reserve Police who according to the appellants own evidence were very much present outside the polling station. There is no contemporaneous material or any record to indicate that the appellant or anyone on his behalf had raised even a finger on any of the alleged incidents while admittedly the Returning Officer, Presiding Officers and the Senior Superintendent of Police were available to entertain the complaints if the respondent, his election agent or his supporters had committed acts of corrupt practice. 11. Respondent 1 has examined the Sub-Divisional Magistrate, Shri Meghraj, RW 2 who was the Returning Officer of Dirba Assembly Constituency in the said election. The respondent also examined the Senior Superintendent of Police, Shri Jaswinder Singh, RW 16 who categorically deposed that the polling was peaceful throughout the day and there were proper security arrangements outside the polling booths. They also stated that there were absolutely no such incidents as are alleged by the appellant in any of the polling booths and no protest was lodged by any of the contesting candidates either with regard to the booth capturing or regarding illegal casting of votes. Respondent 1 had also examined Dayal Chand, RW 8, Gurmail Singh, RW 9, Ram Prakash, RW 10, Karam Singh, RW 11, Sohan Singh, RW 12, Chiranjit Julka, RW 13, Govinder Singh, RW 14 and Manjit Singh, RW 15 who were the Presiding Officers of the Polling Booths Nos. 63 to 69. They all made a consistent and categorical statement that the polling agents of all the contesting candidates were present inside the polling booths and none of them had disputed the identity of any elector who had come to cast their votes. They stated that the polling was peaceful and there was no untoward incident. On a critical examination of the record and the impugned judgment of the High Court we find that the appellant had miserably failed to bring home the allegations of corrupt practice either by Respondent 1, his agent or any other person with his consent or at his instance. On the contrary there is consistent, convincing and satisfactory evidence adduced by Respondent 1 to show that the polling was peaceful throughout the day and no complaint of any nature whatsoever oral or in writing was received from any quarter. In view of these facts and circumstances the High Court has taken a view consistent with the evidence on record and there are no reasons to take a different view. 12. Learned counsel for the appellant next urged that there is evidence to show that the returned candidate Respondent 1 herein had made expenditure far beyond the permissible limit and the High Court fell in serious error in taking a different view. Rule 90 of Conduct of Election Rules, 1961 provides that the total expenditure of which account is to be maintained under Section 77 of the Act, and which is incurred in connection with an election, shall not exceed the amount as specified in the corresponding column of the table given therein. But on going through the evidence and the judgment of the High Court in that behalf, we find that there is absolutely no substance in this submission also. The High Court has made a detailed scrutiny of the evidence on record in this behalf and has arrived at a definite conclusion that the allegation is groundless. We have also gone through the relevant evidence and find that the evidence adduced by the appellant does not establish the charge of overspending. 13. Learned counsel for the appellant then urged that before recording of evidence an application was made on behalf of the appellant under Rule 93 of the Election Rules read with Section 151 CPC for inspection of marked copies of electoral rolls as well as the packets of counterfoils of used ballot papers, in order to prove booth capturing and casting of bogus votes by persons in place of real electors, but it was erroneously rejected by the High Court which caused great prejudice to the appellants case. He also submitted that the appellant had also moved an application for summoning various documents for purposes of cross-examining Respondent 1 but it was also unreasonably rejected by the High Court. We have perused the orders of the High Court dated 14-5-1993 and 23-8-1993 and find that the High Court was fully justified in rejecting both the applications for valid and sound reasons. The appellant had failed to show even prima facie that there was any booth capturing and, therefore, the question of inspection of the desired electoral rolls and packets of counterfoils did not arise at that stage of the case. The documents sought to be summoned also could not be allowed in view of the fact that the said application was made when the appellant had already concluded his evidence and the election petition was posted for respondents evidence. Secondly, the said application was not maintainable for non-compliance of the rules contained in Chapter 4-GG of the Rules and Orders of Punjab & Haryana High Court, Volume V, of which prescribes rules of procedure on the non-compliance of which the documents sought to be summoned for purpose of cross-examination cannot be ordered. In this view of the matter, the order of the High Court dated 23-8-1993 rejecting the application, cannot be said to be erroneous. As discussed above, the appellant has miserably failed to prove the allegations made in the election petition and the evidence adduced by the appellant has been found to be unworthy of placing any reliance, the appeal deserves to be dismissed. ### Response: 0
501	Madhu Milan Syntex Pvt. Limited and another Vs. Union of India and others	these cases have no relevance in considering the questions before us because it is quite apparent that in the present case no urgent or emergent action was required and Section 11-A of the Central Excises Act clearly provides that prior show cause notice must be issued to the person against whom any demand on ground of short levy or non-levy of payment of excise duty is proposed to be made. In Gokak Patel Volkart Ltd. v. Collector of Central Excise [(1987) 2 SCC 93 : AIR 1987 SC 1161 : 1987 SCC (Tax) 165] this Court has held that the provisions of Section 11-A(1) and (2) of Central Excises and Salt Act, 1944 make it clear that the statutory scheme is that in the situations covered by sub-section (1), a notice of show cause has to be issued and sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order. Notice is thus a condition precedent to a demand under sub-section (2). 6. In view of the aforesaid decision the submission of Mr. Gobind Das must be rejected and it must be held that the aforesaid notice of demand was clearly bad in law and the High Court was fully, with respect, justified in quashing the same. 7. The next submission of Mr. Gobind Das was that, in any event, as the Collector of Central Excise (Appeals) had been directed to examine the merits of the matter in respect of alleged short levy or non-levy and the modification of the classification lists after allowing adequate opportunity to the petitioners to show cause in respect of the period from February 7, 1984, onwards, the question as to whether there was short levy or non-levy in respect of the period from August 15, 1983 to February 6, 1984 should also be allowed to be decided by the Collector. It was submitted by Mr Gobind Das that although the notice of demand may be set aside the notice to show cause dated February 9/10, 1984 should be treated as a valid and effective notice in respect of the period from August 15, 1983 to February 6, 1984 as well as the period from February 7, 1984 onwards. In this connection, it is the submission of Dr Chitale that this notice merely asked the petitioners to show cause against calculation or determination of the amount of short levy and not against the alteration in the classification lists on the basis of which short levy was alleged and hence, in respect of the said period from August 15, 1983 to February 6, 1984 the show cause notice is liable to be struck down. In our view the submission of Dr Chitale deserves to be accepted. The opening paragraph of the show cause notice refers to the service of notice of demand dated February 7, 1984 for Rs. 26, 47, 794.39 on the petitioner. Paragraphs 2 and 3 of the said notice run as followsAnd whereas the Assistant Collector Central Excise, Ujjain under his letter C. N. V(18)III/I/1/83/1371-1374 dated February 9, 1984 has modified approval of the classification lists of the party and has directed that the short levy should be quantified by the Inspector, Central Excise, Biaora/Superintendent Central Excise, Ujjain and confirmation or otherwise of such short levy and recoveries if any would be ordered by him (Assistant Collector, Central Excise Division, Ujjain) after following the prescribed procedure. Therefore, in accordance with the said order of the Assistance Collector, Central Excise Division, Ujjain, you are called upon to show cause to the Assistant Collector, Central Excise, Ujjain within 10 days of the receipt of this show cause notice as to why the short levies of Rs. 26, 47, 749.39 should not be recovered form you, under Section 11-A of the Central Excise and Salt Act, 1944. 8. A reading of these paragraphs clearly shows that the notice set out as an established fact that the classification lists submitted by the petitioners had been modified by the Assistant Collector, Central Excise, Ujjain and the only matter with respect to which the petitioners were asked to show cause was with regard to the quantification of the amount of the short levy and consequently, the amount which was liable to be recovered form petitioner 1. This notice, therefore, cannot be regarded as a show cause notice against the modification of the classification lists in respect of the aforesaid period. In these circumstances, the show cause notice is bad in law and of no legal effect as far as the said earlier period is concerned. Under Section 11-A of the Central Excise Act, the notice can relate only to a period of six months prior to the issue of that notice except in cases where it is alleged the short levy or short payment has occurred by reason of fraud, collusion or wilful misrepresentation or suppression of facts or contravention of the provisions of the said Act or rules made by the period concerned, as contemplated in the proviso to sub-section (1) of Section 11-A. No such case has been sought to be made here in the said show cause notice. The result is that the said show cause notice must be struck down insofar as period up to February 6, 1984 is concerned, and can be regarded as a proper show cause notice only in respect of the subsequent period from February 7, 1984 onwards. We are, therefore, of the view that under the said show cause notice the question of short levy or non-levy of excise duty prior to February 6, 1984 cannot be gone into by the Collector and the High Court was right in the view which it took.	0[ds]We are of the view these cases have no relevance in considering the questions before us because it is quite apparent that in the present case no urgent or emergent action was required and Section 11-A of the Central Excises Act clearly provides that prior show cause notice must be issued to the person against whom any demand on ground of short levy or non-levy of payment of excise duty is proposed to be made. In Gokak Patel Volkart Ltd. v. Collector of Central Excise [(1987) 2 SCC 93 : AIR 1987 SC 1161 : 1987 SCC (Tax) 165] this Court has held that the provisions of Section 11-A(1) and (2) of Central Excises and Salt Act, 1944 make it clear that the statutory scheme is that in the situations covered by sub-section (1), a notice of show cause has to be issued and sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order. Notice is thus a condition precedent to a demand under sub-sectionIn view of the aforesaid decision the submission of Mr. Gobind Das must be rejected and it must be held that the aforesaid notice of demand was clearly bad in law and the High Court was fully, with respect, justified in quashing thein accordance with the said order of the Assistance Collector, Central Excise Division, Ujjain, you are called upon to show cause to the Assistant Collector, Central Excise, Ujjain within 10 days of the receipt of this show cause notice as to why the short levies of Rs. 26, 47, 749.39 should not be recovered form you, under Section 11-A of the Central Excise and Salt Act,A reading of these paragraphs clearly shows that the notice set out as an established fact that the classification lists submitted by the petitioners had been modified by the Assistant Collector, Central Excise, Ujjain and the only matter with respect to which the petitioners were asked to show cause was with regard to the quantification of the amount of the short levy and consequently, the amount which was liable to be recovered form petitioner 1. This notice, therefore, cannot be regarded as a show cause notice against the modification of the classification lists in respect of the aforesaid period. In these circumstances, the show cause notice is bad in law and of no legal effect as far as the said earlier period is concerned. Under Section 11-A of the Central Excise Act, the notice can relate only to a period of six months prior to the issue of that notice except in cases where it is alleged the short levy or short payment has occurred by reason of fraud, collusion or wilful misrepresentation or suppression of facts or contravention of the provisions of the said Act or rules made by the period concerned, as contemplated in the proviso to sub-section (1) of Section 11-A. No such case has been sought to be made here in the said show cause notice. The result is that the said show cause notice must be struck down insofar as period up to February 6, 1984 is concerned, and can be regarded as a proper show cause notice only in respect of the subsequent period from February 7, 1984 onwards. We are, therefore, of the view that under the said show cause notice the question of short levy or non-levy of excise duty prior to February 6, 1984 cannot be gone into by the Collector and the High Court was right in the view which it took	0	2,892	### 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: these cases have no relevance in considering the questions before us because it is quite apparent that in the present case no urgent or emergent action was required and Section 11-A of the Central Excises Act clearly provides that prior show cause notice must be issued to the person against whom any demand on ground of short levy or non-levy of payment of excise duty is proposed to be made. In Gokak Patel Volkart Ltd. v. Collector of Central Excise [(1987) 2 SCC 93 : AIR 1987 SC 1161 : 1987 SCC (Tax) 165] this Court has held that the provisions of Section 11-A(1) and (2) of Central Excises and Salt Act, 1944 make it clear that the statutory scheme is that in the situations covered by sub-section (1), a notice of show cause has to be issued and sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order. Notice is thus a condition precedent to a demand under sub-section (2). 6. In view of the aforesaid decision the submission of Mr. Gobind Das must be rejected and it must be held that the aforesaid notice of demand was clearly bad in law and the High Court was fully, with respect, justified in quashing the same. 7. The next submission of Mr. Gobind Das was that, in any event, as the Collector of Central Excise (Appeals) had been directed to examine the merits of the matter in respect of alleged short levy or non-levy and the modification of the classification lists after allowing adequate opportunity to the petitioners to show cause in respect of the period from February 7, 1984, onwards, the question as to whether there was short levy or non-levy in respect of the period from August 15, 1983 to February 6, 1984 should also be allowed to be decided by the Collector. It was submitted by Mr Gobind Das that although the notice of demand may be set aside the notice to show cause dated February 9/10, 1984 should be treated as a valid and effective notice in respect of the period from August 15, 1983 to February 6, 1984 as well as the period from February 7, 1984 onwards. In this connection, it is the submission of Dr Chitale that this notice merely asked the petitioners to show cause against calculation or determination of the amount of short levy and not against the alteration in the classification lists on the basis of which short levy was alleged and hence, in respect of the said period from August 15, 1983 to February 6, 1984 the show cause notice is liable to be struck down. In our view the submission of Dr Chitale deserves to be accepted. The opening paragraph of the show cause notice refers to the service of notice of demand dated February 7, 1984 for Rs. 26, 47, 794.39 on the petitioner. Paragraphs 2 and 3 of the said notice run as followsAnd whereas the Assistant Collector Central Excise, Ujjain under his letter C. N. V(18)III/I/1/83/1371-1374 dated February 9, 1984 has modified approval of the classification lists of the party and has directed that the short levy should be quantified by the Inspector, Central Excise, Biaora/Superintendent Central Excise, Ujjain and confirmation or otherwise of such short levy and recoveries if any would be ordered by him (Assistant Collector, Central Excise Division, Ujjain) after following the prescribed procedure. Therefore, in accordance with the said order of the Assistance Collector, Central Excise Division, Ujjain, you are called upon to show cause to the Assistant Collector, Central Excise, Ujjain within 10 days of the receipt of this show cause notice as to why the short levies of Rs. 26, 47, 749.39 should not be recovered form you, under Section 11-A of the Central Excise and Salt Act, 1944. 8. A reading of these paragraphs clearly shows that the notice set out as an established fact that the classification lists submitted by the petitioners had been modified by the Assistant Collector, Central Excise, Ujjain and the only matter with respect to which the petitioners were asked to show cause was with regard to the quantification of the amount of the short levy and consequently, the amount which was liable to be recovered form petitioner 1. This notice, therefore, cannot be regarded as a show cause notice against the modification of the classification lists in respect of the aforesaid period. In these circumstances, the show cause notice is bad in law and of no legal effect as far as the said earlier period is concerned. Under Section 11-A of the Central Excise Act, the notice can relate only to a period of six months prior to the issue of that notice except in cases where it is alleged the short levy or short payment has occurred by reason of fraud, collusion or wilful misrepresentation or suppression of facts or contravention of the provisions of the said Act or rules made by the period concerned, as contemplated in the proviso to sub-section (1) of Section 11-A. No such case has been sought to be made here in the said show cause notice. The result is that the said show cause notice must be struck down insofar as period up to February 6, 1984 is concerned, and can be regarded as a proper show cause notice only in respect of the subsequent period from February 7, 1984 onwards. We are, therefore, of the view that under the said show cause notice the question of short levy or non-levy of excise duty prior to February 6, 1984 cannot be gone into by the Collector and the High Court was right in the view which it took. ### Response: 0
502	MIHAN INDIA LTD. & ORS Vs. GMR AIRPORTS LTD. & ORS	paras 67 to 70 are reproduced as thus: 67. Before we state the conclusions, this Court would like to reiterate certain well established tenets of law pertaining to Government contracts. When we speak of Government contracts, constitutional factors are also in play. Governmental bodies being public authorities are expected to uphold fairness, equality and rule of law even while dealing with contractual matters. It is a settled principle that right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process. A transparent bidding process is much favoured by this Court to ensure that constitutional requirements are satisfied. 68. Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance of their contractual obligations. 69. The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed. 70. At this juncture, it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor public authority cannot undo the work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant to enter Government contract or make any investment in furtherance of the same. Such a practice is counterproductive to the economy and the business environment in general. 46. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest. It is specified that using a ground of public interest or loss to the treasury cannot undo the work already undertaken by the authority. 47. Analysing the facts of this case in the light of the judgments in Dinesh Engineering (Supra) and Shishir Realty (Supra), after issuing the LoA in terms of Clause 3.3.5 of RFP and declaring GAL as concessionaire as per Clause 3.3.6, issuing letter of annulment of bidding process on the basis of the meeting of PMIC on 14.10.2019, which directed for re-tendering of the bid, is completely an arbitrary exercise of power, contrary to the provisions of RFP and violative of Article 14 of the Constitution of India. 48. In view of the discussion made hereinabove, we are of the considered opinion that the findings as recorded by the High Court in the impugned judgment are in consonance with the above reasonings. The impugned judgment passed by the High Court is based on the sound reasonings and true analysis of facts, which do not warrant interreference by this Court. 49. In the facts of the present case and the findings so recorded hereinabove, it is clear that the authorities have acted arbitrarily in violation of Article 14 of the Constitution of India. In such a situation, the public law remedy has rightly been availed, invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. The findings recorded by the High Court to entertain the petition in paragraph 95 are just and proper and we are in full agreement to those findings. In the facts of the present case, the argument advanced by the appellants to compel GAL to take the remedy of specific performance under the provisions of Specific Relief Act is hereby repelled. 50. Learned counsel on behalf of the UoI and AAI have vehemently argued that without joining them as a party to the proceedings, the Writ Petition was not entertainable and the relief as directed, could not have been allowed. 51. From the above, it is clear that in pursuance to the decision taken by the Cabinet, the second JV is required to be selected through competitive bidding. In the present case, global tenders were invited and competitive bidding process was followed. The procedure of issuance of LoA is completely a fair procedure as prescribed in RFP. As per the decision taken by MoCA, AAI and MADC, MIL is the authority to complete the bidding process and PMIC, acting on behalf of GoM was supervising the entire process. The annulment has been directed in reference to the letter dated 16.3.2020 for re- tendering of bid. Therefore, in issuing the annulment letter, there is no role of UoI and AAI. The serious objection has been raised regarding the grant of relief as prayed in Clause (b) by the High Court. In this regard, if we examine the said relief and direction, as issued by the High Court in terms of the Cabinet decision dated 11.2.2009, we are satisfied that UoI and AAI are not adversely affected after issuing the direction to select the second JV by competitive bidding. More so as discussed, except to produce the first approval of the Cabinet dated 11.02.2009, letters dated 02.08.2019, 20.08.2019 and 30.08.2019, nothing new has been brought before us to show what serious prejudice has been caused to them due to non-joinder by the Writ Court. In absence thereto, we are of the considered opinion that the objection regarding non-joinder raised by the appellants is bereft of any merit and the High Court has rightly rejected the same.	1[ds]24. As per the above discussion, we do not have any hesitation to hold that letter dated 07.03.2019 is a LoA after selecting the GAL as a highest bidder and it acquired the status of concessionaire. It was only the Concession Agreement required to be executed and there was no fault on the part of the GAL in complying with the provisions of RFP. The conduct of appellant MIL also indicates that concession agreement is required to be executed by concessionaire (GAL). Thus, after proposal of highest revenue share on issuing the letter of acceptance and also as reflected by conduct, it has become a concluded contract.30. In the facts of the case, the objections raised vide letters dated 02.08.2019, 20.08.2019 and in meeting of MoCA dated 30.08.2019 and in record note of discussion by PMIC in its meeting dated 14.10.2019 are required to be analysed with the intent that while issuing the direction of re-tendering, the order of annulling the bidding process is how far just, reasonable and equitable. In fact such letter is against the various clauses of RFP. In this regard as explained above, for the purpose of transfer of the Nagpur Airport to JVC comprising of AAI and MADC, the Cabinet note was put on 07.02.2009 by MoCA which was approved with certain directions. The Cabinet permitted to select the second JV through competitive bidding and proposal for formation of second JV be brought before the Cabinet at an appropriate time. Therefore, on submitting the bid and on declaring GAL as selected bidder after issuance of LoA, as per the Cabinet decision, the second Cabinet note is required to be put up after selection of the partner by the competitive bidding for the formation of the second JV. It is to be observed that if procedure of competitive bidding was fair merely on the pretext of the Cabinet approval, interference by the authorities would not be permissible.31. MoCA held its meeting on 30.08.2019. Admittedly, the said meeting is on the note of AAI dated 26.07.2019 to which the objection was submitted vide letter date 02.08.2019 and the response by AAI on 08/09.08.2019 (not available on record but referred to in the letter of MoCA dated 20.08.2019) have been considered. How far those objections may be relevant are required to be considered to test the action of the authorities for annulling the bidding process and to know whether the said action was not arbitrary. In the meeting on 30.08.2019, presentation was made by MADC to which Secretary, MoCA further asked for clarifications.32. The first clarification sought was that the criteria for selection of the bidder shall be based on the highest revenue share quoted. After negotiation by PMIC, the revenue share quoted as 5.76% was increased to 14.49%. However, what was the justification for post-bid negotiation. From the material available on record, neither PMIC which represents GoM nor MIL has filed any material to clarify the same. But, in the non-controverted facts, it cannot be lost sight that GAL was called by GoM and MIL for negotiation to fetch more revenue share in public interest. They were successful to get 14.49% revenue share in place of 5.76%. Thus, how far such an action is required to be questioned by MoCA. In our view, after negotiation if more revenue share has been earned by MIL or GoM, such an act is just, fair and reasonable. It cannot be said to be arbitrary and clarification on para 5(i) of minutes of Meeting dated 30.8.2019 sought by MoCA was unreasonable in terms of RFP. No material has been brought before the High Court or even before this Court to justify such objection.33. The second clarification/objection raised was regarding frequent changes in the eligibility criteria with respect to airport experience from the period of RFQ to bid opening date for which reasons were sought by the MoCA. It is to be noted here that RFQ was prepared prior to the bidding process. After floating the tender, five bidders were shortlisted, who were issued the RFP dated 01.03.2018. Out of the five bidders, two submitted the final bids. So, if any changes were made in the RFQ prior to floating the tender, it was for all the bidders. How can it affect the bid submitted by selected bidder in terms of RFQ. There is no justification either before the High Court or before this Court to say that such an action would be arbitrary. Nothing is brought on record to suggest that MIL or GoM has favoured the GAL for oblique reasons. In such circumstances, the second objection/clarification as raised in the meeting dated 30.08.2019 is wholly unjust, particularly after issuance of the LoA.34. The third objection/clarification was sought regarding frequent changes in the bid document. It is said that there was a deviation from the standard document (model Request for Qualification for PPP Projects and model Request for Proposal for PPP Projects). The statement of justification for deviation was asked from MIL and GoM. The standard document (Model Request for Qualification for PPP Projects and Model Request for Proposal for PPP Projects, for short model RFQ and RFP) is merely a model to be followed. On the basis of said model RFQ and RFP, the authority inviting the tenders for a particular project is required to prepare RFQ and RFP. In the present case, the RFQ and RFP were prepared by MIL and approved by PMIC considering the nature of the project. Therefore, the clarification sought by MoCA regarding deviation from model RFQ and RFP or in a bid document based on the model RFQ and RFP cannot be said to be justifiable. It appears the objection has been raised analysing the terms of RFQ and RFP issued by the department on the basis of which the bidding process was completed. In our view, the said objection/clarification is suffering from the vice of arbitrariness and without any justification. In view of the discussion made above regarding objections/clarifications of MoCA in para 5 (i to iii) in the proceedings 30.8.2019 are arbitrary, unreasonable and without any justification, submitted by the authorities even before this Court. Therefore, all these queries are violative of Article 14 of the Constitution of India.35. The fourth objection/clarification sought was regarding the profit of Rs. 49 crores earned in the year (2018-19) and the prospective profit to be earned for the succeeding year i.e. 2019-20 due to estimated traffic growth of 20%. In this regard justification was sought as to how the offer made by the concessionaire which will result into lesser profit of Rs. 15 crores as against the profit of Rs. 50 crores which the airport is currently earning is just. PMIC in its meeting held on 14.10.2019 considered this issue along with other three issues as discussed above. In the said meeting, there is no deliberation regarding the three issues and the issue of financial viability of MIL on leasing out the Airport. In our view, there would be no lease of the airport in favour of GAL. In fact, the lease would be in favour of MIL by AAI and MADC which is its first JV formulated to carry out their work. Therefore, it is completely a mis-statement of fact. It is clarified that after acceptance of the bid, GAL and GNIAL would be a licensee for implementation of the MIHAN project.37. The objection/clarification in para 5(iv) of the letter dated 30.08.2019 has been discussed by PMIC in its meeting dated 14.10.2019, wherein it perused the analysis of Transaction Advisors Ernst & Young (for short E&Y) and observed that the offer of highest revenue share made by the selected bidder is not commensurate with the profit that MIL would earn following the AERA philosophy for tariff determination in the coming 30 years. The PMIC for the said reason directed to re-tender the bid for the MIHAN project. In the said context, the factual aspect of the report of E&Y is required to be referred. The report of E&Y discusses about the financial snapshot in case the development is taken by the private concessionaire, on the basis of which it is clear that the net present value of cash flows if MIL undertakes investment of Rs. 1683 crores would be Rs. - 473 crores and if revenue share of 14.49% is given, then its value would go to Rs. + 472 crores. It is clarified that in case it is privatized, MIL is not required to take any burden of CAPEX as it would be done by the private sector. It is further put in the note that a private player operating will make MIL an asset light organization and that also it will earn revenue share from the private player which in the net present value is more and implementation, operational efficiency of the private sector can be capitalized. Therefore, it is clear that as per the said report without any investment made by AAI, MIL will get the revenue of Rs. 15 crores per annum.38. As per RFP, it is clear that MIL floated a tender for up- gradation, modernization, operation and maintenance of Nagpur Airport. Apparently, the primary impression which can be gathered from the objection raised in the meeting held on 30.08.2019 and the meeting of PMIC dated 14.10.2019 indicates the prospective revenue gain but it does not indicate the investment in up-gradation and modernization of the Nagpur Airport for which planning and designing of a world class international airport, not only for the passengers but also for the cargo transport in the name of MIHAN is required. As per the RFP and the Concession Agreement, all the investment for design, up-gradation, operation and maintenance has to be borne out by the private player and not by MIL. It is pertinent to note here that after issuance of LoA by the internal correspondence of MoCA and GoM on the note of AAI, the financial viability relying upon the report of E&Y has been considered. If there was any issue regarding financial viability, it was the duty of the GoM, AAI or MoCA to call GAL, to whom the right has accrued and has to pay the revenue share as proposed and agreed to by MIL, for justification. Otherwise, taking a decision on the said basis behind the back of GAL was violative of Article 14 of the Constitution of India and also against the principles of natural justice.39. Further, in paragraph 6 of the minutes of the Meeting held on 30.08.2019, the Secretary, MoCA said that for leasing of assets including leasing of land of AAI to private party, approval of Union Cabinet is required. On perusal of the record, it is not out of place to mention here that the lease of the land is not required to be executed in favour of GAL. It is only the license which is required to be given by Concession Agreement. Prior to executing the agreement, the recourse, as taken, is not fair and just.40. In view of the aforesaid, it is clear that no lease is going to be executed in favour of GAL or GNIAL. It is only a license right in respect of all the lands along with any buildings, constructions or immovable assets and other movables specified in the schedules of concession agreement is required to be conferred upon GAL or GNIAL.41. On perusal thereto, it is clear that Section 12A applies in the case of lease by the authority and no such lease under sub-section (1) shall be made without previous approval of the Central Government. In the present case, no lease is required to be executed in favour of GAL or GNIAL. The pretext taken on the basis of Section 12A of AAI Act in a case of annulment of bidding process by the AAI and the GoI primarily appears to be fallacious.42. Now, as per the material available and discussed hereinabove, it is clear that the appellants were aware of the procedure which is being adopted. After completion of the bidding process, GAL was declared as a selected bidder on offering highest revenue share and on issuance of LoA, it has been declared as a concessionaire and at the stage of execution of Concession Agreement, all these formalities are not relevant and it amounts to arbitrary exercise of the power by the authorities which is not permissible under law. The said approach is fortified with the view taken in the judgment of this Court in Union of India and others vs. Dinesh Engineering Corpn. and another (2001) 8 SCC 491, wherein while dealing with the rejection of bid of the respondent therein by Railways in a tender floated for procurement of certain items of spare parts for use in GE governors, this Court has held that power to reject bids cannot be exercised arbitrarily merely because Railways has the power to do so. Any arbitrary exercise of power to reject bids has been held violative of Article 14.43. Bare perusal of the above stated case-law in light of the facts of the instant case makes it clear that merely having the power of rejection of bids does not entitle authorities to exercise the said power arbitrarily. While discussing the applicability of Clauses 2.16.1, 3.3.1 and 3.3.5, it is made clear that in pre-bid procedure prior to acceptance, the bidding process may be annulled otherwise after issuance of LoA, the annulment cannot be done. The authorities further acted arbitrarily relying upon the GoMs letter dated 16.03.2020 in reference to PMICs meeting dated 14.10.2019 in which re-tendering was directed. Re-tendering was not possible without ignoring the bid already accepted. Therefore, the order of annulment has been directed applying Clause 2.16.1 arbitrarily.44. As discussed hereinabove, while explaining the scope of Chapters 1, 2 and 3 of RFP, it is clear that Chapter 2 deals with the bidding instructions which are general in nature. Clause 2.16 deals with the rejection of bid which is a situation prior to acceptance of the bid. After Chapter 2, in Chapter 3 evaluation of bid starts. While evaluating those bids in Clause 3.3.1, if the provision of Clause 2.16.1 has not been invoked and the bidder whose bid has been adjudged as responsive in terms of the Clause 3.3.1 and who offered the highest revenue share would be a selected bidder. In the present case, the selection of the bidder was complete. Thereafter, LoA was issued as per Clause 3.3.5 and by issuance of draft of Concession Agreement, it has been declared as a concessionaire. At that stage, Clause 2.16.1 for annulment of the bidding process would not apply. It appears to us that as per the objections raised in the Meeting dated 30.08.2019 held by MoCA, clause (iv) in paragraph 5 persuaded the MIL and GoM to pass the order of re-tendering.45. In this regard, a 3-Judge Bench judgment of this Court in the case of Vice-Chairman & Managing director, City and Industrial Development Corporation of Maharashtra Ltd. and Another vs. Shishir Realty Private Limited and Ors. [Civil Appeal No. 3956-57 of 2017] is relevant, paras 67 to 70 are reproduced as thus:67. Before we state the conclusions, this Court would like to reiterate certain well established tenets of law pertaining to Government contracts. When we speak of Government contracts, constitutional factors are also in play. Governmental bodies being public authorities are expected to uphold fairness, equality and rule of law even while dealing with contractual matters. It is a settled principle that right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process. A transparent bidding process is much favoured by this Court to ensure that constitutional requirements are satisfied.68. Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance of their contractual obligations.69. The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed.70. At this juncture, it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor public authority cannot undo the work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant to enter Government contract or make any investment in furtherance of the same. Such a practice is counterproductive to the economy and the business environment in general.46. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest. It is specified that using a ground of public interest or loss to the treasury cannot undo the work already undertaken by the authority.47. Analysing the facts of this case in the light of the judgments in Dinesh Engineering (Supra) and Shishir Realty (Supra), after issuing the LoA in terms of Clause 3.3.5 of RFP and declaring GAL as concessionaire as per Clause 3.3.6, issuing letter of annulment of bidding process on the basis of the meeting of PMIC on 14.10.2019, which directed for re-tendering of the bid, is completely an arbitrary exercise of power, contrary to the provisions of RFP and violative of Article 14 of the Constitution of India.48. In view of the discussion made hereinabove, we are of the considered opinion that the findings as recorded by the High Court in the impugned judgment are in consonance with the above reasonings. The impugned judgment passed by the High Court is based on the sound reasonings and true analysis of facts, which do not warrant interreference by this Court.49. In the facts of the present case and the findings so recorded hereinabove, it is clear that the authorities have acted arbitrarily in violation of Article 14 of the Constitution of India. In such a situation, the public law remedy has rightly been availed, invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. The findings recorded by the High Court to entertain the petition in paragraph 95 are just and proper and we are in full agreement to those findings. In the facts of the present case, the argument advanced by the appellants to compel GAL to take the remedy of specific performance under the provisions of Specific Relief Act is hereby repelled.51. From the above, it is clear that in pursuance to the decision taken by the Cabinet, the second JV is required to be selected through competitive bidding. In the present case, global tenders were invited and competitive bidding process was followed. The procedure of issuance of LoA is completely a fair procedure as prescribed in RFP. As per the decision taken by MoCA, AAI and MADC, MIL is the authority to complete the bidding process and PMIC, acting on behalf of GoM was supervising the entire process. The annulment has been directed in reference to the letter dated 16.3.2020 for re- tendering of bid. Therefore, in issuing the annulment letter, there is no role of UoI and AAI. The serious objection has been raised regarding the grant of relief as prayed in Clause (b) by the High Court. In this regard, if we examine the said relief and direction, as issued by the High Court in terms of the Cabinet decision dated 11.2.2009, we are satisfied that UoI and AAI are not adversely affected after issuing the direction to select the second JV by competitive bidding. More so as discussed, except to produce the first approval of the Cabinet dated 11.02.2009, letters dated 02.08.2019, 20.08.2019 and 30.08.2019, nothing new has been brought before us to show what serious prejudice has been caused to them due to non-joinder by the Writ Court. In absence thereto, we are of the considered opinion that the objection regarding non-joinder raised by the appellants is bereft of any merit and the High Court has rightly rejected the same.	1	14,133	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: paras 67 to 70 are reproduced as thus: 67. Before we state the conclusions, this Court would like to reiterate certain well established tenets of law pertaining to Government contracts. When we speak of Government contracts, constitutional factors are also in play. Governmental bodies being public authorities are expected to uphold fairness, equality and rule of law even while dealing with contractual matters. It is a settled principle that right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process. A transparent bidding process is much favoured by this Court to ensure that constitutional requirements are satisfied. 68. Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance of their contractual obligations. 69. The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed. 70. At this juncture, it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor public authority cannot undo the work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant to enter Government contract or make any investment in furtherance of the same. Such a practice is counterproductive to the economy and the business environment in general. 46. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest. It is specified that using a ground of public interest or loss to the treasury cannot undo the work already undertaken by the authority. 47. Analysing the facts of this case in the light of the judgments in Dinesh Engineering (Supra) and Shishir Realty (Supra), after issuing the LoA in terms of Clause 3.3.5 of RFP and declaring GAL as concessionaire as per Clause 3.3.6, issuing letter of annulment of bidding process on the basis of the meeting of PMIC on 14.10.2019, which directed for re-tendering of the bid, is completely an arbitrary exercise of power, contrary to the provisions of RFP and violative of Article 14 of the Constitution of India. 48. In view of the discussion made hereinabove, we are of the considered opinion that the findings as recorded by the High Court in the impugned judgment are in consonance with the above reasonings. The impugned judgment passed by the High Court is based on the sound reasonings and true analysis of facts, which do not warrant interreference by this Court. 49. In the facts of the present case and the findings so recorded hereinabove, it is clear that the authorities have acted arbitrarily in violation of Article 14 of the Constitution of India. In such a situation, the public law remedy has rightly been availed, invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. The findings recorded by the High Court to entertain the petition in paragraph 95 are just and proper and we are in full agreement to those findings. In the facts of the present case, the argument advanced by the appellants to compel GAL to take the remedy of specific performance under the provisions of Specific Relief Act is hereby repelled. 50. Learned counsel on behalf of the UoI and AAI have vehemently argued that without joining them as a party to the proceedings, the Writ Petition was not entertainable and the relief as directed, could not have been allowed. 51. From the above, it is clear that in pursuance to the decision taken by the Cabinet, the second JV is required to be selected through competitive bidding. In the present case, global tenders were invited and competitive bidding process was followed. The procedure of issuance of LoA is completely a fair procedure as prescribed in RFP. As per the decision taken by MoCA, AAI and MADC, MIL is the authority to complete the bidding process and PMIC, acting on behalf of GoM was supervising the entire process. The annulment has been directed in reference to the letter dated 16.3.2020 for re- tendering of bid. Therefore, in issuing the annulment letter, there is no role of UoI and AAI. The serious objection has been raised regarding the grant of relief as prayed in Clause (b) by the High Court. In this regard, if we examine the said relief and direction, as issued by the High Court in terms of the Cabinet decision dated 11.2.2009, we are satisfied that UoI and AAI are not adversely affected after issuing the direction to select the second JV by competitive bidding. More so as discussed, except to produce the first approval of the Cabinet dated 11.02.2009, letters dated 02.08.2019, 20.08.2019 and 30.08.2019, nothing new has been brought before us to show what serious prejudice has been caused to them due to non-joinder by the Writ Court. In absence thereto, we are of the considered opinion that the objection regarding non-joinder raised by the appellants is bereft of any merit and the High Court has rightly rejected the same. ### Response: 1
503	United India Insurance Company Limited Vs. Roopali Nitin Rao & Others	Leela Society and in the said accident he died.3. The respondents, therefore, filed Claim Application No. 1472 of 2006 before the Motor Accident Claims Tribunal for Mumbai claiming a compensation of Rs. 50 lacs. It was claimed that the deceased was about 38 years of age, had chances of promotion with his qualifications of Masters in Engineering. The claim was opposed by the present appellant and the owner of the vehicle i.e. present respondent No. 5 did not file any written statement so as to oppose the claim. Claimant No. 1 is the wife of the deceased with Claimant Nos. 2 and 3 as her minor children and Claimant No. 4 is the mother of the deceased. The application was opposed by the appellant on the ground that the drivers of both the vehicles had contributed in negligent driving which was a cause of accident. In addition, the appellant disputed the monthly salary as well as the promotional chances of the deceased. In support of the claim, applicant No. 1 examined herself and Shri Mahesh Vartak was examined in support of the monthly income of the deceased. Shri Bhaskar Gauda was the third witness examined.4. On the issue of contributory negligence, the Tribunal noted that the motor car was driven by a learner and it was her negligence which resulted in the motor car giving a dash to the motorcycle from its rear side. The spot panchanama placed on record indicated that the offending car had taken a turn and drivers husband was partly holding the steering of the car. The Tribunal noted that all these circumstances, if considered collectively, went to show that the offending car had given dash to the motorcycle from behind and the driver was also prosecuted for rash and negligent driving.5. On the point of age and income of the deceased, the evidence of Shri Mahesh Vartak, who had come with the service record of the deceased was recorded. The appointment order at Ext.22 was received by the deceased on 26th November, 1987 and on 11th August, 1990 he was confirmed in the post of Lab Assistant (Ext. 23). With effect from 1st January, 1992 he was promoted to the post of Lab Technician. He was subsequently sponsored to complete his Masters degree in Engineering as per letter at Ext.25. Consequently, on 22nd September, 1994 he was appointed as a Lecturer (Ext. 26- appointment order). The monthly salary of the deceased for the month of January, 2006 was Rs. 18,897. The photostat copy of the service book and salary record of the deceased was placed on record atExts.29 and 30 respectively. From the gross salary, there was a deduction of Rs. 200 for income tax and Rs. 448 towards professional tax. Barring, these two deductions, totalling Rs. 648, the Tribunal did not consider the deductions of the LIC premium by relying upon the law laid down by the Supreme Court in the case of National Insurance Company Ltd. v. Indira Srivastav and Others, I (2008) ACC 162 (SC)=I (2008) SLT 73=I (2008) CPJ 24 (SC)=2008 ACJ 614. 6. So far as the promotional chances of the deceased are concerned, the Tribunal relied upon the law laid down by the Supreme Court in the case of Sarla Varma and Others v. Delhi Transport Corporation and Another, III (2009) ACC 708 (SC)=VI (2009) SLT 663=162 (2009) DLT 278 (SC)=(2009) 6 SCC 121. Mr. Gatne the learned Counsel for the appellant has challenged the issue of promotional avenues and he pointed out that the deceased was running tuition classes which was not permissible under the service Rules and on that count he was liable to be removed from service. In this regard, he has placed reliance on the cross-examination of Shri Mahesh Vartak, Mr. Gatne also submitted that there was no reliable record before the Claims Tribunal regarding the promotional chances of the deceased and that he was confirmed in service.7. It is well settled by a catena of decisions of this Court that the employees, including the teaching faculty of a private Polytechnic are covered under the MEPS Act and the Rules framed thereunder. The confirmation of service as well as the promotional avenues are covered by the MEPS Act as well MEPS Rules and, therefore, in our opinion, the Tribunal did not fall in error in upholding the claim of the applicants that the deceased was due for promotion as per the Rules. The Tribunal, therefore, relied upon the law laid down in Sarla Varmas case and considered 50% more income over and above the actual salary which the deceased was drawing at the relevant time i.e. January, 2006. The Tribunal considered the monthly income of the deceased at Rs. 16,697 and with 50% rise on account of promotional avenues, the monthly income came to Rs. 25,047 which has been rounded off to Rs. 25,000 per month. The yearly income came to Rs. 3 lac. The deceased has four dependents and, therefore, th of the annual income was deducted and thus leaving a net amount to Rs. 2,25,000 per annum. The multiplier of 15 has been held to be appropriate taking into consideration that the deceased was between the age group of 36 to 40 years. It has come in the evidence of Shri Mahesh Vartak that the deceased was born, as per the service record, on 8th October, 1967 and, therefore, on the date of the accident he was less than 40 years of age. We do not find any error committed by the Tribunal in calculating the yearly income and fixing the multiplier at 15 and thus the compensation calculated at Rs. 33,75,000 cannot be faulted with. Simple interest has been granted at the rate of 7.5% per annum which also cannot be faulted with. The claim of the insurer that deceased was liable for termination of service as he was running private tuition classes is not germane when it was not in dispute that he was in service on the date of accident.	0[ds]7. It is well settled by a catena of decisions of this Court that the employees, including the teaching faculty of a private Polytechnic are covered under the MEPS Act and the Rules framed thereunder. The confirmation of service as well as the promotional avenues are covered by the MEPS Act as well MEPS Rules and, therefore, in our opinion, the Tribunal did not fall in error in upholding the claim of the applicants that the deceased was due for promotion as per the Rules. The Tribunal, therefore, relied upon the law laid down in Sarla Varmas case and considered 50% more income over and above the actual salary which the deceased was drawing at the relevant time i.e. January, 2006. The Tribunal considered the monthly income of the deceased at Rs. 16,697 and with 50% rise on account of promotional avenues, the monthly income came to Rs. 25,047 which has been rounded off to Rs. 25,000 per month. The yearly income came to Rs. 3 lac. The deceased has four dependents and, therefore,of the annual income was deducted and thus leaving a net amount to Rs. 2,25,000 per annum. The multiplier of 15 has been held to be appropriate taking into consideration that the deceased was between the age group of 36 to 40 years. It has come in the evidence of Shri Mahesh Vartak that the deceased was born, as per the service record, on 8th October, 1967 and, therefore, on the date of the accident he was less than 40 years of age. We do not find any error committed by the Tribunal in calculating the yearly income and fixing the multiplier at 15 and thus the compensation calculated at Rs. 33,75,000 cannot be faulted with. Simple interest has been granted at the rate of 7.5% per annum which also cannot be faulted with. The claim of the insurer that deceased was liable for termination of service as he was running private tuition classes is not germane when it was not in dispute that he was in service on the date of accident.	0	1,204	### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: Leela Society and in the said accident he died.3. The respondents, therefore, filed Claim Application No. 1472 of 2006 before the Motor Accident Claims Tribunal for Mumbai claiming a compensation of Rs. 50 lacs. It was claimed that the deceased was about 38 years of age, had chances of promotion with his qualifications of Masters in Engineering. The claim was opposed by the present appellant and the owner of the vehicle i.e. present respondent No. 5 did not file any written statement so as to oppose the claim. Claimant No. 1 is the wife of the deceased with Claimant Nos. 2 and 3 as her minor children and Claimant No. 4 is the mother of the deceased. The application was opposed by the appellant on the ground that the drivers of both the vehicles had contributed in negligent driving which was a cause of accident. In addition, the appellant disputed the monthly salary as well as the promotional chances of the deceased. In support of the claim, applicant No. 1 examined herself and Shri Mahesh Vartak was examined in support of the monthly income of the deceased. Shri Bhaskar Gauda was the third witness examined.4. On the issue of contributory negligence, the Tribunal noted that the motor car was driven by a learner and it was her negligence which resulted in the motor car giving a dash to the motorcycle from its rear side. The spot panchanama placed on record indicated that the offending car had taken a turn and drivers husband was partly holding the steering of the car. The Tribunal noted that all these circumstances, if considered collectively, went to show that the offending car had given dash to the motorcycle from behind and the driver was also prosecuted for rash and negligent driving.5. On the point of age and income of the deceased, the evidence of Shri Mahesh Vartak, who had come with the service record of the deceased was recorded. The appointment order at Ext.22 was received by the deceased on 26th November, 1987 and on 11th August, 1990 he was confirmed in the post of Lab Assistant (Ext. 23). With effect from 1st January, 1992 he was promoted to the post of Lab Technician. He was subsequently sponsored to complete his Masters degree in Engineering as per letter at Ext.25. Consequently, on 22nd September, 1994 he was appointed as a Lecturer (Ext. 26- appointment order). The monthly salary of the deceased for the month of January, 2006 was Rs. 18,897. The photostat copy of the service book and salary record of the deceased was placed on record atExts.29 and 30 respectively. From the gross salary, there was a deduction of Rs. 200 for income tax and Rs. 448 towards professional tax. Barring, these two deductions, totalling Rs. 648, the Tribunal did not consider the deductions of the LIC premium by relying upon the law laid down by the Supreme Court in the case of National Insurance Company Ltd. v. Indira Srivastav and Others, I (2008) ACC 162 (SC)=I (2008) SLT 73=I (2008) CPJ 24 (SC)=2008 ACJ 614. 6. So far as the promotional chances of the deceased are concerned, the Tribunal relied upon the law laid down by the Supreme Court in the case of Sarla Varma and Others v. Delhi Transport Corporation and Another, III (2009) ACC 708 (SC)=VI (2009) SLT 663=162 (2009) DLT 278 (SC)=(2009) 6 SCC 121. Mr. Gatne the learned Counsel for the appellant has challenged the issue of promotional avenues and he pointed out that the deceased was running tuition classes which was not permissible under the service Rules and on that count he was liable to be removed from service. In this regard, he has placed reliance on the cross-examination of Shri Mahesh Vartak, Mr. Gatne also submitted that there was no reliable record before the Claims Tribunal regarding the promotional chances of the deceased and that he was confirmed in service.7. It is well settled by a catena of decisions of this Court that the employees, including the teaching faculty of a private Polytechnic are covered under the MEPS Act and the Rules framed thereunder. The confirmation of service as well as the promotional avenues are covered by the MEPS Act as well MEPS Rules and, therefore, in our opinion, the Tribunal did not fall in error in upholding the claim of the applicants that the deceased was due for promotion as per the Rules. The Tribunal, therefore, relied upon the law laid down in Sarla Varmas case and considered 50% more income over and above the actual salary which the deceased was drawing at the relevant time i.e. January, 2006. The Tribunal considered the monthly income of the deceased at Rs. 16,697 and with 50% rise on account of promotional avenues, the monthly income came to Rs. 25,047 which has been rounded off to Rs. 25,000 per month. The yearly income came to Rs. 3 lac. The deceased has four dependents and, therefore, th of the annual income was deducted and thus leaving a net amount to Rs. 2,25,000 per annum. The multiplier of 15 has been held to be appropriate taking into consideration that the deceased was between the age group of 36 to 40 years. It has come in the evidence of Shri Mahesh Vartak that the deceased was born, as per the service record, on 8th October, 1967 and, therefore, on the date of the accident he was less than 40 years of age. We do not find any error committed by the Tribunal in calculating the yearly income and fixing the multiplier at 15 and thus the compensation calculated at Rs. 33,75,000 cannot be faulted with. Simple interest has been granted at the rate of 7.5% per annum which also cannot be faulted with. The claim of the insurer that deceased was liable for termination of service as he was running private tuition classes is not germane when it was not in dispute that he was in service on the date of accident. ### Response: 0
504	U.P.State Sugar Corporation Ltd Vs. Dy.Director Of Consolidation,Meerut &Ors	out in Section 198 has to be followed by the Land Management committee in making allotments of the land. 36. The procedure which has to be followed by the Land Management committee in admitting any person to land under Section 195 and 197 is set out in the Rules made under the Act. The relevant Rules are Rules 173 to 178-A. Sub-section (4) of Section 198 authorises the Collector to cancel the allotment of lease of any land made by the Land Management committee suo motu on his own motion or on the application of any person aggrieved by that allotment of lease. 37. In the instant case, it was found as a fact by the Consolidation Officer as also by the Settlement Officer (Consolidation) that part of the land in question was the land appurtenant to the staff quarter of the Sugar Mill while the other part was utilised for storage tanks for molasses and for sullage water and other purposes connected with the functioning of the Mill. Since the land in question was being utilised as land appurtenant to the Staff Quarter of the Mill from before the date of vesting, that land would not vest in the State on account of Notification issued under Section 4 of the Act. The easement right available to the Sugar Mill in respect of the plots in question would also not stand destroyed and would continue to be enjoyed by the Mill. 38. The findings recorded concurrently by the consolidation Officer as also the Settlement Officer (consolidation) regarding the land in question being the land appurtenant to the Staff Quarter of the Mill or the land being utilised for storage of molasses and sullage water etc. have not been set aside by the Deputy Director of Consolidation nor has the High Court held that the findings were erroneous. That being so, the property, at no stage, vested in the State and, therefore, it could not, at any subsequent stage, vest in the Gaon Sabha. The Gaon Sabha, therefore, could not legally execute any lease in respect of these plots in favour of the respondent. 39. The High Court, without considering these questions, held that the validity of the lease, executed by the Gaon Sabha in favour of the respondent, could not be legally examined by the Consolidation Authorities under the U.P. Consolidation of Holdings Act, 1953. Reliance for this purpose was placed by the High Court on the Full Bench decision of the Allahabad High Court in Similesh Kumar v. Gaon Sabha, Uskar,, Ghazipur and others, 1977 Revenue Decision 409 : AIR 1977 Allahabad 360 and Bhurey and another v. Board of Revenue, U.P. and ors, 1984 Revenue Decision 294, in which the Allahabad High Court while considering the effect of amendment introduced in Section 210 held that a trespasser over the Gaon Sabha land cannot acquire sirdari rights even if he was in possession of that land for more than 12 years. The High Court also relied upon another decision in Chatar Singh v. Sahayak Sanchalak, Chakbandi and others, 1979 A.C.J. 335, in which it was again held that even if a person was in possession over the property of the Gaon Sabha for more than 12 years, he would not acquire sirdari rights under Section 210 of the U.P. Zamindari Abolition and Land Reforms Act. 40. In the Full Bench decision of the Allahabad High Court, referred to above, it was held that the Consolidation Authorities have no jurisdiction to consider the question of cancellation of lease which could be considered only by regular Courts. The decision of this Court in Gorakh Nath Dube v. Hari Narain Singh and others, (1973) 2 SCC 535 : 1974(1) SCR 339 : 1973 Revenue Decision 423, in which it was held that a void document which was liable to be ignored by the Court would not affect the jurisdiction of the consolidation Courts was distinguished. So also the decision of the Division Bench of the Allahabad High Court in Jagarnath Shukla v. Sita Ram Pande and others, 1969 A.L.J. 768, which was affirmed by this Court in Gorakh Nath Dubes case (supra) was also distinguished. We have carefully considered these decisions and, in our opinion, the Full Bench of the Allahabad High Court was in error in distinguishing the decision of this Court in Gorakh Nath Dubs case (supra) which has since been followed by this Court in Dulari Devi v. Janardan Singh, 1990 Supp. SCC 216; Ashrafi Lal v. Koili, (1995)4 SCC 163 ; and Muneshwar v. Raja Mohammed Khan, (1998) 6 SCC 582. 41. The decision of this Court in Gorakh Nath Dubes case (supra) was also followed by the Allahabad High Court in Ramanand v. D.D.C. and others, 1987 Revenue Decision 430, and it was held that a document which is void and is, therefore, liable to be ignored by the Courts, would not affect the jurisdiction of the consolidation Courts and they would be within their jurisdiction in adjudicating upon that document so as to finally decide the rights of the parties. The Full Bench decision of the High Court in Similesh Kumars case (supra) was distinguished. 42. In the instant case, in view of the provisions of Section 7(aa) and Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, the land in dispute, which was held by the Consolidation Officer and Settlement Officer (Consolidation) to be the land appurtenant to the Staff Quarter of the Sugar Mill, had not vested in the State under Section 6 of the Act as a consequence of the Notification issued under Section 4 of the Act. Once these plots did not vest in the State, it would not vest in the Gaon Sabha and the Gaon Sabha had, therefore, no jurisdiction to grant lease of those plots to the respondent. Such a lease was a void document from the inception and, consequently, the jurisdiction of the Consolidation Authorities was not affected. No other point was pressed before us. 43.	1[ds]In the instant case, in view of the provisions of Section 7(aa) and Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, the land in dispute, which was held by the Consolidation Officer and Settlement Officer (Consolidation) to be the land appurtenant to the Staff Quarter of the Sugar Mill, had not vested in the State under Section 6 of the Act as a consequence of the Notification issued under Section 4 of the Act. Once these plots did not vest in the State, it would not vest in theGaon Sabha andthe Gaon Sabhano jurisdiction togrant lease of those plotsto the respondent. Such a lease was a void document from the inception and, consequently, the jurisdiction of the Consolidation Authorities was not affected.	1	9,310	### 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: out in Section 198 has to be followed by the Land Management committee in making allotments of the land. 36. The procedure which has to be followed by the Land Management committee in admitting any person to land under Section 195 and 197 is set out in the Rules made under the Act. The relevant Rules are Rules 173 to 178-A. Sub-section (4) of Section 198 authorises the Collector to cancel the allotment of lease of any land made by the Land Management committee suo motu on his own motion or on the application of any person aggrieved by that allotment of lease. 37. In the instant case, it was found as a fact by the Consolidation Officer as also by the Settlement Officer (Consolidation) that part of the land in question was the land appurtenant to the staff quarter of the Sugar Mill while the other part was utilised for storage tanks for molasses and for sullage water and other purposes connected with the functioning of the Mill. Since the land in question was being utilised as land appurtenant to the Staff Quarter of the Mill from before the date of vesting, that land would not vest in the State on account of Notification issued under Section 4 of the Act. The easement right available to the Sugar Mill in respect of the plots in question would also not stand destroyed and would continue to be enjoyed by the Mill. 38. The findings recorded concurrently by the consolidation Officer as also the Settlement Officer (consolidation) regarding the land in question being the land appurtenant to the Staff Quarter of the Mill or the land being utilised for storage of molasses and sullage water etc. have not been set aside by the Deputy Director of Consolidation nor has the High Court held that the findings were erroneous. That being so, the property, at no stage, vested in the State and, therefore, it could not, at any subsequent stage, vest in the Gaon Sabha. The Gaon Sabha, therefore, could not legally execute any lease in respect of these plots in favour of the respondent. 39. The High Court, without considering these questions, held that the validity of the lease, executed by the Gaon Sabha in favour of the respondent, could not be legally examined by the Consolidation Authorities under the U.P. Consolidation of Holdings Act, 1953. Reliance for this purpose was placed by the High Court on the Full Bench decision of the Allahabad High Court in Similesh Kumar v. Gaon Sabha, Uskar,, Ghazipur and others, 1977 Revenue Decision 409 : AIR 1977 Allahabad 360 and Bhurey and another v. Board of Revenue, U.P. and ors, 1984 Revenue Decision 294, in which the Allahabad High Court while considering the effect of amendment introduced in Section 210 held that a trespasser over the Gaon Sabha land cannot acquire sirdari rights even if he was in possession of that land for more than 12 years. The High Court also relied upon another decision in Chatar Singh v. Sahayak Sanchalak, Chakbandi and others, 1979 A.C.J. 335, in which it was again held that even if a person was in possession over the property of the Gaon Sabha for more than 12 years, he would not acquire sirdari rights under Section 210 of the U.P. Zamindari Abolition and Land Reforms Act. 40. In the Full Bench decision of the Allahabad High Court, referred to above, it was held that the Consolidation Authorities have no jurisdiction to consider the question of cancellation of lease which could be considered only by regular Courts. The decision of this Court in Gorakh Nath Dube v. Hari Narain Singh and others, (1973) 2 SCC 535 : 1974(1) SCR 339 : 1973 Revenue Decision 423, in which it was held that a void document which was liable to be ignored by the Court would not affect the jurisdiction of the consolidation Courts was distinguished. So also the decision of the Division Bench of the Allahabad High Court in Jagarnath Shukla v. Sita Ram Pande and others, 1969 A.L.J. 768, which was affirmed by this Court in Gorakh Nath Dubes case (supra) was also distinguished. We have carefully considered these decisions and, in our opinion, the Full Bench of the Allahabad High Court was in error in distinguishing the decision of this Court in Gorakh Nath Dubs case (supra) which has since been followed by this Court in Dulari Devi v. Janardan Singh, 1990 Supp. SCC 216; Ashrafi Lal v. Koili, (1995)4 SCC 163 ; and Muneshwar v. Raja Mohammed Khan, (1998) 6 SCC 582. 41. The decision of this Court in Gorakh Nath Dubes case (supra) was also followed by the Allahabad High Court in Ramanand v. D.D.C. and others, 1987 Revenue Decision 430, and it was held that a document which is void and is, therefore, liable to be ignored by the Courts, would not affect the jurisdiction of the consolidation Courts and they would be within their jurisdiction in adjudicating upon that document so as to finally decide the rights of the parties. The Full Bench decision of the High Court in Similesh Kumars case (supra) was distinguished. 42. In the instant case, in view of the provisions of Section 7(aa) and Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, the land in dispute, which was held by the Consolidation Officer and Settlement Officer (Consolidation) to be the land appurtenant to the Staff Quarter of the Sugar Mill, had not vested in the State under Section 6 of the Act as a consequence of the Notification issued under Section 4 of the Act. Once these plots did not vest in the State, it would not vest in the Gaon Sabha and the Gaon Sabha had, therefore, no jurisdiction to grant lease of those plots to the respondent. Such a lease was a void document from the inception and, consequently, the jurisdiction of the Consolidation Authorities was not affected. No other point was pressed before us. 43. ### Response: 1
505	Bondu Ramaswamy Vs. Bangalore Development Authority	forming residential layouts: Out of the total acquired area, 30% of the land area can be earmarked for roads and footpaths; and 15% to 10% for parks, open spaces and civic amenities. Out of the remaining 55% to 60% area available for forming plots, the Development Authority can auction 10% area as plots, allot 15% area as plots to urban middle class and allot 15% area as plots to economically weaker sections (at cost or subsidised cost), and release the remaining 15% to 20% area in the form of plots to the land-losers whose lands have been acquired, in lieu of compensation. (The percentages mentioned above are merely illustrative and can vary from scheme to scheme depending upon the local conditions, relevant Bye- laws/Rules, value of the acquired land, the estimated cost of development etc.). Such a model makes the land-loser a stake-holder and direct beneficiary of the acquisition leading to co-operation for the urban development scheme.88. In the preceding para, we have touched upon matters that may be considered to be in the realm of government policy. We have referred to them as acquisition of lands affect the vital rights of farmers and give rise to considerable litigations and agitations. Our suggestions and observations are intended to draw attention of the government and development Authorities to some probable solutions to the vexed problems associated with land acquisition, existence of which can neither be denied nor disputed, and to alleviate the hardships of the land owners. It may be possible for the government and development authorities to come up with better solutions. There is also a need for the Law Commission and the Parliament to revisit the Land Acquisition Act, 1894, which is more than a century old. There is also a need to remind Development Authorities that they exist to serve the people and not vice versa. We have come across Development Authorities which resort to `developmental activities by acquiring lands and forming layouts, not with the goal of achieving planned development or provide plots at reasonable costs in well formed layouts, but to provide work to their employees and generate funds for payment of salaries. Any development scheme should be to benefit the society and improve the city, and not to benefit the development authority. Be that as it may.89. When BDA prepares a development Scheme it is required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the notification under section 4(1) though available for acquisition, and out of the remaining 70% area which is notified, more than half (that is about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which is non-contiguous, it means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of `those who can influence and get their lands deleted and `those who cannot. Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number to citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition.90. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many landlosers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note of, while granting relief. The Division Bench has made an effort to protect the interests of all parties, on the fact and circumstances, by issuing detailed directions. But implementation of these directions may lead to further litigations and complications. To salvage the acquisition and to avoid hardships to BDA and its allottees and to avoid prolonged further round litigations emanating from the directions of the High Court, a more equitable way would be to uphold the decision of the division bench, but subject BDAs actions to certain corrective measures by requiring it to re-examine certain aspects and provide an option to the landlosers to secure some additional benefit, as an incentive to accept the acquisition. A direction to provide an option to the land-losers to seek allotment of developed plots in lieu of compensation or to provide for preferential allotment of some plots at the prevailing market price in addition to compensation will meet the ends of justice. Such directions will not be in conflict with the BDA (Allotment of sites) Rules, as they are intended to save the acquisitions. If the acquisitions are to be quashed in entirety by accepting the challenges to the acquisition on the ground of arbitrary deletions and exclusions, there may be no development scheme at all, thereby putting BDA to enormous loss. The directions of the High Court and this Court are warranted by the peculiar facts of the case and are not intended to be general directions applicable to regular acquisitions in accordance with law, without any irregularities. Conclusion	1[ds]On a careful consideration of the aforesaid observations, we are of the view that the said decision does not in any way express any view contrary to the clear enunciation of law in Sundaramier. In Mahendra Lal Jain, this court explained the difference betweenlaws governed by Article 13(1) andlaws which are governed by Article 13(2) and held that anylaw made in contravention of provisions of Part III, to the extent of contravention is a nullity from its inception. Let us now examine whether any provision of the BDA Act violated any provisions of Article 31 in part III of the Constitution. Clause (1) of Article 31 provided that no person shall be deprived of his property save by authority of law. As we are examining the validity of a law made by the state legislature having competence to make such law, there is no violation of Article 31(1). Clause (2) of Article 31 provided that no law shall authorise acquisition unless it provided for compensation for such acquisition and either fixed the amount of compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and given. BDA Act, does not fix the amount of compensation, but Section 36 thereof clearly provides that the acquisition will be regulated by the provisions of the Land Acquisition Act, 1894 so far as they are applicable. Thus the principles on which the compensation is to be determined and the manner in which the compensation is to be determined set out in the LA Act, become applicable to acquisitions under BDA Act. Thus there is no violation of Article 31(2). Article 31(3) merely provides that no law providing for acquisition shall have effect unless such law has received the assent of the President. Article 31(3) does not specify any fundamental right, but relates to the procedure for making a law providing for acquisition. As noticed above, it does not nullify any laws, but postpones the enforcement of a law relating to acquisition, until it receives the assent of the President. There is therefore no violation of Part III of the Constitution that can lead to any part of the BDA Act being treated as a nullity. As stated above, the effect of Article 31(3) was that enforcement of the provisions relating to acquisition was not possible/permissible till the assent of the President was received. Therefore, once the requirement of assent disappeared, the provisions relating to acquisition became enforceable.While it is true that BDA is not an elected body like the municipality, it has several elected representatives as members. Section 3 relates to the Constitution of the Authority and provides that the Authority shall consist of 22 members and made up as followsofficers of the BDA viz., The Chairman, The Finance Member, The Engineering Member, The Town Planning Member, The Commissioner and Secretary of the Authority. (All of them areemployees, three of them are specialists in finance, engineering and townelected representatives, that is, two members of state legislature assembly and two counsellors of Bangalore Municipalrepresentative of the state government and four representatives of statutory corporations, that is, the Commissioner of Bangalore Municipal Corporation and representatives of Bangalore Water Supply Sewerage Board, Karnataka Electricity Board, and Karnataka State Road Transportmembers of the public (with minimum of one woman, one person belonging to SC/ST, and one representingArchitect.It would thus be seen that members of the BDA represent different interests and groups, technical persons and elected representatives. Further, no development scheme can be finalised or put into effect without the sanction of the State Government which in turn has to take note of any representation by the Bangalore Municipal Corporation in regard to the development scheme. Therefore, the mere fact that BDA is not wholly elected body as in the case of a municipal corporation will make no difference. The membership pattern is more suited to fulfil the requirements of a specialist agency executing development schemes. We therefore find no merit in the contention that provisions of BDA Act become inoperative, on Parts IX andIXA of the Constitutioncoming into force.28. The BDA Act empowers the Bangalore Development Authority to formulate schemes for the development of Bangalore Metropolitan Area. The word `development refers to building, engineering or other operations in regard to land, that is making layouts and making available plots for allotment to members of the public. It is authorised to acquire lands for execution of development schemes, prepare layouts and construct buildings, provide drainage, water supply and electricity, provide sanitary arrangements, form open spaces, lease, sell or transfer the plots/immovable properties. The area in which the BDA Act operates is totally different from the areas in which Part IX A of the Constitution and KMC Act which relate to local. The appellants contended that the deletion of as much as 1089 acres 12 guntas from out of 3839 acres 12 guntas proposed to be acquired under the preliminary notification would mean that more than 28% was deleted. Several deletions formed islands within the acquired areas. Some of the deletions in some villages were of such a magnitude that what remained of the acquisition in those villages were small and negligible islands completely surrounded by acquired/deleted lands making it difficult or impossible to effectively use such remaining land for development. Such an extensive deletion can lead to the following two inferences: (i) that there was total non application of mind when the proposal was made and without proper survey and by completely ignoring the ground realities about the constructed areas, suitability and availability for acquisition and other relevant circumstances, BDA in extreme haste had proposed acquisition; and/or (ii) the deletion of such vast areas showed that the deletions were arbitrarily made or to favour a chosen few.67. The learned Single Judge after examining the facts held that there were improper inclusions and exclusions which amounted to hostile discrimination. He held that the acquisition of certain lands andor deletion from acquisition of some other similarly situated lands situated in the same area, was arbitrary and discriminatory, violative of Article 14 of the Constitution. He further held that the BDA had failed to furnish any plan showing the details of the lands proposed for acquisition, lands deleted from acquisition, built up areas and the lands originally not included in the acquisition, even though they were in the midst of the acquired lands. The learned Single Judge also noticed that in regard to the deletion of 500 acres, no reasons have been assigned.68. The Division Bench agreed with the single Judge that there were improper inclusions and exclusions amounting to discrimination. The Division Bench was of the view that though the single Judge was justified in holding that there was discrimination in acquiring the land, that alone cannot be a ground for quashing the entire acquisition of 2750 acres. The Division Bench also noticed that the BDA had not traversed the allegations regarding discrimination specifically and even a bare perusal of the map showed that 2750 acres sought to be acquired, did not form a contiguous area. In particular he referred to the haphazard manner in which the acquisition of deletions were made in Kempapura and Srirampura villages. The Division Bench noticed that even in other villages small extents of acquired lands were completely surrounded by large chunks of areas which were either not acquired or deleted from acquisition, making access to such notified land difficult. In the circumstances instead of setting aside the acquisition, in view a memo and the memo filed by the BDA proposing certain remedial measures, the Division Bench decided to give an opportunity to all the landowners (excluding site owners) who had taken the plea of discrimination to file an appropriate application before the BDA for deletion of their lands from acquisition and to substantiate their contention by producing such evidence as was available with them.69. The BDA does not seriously dispute the fact that there were some amount of arbitrariness and discrimination in the matter of inclusions and exclusions. Apart from that we find that even in this court the BDA has not come up with true and correct position. As noticed above the break up of deletions and the reasons for such deletions have not been disclosed. The extent of deletion without explanation has jumped from 589.12 acres to 1089 acres 12 guntas. The BDA has not chosen to explain the exact extent of the government land involved.70. Even the map produced showing the 2750 acres of acquired land and 1089 acres 12 guntas of deleted area contains several discrepancies. For example, in regard to Sampigehalli, the map produced before us shows that the entire extent of the village has been acquired except the village proper (Abadi) and survey Nos.10 and 11. But we find that survey Nos.10 and 11 are not in fact deleted and the declaration shows those survey nos. as acquired. In the same village a perusal of the preliminary notification and final declaration shows that Survey Nos.38/2A, 44/10, 44/11, 44/13, 44/14, 44/15 and 46/4 have been omitted in the final declaration but the plan shows no such omission. On the other hand, it shows the entire village as having been acquired.The acquisition was for planned development of the city and to avoid haphazard growth. But when the layout plan is examined with reference to the preliminary notification and final declaration, several startling facts emerge. We may first refer to the pick and choose method adopted with reference to Kempapura and Sriramapura villages, to which the division bench made specific reference.(i) In Kempapura village, large areas, that is nearly 50% of the area of the village (Sy. No.2, 4 to 16, 23, 24, 30, 31) had not been included in the preliminary notification, even though the entire surrounding area had been notified. Only 55.13 acres were notified in the preliminary notification but the final declaration was only in regard to 26A.38G and the remaining 28A.15G (more than 51% of what was notified) were deleted. After deletion of Sy. No.1, 3, 18(Part) and 33 the entire northern portion (north of the Road bisecting the village) is free from acquisition (except part of Sy. No.17). Even in the southern portion of the village, there are haphazard deletions.(ii) In Srirampura village, quite a few lands (Sy. No.2, 3, 7(Part), 13, 62, 64, 65) were not included in the preliminary notification even though all the surrounding areas had been notified. Further, out of total area of 196A.35G notified in the preliminary notification, only 94A.13G find a place in the final declaration and the remaining 102A.22G (more than 52% of what was notified) were deleted. The acquired lands of 94A.13G are not in a contiguous block, but in eleven odd shaped pockets. The deletions and initial omissions make it impossible to have orderly development in regard to acquisition in this village. Some of the pockets are of such odd shape and size that BDA proposes to leave them as stand alone parks/open spaces/community centres, without any development.73. We find the haphazard and arbitrary exclusions are in several other villages also, though not to the extent in Kempapura and Sriramapura. We may refer to some of them :(i) Venkateshapura is a comparatively small village. All the lands were proposed for acquisition under the preliminary notification (except a block consisting of Sy. No.6, 7 and 8) in all measuring 95A.05G. Virtually the entire southern and western portions of the village have been omitted in the final declaration and only 60A.13G are included in the final declaration. But the entire southern portion of the village (about 30 acres) have been deleted except four small pockets which have not been deleted :(a) Sy. No.30 and 31 measuring 24 Guntas and 25 Guntas in all one acre and nine guntas.(b) Sy. No.33 and 34 measuring 2A.06G and 1A.18G, in all 3A.24G;(c) Sy No.37/2 measuring 2A.10G.(d) Sy. No.19/1 measuring 3A.31G.There is no explanation as to why, when all surrounding lands are deleted these small four pockets are acquired.(ii) In Nagavara and Hennuru villages, the southern portions of the villages were not notified for acquisition. But deletions are haphazard and have left some small pockets of acquired lands. For example, in Nagavara, Sy. No.107 measuring 1A.4G, portion of Sy. No. 7 measuring 21 Guntas, Sy. No.70 measuring 25 Guntas, Sy. No.152 measuring 6A.4G bifurcated by a road form islands of acquired lands. In the entire southern part of Nagavara which runs into hundreds of acres, only part of Sy. No.152 is proposed to be acquired. In Hennuru Sy. No.103 is a small pocket (28 Guntas) which is acquired, is surrounded by lands not acquired/deleted. There are several other islands in Hennuru which are not capable of being developed due to their small extents. Their Survey Numbers are not clear in the map produced.(iii) In Challakere also we find haphazard deletions. We may refer to two stand alone pockets, that is land to the east of Sy. No.104 and the land to the east of 100.What we have referred above is illustrative and not exhaustive. Similar pockets of small extents of acquired lands surrounded by lands which are not acquired/deleted, exist in other villages also.74. The object of establishing a development authority like BDA is to provide for orderly and planned development so that the haphazard growth of a city is checked. The disastrous effects of unauthorised and illegal development by some unscrupulous colonisers/developers are well known. In a planned and authorised standard residential developments, about 30% to 35% of the total area is used to provide broad and adequate roads and footpaths, drains etc., and at least another 10% to 15% of the land is earmarked for parks, playgrounds and community development or civic amenities (schools, hospitals, police stations, post offices, mini markets, community halls etc). Further the layout will have adequate provision for drainage of rain water as well as sewerage water, adequate water supply and electricity, well laid metalled roads which properly connect the layout to Main Roads and other surrounding areas, by providing approaches and linkages. But in an unauthorised or illegal development, the roads are narrow and minimal, virtually no open spaces for parks and playgrounds, and no area earmarked for civic amenities. There will be no proper water supply or drainage; and there will be a mixed use of the area for residential, commercial and industrial purposes converting the entire area into a polluting concrete jungle. The entries and exits from the layouts will be bottlenecks leading to traffic jams. Once such illegal colonies come up with poor infrastructure and amenities, it will not be possible to either rectify and correct the mistakes in planning nor provide any amenities even in future. Residents of such unauthorized layouts are forever be condemned to a life of misery and discomfort. It is to avoid such haphazard, unhealthy development activities by greedy illegal colonisers and ignorantthe State Legislatures provided for City Improvement Trusts and Development Authorities so that they could develop well planned citizen friendly layouts with all amenities and facilities. In this background large tracts of lands running into hundreds of acres are acquired to have integrated layouts. Only when a layout is formed on a large scale, adequate provision can be made for good size parks, playgrounds and community/civil amenities. For example, if a layout is made in 1000 acres of land, the developer can provide a good sized park of twenty acres and one or two small parks of 2 to 5 acres, have playgrounds of 5 to 10 acres. Instead of such an integrated large layout, if 200 small individual layouts are made in areas ranging from 2 to 10 acres, there will obviously be no provision for a park or a playground nor any space for civil amenities. Further small private colonies/layouts will not have well aligned uniform roads and accesses. While it is true that Municipal and Town Planning authorities can by strict monitoring and licensing procedures arrest haphazard development, it is seldom done. That is why formation of small layouts by developers is discouraged and development authorities take up large scale developments. If 200 acres of land on the outskirts of a city, has to be developed, and if 30 to 50 private developers proceed to develop areas ranging from 2 to 15 acres, it will be impossible for them to provide for parks or any playgrounds of reasonable size or make provision for planned civil amenities. Further, there will be no alignment in regard to roads. Each layout will have roads to suit their own convenience and this will lead toand bottlenecks leading to traffic snarls. The width of the roads also will differ from layout to layout depending upon the `greed of each private developer, resulting in the size, shape and alignment of roads varying for every stretch of 200 to 500 meters. There will be no proper drainage of rain water or sewerage water leading to constant flooding or stagnation. Therefore large integrated layouts were found to be the answer for orderly development. No small developer can develop a good township in a few acres of land. It was also thought that developers will be mainly profit motivated and will try to minimise the roads, open spaces and community areas. It is therefore that legislature constituted statutory development authorities to undertake large scale developments without any profit motive.75. If authorities like BDA notify 3000 acres of land for development and then delete from the proposed acquisition several pockets which aggregate to about 1000 to 1500 acres, then the result is obvious. There will be no integrated development at all. What was intended to be a uniform, contiguous and continuous layout of 3000 acres will get split into small pockets which are not connected with the other pockets or will be intersected by own illegal pockets of private colonies thereby perpetuating what was intended to be prevented, that is haphazard growth without proper infrastructure. It will then not be possible to provide proper road connections and drainage and impossible to provide appropriate parks, playgrounds and civic amenities of appropriate and adequate size and situation. When a development authority starts developing pockets of lands measuring 2 acres to 5 acres, obviously it also cannot provide open spaces and civic amenities and may end up with one pocket having plots, another far away pocket having a playground and another far away pocket having a park and their being no uniformity or continuity of roads. As noticed above, a large layout enables formation of long and straight roads for easy movement of traffic. On the other hand, short and disjointed roads affect smooth movement of traffic. Therefore, if a development authority having acquired a large tract of land withdraws or deletes huge chunks, the development by the development authority will resemble haphazard developments by unscrupulous private developers rather than being a planned and orderly development expected from a Development Authority. Therefore when a large layout is being planned, the development authorities should exercise care and caution in deleting large number of pockets/chunks of land in the middle of the proposed layout. There is no point in proposing a planned layout but then deleting various portions of land in the middle merely on the ground that there is a small structure of 100 sq.ft or 200 sq.ft. which may be authorized or unauthorized. Such deletions make a mockery of development. Further such deletions/exclusions encourage corruption and favouritism and bring discontent among those who are not favourably treated.76. The complaint by appellants is that in the proposed Arkavathi layout, rich and powerful with "connections" and "money power" were able to get their lands, (even vacant lands) released, by showing some imaginary structure or by putting up some unauthorised structure overnight. Though we do not propose to go into motives, the concurrent finding by the learned Single Judge and Division Bench is that there are arbitrary unexplained deletions. While we may not comment on policy, it is obvious that deletion from proposed acquisition should be only in regard to areas which are already well developed in a planned manner. Sporadic small unauthorised constructions in unauthorised colonies/ layouts, are not to be deleted as the very purpose of acquisition for planned development is to avoid such unauthorised development. If hardship is the reason for such deletion, the appropriate course is to give preference to the land/plot owners in making allotments and help them to resettle and not to continue the illegal and haphazard pockets merely on the ground that some temporary structure or a dilapidated structure existed therein. A development authority should either provide orderly development or should stay away from development. It cannot act like unscrupulous private developers//colonisers attempting development of small bits of land with only profit motive. When we refer to private developers/colonisers by way of comparison, our intention is not to deprecate all private developers/colonisers. We are aware that several private developers/colonisers provide large, well planned authorized developments, some of which are even better than developments by development authorities. What is discouraged and deprecated is small unauthorized layouts without any basic amenities. Be that as it may.77. What do we say about a `development, where with reference to the total extent of a village,is not notified at all, and more than half is deleted from proposed acquisition of the remainingand only the remaining about 20% to 30% area is acquired, that too not contiguously, but in different parcels and pockets. What can be done with such acquisition? Can it be used for orderly development? Can it avoid haphazard and irregular growth? The power of deletion and withdrawal unless exercised with responsibility and fairly and reasonably, will play havoc with orderly development, will add to haphazard and irregular growth and create discontent among sections of society who were not fortunate to have their lands deleted.78. Learned Single Judge as also the Division Bench have concurrently found that BDA had indulged in pick and choose deletions and acquisitions. The learned Single Judge and the Division Bench have found discrimination and irregularities, both in initial omission of certain lands and in deleting of some lands which were notified. They have also recorded a finding that having regard to the nature of deletions, the acquisition lands do not form a continuous or contiguous area and acquisition of small extents of land surrounded by large chunks oflands and lands which have been omitted from acquisition would make the development of acquired pockets exceedingly difficult.79. The Division Bench was of the view that quashing of the entire acquisition may not the remedy. It, therefore, decided to salvage the situation by issuing a series of directions, whereby the land owners were permitted to apply for deletion of their lands also from acquisition on the ground that (a) the lands were situated within green belt area; (b) the lands were totally built up; (c) the lands had buildings constructed by charitable, educational and/or religious institutions; (d) the lands were used for nurseries; (e) lands where running factories had been set up; and (f) lands were similar to the adjoining lands which were not notified for acquisition. The Court directed that if the BDA comes to the conclusion that the lands of applicants were released are similar to those which have been excluded from acquisition their lands should also be deleted from acquisition. This direction requires clarification.We are conscious of the fact that when a person subjected to blatant discrimination, approaches a court seeking equal treatment, he expects relief similar to what others have been granted. All that he is interested is getting relief for himself, as others. He is not interested in getting the relief illegally granted to others, quashed. Nor is he interested in knowing whether others were granted relief legally or about the distinction between positive equality and negative equality. In fact he will be reluctant to approach courts for quashing the relief granted to others on the ground that it is illegal, as he does not want to incur the wrath of those who have benefited from the wrong action. As a result, in most cases those who benefit by the illegal grants/actions by authorities, get away with the benefit, while others who are not fortunate to have `connections or `money power suffer. But these are not the grounds for courts to enforce negative equality and perpetuate the illegality. The fact that an Authority has extended favours illegally in the case of several persons cannot be a ground for courts to issue a mandamus directing repetition thereof, by applying the principle of equality. Article 14 guarantees equality before law and not equality in subverting law nor equality in securing illegal benefits. But courts cannot be silent bystanders if acquisition process is used by officers of the Authority with ulterior or malafide motives. For example, let us take a case where 2000 acres are required for a project as per the Development Scheme, but the preliminary notification is issued in respect of 3000 acres; and when the land owners `apply or `approach the Authority, 1000 acres of lands are released. Or take a case where a project required 1000 acres of contiguous land for a development project, and preliminary notice is accordingly issued for acquisition of a compact contiguous extent of 1000 acres; but thereafter without any logical explanation or perceivable reason, several large areas in the midst of the proposed layout, are denotified or deleted making it virtually impossible to execute the development scheme, as proposed. In the absence of satisfactory explanations in such a case, it may be necessary to presume that there was misuse or abuse of the acquisition process. Be that as it may.82. We may illustrate the principle relating to positive and negative equality with reference to following notional acquisition cases:(i) Where a petitioners land and his neighbours land are of similar size and have similar structures and are similarly situated, and the policy of the Development Authority is to withdraw the acquisition in respect of lands which are `constructed, if the neighbours land is deleted from the proposed acquisition on the ground that it has a construction of 1000 sq.ft. and the petitioners land is not so deleted, the petitioner will be entitled to relief on the ground of discrimination. But if the neighbours land measures 2000 sq.ft. and contains a house of 1000 sq.ft and the petitioners land measures one acre and contains a house measuring 1000 sq.ft., the petitioner cannot obviously contend that because his neighbours property was deleted from acquisition, being a land with a construction, his one acre land should also be deleted in entirety from the acquisition, as it had a 1000 sq.ft. construction. But it may be possible for him to contend that an extent equal to what was released to his neighbour, should be released.(ii) Where the lands owned by two neighbours are equal in size having similar structures, but one was constructed before the preliminary notification after obtaining a licence and the other was constructed after the preliminary notification unauthorisedly, the owner of the land with the unauthorised structure cannot obviously claim parity with the owner of the land with the authorised structure, for seeking deletion from acquisition.(iii) Where the vacant lands of `A and `Btwo neighbours are acquired. The Authority had a policy to delete properties with constructions, as on the date of preliminary notification. Both put up unauthorised structures clandestinely overnight, after the preliminary notification. The land of `B is deleted from acquisition on the ground that it has a construction. If `A approaches court and claims release of his land claiming parity with `B, the claim will have to be rejected. But, where the Authority admits that Bs land was deleted even though the construction was subsequent to preliminary notification, the court may direct the Authority to take appropriate action in accordance with law for cancelling the deletion.(iv) If in a village all the lands are notified and subsequently all lands except two or three small pockets are deleted without any valid ground, the persons whose lands were acquired can also seek deletion, on the ground that all the surrounding lands have been deleted. Court cannot direct deletion merely because the surrounding lands were deleted, as those deletions were illegal and not based on any valid policy. But the petitioners can contend that the very purpose of acquisition had been rendered infructuous by deletion of the majority of lands from the proposed acquisition, and the project or the scheme has ceased to exist and cannot be executed only with reference to their lands. In such a case, relief can be granted not on the ground that there has been discrimination, but on the ground that the proposed development scheme becameon account of most of the lands being deleted from acquisition.Therefore, a land owner is not entitled to seek deletion of his land from acquisition, merely on the ground that lands of some others have been deleted. He should make out a justifiable cause for deleting his land from acquisition. If the Rules/Scheme/Policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the Rules or Scheme or policy for deletion, his land is not eligible for deletion, his land cannot be deleted merely on the ground that some other land similarly situated had been deleted (even though that land also did not fall under any category eligible to be deleted), as that would amount to enforcing negative equality. But where large extents of land of others are indiscriminately and arbitrarily deleted, then the court may grant relief, if on account of such deletions, the development scheme for that area has become inexecutable or has resulted in abandonment of the scheme. Alternatively, if a common factor can be identified in respect of other lands which were deleted, and if the petitioners land also has that common factor, relief can be granted on the ground that the Authority had adopted the common factor as the criterion in the case of others and therefore adopting the same yardstick, the land of petitioners also should be deleted. These principles may be kept in view while implementing direction in para 105D(i)(f) of the Judgment of the Division Bench of the High Court.83. It is necessary to refer another aspect of land acquisition for urban development. `Public purposes may be of different degrees of importance/priority/urgency. An acquisition for laying a road or a water supply canal may be of higher priority category when compared to acquisitions for formation of an urban residential layout. Planned urban development by forming residential layouts, is carried out not only by statutory development authorities, but also by private developers/colonisers. The reason why legislature has created Development Authorities for executing development schemes, is because they can undertake large scale developments providing better quality facilities with no profit motives. But in trying to achieve planned development and thereby benefit the urban middle class or urban poor by providing them housing plots, the interests of agriculturists/land owners who lose their livelihood on account of such acquisition, should not be ignored. Though the legislature intended that theshould get reasonable compensation at the time of dispossession or immediately thereafter, it seldom happens in practice.Frequent complaints and grievances in regard to the following five areas, with reference to the prevailing system of acquisitions governed by Land Acquisition Act,1894, requires the urgent attention of the state governments and development authorities:(i) absence of proper or adequate survey and planning before embarking upon acquisition;(ii) indiscriminate use of emergency provisions in section 17 of the LA Act;(iii) notification of areas far larger than what is actually required, for acquisition, and then making arbitrary deletions and withdrawals from the acquisitions;(iv) offer of very low amount as compensation by Land Acquisition Collectors, necessitating references to court in almost all cases;(v) inordinate delay in payment of compensation; and(vi) absence of any rehabilitatory measures.While the plight of project oustees and landlosers affected by acquisition for industries has been frequently highlighted in the media, there has been very little effort to draw attention to the plight of farmers affected by frequent acquisitions for urban development.85. There are several avenues for providing rehabilitation and economic security to landlosers. They can be by way of offering employment, allotment of alternative lands, providing housing or house plots, providing safe investment opportunities for the compensation amount to generate a stable income, or providing a permanent regular income by way of annuities. The nature of benefits to the landlosers can vary depending upon the nature of the acquisition. For this limited purpose, the acquisitions can be conveniently divided into three broad categories:(i) Acquisitions for the benefit of the general public or in national interest. This will include acquisitions for roads, bridges, water supply projects, power projects, defence establishments, residential colonies for rehabilitation of victims of natural calamities.(ii) Acquisitions for economic development and industrial growth. This will include acquisitions for Industrial Layouts/Zones, corporations owned or controlled by the State, expansion of existing industries, and setting up Special Economic Zones.(iii) Acquisitions for planned development of urban areas. This will include acquisitions for formation of residential layouts and construction of apartment Blocks, for allotment to urban middle class and urban poor, rural poor etc.86. In acquisitions falling under the first category, the general public are the direct beneficiaries. In the second category, the beneficiaries are industrial or business houses, though ultimately, there will be indirect benefit to the public by way of generation of employment and overall economic development. In the third category, the beneficiaries are individual members of public who, on account of allotment of plots/flats, will be able to lead a better quality of life by having a shelter with comforts, apart from the fact that the planned development of cities and towns is itself in public interest. At present, irrespective of the purpose, in all cases of acquisition, the landloser gets only monetary compensation. Acquisitions of the first kind, does not normally create any resistance or hostility. But in acquisitions of the second kind, where the beneficiaries of acquisition are industries, business houses or private sector companies and in acquisitions of the third kind where the beneficiaries are private individuals, there is a general feeling among thethat their lands are taken away, to benefit other classes of people; that these amount to robbing Peter to pay Paul; that their lands are given to others for exploitation or enjoyment, while they are denied their land and their source of livelihood. When this grievance and resentment remains unaddressed, it leads to unrest and agitations. The solution is to make thealso the beneficiaries of acquisition so that thedo not feel alienated but welcome the acquisition.87. It is necessary to evolveschemes to suit particular acquisitions, so that they will be smooth, speedy, litigation free and beneficial to all concerned. Proper planning, adequate counselling, and timely mediation with different groups of landlosers, should be resorted. Let us consider the different types of benefits that will make acquisitionsIn acquisitions of the first kind (for benefit of general public or in national interest) the question of providing any benefit other than what is presently provided in the Land Acquisition Act, 1894 may not be feasible. The State should however ensure that the landloser gets reasonable compensation promptly at the time of dispossession, so that he can make alternative arrangements for his rehabilitation and survival.87.2) Where the acquisition is for industrial or business houses (forindustries or special economic zones etc.), the Government should play not only the role of a land acquirer but also the role of the protector of theAs most of the agriculturists/small holders who lose their land, do not have the expertise or the capacity for a negotiated settlement, the state should act as a benevolent trustee and safeguard their interests. The Land Acquisition Collectors should also become Grievance Settlement Authorities. The various alternatives including providing employment, providing equity participation, providing annuity benefits ensuring a regular income for life, providing rehabilitation in the form of housing or new businesses, should be considered and whichever is found feasible or suitable, should be made an integral process of the scheme of such acquisitions. If the government or Development Authorities act merely as facilitators for industrial or business houses, mining companies and developers or colonisers, to acquire large extent of land ignoring the legitimate rights ofit leads to resistance, resentment and hostility towards acquisition process.87.3) Where the acquisition is of the third kind, that is, for urban development (either by formation of housing colonies by Development Authorities or by making bulk allotment to colonisers, developers or housing societies), there is no scope for providing benefits like employment or a share in the equity. But the landlosers can be given a share in the development itself, by making available a reasonable portion of the developed land to the landloser so that he can either use it personally or dispose of a part and retain a part or put it to other beneficial use. We may give by way of an illustration a model scheme for large scale acquisitions for planned urban development by forming residential layouts: Out of the total acquired area, 30% of the land area can be earmarked for roads and footpaths; and 15% to 10% for parks, open spaces and civic amenities. Out of the remaining 55% to 60% area available for forming plots, the Development Authority can auction 10% area as plots, allot 15% area as plots to urban middle class and allot 15% area as plots to economically weaker sections (at cost or subsidised cost), and release the remaining 15% to 20% area in the form of plots to thewhose lands have been acquired, in lieu of compensation. (The percentages mentioned above are merely illustrative and can vary from scheme to scheme depending upon the local conditions, relevant Byelaws/Rules, value of the acquired land, the estimated cost of development etc.). Such a model makes theer and direct beneficiary of the acquisition leading tofor the urban development scheme.88. In the preceding para, we have touched upon matters that may be considered to be in the realm of government policy. We have referred to them as acquisition of lands affect the vital rights of farmers and give rise to considerable litigations and agitations. Our suggestions and observations are intended to draw attention of the government and development Authorities to some probable solutions to the vexed problems associated with land acquisition, existence of which can neither be denied nor disputed, and to alleviate the hardships of the land owners. It may be possible for the government and development authorities to come up with better solutions. There is also a need for the Law Commission and the Parliament to revisit the Land Acquisition Act, 1894, which is more than a century old. There is also a need to remind Development Authorities that they exist to serve the people and not vice versa. We have come across Development Authorities which resort to `developmental activities by acquiring lands and forming layouts, not with the goal of achieving planned development or provide plots at reasonable costs in well formed layouts, but to provide work to their employees and generate funds for payment of salaries. Any development scheme should be to benefit the society and improve the city, and not to benefit the development authority. Be that as it may.89. When BDA prepares a development Scheme it is required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the notification under section 4(1) though available for acquisition, and out of the remaining 70% area which is notified, more than half (that is about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which isit means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of `those who can influence and get their lands deleted and `those who cannot. Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number to citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition.90. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many landlosers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note of, while granting relief. The Division Bench has made an effort to protect the interests of all parties, on the fact and circumstances, by issuing detailed directions. But implementation of these directions may lead to further litigations and complications. To salvage the acquisition and to avoid hardships to BDA and its allottees and to avoid prolonged further round litigations emanating from the directions of the High Court, a more equitable way would be to uphold the decision of the division bench, but subject BDAs actions to certain corrective measures by requiring it tocertain aspects and provide an option to the landlosers to secure some additional benefit, as an incentive to accept the acquisition. A direction to provide an option to theto seek allotment of developed plots in lieu of compensation or to provide for preferential allotment of some plots at the prevailing market price in addition to compensation will meet the ends of justice. Such directions will not be in conflict with the BDA (Allotment of sites) Rules, as they are intended to save the acquisitions. If the acquisitions are to be quashed in entirety by accepting the challenges to the acquisition on the ground of arbitrary deletions and exclusions, there may be no development scheme at all, thereby putting BDA to enormous loss. The directions of the High Court and this Court are warranted by the peculiar facts of the case and are not intended to be general directions applicable to regular acquisitions in accordance with law, without any irregularities.	1	33,855	### 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: forming residential layouts: Out of the total acquired area, 30% of the land area can be earmarked for roads and footpaths; and 15% to 10% for parks, open spaces and civic amenities. Out of the remaining 55% to 60% area available for forming plots, the Development Authority can auction 10% area as plots, allot 15% area as plots to urban middle class and allot 15% area as plots to economically weaker sections (at cost or subsidised cost), and release the remaining 15% to 20% area in the form of plots to the land-losers whose lands have been acquired, in lieu of compensation. (The percentages mentioned above are merely illustrative and can vary from scheme to scheme depending upon the local conditions, relevant Bye- laws/Rules, value of the acquired land, the estimated cost of development etc.). Such a model makes the land-loser a stake-holder and direct beneficiary of the acquisition leading to co-operation for the urban development scheme.88. In the preceding para, we have touched upon matters that may be considered to be in the realm of government policy. We have referred to them as acquisition of lands affect the vital rights of farmers and give rise to considerable litigations and agitations. Our suggestions and observations are intended to draw attention of the government and development Authorities to some probable solutions to the vexed problems associated with land acquisition, existence of which can neither be denied nor disputed, and to alleviate the hardships of the land owners. It may be possible for the government and development authorities to come up with better solutions. There is also a need for the Law Commission and the Parliament to revisit the Land Acquisition Act, 1894, which is more than a century old. There is also a need to remind Development Authorities that they exist to serve the people and not vice versa. We have come across Development Authorities which resort to `developmental activities by acquiring lands and forming layouts, not with the goal of achieving planned development or provide plots at reasonable costs in well formed layouts, but to provide work to their employees and generate funds for payment of salaries. Any development scheme should be to benefit the society and improve the city, and not to benefit the development authority. Be that as it may.89. When BDA prepares a development Scheme it is required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the notification under section 4(1) though available for acquisition, and out of the remaining 70% area which is notified, more than half (that is about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which is non-contiguous, it means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of `those who can influence and get their lands deleted and `those who cannot. Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number to citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition.90. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many landlosers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note of, while granting relief. The Division Bench has made an effort to protect the interests of all parties, on the fact and circumstances, by issuing detailed directions. But implementation of these directions may lead to further litigations and complications. To salvage the acquisition and to avoid hardships to BDA and its allottees and to avoid prolonged further round litigations emanating from the directions of the High Court, a more equitable way would be to uphold the decision of the division bench, but subject BDAs actions to certain corrective measures by requiring it to re-examine certain aspects and provide an option to the landlosers to secure some additional benefit, as an incentive to accept the acquisition. A direction to provide an option to the land-losers to seek allotment of developed plots in lieu of compensation or to provide for preferential allotment of some plots at the prevailing market price in addition to compensation will meet the ends of justice. Such directions will not be in conflict with the BDA (Allotment of sites) Rules, as they are intended to save the acquisitions. If the acquisitions are to be quashed in entirety by accepting the challenges to the acquisition on the ground of arbitrary deletions and exclusions, there may be no development scheme at all, thereby putting BDA to enormous loss. The directions of the High Court and this Court are warranted by the peculiar facts of the case and are not intended to be general directions applicable to regular acquisitions in accordance with law, without any irregularities. Conclusion ### Response: 1
506	Ambadas Khanduji Shinde and Ors Vs. Ashok Sadashiv Mamurkar and Ors	rents. It is further stated that the Plaintiffs have sold the shop in ground floor premises measuring about 7 x 15" vide sale deed dated 30-09-2004 and another ground floor shop measuring 257 sq. ft. by sale deed dated 13th May, 2005 and another room by sale deed dated 29-05-1995. It is also stated that the Plaintiffs are running Pathela on the Nazul land for which Corporation has issued notices to remove the same.6. The trial Court framed eight issues for adjudication and after a full fledged trial, in response to the issue of willful default held that this rents were paid to the mother of Plaintiffs and there was no willful default and the issue is held against the Plaintiffs. The second ground raised by the Plaintiffs i.e. change of nature of business was also negatived. But on the aspect of bona fide requirement, Court has come to a definite conclusion that the requirement of the Plaintiffs is bona fide to run the kirana business as Plaintiffs 3 & 4 are unemployed. The Court also observed that the Defendants could not discharge the burden cast upon them in this regard. They could not establish that it is the intention of the landlord to sell away the suit Schedule property. Hence the trial Courts has concluded that even balance of convenience is also in favour of the Plaintiffs and accordingly decreed the suit.7. Aggrieved by the same, the Respondents/tenants carried the matter by way of appeal to the District Court and the District Court remanded the matter to the trial Court to try it as a regular civil suit. Later the same was numbered as Regular Civil Suit No. 47 of 2005 for ejection and possession and the Court decreed the suit on the same findings as were recorded before remand.8. Then the judgment and decree was carried in appeal by the tenant and the same was numbered as Regular Civil Appeal No. 104 of 2011 on the file of the Ld. District Judge, Amravati and after hearing the parties and going through the record, the appellate court confirmed the findings of the trial Court and dismissed the appeal with costs by judgment and decree dated 9-6-2011. The appellate court, after dealing with each and every issue, has agreed with the findings of the trial Court in toto.9. Then the matter was carried on to the High Court by way of Civil Revision Application No. 50 of 2013. The learned judge allowed the Civil Revision Petition which is impugned before us.10. We have heard the learned Counsel on either side and perused the material placed before us. We are inclined to interfere with the order of the High Court on two aspects. One is the reasoning given by the learned Judge while allowing the revision lacked merit and secondly the order passed by the learned Judge is beyond its jurisdiction conferred Under Section 115 of the Code of Civil Procedure.11. Having elucidated above the analysis of the evidence on record both by the trial Court and by the District Court, we find substance in the contention of the Appellants that the High Court had no valid reason or justification to interfere with the concurrent findings in the exercise of its revisional jurisdiction. The sale of two-shops by the landlords on 24 September 2004 and 13 May 2005 was admittedly to existing tenants in occupation of the shops. This is not a case where the landlord has obtained vacant possession of shops which were earlier given on rent and thereafter sold them as vacant units to a third party in an arms-length transaction. The fact that the sale by the landlord was to existing tenants is an important circumstance which supports the finding of the trial Court that in such a situation, the sale would be by reason of financial need or in compelling circumstances. This view of the trial Court, which was affirmed by the District Court, cannot be regarded as perverse or based on no evidence, as the High Court held.12. Moreover, there is a manifest error on the part of the High Court in holding that the landlords failed to explain the circumstances in which they obtained vacant possession of one shop on 19 July 2005 or on how it was being utilized. We have, in the earlier part of this judgment, extracted the findings of the trial Court and the first appellate Court, which indicate that in the shop of which vacant possession was obtained, a provision store is being conducted jointly. In this background, it was found that the need felt by the father as head of the family that his sons should be settled in independent businesses was genuine. The co-owners cannot be compelled to carry on business jointly since they are the best judges of their need. The High Court has overlooked these findings and has arrived at a patently erroneous conclusion that there was no explanation from the landlords of the manner in which the shop which had fallen vacant was being utilized. There was in fact an explanation. Each of the reasons which weighed with the High Court in reversing the concurrent findings were hence specious.13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction Under Section 115 of the Code of Civil Procedure. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate Courts. Under Section 115 of the Code of Civil Procedure, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the trial Court.	1[ds]10. We have heard the learned Counsel on either side and perused the material placed before us. We are inclined to interfere with the order of the High Court on two aspects. One is the reasoning given by the learned Judge while allowing the revision lacked merit and secondly the order passed by the learned Judge is beyond its jurisdiction conferred Under Section 115 of the Code of Civil Procedure11. Having elucidated above the analysis of the evidence on record both by the trial Court and by the District Court, we find substance in the contention of the Appellants that the High Court had no valid reason or justification to interfere with the concurrent findings in the exercise of its revisional jurisdiction. The sale of two-shops by the landlords on 24 September 2004 and 13 May 2005 was admittedly to existing tenants in occupation of the shops. This is not a case where the landlord has obtained vacant possession of shops which were earlier given on rent and thereafter sold them as vacant units to a third party in an arms-length transaction. The fact that the sale by the landlord was to existing tenants is an important circumstance which supports the finding of the trial Court that in such a situation, the sale would be by reason of financial need or in compelling circumstances. This view of the trial Court, which was affirmed by the District Court, cannot be regarded as perverse or based on no evidence, as the High Court held12. Moreover, there is a manifest error on the part of the High Court in holding that the landlords failed to explain the circumstances in which they obtained vacant possession of one shop on 19 July 2005 or on how it was being utilized. We have, in the earlier part of this judgment, extracted the findings of the trial Court and the first appellate Court, which indicate that in the shop of which vacant possession was obtained, a provision store is being conducted jointly. In this background, it was found that the need felt by the father as head of the family that his sons should be settled in independent businesses was genuine. The co-owners cannot be compelled to carry on business jointly since they are the best judges of their need. The High Court has overlooked these findings and has arrived at a patently erroneous conclusion that there was no explanation from the landlords of the manner in which the shop which had fallen vacant was being utilized. There was in fact an explanation. Each of the reasons which weighed with the High Court in reversing the concurrent findings were hence specious13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction Under Section 115 of the Code of Civil Procedure. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate Courts. Under Section 115 of the Code of Civil Procedure, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the trial Court.	1	1,696	### 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: rents. It is further stated that the Plaintiffs have sold the shop in ground floor premises measuring about 7 x 15" vide sale deed dated 30-09-2004 and another ground floor shop measuring 257 sq. ft. by sale deed dated 13th May, 2005 and another room by sale deed dated 29-05-1995. It is also stated that the Plaintiffs are running Pathela on the Nazul land for which Corporation has issued notices to remove the same.6. The trial Court framed eight issues for adjudication and after a full fledged trial, in response to the issue of willful default held that this rents were paid to the mother of Plaintiffs and there was no willful default and the issue is held against the Plaintiffs. The second ground raised by the Plaintiffs i.e. change of nature of business was also negatived. But on the aspect of bona fide requirement, Court has come to a definite conclusion that the requirement of the Plaintiffs is bona fide to run the kirana business as Plaintiffs 3 & 4 are unemployed. The Court also observed that the Defendants could not discharge the burden cast upon them in this regard. They could not establish that it is the intention of the landlord to sell away the suit Schedule property. Hence the trial Courts has concluded that even balance of convenience is also in favour of the Plaintiffs and accordingly decreed the suit.7. Aggrieved by the same, the Respondents/tenants carried the matter by way of appeal to the District Court and the District Court remanded the matter to the trial Court to try it as a regular civil suit. Later the same was numbered as Regular Civil Suit No. 47 of 2005 for ejection and possession and the Court decreed the suit on the same findings as were recorded before remand.8. Then the judgment and decree was carried in appeal by the tenant and the same was numbered as Regular Civil Appeal No. 104 of 2011 on the file of the Ld. District Judge, Amravati and after hearing the parties and going through the record, the appellate court confirmed the findings of the trial Court and dismissed the appeal with costs by judgment and decree dated 9-6-2011. The appellate court, after dealing with each and every issue, has agreed with the findings of the trial Court in toto.9. Then the matter was carried on to the High Court by way of Civil Revision Application No. 50 of 2013. The learned judge allowed the Civil Revision Petition which is impugned before us.10. We have heard the learned Counsel on either side and perused the material placed before us. We are inclined to interfere with the order of the High Court on two aspects. One is the reasoning given by the learned Judge while allowing the revision lacked merit and secondly the order passed by the learned Judge is beyond its jurisdiction conferred Under Section 115 of the Code of Civil Procedure.11. Having elucidated above the analysis of the evidence on record both by the trial Court and by the District Court, we find substance in the contention of the Appellants that the High Court had no valid reason or justification to interfere with the concurrent findings in the exercise of its revisional jurisdiction. The sale of two-shops by the landlords on 24 September 2004 and 13 May 2005 was admittedly to existing tenants in occupation of the shops. This is not a case where the landlord has obtained vacant possession of shops which were earlier given on rent and thereafter sold them as vacant units to a third party in an arms-length transaction. The fact that the sale by the landlord was to existing tenants is an important circumstance which supports the finding of the trial Court that in such a situation, the sale would be by reason of financial need or in compelling circumstances. This view of the trial Court, which was affirmed by the District Court, cannot be regarded as perverse or based on no evidence, as the High Court held.12. Moreover, there is a manifest error on the part of the High Court in holding that the landlords failed to explain the circumstances in which they obtained vacant possession of one shop on 19 July 2005 or on how it was being utilized. We have, in the earlier part of this judgment, extracted the findings of the trial Court and the first appellate Court, which indicate that in the shop of which vacant possession was obtained, a provision store is being conducted jointly. In this background, it was found that the need felt by the father as head of the family that his sons should be settled in independent businesses was genuine. The co-owners cannot be compelled to carry on business jointly since they are the best judges of their need. The High Court has overlooked these findings and has arrived at a patently erroneous conclusion that there was no explanation from the landlords of the manner in which the shop which had fallen vacant was being utilized. There was in fact an explanation. Each of the reasons which weighed with the High Court in reversing the concurrent findings were hence specious.13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction Under Section 115 of the Code of Civil Procedure. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate Courts. Under Section 115 of the Code of Civil Procedure, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the trial Court. ### Response: 1
507	Tamil Nadu News Print & Papers Ltd Vs. D.Karunakar	for quashing the said complaint, which the High Court has allowed to the limited extent, as stated hereinabove.5. The present appellant, in whose favour the cheque had been issued by Accused No. 2, on behalf of Accused no.1 company, has been aggrieved by the order whereby the proceedings have been quashed in part by the High Court and therefore, the present appeals have been filed by the complainant.6. Though served, no one has appeared on behalf of the respondents. It appears from the record that notice issued to Accused no.1 company was refused and whereabouts of all the Directors could not be known. In these circumstances, a paper publication was effected yet none has appeared for the respondents.7. It has been submitted by the learned counsel appearing for the appellant that the High Court was not right in quashing the proceedings in part so far as Accused Nos.3 to 10 are concerned. He has referred to Section 141(1) of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “the Act”), which reads as under :- “141(1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence :Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.” (Emphasis supplied)8. It has been submitted by the learned counsel for the appellant that in the complaint, an averment has been made to the effect that all the accused were Directors and incharge of day-to-day business of Accused No. 1 – company and therefore, they are liable to be punished under the provisions of Section 138 of the Act.9. It has been further submitted by the learned counsel for the appellant that the High Court is not right when it has observed in paragraph 7 of the impugned order that “the complainant has not whispered a word about the position held by the petitioners herein and there is not even a single statement to the effect that the petitioners are the Directors and as such they are in charge of the day to day business of A1, the Company. It is merely stated that A3 to A9 are involved and in charge of the business of A1, the Company.” 10. The learned counsel has drawn our attention to the Judgment delivered by this Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another reported in (2005) 8 SCC 89. Paragraph 19(a) of the Judgment reads as under :- “19(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint........” 11. The learned counsel has also submitted that, in fact, an averment had been made in the complaint that Accused Nos. 2 to 9 were Directors and were in day to day management of the accused company. In spite of the aforesaid fact, the High Court has made the aforesaid observation that there was no such averment made against Accused Nos. 3 to 10. According to him, the said view of the High Court is not correct and therefore, this criminal appeal deserves to be allowed. 12. We have carefully gone through the impugned order passed by the High Court and the complaint filed on behalf of the appellant.13. Upon perusal of the complaint, we find that an averment has been made to the effect that Accused Nos. 3 to 10 were, in fact, in-charge of the day-to-day business of Accused No. 1 – company.14. It is an admitted position that simply because someone is a Director in a company, he cannot be held responsible in respect of a cheque issued on behalf of the company, but if the concerned Director is in-charge of and is responsible to the company for its conduct of business, he can be held to be guilty of the offence under Section 138 of the Act and therefore, the High Court ought not to have quashed the proceedings against such directors.15. In our opinion, the High Court has committed an error by making an observation that not a single statement was made in the complaint to the effect that Accused Nos. 3 to 10 were in-charge of the day-to-day business of Accused No.1 – company.16. It is also pertinent to note that on behalf of the accused company notice was refused and whereabouts of all the Directors are not known. Notices served upon them in normal course could not be served and therefore, by way of substituted service, a paper publication was made and an affidavit giving details about the publication has been placed on record of this Court. In spite of the said fact, no body has appeared on behalf of the respondents. This fact also indicates the intention of the accused.17. For the reasons stated hereinabove, in our opinion, as there was an allegation to the effect that Accused Nos. 2 to 10 were involved in day-to-day business of Accused No. 1 – company, we see no reason for sparing them by the High Court.	1[ds]12. We have carefully gone through the impugned order passed by the High Court and the complaint filed on behalf of the appellant.13. Upon perusal of the complaint, we find that an averment has been made to the effect that Accused Nos. 3 to 10 were, in fact,day business of Accused No. 1 – company.14. It is an admitted position that simply because someone is a Director in a company, he cannot be held responsible in respect of a cheque issued on behalf of the company, but if the concerned Director isof and is responsible to the company for its conduct of business, he can be held to be guilty of the offence under Section 138 of the Act and therefore, the High Court ought not to have quashed the proceedings against such directors.15. In our opinion, the High Court has committed an error by making an observation that not a single statement was made in the complaint to the effect that Accused Nos. 3 to 10 wereday business of Accused No.1 – company.16. It is also pertinent to note that on behalf of the accused company notice was refused and whereabouts of all the Directors are not known. Notices served upon them in normal course could not be served and therefore, by way of substituted service, a paper publication was made and an affidavit giving details about the publication has been placed on record of this Court. In spite of the said fact, no body has appeared on behalf of the respondents. This fact also indicates the intention of the accused.17. For the reasons stated hereinabove, in our opinion, as there was an allegation to the effect that Accused Nos. 2 to 10 were involved inbusiness of Accused No. 1 – company, we see no reason for sparing them by the High Court.	1	1,461	### 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: for quashing the said complaint, which the High Court has allowed to the limited extent, as stated hereinabove.5. The present appellant, in whose favour the cheque had been issued by Accused No. 2, on behalf of Accused no.1 company, has been aggrieved by the order whereby the proceedings have been quashed in part by the High Court and therefore, the present appeals have been filed by the complainant.6. Though served, no one has appeared on behalf of the respondents. It appears from the record that notice issued to Accused no.1 company was refused and whereabouts of all the Directors could not be known. In these circumstances, a paper publication was effected yet none has appeared for the respondents.7. It has been submitted by the learned counsel appearing for the appellant that the High Court was not right in quashing the proceedings in part so far as Accused Nos.3 to 10 are concerned. He has referred to Section 141(1) of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “the Act”), which reads as under :- “141(1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence :Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.” (Emphasis supplied)8. It has been submitted by the learned counsel for the appellant that in the complaint, an averment has been made to the effect that all the accused were Directors and incharge of day-to-day business of Accused No. 1 – company and therefore, they are liable to be punished under the provisions of Section 138 of the Act.9. It has been further submitted by the learned counsel for the appellant that the High Court is not right when it has observed in paragraph 7 of the impugned order that “the complainant has not whispered a word about the position held by the petitioners herein and there is not even a single statement to the effect that the petitioners are the Directors and as such they are in charge of the day to day business of A1, the Company. It is merely stated that A3 to A9 are involved and in charge of the business of A1, the Company.” 10. The learned counsel has drawn our attention to the Judgment delivered by this Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another reported in (2005) 8 SCC 89. Paragraph 19(a) of the Judgment reads as under :- “19(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint........” 11. The learned counsel has also submitted that, in fact, an averment had been made in the complaint that Accused Nos. 2 to 9 were Directors and were in day to day management of the accused company. In spite of the aforesaid fact, the High Court has made the aforesaid observation that there was no such averment made against Accused Nos. 3 to 10. According to him, the said view of the High Court is not correct and therefore, this criminal appeal deserves to be allowed. 12. We have carefully gone through the impugned order passed by the High Court and the complaint filed on behalf of the appellant.13. Upon perusal of the complaint, we find that an averment has been made to the effect that Accused Nos. 3 to 10 were, in fact, in-charge of the day-to-day business of Accused No. 1 – company.14. It is an admitted position that simply because someone is a Director in a company, he cannot be held responsible in respect of a cheque issued on behalf of the company, but if the concerned Director is in-charge of and is responsible to the company for its conduct of business, he can be held to be guilty of the offence under Section 138 of the Act and therefore, the High Court ought not to have quashed the proceedings against such directors.15. In our opinion, the High Court has committed an error by making an observation that not a single statement was made in the complaint to the effect that Accused Nos. 3 to 10 were in-charge of the day-to-day business of Accused No.1 – company.16. It is also pertinent to note that on behalf of the accused company notice was refused and whereabouts of all the Directors are not known. Notices served upon them in normal course could not be served and therefore, by way of substituted service, a paper publication was made and an affidavit giving details about the publication has been placed on record of this Court. In spite of the said fact, no body has appeared on behalf of the respondents. This fact also indicates the intention of the accused.17. For the reasons stated hereinabove, in our opinion, as there was an allegation to the effect that Accused Nos. 2 to 10 were involved in day-to-day business of Accused No. 1 – company, we see no reason for sparing them by the High Court. ### Response: 1
508	State of Punjab Vs. Balraj Singh Alias Chhajju	25 of the Arms Act. The respondent filed an appeal to the High Court and a reference was made by the Sessions Judge for confirmation of his death sentence. The High Court after careful consideration of the evidence held that the case against the appellant was not proved beyond reasonable doubt and accordingly acquitted the appellant of all the charges framed against him. Hence this appeal before us.3. It is alleged that on April 14, 1973 deceased Swaran Singh accompanied by his brother Surat, PW 3 and son Harjit Singh, PW 4 was passing through the wheat field in Village Patti when he was accosted by the accused, who challenged Swaran Singh deceased to get ready for being taught a lesson for his acting as an informer against him by supplying information to the police regarding the theft of a tractor belonging to Kritpal Singh. The witnesses PW 3 and PW 4 were following the deceased. The respondent is said to have fired a shot at the deceased which injured him in his chest and abdomen and resulted in his death. PW 3 and PW 4 on seeing the incident turned their back and ran away raising an alarm. The respondent then fired his pistol at them and injured both of them. A FIR was lodged at about 11.55 p.m. and, after usual investigation, charge-sheet was submitted against the respondent and he was committed for trial before the Sessions Judge who ultimately convicted and sentenced him as indicated above.4. We have heard learned for the parties and have gone through the judgment of the High Court and of the Sessions Judge and perused the evidence on the record. This being an appeal against acquittal, it is well settled that this Court would ordinarily interfere only when there are special reasons or a substantial error has been committed by the High Court in acquitting the accused. It appears that the conviction of the appellant rests mainly on the evidence of PW 3 Surat Singh and Harjit Singh PW 4. PW 4 Harjit Singh a boy of tender years had in fact committed some "confusion" in identifying the accused before the committing court. Later on when he was again asked to identify the respondent Balraj Singh, he did so. Nevertheless even the trial court had come to a clear finding that there had been some confusion in the mind of the child regarding the identification of the respondent and it was not prepared to place implicit reliance on his testimony as it observed that even if evidence of PW 4 was excluded the statement of PW 3 was sufficient to sustain the conviction of the respondent.5. The High Court thought it rather unsafe to base the conviction of the respondent on the uncorroborated testimony of PW 3, Surat Singh. The High Court has also given reasons for not relying on the testimony of PW 3. We may not approve of some of the reasons given by the High Court, and perhaps if we were sitting in appeal we may have taken a different view of the matter, but that is no ground for reversing an order of acquittal. The High thought that it difficult to believe that the respondent would have raised any "lalkara" so as to facilitate his identification. This finding is based purely on speculation and we find no inherent improbability in this circumstance. We have come across many cases where we found that in Punjab a "lalkara" preceded an assault. Secondly the High Court held that the pellet injuries on PW 3 and 4 appear to be fabricated. Having regard, however, to the nature of the pellet injuries received by PWs 3 and 4 it is not possible for us to hold that the injuries could be fabricated. When a suggestion was made to the doctor that the injuries could have been caused by a "sua" it was emphatically denied by Dr. Khera, PW 1 on the ground that such fabricated injuries would have been of a larger dimension. In these circumstances we are of the opinion that there was no justification for the High Court to have drawn an inference that the injuries on the person of PW 3 and 4 were fabricated.4. Mr. Mukherjee appearing for the respondent has drawn our attention to two circumstances which raise a doubt regarding the identification of the respondent by the witnesses. In the first place he submits that there is absolutely no evidence to show that the respondent knew that the deceased and the witnesses would be passing through the fields at that particular time of the night so as to enable the accused to lie in wait for them. There is no suggestion at all that it was a part of daily routine of the deceased or the witnesses to pass through the field at about 8.30 to 9.30 p.m. so that the accused being aware of the same would try to select a particular time for the assault. Secondly it was submitted that having regard to the distance from which PW 3 and PW 4 identified the respondent and the circumstances in which they did so raises a possibility of doubt. It is the admitted case of the parties that the occurrence had taken place in a wheat field which was ready for harvesting. It is but natural that standing crop would to some extent obstruct the view of the witnesses. According to Patwari PW 6 he had prepared the site plan after proper measurements and the scale, according to him, was 1 inch = 60 karams. On the basis of this measurement it would appear that PW 3 and PW 4 would be at a distance of about 150 ft. when they saw the respondent. In view of these circumstances therefore, although it may have been possible for the witnesses to identify the respondent, the possibility of mistake in identification cannot be excluded. We are, therefore, not inclined to interfere with the judgment of the High Court.	0[ds]5. The High Court thought it rather unsafe to base the conviction of the respondent on the uncorroborated testimony of PW 3, Surat Singh. The High Court has also given reasons for not relying on the testimony of PW 3. We may not approve of some of the reasons given by the High Court, and perhaps if we were sitting in appeal we may have taken a different view of the matter, but that is no ground for reversing an order of acquittal. The High thought that it difficult to believe that the respondent would have raised any "lalkara" so as to facilitate his identification. This finding is based purely on speculation and we find no inherent improbability in this circumstance. We have come across many cases where we found that in Punjab a "lalkara" preceded an assault. Secondly the High Court held that the pellet injuries on PW 3 and 4 appear to be fabricated. Having regard, however, to the nature of the pellet injuries received by PWs 3 and 4 it is not possible for us to hold that the injuries could be fabricated. When a suggestion was made to the doctor that the injuries could have been caused by a "sua" it was emphatically denied by Dr. Khera, PW 1 on the ground that such fabricated injuries would have been of a larger dimension. In these circumstances we are of the opinion that there was no justification for the High Court to have drawn an inference that the injuries on the person of PW 3 and 4 were fabricated.	0	1,188	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: 25 of the Arms Act. The respondent filed an appeal to the High Court and a reference was made by the Sessions Judge for confirmation of his death sentence. The High Court after careful consideration of the evidence held that the case against the appellant was not proved beyond reasonable doubt and accordingly acquitted the appellant of all the charges framed against him. Hence this appeal before us.3. It is alleged that on April 14, 1973 deceased Swaran Singh accompanied by his brother Surat, PW 3 and son Harjit Singh, PW 4 was passing through the wheat field in Village Patti when he was accosted by the accused, who challenged Swaran Singh deceased to get ready for being taught a lesson for his acting as an informer against him by supplying information to the police regarding the theft of a tractor belonging to Kritpal Singh. The witnesses PW 3 and PW 4 were following the deceased. The respondent is said to have fired a shot at the deceased which injured him in his chest and abdomen and resulted in his death. PW 3 and PW 4 on seeing the incident turned their back and ran away raising an alarm. The respondent then fired his pistol at them and injured both of them. A FIR was lodged at about 11.55 p.m. and, after usual investigation, charge-sheet was submitted against the respondent and he was committed for trial before the Sessions Judge who ultimately convicted and sentenced him as indicated above.4. We have heard learned for the parties and have gone through the judgment of the High Court and of the Sessions Judge and perused the evidence on the record. This being an appeal against acquittal, it is well settled that this Court would ordinarily interfere only when there are special reasons or a substantial error has been committed by the High Court in acquitting the accused. It appears that the conviction of the appellant rests mainly on the evidence of PW 3 Surat Singh and Harjit Singh PW 4. PW 4 Harjit Singh a boy of tender years had in fact committed some "confusion" in identifying the accused before the committing court. Later on when he was again asked to identify the respondent Balraj Singh, he did so. Nevertheless even the trial court had come to a clear finding that there had been some confusion in the mind of the child regarding the identification of the respondent and it was not prepared to place implicit reliance on his testimony as it observed that even if evidence of PW 4 was excluded the statement of PW 3 was sufficient to sustain the conviction of the respondent.5. The High Court thought it rather unsafe to base the conviction of the respondent on the uncorroborated testimony of PW 3, Surat Singh. The High Court has also given reasons for not relying on the testimony of PW 3. We may not approve of some of the reasons given by the High Court, and perhaps if we were sitting in appeal we may have taken a different view of the matter, but that is no ground for reversing an order of acquittal. The High thought that it difficult to believe that the respondent would have raised any "lalkara" so as to facilitate his identification. This finding is based purely on speculation and we find no inherent improbability in this circumstance. We have come across many cases where we found that in Punjab a "lalkara" preceded an assault. Secondly the High Court held that the pellet injuries on PW 3 and 4 appear to be fabricated. Having regard, however, to the nature of the pellet injuries received by PWs 3 and 4 it is not possible for us to hold that the injuries could be fabricated. When a suggestion was made to the doctor that the injuries could have been caused by a "sua" it was emphatically denied by Dr. Khera, PW 1 on the ground that such fabricated injuries would have been of a larger dimension. In these circumstances we are of the opinion that there was no justification for the High Court to have drawn an inference that the injuries on the person of PW 3 and 4 were fabricated.4. Mr. Mukherjee appearing for the respondent has drawn our attention to two circumstances which raise a doubt regarding the identification of the respondent by the witnesses. In the first place he submits that there is absolutely no evidence to show that the respondent knew that the deceased and the witnesses would be passing through the fields at that particular time of the night so as to enable the accused to lie in wait for them. There is no suggestion at all that it was a part of daily routine of the deceased or the witnesses to pass through the field at about 8.30 to 9.30 p.m. so that the accused being aware of the same would try to select a particular time for the assault. Secondly it was submitted that having regard to the distance from which PW 3 and PW 4 identified the respondent and the circumstances in which they did so raises a possibility of doubt. It is the admitted case of the parties that the occurrence had taken place in a wheat field which was ready for harvesting. It is but natural that standing crop would to some extent obstruct the view of the witnesses. According to Patwari PW 6 he had prepared the site plan after proper measurements and the scale, according to him, was 1 inch = 60 karams. On the basis of this measurement it would appear that PW 3 and PW 4 would be at a distance of about 150 ft. when they saw the respondent. In view of these circumstances therefore, although it may have been possible for the witnesses to identify the respondent, the possibility of mistake in identification cannot be excluded. We are, therefore, not inclined to interfere with the judgment of the High Court. ### Response: 0
509	M/s. A & G Projects & Technologies Ltd Vs. State of Karnataka	the Department by invoking the proviso to Section 9(1) of the CST ACT 1956? The object of Section 9(1) is two-fold. Firstly, it provides that the tax on inter-State sales under Section 3(a) shall be levied by G.O.I. and collected by the State Government from which the movement of goods commenced. Secondly, it specifies the Appropriate State competent to levy tax on second and subsequent sales made during the movement of goods from one State to another as also the authority, where such second and subsequent sales are exigible to tax. As state above, Section 6(2) of the CST ACT 1956 provides for subsequent sales to be exempt from tax on the conditions prescribed therein. However, if and where those conditions are not satisfied, even such subsequent sales would attract tax and only in such circumstances the proviso to Section 9(1) which specifies the State, which is competent to levy the tax, would come in. [SEE: Jadhavjee Laljee v. State of Andhra Pradesh - (1989) 74 STC 201 (AP) at page 204]. The proviso to Section 9(1) contemplates two situations, namely, (a) where such subsequent sale is made by a registered dealer and (b) where such subsequent sale is made by unregistered dealer. In respect of situation (a), the proviso to Section 9(1) prescribes that the Appropriate State competent to levy tax on such subsequent sale shall be the State from which the registered dealer obtains a declaration in C-Form whereas in the case falling in situation (b), it provides that the Appropriate State competent to levy the tax shall be the State from which such subsequent sale has been effected. However, the entire proviso to Section 9(1) applies only to subsequent sales covered by Section 3(b) and not to sales under Section 3(a) CST Act 1956. 14. Applying the above analyses to the facts of the case, we are of the view that the proviso to Section 9(1) of the CST ACT 1956 is not applicable to the facts of the present case as the AO has categorically held that all the three sales fell under Section 3(a) of the CST ACT 1956. Once the said sales fall under Section 3(a) then under Section 9(1) the tax has got to be collected by the State of Tamil Nadu from which the movement of the goods commenced. The case of the appellant regarding subsequent sales effected during the movement of the goods stood specifically rejected both by the AO and the FAA and, therefore, the question of taxing such sales under the proviso to Section 9(1) of CST ACT 1956 did not arise. 15. Our above view is fortified by the judgment of this Court in the case of Bharat Heavy Electrical Ltd. and Others v. Union of India and Others - (1996) 4 SCC 230. We quote hereinbelow paras 17 and 18 of the said judgment which read as under: 17. The aforesaid survey of the relevant provisions of the Act clearly shows that Sections 3, 4, 5, 9(1), 14 and 15 pertain to and deal with distinct topics and different aspects of Articles 286 and 269. It follows that if a question arises whether a sale is an inter-State sale or not, it has to be answered with reference to and on the basis of Section 3 and Section 3 alone. Section 4, or for that matter Section 5, is not relevant on the said question -- see the Constitution Bench decision in TISCO v. S.R. Sarkar-(1960) 11 STC 655 and the decisions in Manganese Ore (India) Ltd. v. Regional Asstt. Commr. of Sales Tax - (1976) 4 SCC 124 and Union of India v. K.G. Khosla & Co. Ltd. - (1979) 2 SCC 242. Similarly, where the question arises, in which State is the tax leviable, one must look to and apply the test in Section 9(1); no other provision is relevant on this question. 18. We may, at this stage refer to the decision of the Bombay High Court in CST v. Barium Chemicals Ltd. - (1981) 48 STC 121. A particular transaction of inter-State sale was subjected to Central sales tax in Andhra Pradesh. The same sale was again sought to be taxed under Central Sales Tax Act in Maharashtra, which was questioned. The High Court adopted the following approach: Central sales tax is levied and collected by the Central Government; it is immaterial in which State it is collected; it cannot be levied or collected twice over; the State Governments are merely agents of the Central Government in the matter of levy and collection of Central sales tax; if so, once levied and collected in one State, rightly or wrongly, it cannot be levied and collected in another State. In our opinion, this may be an oversimplification of the matter. Maybe, from the point of view of the assessee, this approach is sound enough but from the point of view of the States (keeping Article 269 in mind) and the provisions of the Central Sales Tax Act, this may not be correct. Section 9(1) specifies the State wherein Central sales tax shall be levied and collected and the Central sales tax has to be levied and collected in that State and in no other State. The approach of the Bombay High Court makes Section 9(1) [which is enacted pursuant to Section 269(2), as pointed out hereinabove] otiose and superfluous. It would not be proper to say, in the light of the above constitutional and statutory provisions, that the dispute as to in which State a particular inter-State sale is to be taxed is a matter between the States and that so far as the assessee is concerned, it is enough if he pays the tax at one place, whether it is really leviable in that State as per Section 9(1) or not. The law requires that it should be levied and collected in the State from which the movement of goods commences [Section 9(1) read with Section 3(a)]. 16. For the aforestated reasons, we	1[ds]In the present case, according to the AO, the second and the third sales were not subsequent sales. According to the AO, all the three sales are inter-State sales falling under Section 3(a) and consequently Section 6(2) (which deals with the exemption) never stood attracted and, therefore, the appellant was not entitled to exemptionThe object of Section 9(1) is two-fold. Firstly, it provides that the tax on inter-State sales under Section 3(a) shall be levied by G.O.I. and collected by the State Government from which the movement of goods commenced. Secondly, it specifies the Appropriate State competent to levy tax on second and subsequent sales made during the movement of goods from one State to another as also the authority, where such second and subsequent sales are exigible to tax. As state above, Section 6(2) of the CST ACT 1956 provides for subsequent sales to be exempt from tax on the conditions prescribed therein. However, if and where those conditions are not satisfied, even such subsequent sales would attract tax and only in such circumstances the proviso to Section 9(1) which specifies the State, which is competent to levy the tax, would come in. [SEE: Jadhavjee Laljee v. State of Andhra Pradesh - (1989) 74 STC 201 (AP) at page 204]. The proviso to Section 9(1) contemplates two situations, namely, (a) where such subsequent sale is made by a registered dealer and (b) where such subsequent sale is made by unregistered dealer. In respect of situation (a), the proviso to Section 9(1) prescribes that the Appropriate State competent to levy tax on such subsequent sale shall be the State from which the registered dealer obtains a declaration in C-Form whereas in the case falling in situation (b), it provides that the Appropriate State competent to levy the tax shall be the State from which such subsequent sale has been effected. However, the entire proviso to Section 9(1) applies only to subsequent sales covered by Section 3(b) and not to sales under Section 3(a) CST Act 1956Applying the above analyses to the facts of the case, we are of the view that the proviso to Section 9(1) of the CST ACT 1956 is not applicable to the facts of the present case as the AO has categorically held that all the three sales fell under Section 3(a) of the CST ACT 1956Once the said sales fall under Section 3(a) then under Section 9(1) the tax has got to be collected by the State of Tamil Nadu from which the movement of the goods commenced. The case of the appellant regarding subsequent sales effected during the movement of the goods stood specifically rejected both by the AO and the FAA and, therefore, the question of taxing such sales under the proviso to Section 9(1) of CST ACT 1956 did not arise	1	4,999	### 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: the Department by invoking the proviso to Section 9(1) of the CST ACT 1956? The object of Section 9(1) is two-fold. Firstly, it provides that the tax on inter-State sales under Section 3(a) shall be levied by G.O.I. and collected by the State Government from which the movement of goods commenced. Secondly, it specifies the Appropriate State competent to levy tax on second and subsequent sales made during the movement of goods from one State to another as also the authority, where such second and subsequent sales are exigible to tax. As state above, Section 6(2) of the CST ACT 1956 provides for subsequent sales to be exempt from tax on the conditions prescribed therein. However, if and where those conditions are not satisfied, even such subsequent sales would attract tax and only in such circumstances the proviso to Section 9(1) which specifies the State, which is competent to levy the tax, would come in. [SEE: Jadhavjee Laljee v. State of Andhra Pradesh - (1989) 74 STC 201 (AP) at page 204]. The proviso to Section 9(1) contemplates two situations, namely, (a) where such subsequent sale is made by a registered dealer and (b) where such subsequent sale is made by unregistered dealer. In respect of situation (a), the proviso to Section 9(1) prescribes that the Appropriate State competent to levy tax on such subsequent sale shall be the State from which the registered dealer obtains a declaration in C-Form whereas in the case falling in situation (b), it provides that the Appropriate State competent to levy the tax shall be the State from which such subsequent sale has been effected. However, the entire proviso to Section 9(1) applies only to subsequent sales covered by Section 3(b) and not to sales under Section 3(a) CST Act 1956. 14. Applying the above analyses to the facts of the case, we are of the view that the proviso to Section 9(1) of the CST ACT 1956 is not applicable to the facts of the present case as the AO has categorically held that all the three sales fell under Section 3(a) of the CST ACT 1956. Once the said sales fall under Section 3(a) then under Section 9(1) the tax has got to be collected by the State of Tamil Nadu from which the movement of the goods commenced. The case of the appellant regarding subsequent sales effected during the movement of the goods stood specifically rejected both by the AO and the FAA and, therefore, the question of taxing such sales under the proviso to Section 9(1) of CST ACT 1956 did not arise. 15. Our above view is fortified by the judgment of this Court in the case of Bharat Heavy Electrical Ltd. and Others v. Union of India and Others - (1996) 4 SCC 230. We quote hereinbelow paras 17 and 18 of the said judgment which read as under: 17. The aforesaid survey of the relevant provisions of the Act clearly shows that Sections 3, 4, 5, 9(1), 14 and 15 pertain to and deal with distinct topics and different aspects of Articles 286 and 269. It follows that if a question arises whether a sale is an inter-State sale or not, it has to be answered with reference to and on the basis of Section 3 and Section 3 alone. Section 4, or for that matter Section 5, is not relevant on the said question -- see the Constitution Bench decision in TISCO v. S.R. Sarkar-(1960) 11 STC 655 and the decisions in Manganese Ore (India) Ltd. v. Regional Asstt. Commr. of Sales Tax - (1976) 4 SCC 124 and Union of India v. K.G. Khosla & Co. Ltd. - (1979) 2 SCC 242. Similarly, where the question arises, in which State is the tax leviable, one must look to and apply the test in Section 9(1); no other provision is relevant on this question. 18. We may, at this stage refer to the decision of the Bombay High Court in CST v. Barium Chemicals Ltd. - (1981) 48 STC 121. A particular transaction of inter-State sale was subjected to Central sales tax in Andhra Pradesh. The same sale was again sought to be taxed under Central Sales Tax Act in Maharashtra, which was questioned. The High Court adopted the following approach: Central sales tax is levied and collected by the Central Government; it is immaterial in which State it is collected; it cannot be levied or collected twice over; the State Governments are merely agents of the Central Government in the matter of levy and collection of Central sales tax; if so, once levied and collected in one State, rightly or wrongly, it cannot be levied and collected in another State. In our opinion, this may be an oversimplification of the matter. Maybe, from the point of view of the assessee, this approach is sound enough but from the point of view of the States (keeping Article 269 in mind) and the provisions of the Central Sales Tax Act, this may not be correct. Section 9(1) specifies the State wherein Central sales tax shall be levied and collected and the Central sales tax has to be levied and collected in that State and in no other State. The approach of the Bombay High Court makes Section 9(1) [which is enacted pursuant to Section 269(2), as pointed out hereinabove] otiose and superfluous. It would not be proper to say, in the light of the above constitutional and statutory provisions, that the dispute as to in which State a particular inter-State sale is to be taxed is a matter between the States and that so far as the assessee is concerned, it is enough if he pays the tax at one place, whether it is really leviable in that State as per Section 9(1) or not. The law requires that it should be levied and collected in the State from which the movement of goods commences [Section 9(1) read with Section 3(a)]. 16. For the aforestated reasons, we ### Response: 1
510	United India Insurance Co. Ltd Vs. M/S. Payarelal Niranjan Lal	Dr. Arijit Pasayat, J. 1. Leave granted.2. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission, New Delhi, (in short `National Commission) refusing to accept the prayer made by the present appellant to set aside the ex parte order dated 30.11.2005. 3. Background facts, as projected by the appellant, are as follows: The respondent (hereinafter referred to as the `insured) gave a cheque for Rs.1451/- dated 8.10.86 to one Development Officer of the appellant-Company for obtaining Marine (Inland Transit Policy) for Rs.5,00,000/- for incoming goods from various States. On 9.10.1986 an oil tanker of the respondent-insured bearing No.RND-9259 coming from District Mehsana, Gujarat, met with an accident near Pali, Rajasthan. On 11.10.1986 the insured informed the appellant about the accident of its oil tanker. The cheque in question was received in the Divisional Office of the appellant on 13.10.1986 without any cover note. On 19.1.1987 respondent submitted claim bill to the appellant claiming certain amount in respect of the accident of its oil tanker. On 23.3.1993 the claim was rejected by the appellant informing the respondent as follows: "1. Your cheque dated 8.10.96 Rs.1451/- against the premium of the policy of insurance proposed to be issued reached our office on 13.10.86 without a cover note in absence where of any risk arising out of an accident was neither covered nor could that be said to have been covered as also for want of a concluded contract.2. Besides that right from 8.10.86 till 13.10.86 the balance in your account in the concerned bank was only a sum of Rs.1259.21 only, wholly insufficient for clearance of your above cheque without which, mere issuance of the said cheque did not result into a contract worth of being honoured.3. Your alleged accident took place at about 2 p.m. on 9.10.86, i.e. much prior to our even accepting the contract to cover the said risk for reasons given in para No.1 & 2 of this letter and hence we are not liable for the same." 4. Any correspondence made between us on your initiation is also refuted as entirely irrelevant and off the subject and truth no further correspondence on this subject from you will be taken cognizance of by us as the chapter for vacuum is closed hereby once for all. 5. The respondent filed a complaint before the State Consumer Disputes Redressal Commission, Rajasthan (hereinafter referred to as the `State Commission) claiming compensation of Rs.4,30,350/-. The complaint was dismissed by the State Commission by order dated 23.9.1996 holding that no concluded contract of insurance came into existence on 8.10.1993 as there was no acceptance of the proposal by the insurer since no cover note or any other customary note of contract had been issued. 6. An appeal was filed by the respondent before the National Commission which was numbered as First Appeal No.666/96. The matter was decided on 30.11.2005 ex parte partially allowing the claim of the respondent and directing the appellant to pay Rs.1,41,794.45 along with interest @ 12% p.a. from 1.1.1987 till date of payment and cost of Rs.10,000/- was awarded. 7. Appellant filed an application before the National Commission with the prayer to set aside the ex parte order by explaining the reason as to why there was no appearance on behalf of the appellant when the matter was called. It was specifically pointed out that Mr. S.C. Sharda who was the earlier counsel had returned all the briefs. The notice was handed over to Mr. Sharda who had not appeared. As no information was given by Mr. Sharda, there was no appearance on behalf of the present respondent before the National Commission when the matter was taken up. By the impugned judgment the application was rejected. It was observed that if there was any change in counsel, the appellant should have been more vigilant. 8. Learned counsel for the appellant submitted that the reason why there was no appearance was clearly indicated and there was no dispute as to the factual assertions and, therefore, the National Commission should have set aside the ex parte order and heard the appeal on merits. Learned counsel for the respondent supported the order.5. In view of the undisputed factual position that earlier Mr. Sharda was appearing and notice had been served on him, obviously Mr. Sharda was to appear when the matter was taken up by National Commission. But the briefs had been returned by Mr. Sharda to the appellant-company. Therefore, the appellant had no knowledge about the listing of the case. It is not in dispute that Mr. Sharda had not informed the appellant-company about the date of hearing because he had returned the briefs. 9.	1[ds]5. In view of the undisputed factual position that earlier Mr. Sharda was appearing and notice had been served on him, obviously Mr. Sharda was to appear when the matter was taken up by National Commission. But the briefs had been returned by Mr. Sharda to the appellant-company. Therefore, the appellant had no knowledge about the listing of the case. It is not in dispute that Mr. Sharda had not informed the appellant-company about the date of hearing because he had returned the briefs.	1	854	### 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: Dr. Arijit Pasayat, J. 1. Leave granted.2. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission, New Delhi, (in short `National Commission) refusing to accept the prayer made by the present appellant to set aside the ex parte order dated 30.11.2005. 3. Background facts, as projected by the appellant, are as follows: The respondent (hereinafter referred to as the `insured) gave a cheque for Rs.1451/- dated 8.10.86 to one Development Officer of the appellant-Company for obtaining Marine (Inland Transit Policy) for Rs.5,00,000/- for incoming goods from various States. On 9.10.1986 an oil tanker of the respondent-insured bearing No.RND-9259 coming from District Mehsana, Gujarat, met with an accident near Pali, Rajasthan. On 11.10.1986 the insured informed the appellant about the accident of its oil tanker. The cheque in question was received in the Divisional Office of the appellant on 13.10.1986 without any cover note. On 19.1.1987 respondent submitted claim bill to the appellant claiming certain amount in respect of the accident of its oil tanker. On 23.3.1993 the claim was rejected by the appellant informing the respondent as follows: "1. Your cheque dated 8.10.96 Rs.1451/- against the premium of the policy of insurance proposed to be issued reached our office on 13.10.86 without a cover note in absence where of any risk arising out of an accident was neither covered nor could that be said to have been covered as also for want of a concluded contract.2. Besides that right from 8.10.86 till 13.10.86 the balance in your account in the concerned bank was only a sum of Rs.1259.21 only, wholly insufficient for clearance of your above cheque without which, mere issuance of the said cheque did not result into a contract worth of being honoured.3. Your alleged accident took place at about 2 p.m. on 9.10.86, i.e. much prior to our even accepting the contract to cover the said risk for reasons given in para No.1 & 2 of this letter and hence we are not liable for the same." 4. Any correspondence made between us on your initiation is also refuted as entirely irrelevant and off the subject and truth no further correspondence on this subject from you will be taken cognizance of by us as the chapter for vacuum is closed hereby once for all. 5. The respondent filed a complaint before the State Consumer Disputes Redressal Commission, Rajasthan (hereinafter referred to as the `State Commission) claiming compensation of Rs.4,30,350/-. The complaint was dismissed by the State Commission by order dated 23.9.1996 holding that no concluded contract of insurance came into existence on 8.10.1993 as there was no acceptance of the proposal by the insurer since no cover note or any other customary note of contract had been issued. 6. An appeal was filed by the respondent before the National Commission which was numbered as First Appeal No.666/96. The matter was decided on 30.11.2005 ex parte partially allowing the claim of the respondent and directing the appellant to pay Rs.1,41,794.45 along with interest @ 12% p.a. from 1.1.1987 till date of payment and cost of Rs.10,000/- was awarded. 7. Appellant filed an application before the National Commission with the prayer to set aside the ex parte order by explaining the reason as to why there was no appearance on behalf of the appellant when the matter was called. It was specifically pointed out that Mr. S.C. Sharda who was the earlier counsel had returned all the briefs. The notice was handed over to Mr. Sharda who had not appeared. As no information was given by Mr. Sharda, there was no appearance on behalf of the present respondent before the National Commission when the matter was taken up. By the impugned judgment the application was rejected. It was observed that if there was any change in counsel, the appellant should have been more vigilant. 8. Learned counsel for the appellant submitted that the reason why there was no appearance was clearly indicated and there was no dispute as to the factual assertions and, therefore, the National Commission should have set aside the ex parte order and heard the appeal on merits. Learned counsel for the respondent supported the order.5. In view of the undisputed factual position that earlier Mr. Sharda was appearing and notice had been served on him, obviously Mr. Sharda was to appear when the matter was taken up by National Commission. But the briefs had been returned by Mr. Sharda to the appellant-company. Therefore, the appellant had no knowledge about the listing of the case. It is not in dispute that Mr. Sharda had not informed the appellant-company about the date of hearing because he had returned the briefs. 9. ### Response: 1
511	Madhya Pradesh Rural Road Development Authority and Ors Vs. L.G. Chaudhary Engineers and Contractors	C.A. No. 974/2012:1. The matter has been placed before this Bench of three Judges pursuant to order dated 24th January, 2012 which is as follows:In view of some divergence of views expressed in the two judgments delivered today by us, the matter may be placed before Honble the Chief Justice of India for constituting a larger Bench to resolve the divergence. Appointment of arbitrator in a dispute arising out of execution of a works contract was the subject-matter for consideration before the High Court Under Section 11 of the Arbitration and Conciliation Act, 1996.2. Appellants raised objection that the matter being covered by a special State Act, namely, M.P. Madhyastham Adhikaran Adhiniyam, 1983 ("M.P. Act", in short), the application Under Section 11 of the Arbitration and Conciliation Act, 1996 could not be entertained. The High Court, however, overruled the said objection relying upon the judgment of this Court in Va Tech Escher Wyass Flovel Ltd. v. MPSE Board and Anr. (2011) 13 SCC 261 .3. When the matter was considered by a Bench of this Court on 24th January, 2012 (order reported in Madhya Pradesh Rural Road Development Authority and Anr. v. L.G. Chaudhary Engineers and Contractors (2012) 3 SCC 495 ), this Court held that the judgment in Va Tech Escher Wyass Flovel Ltd. (supra) was per incuriam insofar as it held that the M.P. Act stands implied repealed by the Central Act. While Honble Ganguly J., held that the State Act will cover a dispute even after termination of the works contract, Honble Gyan Sudha Mishra J. took a different view as follows:51. It is no doubt true that if the matter were before an Arbitrator appointed under the Arbitration and Conciliation Act, 1996 for adjudication of any dispute including the question regarding the justification and legality as to whether the cancellation of works contract was legal or illegal, then the said Arbitrator in view of the ratio of the judgment of the Supreme Court in Maharshi Dayanand University and Anr. v. Anand Coop L(C) Society (2007) 5 SCC 295 , as also in view of the persuasive reasoning assigned in the judgment and order reported in Heyman and Anr. v. Darwins, Limited (1942) 1 All E.R. 337 (HL), would have had the jurisdiction to adjudicate the dispute regarding the justification and legality of cancellation of works contract also. But the same cannot be allowed to be raised under the M.P. Act of 1983 since the definition of works contract unambiguously lays down in explicit terms as to what is the nature and scope of works contract and further enumerates the specific nature of disputes arising out of the execution of works contract which would come within the definition of a works contract. However, the same does not even vaguely include the issue or dispute arising out of cancellation and termination of contract due to which this question, in my considered opinion, would not fall within the jurisdiction of the M.P. State Arbitration Tribunal so as to be referred for adjudication arising out of its termination. 4. We find from the definition Under Section 2(d) of the Arbitration and Conciliation Act, 1996 that even after a contract is terminated, the subject-matter of dispute is covered by the said definition. The said provision has not been even referred to in the judgment rendered by Honble Gyan Sudha Mishra, J.	1[ds]4. We find from the definition Under Section 2(d) of the Arbitration and Conciliation Act, 1996 that even after a contract is terminated, the subject-matter of dispute is covered by the said definition. The said provision has not been even referred to in the judgment rendered by Honble Gyan Sudha Mishra, J14. The same view was taken in Punjab State Electricity Board, Mahilpur v. Guru Nanak Cold Storage & ICE Factory, Mahilpur and Anr. (1996) 5 SCC 411 in para 12 which is as follows:Sections 6(1), 7, 12, 36 and 37 have expressly excluded from the operation of statutory arbitration. The rest of the provisions per force would get attracted. But the provisions of the appropriate statute or rules should necessarily be consistent with the provisions of the Arbitration Act. In that event, despite absence of an arbitration agreement, rest of the provisions of Arbitration Act would apply (as if there was an arbitration agreement between the parties) and the dispute becomes arbitrable under the Arbitration Act, as if there was an arbitration agreement between the parties. If there is any inconsistency, then the provisions of the Arbitration Act do not get attracted. Section 33 expressly gives power to the civil court to decide the existence or validity of the arbitration agreement or the award as such. If this question was to arise, necessarily the civil court would be devoid of jurisdiction to decide the dispute on merits but only in the forum of arbitration. The existence and validity of the arbitration agreement should be decided by the civil court. The arbitrator cannot clothe himself with jurisdiction to conclusively decide it by himself as a jurisdictional issue. It is for the court to decide it. The dispute on merits should be resolved by the arbitrator and the legality of the award would be subject to decision by the court Under Section 3315. In view of above, we are of the view that the State law will prevail in terms of Section 2(4) of the Central ActThis contention cannot be accepted in view of the fact that the SLP was filed prior to the filing of statement of defence wherein this objection was raised21. We do not express any opinion on the applicability of the State Act where award has already been made. In such cases if no objection to the jurisdiction of the arbitration was taken at relevant stage, the award may not be annulled only on that ground.	1	637	### 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: C.A. No. 974/2012:1. The matter has been placed before this Bench of three Judges pursuant to order dated 24th January, 2012 which is as follows:In view of some divergence of views expressed in the two judgments delivered today by us, the matter may be placed before Honble the Chief Justice of India for constituting a larger Bench to resolve the divergence. Appointment of arbitrator in a dispute arising out of execution of a works contract was the subject-matter for consideration before the High Court Under Section 11 of the Arbitration and Conciliation Act, 1996.2. Appellants raised objection that the matter being covered by a special State Act, namely, M.P. Madhyastham Adhikaran Adhiniyam, 1983 ("M.P. Act", in short), the application Under Section 11 of the Arbitration and Conciliation Act, 1996 could not be entertained. The High Court, however, overruled the said objection relying upon the judgment of this Court in Va Tech Escher Wyass Flovel Ltd. v. MPSE Board and Anr. (2011) 13 SCC 261 .3. When the matter was considered by a Bench of this Court on 24th January, 2012 (order reported in Madhya Pradesh Rural Road Development Authority and Anr. v. L.G. Chaudhary Engineers and Contractors (2012) 3 SCC 495 ), this Court held that the judgment in Va Tech Escher Wyass Flovel Ltd. (supra) was per incuriam insofar as it held that the M.P. Act stands implied repealed by the Central Act. While Honble Ganguly J., held that the State Act will cover a dispute even after termination of the works contract, Honble Gyan Sudha Mishra J. took a different view as follows:51. It is no doubt true that if the matter were before an Arbitrator appointed under the Arbitration and Conciliation Act, 1996 for adjudication of any dispute including the question regarding the justification and legality as to whether the cancellation of works contract was legal or illegal, then the said Arbitrator in view of the ratio of the judgment of the Supreme Court in Maharshi Dayanand University and Anr. v. Anand Coop L(C) Society (2007) 5 SCC 295 , as also in view of the persuasive reasoning assigned in the judgment and order reported in Heyman and Anr. v. Darwins, Limited (1942) 1 All E.R. 337 (HL), would have had the jurisdiction to adjudicate the dispute regarding the justification and legality of cancellation of works contract also. But the same cannot be allowed to be raised under the M.P. Act of 1983 since the definition of works contract unambiguously lays down in explicit terms as to what is the nature and scope of works contract and further enumerates the specific nature of disputes arising out of the execution of works contract which would come within the definition of a works contract. However, the same does not even vaguely include the issue or dispute arising out of cancellation and termination of contract due to which this question, in my considered opinion, would not fall within the jurisdiction of the M.P. State Arbitration Tribunal so as to be referred for adjudication arising out of its termination. 4. We find from the definition Under Section 2(d) of the Arbitration and Conciliation Act, 1996 that even after a contract is terminated, the subject-matter of dispute is covered by the said definition. The said provision has not been even referred to in the judgment rendered by Honble Gyan Sudha Mishra, J. ### Response: 1
512	Pratap Narain Vs. Chief Commissioner, Delhi & Others	K.S. Hegde J.1. The short question that arises for decision in this appeal by special leave is whether the High Court was justified in summarily dismissing the writ petition which has given rise to this appeal.2. The facts of this case may be briefly stated thus : Some of the lands belonging to the appellant in the village Badarpur were notified under Section 4 of the Land Acquisition Act for acquisition for a public purpose, oil August 30, 1954. Section 6 notification was issued on March 12, 1955. The appellant filed his claim for compensation before the Land Acquisition Officer on January 17, 1956. It is said on behalf of the appellant that a preliminary award was made on January 14, 1958 and a supplementary award on April 10, 1958 but no notice of those awards was given to him nor was he present at the time of making awards. He came to know of those awards only on October 30, 1958. On the same day he applied for the certified copy of those awards. After receiving the certified copies he applied under Section 18 of the Land Acquisition Act for referring the question of compensation for the decision of the Land Acquisition Judge and received the compensation awarded under protest. His application was rejected on October 21, 1961 as having been time barred. But that order again was not communicated to him. According to the appellant after waiting for a long time for an order on his application he wrote to the Land Acquisition Officer on November 18, 1965 to pass orders on his application tinder Section 18. In response to that letter he received a letter from the Land Acquisition Officer on November 27, 1965 asking him to appear before him and to prove that he had submitted an application under Section 18. He accordingly appeared before that officer on November 29, 1965 and produced before him the acknowledgment given to him. For sometime the concerned file was not traced in the office of the Land Acquisition Officer. Thereafter it was traced and it was found that his application had been dismissed on October 21, 1961 as being time barred but no notice of that order had been given to him. He then moved the Land Acquisition Officer to revise his order dismissing his application under Section 18 but that prayer was turned down on March 2, 1966. It is only thereafter he moved the Circuit Bench of the Punjab High Court at Delhi on March 26, 1966 for setting aside the order of the Land Acquisition Officer and to direct him to act according to Section 18. That application was summarily dismissed oil March 29, 1966.3. The appellants case is that he had not received any notice of the making of the award and consequently his application under Section 18 was within time. This plea had not been controverted by the respondents in this Court. The records produced by the appellant lend support to that plea. Hence prima facie the appellants application under Section 18 was within time, see Raja Harish Chandera Raj Singh v. The Deputy Land Acquisition Officer and Another (1962 1 SCR 676 ) and State of Punjab v. Mst. Osisar Jehan Begum and Another (1964 1 SCR 971 ). If the allegations made by the appellant are accepted as correct as we have to do on the basis of the pleadings and material before us then there is no doubt that the Land Acquisition Officer was not justified in refusing to exercise his statutory duty.4. The order of the High Court dismissing the writ petition is not a speaking order. We do not know for what reasons the High Court rejected the writ petition. The appellant undoubtedly had a strong prima facie case in support of the reliefs prayed for, by him.5. It is true that the appellant was not prompt in moving the High Court. But he cannot be penalised for proceeding on the basis that the statutory Tribunals would act according to law and the delay in receiving the prescribed notices as being nothing extraordinary, knowing how our administrative machinery works.6. The respondents have not filed any affidavit in this Court nor have they placed any material before this Court to show that the facts pleaded by the appellant are in any manner incorrect. Therefore at this stage we have to accept those facts.7.	1[ds]5. It is true that the appellant was not prompt in moving the High Court. But he cannot be penalised for proceeding on the basis that the statutory Tribunals would act according to law and the delay in receiving the prescribed notices as being nothing extraordinary, knowing how our administrative machinery works.6. The respondents have not filed any affidavit in this Court nor have they placed any material before this Court to show that the facts pleaded by the appellant are in any manner incorrect. Therefore at this stage we have to accept thoserecords produced by the appellant lend support to that plea. Hence prima facie the appellants application under Section 18 was within time, see Raja Harish Chandera Raj Singh v. The Deputy Land Acquisition Officer and Another (1962 1 SCR 676 ) and State of Punjab v. Mst. Osisar Jehan Begum and Another (1964 1 SCR 971 ). If the allegations made by the appellant are accepted as correct as we have to do on the basis of the pleadings and material before us then there is no doubt that the Land Acquisition Officer was not justified in refusing to exercise his statutory duty.	1	787	### 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: K.S. Hegde J.1. The short question that arises for decision in this appeal by special leave is whether the High Court was justified in summarily dismissing the writ petition which has given rise to this appeal.2. The facts of this case may be briefly stated thus : Some of the lands belonging to the appellant in the village Badarpur were notified under Section 4 of the Land Acquisition Act for acquisition for a public purpose, oil August 30, 1954. Section 6 notification was issued on March 12, 1955. The appellant filed his claim for compensation before the Land Acquisition Officer on January 17, 1956. It is said on behalf of the appellant that a preliminary award was made on January 14, 1958 and a supplementary award on April 10, 1958 but no notice of those awards was given to him nor was he present at the time of making awards. He came to know of those awards only on October 30, 1958. On the same day he applied for the certified copy of those awards. After receiving the certified copies he applied under Section 18 of the Land Acquisition Act for referring the question of compensation for the decision of the Land Acquisition Judge and received the compensation awarded under protest. His application was rejected on October 21, 1961 as having been time barred. But that order again was not communicated to him. According to the appellant after waiting for a long time for an order on his application he wrote to the Land Acquisition Officer on November 18, 1965 to pass orders on his application tinder Section 18. In response to that letter he received a letter from the Land Acquisition Officer on November 27, 1965 asking him to appear before him and to prove that he had submitted an application under Section 18. He accordingly appeared before that officer on November 29, 1965 and produced before him the acknowledgment given to him. For sometime the concerned file was not traced in the office of the Land Acquisition Officer. Thereafter it was traced and it was found that his application had been dismissed on October 21, 1961 as being time barred but no notice of that order had been given to him. He then moved the Land Acquisition Officer to revise his order dismissing his application under Section 18 but that prayer was turned down on March 2, 1966. It is only thereafter he moved the Circuit Bench of the Punjab High Court at Delhi on March 26, 1966 for setting aside the order of the Land Acquisition Officer and to direct him to act according to Section 18. That application was summarily dismissed oil March 29, 1966.3. The appellants case is that he had not received any notice of the making of the award and consequently his application under Section 18 was within time. This plea had not been controverted by the respondents in this Court. The records produced by the appellant lend support to that plea. Hence prima facie the appellants application under Section 18 was within time, see Raja Harish Chandera Raj Singh v. The Deputy Land Acquisition Officer and Another (1962 1 SCR 676 ) and State of Punjab v. Mst. Osisar Jehan Begum and Another (1964 1 SCR 971 ). If the allegations made by the appellant are accepted as correct as we have to do on the basis of the pleadings and material before us then there is no doubt that the Land Acquisition Officer was not justified in refusing to exercise his statutory duty.4. The order of the High Court dismissing the writ petition is not a speaking order. We do not know for what reasons the High Court rejected the writ petition. The appellant undoubtedly had a strong prima facie case in support of the reliefs prayed for, by him.5. It is true that the appellant was not prompt in moving the High Court. But he cannot be penalised for proceeding on the basis that the statutory Tribunals would act according to law and the delay in receiving the prescribed notices as being nothing extraordinary, knowing how our administrative machinery works.6. The respondents have not filed any affidavit in this Court nor have they placed any material before this Court to show that the facts pleaded by the appellant are in any manner incorrect. Therefore at this stage we have to accept those facts.7. ### Response: 1
513	UNION OF INDIA (UOI) Vs. DR. KUSHALA SHETTY AND OTHERS	vitiated due to mala fides of the Chief Minister. This Court rejected the plea of mala fides by making the following observations: 90...The Petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second Respondent and incurred his wrath by inconvenient and uncompromising acts and nothings and contended that the second Respondent, therefore, nursed hostility and mauls animus against the Petitioner and it was for this reason and not on account of exigencies of administration that the Petitioner was transferred from the post of Chief Secretary. The incidents referred to by the Petitioner, if true, constituted gross acts of maladministration and the charge leveled against the second Respondent was that because the Petitioner in the course of his duties obstructed and thwarted the second Respondent in these acts of maladministration, that the second Respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second Respondent transferred him from the post of Chief Secretary. The transfer of the Petitioner was, therefore, in mala fide exercise of power and accordingly invalid. 91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second Respondent. It is not within our province to embark on a far-flung inquiry into acts of commission and omission charged against the second Respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second Respondent was guilty of misrule and another to say that he had mauls animus against the Petitioner which was the operative cause of the displacement of the Petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the Petitioner to side track the issue and escape the burden of establishing hostility and mauls animus on the part of the second Respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the Respondents includes any component of mala fides; whether hostility and mauls animus against the Petitioner were the operational cause of the transfer of the Petitioner from the post of Chief Secretary. 92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the Petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up these considerations are wholly irrelevant, in judicial approach but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the Petitioner against the second Respondent. 24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.	1[ds]18. The scheme of acquisition enshrined in the above reproduced provisions makes it clear that once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a national highway or part thereof, then, it shall declare its intention to acquire such land by issuing a notification in the official Gazette giving brief description of the land. The substance of the notification is also required to be published in two local newspapers of which one has to be in a vernacular language. Any person interested in the land can file objection within 21 days from the date of publication of the notification in the official Gazette. Such objection is required to be made to the Competent Authority in writing. Thereafter, the Competent Authority is required to give the objector an opportunity of hearing either in person or through a legal practitioner. This exercise is to be followed by an order of the Competent Authority either allowing or rejecting the objections. Where no objection is made to the Competent Authority in terms of Section 3C(1) or where the objections made by the interested persons have been disallowed, the Competent Authority is required to submit a report to the Central Government, which shall then issue a notification in the official Gazette that the land should be acquired for the purpose or purposes mentioned in Section 3A(1). On publication of declaration u/s 3D(1), the land vests absolutely in the Central Government free from all encumbrances. Sub-section (3) of Section 3D provides that where no declaration under Sub-section (1) is published within a period of one year from the date of publication of notification u/s 3A(1), the said notification shall cease to have any effect. By virtue of proviso to Section 3D(3), the period during which any action or proceeding taken in pursuance of notification issued u/s 3A(1) remains stayed by a Court shall be excluded while computing the period of one year specified in Section 3D(3).19. In this case, notification dated 10.8.2005, which was published in the official Gazette of the same date and of which substance was published in two local newspapers, contained full description of the land proposed to be acquired for widening three National Highways. The names of the villages in which the land proposed to be acquired was situated, the survey numbers including sub-survey numbers, the nature, type and area of the land were also given in the schedule appended to the notification. Not only this, it was clearly mentioned that land plans and other details of the land are available in the office of the Competent Authority. This is the reason why none of the land owners (including the Respondents) made any grievance that the notification issued u/s 3A(1) of the 1956 Act was vague or that due to lack of particulars/details, they were prevented from effectively exercising their right to file objections in terms of Section 3C(1). of course, a grievance of this score was made in the objections dated 16.10.2006 filed by some of the land owners of Padavu Village, but that was clearly an afterthought and, in any case, the same did not require consideration because of no adherence to the time schedule specified in Section 3C(1) of the 1956 Act.20. The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge negating the Respondents challenge to the acquisition was that declaration u/s 3D(1) was published even before communication of the decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of declaration u/s 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the Respondents cannot be faulted only on that ground. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexure P-3 filed before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from Surathkal to Nantoor and B.C. Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections.21. The plea of the Respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion, the Respondents have neither given particulars of the persons sought to be favored nor placed any material to prima facie prove that the execution of the project of widening the National Highways is actuated by mala fides and, in the absence of proper pleadings and material, neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions of the Appellants are tainted by mala fides.22. A somewhat similar question was considered in Girias Investment Private Ltd. v. State of Karnataka (supra). In that case, the acquisition of the land under the Karnataka Industrial Areas Development Act, 1966 was challenged on various grounds including the one that the acquisition was vitiated due to mala fides. While rejecting the plea of mala fides, the Court referred to Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, State of Punjab and Another Vs. Gurdial Singh and Others, and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, and observed:14. It is obvious from a reading of the pleadings quoted above that only vague allegations of mala fides have been leveled and that too without any basis. There can be two ways by which a case of mala fides can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party alleging mala fides. It would be seen that there is no allegation whatsoever in the pleadings that the case falls within the first category but an inference of mala fides has been sought to be drawn in the course of a vague pleading that the change had been made to help certain important persons who would have lost their land under the original acquisition. These allegations have been replied to in the paragraph quoted above and reveal that the land which had been denotified belonged to those who had absolutely no position or power. In this view of the matter, the judgments cited by Mr. Dave have absolutely no bearing on the facts of the case.24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.	1	7,463	### 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: vitiated due to mala fides of the Chief Minister. This Court rejected the plea of mala fides by making the following observations: 90...The Petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second Respondent and incurred his wrath by inconvenient and uncompromising acts and nothings and contended that the second Respondent, therefore, nursed hostility and mauls animus against the Petitioner and it was for this reason and not on account of exigencies of administration that the Petitioner was transferred from the post of Chief Secretary. The incidents referred to by the Petitioner, if true, constituted gross acts of maladministration and the charge leveled against the second Respondent was that because the Petitioner in the course of his duties obstructed and thwarted the second Respondent in these acts of maladministration, that the second Respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second Respondent transferred him from the post of Chief Secretary. The transfer of the Petitioner was, therefore, in mala fide exercise of power and accordingly invalid. 91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second Respondent. It is not within our province to embark on a far-flung inquiry into acts of commission and omission charged against the second Respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second Respondent was guilty of misrule and another to say that he had mauls animus against the Petitioner which was the operative cause of the displacement of the Petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the Petitioner to side track the issue and escape the burden of establishing hostility and mauls animus on the part of the second Respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the Respondents includes any component of mala fides; whether hostility and mauls animus against the Petitioner were the operational cause of the transfer of the Petitioner from the post of Chief Secretary. 92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the Petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up these considerations are wholly irrelevant, in judicial approach but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the Petitioner against the second Respondent. 24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained. ### Response: 1
514	National Small Industries Corporation Ltd Vs. State (NCT of Delhi) & Others	(a) of the proviso to section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to section 200 of the Code will be available. 12. We are fortified in our view by two decisions of this Court. In Associated Cement Co. Ltd. vs. Keshvanand [1998 (1) SCC 687 ], this Court held as follows : Chapter XV of the new Code contains provisions for lodging complaints with magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words shall examine on oath the complainant.... The Magistrate is further required to reduce the substance of such examination to writing and it shall be signed by the complainant. Under Section 203 the magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. (emphasis supplied) In Municipal Corporation of Delhi vs. Jagdish Lal [1969 (3) SCC 389 ], the facts were that the Delhi Municipal Corporation had by a resolution authorized the Municipal Prosecutor to launch a prosecution under section 20 of the Prevention of Food Adulteration Act. Accordingly, one S.S. Mathur, the Municipal Prosecutor, filed a complaint against the respondent. The learned Magistrate acquitted the respondent. Section 417 of the old Code provided that where an order of acquittal was passed in any case instituted upon complaint by the High Court granting special leave to appeal from the order of acquittal on an application made to it by the complainant, the complainant may present an appeal to the High Court. The Delhi Municipal Corporation made an application to the High Court for special leave under section 417 against the order of acquittal. The application was granted. When the appeal came up for hearing, the respondent raised a preliminary objection that as the complaint had been filed by S. S. Mathur, the Municipal Prosecutor, he alone was competent to file the appeal and not the Municipal Corporation. It was contended that as the application seeking leave was not filed by the complainant but by the Municipal Corporation, the appeal itself was not maintainable. The said contention was negatived by this Court. This Court expressed its inability to accept the contention that as S.S.Mathur, Municipal Prosecutor, was the complainant, the Delhi Municipal Corporation was not competent to make an application for special leave. This Court noted that S.S.Mathur, Municipal Prosecutor, filed the complaint under the authority given to him under the resolution of the Municipal Corporation. This Court held that in filing the complaint, S.S. Mathur was not acting on his own personal behalf but was acting as an agent of the Delhi Municipal Corporation and therefore, it must be deemed that the Delhi Municipal Corporation was the complainant in the case; and that as S.S. Mathur was only acting in a representative capacity and as the Delhi Municipal Corporation was the complainant, the application for special leave filed by the Municipal Corporation was properly instituted. 13. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of section 142 NI Act, the company will be the complainant, and for purposes of section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of proviso to section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation. 14. Thus, the answer to the question raised is : Where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, clause (a) of the proviso to section 200 of the Code will be attracted and consequently, the Magistrate need not examine the complainant and the witnesses. 15.	1[ds]12. We are fortified in our view by two decisions of this Court. In Associated Cement Co. Ltd. vs. Keshvanand [1998 (1) SCC 687 ], this Court held as follows :Chapter XV of the new Code contains provisions for lodging complaints with magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words shall examine on oath the complainant.... The Magistrate is further required to reduce the substance of such examination to writing and it shall be signed by the complainant. Under Section 203 the magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absenceThe above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. (emphasis supplied)In Municipal Corporation of Delhi vs. Jagdish Lal [1969 (3) SCC 389 ], the facts were that the Delhi Municipal Corporation had by a resolution authorized the Municipal Prosecutor to launch a prosecution under section 20 of the Prevention of Food Adulteration Act. Accordingly, one S.S. Mathur, the Municipal Prosecutor, filed a complaint against the respondent. The learned Magistrate acquitted the respondent. Section 417 of the old Code provided that where an order of acquittal was passed in any case instituted upon complaint by the High Court granting special leave to appeal from the order of acquittal on an application made to it by the complainant, the complainant may present an appeal to the High Court. The Delhi Municipal Corporation made an application to the High Court for special leave under section 417 against the order of acquittal. The application was granted. When the appeal came up for hearing, the respondent raised a preliminary objection that as the complaint had been filed by S. S. Mathur, the Municipal Prosecutor, he alone was competent to file the appeal and not the Municipal Corporation. It was contended that as the application seeking leave was not filed by the complainant but by the Municipal Corporation, the appeal itself was not maintainable. The said contention was negatived by this Court. This Court expressed its inability to accept the contention that as S.S.Mathur, Municipal Prosecutor, was the complainant, the Delhi Municipal Corporation was not competent to make an application for special leave. This Court noted that S.S.Mathur, Municipal Prosecutor, filed the complaint under the authority given to him under the resolution of the Municipal Corporation. This Court held that in filing the complaint, S.S. Mathur was not acting on his own personal behalf but was acting as an agent of the Delhi Municipal Corporation and therefore, it must be deemed that the Delhi Municipal Corporation was the complainant in the case; and that as S.S. Mathur was only acting in a representative capacity and as the Delhi Municipal Corporation was the complainant, the application for special leave filed by the Municipal Corporation was properly instituted13. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of section 142 NI Act, the company will be the complainant, and for purposes of section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of proviso to section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation14. Thus, the answer to the question raised is :	1	4,076	### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: (a) of the proviso to section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to section 200 of the Code will be available. 12. We are fortified in our view by two decisions of this Court. In Associated Cement Co. Ltd. vs. Keshvanand [1998 (1) SCC 687 ], this Court held as follows : Chapter XV of the new Code contains provisions for lodging complaints with magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words shall examine on oath the complainant.... The Magistrate is further required to reduce the substance of such examination to writing and it shall be signed by the complainant. Under Section 203 the magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. (emphasis supplied) In Municipal Corporation of Delhi vs. Jagdish Lal [1969 (3) SCC 389 ], the facts were that the Delhi Municipal Corporation had by a resolution authorized the Municipal Prosecutor to launch a prosecution under section 20 of the Prevention of Food Adulteration Act. Accordingly, one S.S. Mathur, the Municipal Prosecutor, filed a complaint against the respondent. The learned Magistrate acquitted the respondent. Section 417 of the old Code provided that where an order of acquittal was passed in any case instituted upon complaint by the High Court granting special leave to appeal from the order of acquittal on an application made to it by the complainant, the complainant may present an appeal to the High Court. The Delhi Municipal Corporation made an application to the High Court for special leave under section 417 against the order of acquittal. The application was granted. When the appeal came up for hearing, the respondent raised a preliminary objection that as the complaint had been filed by S. S. Mathur, the Municipal Prosecutor, he alone was competent to file the appeal and not the Municipal Corporation. It was contended that as the application seeking leave was not filed by the complainant but by the Municipal Corporation, the appeal itself was not maintainable. The said contention was negatived by this Court. This Court expressed its inability to accept the contention that as S.S.Mathur, Municipal Prosecutor, was the complainant, the Delhi Municipal Corporation was not competent to make an application for special leave. This Court noted that S.S.Mathur, Municipal Prosecutor, filed the complaint under the authority given to him under the resolution of the Municipal Corporation. This Court held that in filing the complaint, S.S. Mathur was not acting on his own personal behalf but was acting as an agent of the Delhi Municipal Corporation and therefore, it must be deemed that the Delhi Municipal Corporation was the complainant in the case; and that as S.S. Mathur was only acting in a representative capacity and as the Delhi Municipal Corporation was the complainant, the application for special leave filed by the Municipal Corporation was properly instituted. 13. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of section 142 NI Act, the company will be the complainant, and for purposes of section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of proviso to section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation. 14. Thus, the answer to the question raised is : Where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, clause (a) of the proviso to section 200 of the Code will be attracted and consequently, the Magistrate need not examine the complainant and the witnesses. 15. ### Response: 1
515	Vania Silk Mills Private Limited Vs. Commissioner of Income Tax, Ahmedabad	incorporeal 14. When the assets themselves are being distributed, it is correct to say that to the extent of distribution, they are wiped out. It is in that sense that the assets do not exist to the extent that they are distributed. When the companys assets are thus distributed, in a sense the assets which are converted into money and which, therefore, exist in the form of money are transferred from the liquidator to the shareholder. His rights in the assets come to an end when he receives his liquidated share of the asset. In such a case the assets do exist though in the converted form, viz., case and what is transferred is also the converted form of the asset. With respect, therefore, it is not correct to say that in such cases the capital asset does not exist and does not change hands as capital asset. That the receipt of his share in the asset brings about automatically the extinguishment of the shareholders rights in the asset cannot, however, be gainsaid. The decision of the Gujarat High Court in R.M. Amin case ( 1971 (82) ITR 194 (Guj)) was appealed against and this Court (CIT v. R.M. Amin, 1977 (1) SCC 691 : 1977 SCC(Tax) 234 ) while approving the ratio of the said decision further explained the nature of the money received by a shareholder on the liquidation of a company. This Court reiterating its earlier view in the case of CIT v. Madurai Mills Co. Ltd. ( 1973 (4) SCC 194 : 1973 SCC(Tax) 425 : 1973 (89) ITR 45 ) held that the act of the liquidator in distributing the assets of the company does not result in the creation of new rights. It merely recognises the legal rights which were in existence prior to the distribution. The shareholder receives money in recognition and satisfaction of his right and not by operation of any transaction which amounts to sale, exchange, relinquishment of asset or extinguishment of any of his right in such asset 15. So also when a partner retires from the partnership what he receives is his share in the partnership which is worked out and realised. It does not represent consideration received by him as a result of the extinguishment of his interest in the partnership assets. He has no share in any particular asset of the firm. Therefore, there is no transfer of interest in any particular asset of the firm on account of the receipt of his share by a retired partner. As held in CIT v. Mohanbhai Pamabhai ( 1973 (91) ITR 393 : (1973) 1 ITJ 55 (Guj)) no part of the amount received by the assessee as a retired partner is assessable to capital gains tax under Section 45 16. The High Court has explained these two decisions by giving reasons which do not appeal to us. The court has tried to distinguish them from the facts of the present case pointing out, firstly, that there was no foundation either in law or in fact to believe that the amount which the assessee received from M/s. Jasmine Mills was paid to it in satisfaction or in working out of its right if any, to recover damages under law or contract for the loss or damage caused to the machinery. We do not see any difficulty in holding that it was an amount received by the assessee as damages on account of the its machinery. It is difficult to describe it otherwise. The second reason given by the High Court is, with respect, equally fragile. It is held that the alleged right, if any, of the assessee to recover damages was not an absolute statutory right but one which was subject to a contract to the contrary and even if there was no such contract it was merely an inchoate or contingent right in respect of which some investigation or legal proceeding and settlement or adjudication would be necessary for its satisfaction or fulfilment. We do not agree with this reasoning as well. The facts clearly show that M/s. Jasmine Mills as a bailee had insured the machinery hired from the assessee, since it was liable to make good the loss of the machinery to the assessee. This is implied under a contract of bailment unless it is provided to the contrary. M/s. Jasmine Mills further admittedly paid the insurance amount pro rata to the assessee. In the circumstances, we are unable to appreciate the distinction sought to be made by High Court 17. We are also unable to see how it would make any difference to the point involved in the present case whether the Jasmine Mills had insured the assessees machinery as bailees or as agents of the assessee. There is further no dispute that the insurance policy contained the reinstatement clause requiring the insurer to pay the cost of the machinery as no the date of the fire. As we have pointed out earlier, in an insurance policy with the reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of the destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing the destroyed asset or for any other purpose. In the circumstances, for the purposes of answering the question in hand, it was not necessary to inquire whether the amount received by the assessee was spent in replacement of the machinery or not18. For the reasons given above, the decision of the Allahabad High Court in CIT v. J.K. Cotton Spinning & Weaving Mills Co. Ltd. ( 1987 (164) ITR 18 : 1987 TaxLR 75) which proceeds on the same reasoning as the impugned judgment is also not a good law. Instead, we approve of the conclusion reached by the Madras High Court in C. Leo Machodo v. CIT ( 1988 (172) ITR 744 : 1988 Tax(LT) 1008 (Mad)) for the reasons given by us above	1[ds]11. It is true that the definition of "transfer" in Section 2(47) of the Act is inclusive, and therefore extends and transactions which may not otherwise be "transfer" according to its ordinary, popular and natural sense. It is this aspect of the definition which has weighed with the High Court and, therefore, the High Court has argued that if the words "extinguishment of any right therein" are substituted for the word "transfer" in Section 45, the claim or compensation received from the insurance company would be attracted by the said section. The High Court has, however, missed the fact that the definition also mentions such transactions as sale, exchange etc. to which the word "transfer" would properly apply in its popular and natural import. Since those associated words and expressions imply the existence of the asset and of the transferee, according to the rule of noscitur a sociis, the expression "extinguishment of any rights therein" would take colour from the said associated words and expressions, and will have to be restricted to the sense analogous to them. If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz., sale, exchange etc. Hence the expression "extinguishment of any right therein" will have to be confined to the extinguishment of rights on account of transfer and cannot be extended to mean any extinguishment of right independent of or otherwise than on account ofThe amount received by the assessee-shareholder does not represent any consideration received by him as a result of the extinguishment of his rights in the shares. The share merely represents the right to receive money on distribution of the net assets of the company in liquidation and it is by satisfaction of the right, that the right is extinguished when such monies are received by the shareholder. The consideration presumes quid pro quo and, therefore, transfer of the property or of the right in the property, whether the property is corporeal orWe are also unable to see how it would make any difference to the point involved in the present case whether the Jasmine Mills had insured the assessees machinery as bailees or as agents of the assessee. There is further no dispute that the insurance policy contained the reinstatement clause requiring the insurer to pay the cost of the machinery as no the date of the fire. As we have pointed out earlier, in an insurance policy with the reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of the destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing the destroyed asset or for any other purpose. In the circumstances, for the purposes of answering the question in hand, it was not necessary to inquire whether the amount received by the assessee was spent in replacement of the machinery or not18. For the reasons given above, the decision of the Allahabad High Court in CIT v. J.K. Cotton Spinning & Weaving Mills Co. Ltd. ( 1987 (164) ITR 18 : 1987 TaxLR 75) which proceeds on the same reasoning as the impugned judgment is also not a good law. Instead, we approve of the conclusion reached by the Madras High Court in C. Leo Machodo v. CIT ( 1988 (172) ITR 744 : 1988 Tax(LT) 1008 (Mad)) for the reasons given by us above	1	3,649	### 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: incorporeal 14. When the assets themselves are being distributed, it is correct to say that to the extent of distribution, they are wiped out. It is in that sense that the assets do not exist to the extent that they are distributed. When the companys assets are thus distributed, in a sense the assets which are converted into money and which, therefore, exist in the form of money are transferred from the liquidator to the shareholder. His rights in the assets come to an end when he receives his liquidated share of the asset. In such a case the assets do exist though in the converted form, viz., case and what is transferred is also the converted form of the asset. With respect, therefore, it is not correct to say that in such cases the capital asset does not exist and does not change hands as capital asset. That the receipt of his share in the asset brings about automatically the extinguishment of the shareholders rights in the asset cannot, however, be gainsaid. The decision of the Gujarat High Court in R.M. Amin case ( 1971 (82) ITR 194 (Guj)) was appealed against and this Court (CIT v. R.M. Amin, 1977 (1) SCC 691 : 1977 SCC(Tax) 234 ) while approving the ratio of the said decision further explained the nature of the money received by a shareholder on the liquidation of a company. This Court reiterating its earlier view in the case of CIT v. Madurai Mills Co. Ltd. ( 1973 (4) SCC 194 : 1973 SCC(Tax) 425 : 1973 (89) ITR 45 ) held that the act of the liquidator in distributing the assets of the company does not result in the creation of new rights. It merely recognises the legal rights which were in existence prior to the distribution. The shareholder receives money in recognition and satisfaction of his right and not by operation of any transaction which amounts to sale, exchange, relinquishment of asset or extinguishment of any of his right in such asset 15. So also when a partner retires from the partnership what he receives is his share in the partnership which is worked out and realised. It does not represent consideration received by him as a result of the extinguishment of his interest in the partnership assets. He has no share in any particular asset of the firm. Therefore, there is no transfer of interest in any particular asset of the firm on account of the receipt of his share by a retired partner. As held in CIT v. Mohanbhai Pamabhai ( 1973 (91) ITR 393 : (1973) 1 ITJ 55 (Guj)) no part of the amount received by the assessee as a retired partner is assessable to capital gains tax under Section 45 16. The High Court has explained these two decisions by giving reasons which do not appeal to us. The court has tried to distinguish them from the facts of the present case pointing out, firstly, that there was no foundation either in law or in fact to believe that the amount which the assessee received from M/s. Jasmine Mills was paid to it in satisfaction or in working out of its right if any, to recover damages under law or contract for the loss or damage caused to the machinery. We do not see any difficulty in holding that it was an amount received by the assessee as damages on account of the its machinery. It is difficult to describe it otherwise. The second reason given by the High Court is, with respect, equally fragile. It is held that the alleged right, if any, of the assessee to recover damages was not an absolute statutory right but one which was subject to a contract to the contrary and even if there was no such contract it was merely an inchoate or contingent right in respect of which some investigation or legal proceeding and settlement or adjudication would be necessary for its satisfaction or fulfilment. We do not agree with this reasoning as well. The facts clearly show that M/s. Jasmine Mills as a bailee had insured the machinery hired from the assessee, since it was liable to make good the loss of the machinery to the assessee. This is implied under a contract of bailment unless it is provided to the contrary. M/s. Jasmine Mills further admittedly paid the insurance amount pro rata to the assessee. In the circumstances, we are unable to appreciate the distinction sought to be made by High Court 17. We are also unable to see how it would make any difference to the point involved in the present case whether the Jasmine Mills had insured the assessees machinery as bailees or as agents of the assessee. There is further no dispute that the insurance policy contained the reinstatement clause requiring the insurer to pay the cost of the machinery as no the date of the fire. As we have pointed out earlier, in an insurance policy with the reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of the destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing the destroyed asset or for any other purpose. In the circumstances, for the purposes of answering the question in hand, it was not necessary to inquire whether the amount received by the assessee was spent in replacement of the machinery or not18. For the reasons given above, the decision of the Allahabad High Court in CIT v. J.K. Cotton Spinning & Weaving Mills Co. Ltd. ( 1987 (164) ITR 18 : 1987 TaxLR 75) which proceeds on the same reasoning as the impugned judgment is also not a good law. Instead, we approve of the conclusion reached by the Madras High Court in C. Leo Machodo v. CIT ( 1988 (172) ITR 744 : 1988 Tax(LT) 1008 (Mad)) for the reasons given by us above ### Response: 1
516	LMJ INTERNATIONAL LTD Vs. SLEEPWELL INDUSTRIES CO. LTD	disregard the alterations envisaged by the Amendment to the Contract dated 7 th December 2010, granting an even higher level for “Broken Grains” end “Dead, damaged and Discoloured Grains”, the results provided by ISC were well Within the parameters foreseen for the quality under the Contract.6.11 The Tribunal therefore FINDS THAT the quality of the cargo shipped on the three vessels was within the amended contractual specifications.6.12. In addition to the above, the provision DI the Quality Clause 5 of GAFTA Contract No.48, being Tale Quale contract as such, states, Inter alia: “Certificate of Inspection at time o/ loading –shall be final as to quality”.6.13 Consequently, and under consideration of the Payment Term of the- Contract providing for payment on receipt 01 the shipping documents’, inter alia the above Pre-Shipment Certificates as issued by ISC and provided by Sellers, Sellers were duty entitled to trigger payment under the Contract.6.14 WE THEREFORE FIND THAT Sellers’ claim for payment of IJSD 440.00 per metric ton all three partial shipments succeeds.6.15 In reference with the balance of USD 10.00 per metric ton for each partial shipment, as agreed under the Amendment dated 7 th December 2010, the Amendment Provided that the “Balance amount@ US$10.00 per MT will be payable after receipt of quality inspection report of destination port”.6.16 This indeed establishes an alteration to the original provision of the Contract that the quality would be final at the port of loading, at least as far as the balance of USD 10.00 per metric ton is concerned. On interpretation and construction of the Contract itself and its Amendment dated 7 th December 2010, the Tribunal notes that the Amendment itself defines in“1. Quantity” that the weight in accordance with the Contract would be still “final at loading” while the amended payment term now states that a balance amount of US$ 10.00 per MT would only“be payable after receipt of a quality inspection report of destination port.”6.17 WE THEREFORE FIND THAT the Contract had been validly altered to the provision that Sellers could only have triggered payment of the balance of USD 10.00 per metric ton after presentation of a quality inspection report from the port of destination, i.e. Bangladesh.6.18 As no such quality Inspection had been presented by Buyers, despite various reminders from Sellers, until the present day, the GAFTA Sampling Rules No.124, cl. 6:1 provide that a certificate of analysis should be sent to the other party “within 14 consecutive days” after dispatch of the samples to the analyst.6.19 Buyers in their message of 5 th February 2011 firstly explained that the quality of the cargo on the last vessel i.e. MV Tu man Gang, was inferior.6.20 The Tribunal Therefore finds that buyers, with respect Tribunal THEREFORE FINDS THAT with respect to cl. 6:1 of the GAFTA Sampling Rules No.124 were obliged to provide a certificate of analysis Latter that message dated 5 th February 201 1 therefore latest 20 th February 2011.6.21. The date of default shall therefore be one day later, the 21 st February 2011 and SO WE DO FIND.6.22 As Buyers failed to forward the certificate within this limit of 14 days, any claim for rejection or for an allowance in respect of any matters dealt with under the Contract, and its Amendments. shall be deemed to be waived and absolutely barred, AND SO WE DO FIND.6.23 THE TRIBUNAL THEREFORE FINDS THAT Sellers’ claim for payment of balance invoices of USD 10,00 per metric ton succeeds.6.24 There is no apparent disputes as far as the quantity of the shipment under the contract is concerned as the contract provided for the shipment of 15000 metric tons, +¬5% in buyers option and sellers only shipped 13,729.55 metric tons.6.25 Buyers nevertheless informed Sellers 5 th February 2011 that the original Letter of Credit as foreseen for payment under the Contract not be extended and Buyers therefore planned to “establish Fresh LC for the balance quantity of 2000 ton in the old contract”.6.26 The Tribunal has not seen any new letter of credit for this purpose and as Buyers have not filed such, the Contract came to its end,6.27 WE THEREFORE FIND THAT Sellers’ calculations for sums and interest due should be based on a quantity of 13,729.55 metric tons.6.28 WE FIND AND DECLARE THAT:1) Sellers’ claim for payment of balance of USD 10.00 per metric ton for each of the three shipments amounting to USD 137,148.20 succeeds. Interest to run from 29 th June 2011. The date of Buyers’ email stating that they would not be “obliged and/or liable to pay any sum” to Sellers.2) Sellers’ claim for the balance of as deducted from the invoice in reference to the shipment on board of MV Tuman Gang amounting to USD 382,348.90 succeeds. Interest to run from 20 th February 2011, the date by which Buyers should have provided a ‘quality inspection report at destination port’.Buyers shall pay compound interest on the above sum of USD 137,148.20 at the rate of 4% (four per cent) per annum calculated at quarterly rests, from 29 th June 2011 to the date of payment.7.2 Buyers shall forthwith pay to Sellers USD 382,348.90 (three hundred & eighty¬two thousand, three hundred and forty eight United States dollars and ninety cents). Buyers, shall forthwith pay to sellers USD 332,348.90 at the rate of 4% (four percent) per annum calculated at quarterly rests, from 20 th February 2011 to the date of payment.7.3 WE THEREFORE AWARD THAT Buyers shall pay the fees, costs and expenses of this arbitration as per the attached schedule.” 17. Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues. 18.	0[ds]The grounds, at best, could be urged by the petitioner in the appeal to be filed against the foreign award governed by English Laws (UK Arbitration Act, 1996). The petitioner has allowed the said awards to attain finality having failed to file such appeal. Even the argument of fraud on the basis of the allegation that the relevant documents were not brought to the notice of the Arbitral Tribunal by the respondent – award holder, is baseless and only a subterfuge for protracting the recovery of dues. In that, the respondent had produced a swift message dated 3 rd June, 2011 sent from the respondent bank to the petitioner bank and the subsequent correspondence between the parties to which reference has been made by the Arbitral Tribunal while deciding the matter. There is no allegation that the respondent concealed the stated correspondence between the parties with a view to obtain an arbitral award through fraud. The specific ground taken by the petitioner was that the award holder, with intent to deceive, perpetuated fraud on the petitioner. That is not enough to hold that the subject foreign awards were unenforceable within the meaning of Section 48 of the Act. The petitioner had sufficient notice of the arbitration proceedings but it chose not to participate in the said proceeding for reasons best known to it. Therefore, now it cannot turn around and make a grievance about non¬ consideration of any document. More so, the grievance is in the nature of inviting the Executing Court to have a second look at the award which is not the scope of Section 48 of the Act. The respondent has also refuted the ground urged on behalf of the petitioner regarding awarding of compound interest at the rate of 4% per annum calculated at quarterly rests, being in conformity with the governing laws. The respondent has also relied on the dictum in Shri Lal Mahal Ltd., (2014) 2 SCC 433 (supra) and Renusagar Power Company Ltd.,1994 Supp. (1) SCC 644 (supra). The respondent has also distinguished the judgments cited by the petitioner on the scope of interference in domestic awards on the ground of its enforceability as opposed to the foreign awards in the present cases. The respondent submits that these petitions be dismissed with exemplary costs and while doing so, appropriate directions be issued to the Registrar (OS), High Court at Calcutta to forthwith encash the FDs of approximately Rs.2 crores, in the credit of both the execution cases and forthwith remit the entire receipts, including the accrued interest in US Dollars, to the respondent, as was ordered earlier vide orders dated 5 th January, 2018, 5 th March, 2018 and 20 th April, 2018, respectively, after obtaining prior permission of the Reserve Bank of India in that regard. The respondent also seeks direction against the petitioner for securing the deficit amount, which would remain after appropriation of the amount under the FDs, lying with the Registrar (OS), Calcutta High Court. The respondent would contend that such direction is necessary in the peculiar facts of the present case and to obviate any complication due to moratorium, as the petitioner has invoked proceedings under the Insolvency and Bankruptcyr contends that on the earlier occasion, the objections were limited to the questions of maintainability of the execution case on grounds as were urged at the relevant time and not in reference to the enforceability of the subject foreign awards as such.This argument, to say the least, is an attempt to indulge in hair-splitting and nothing more. It is an argument in desperation only to protract the execution of the foreign award on untenable grounds. Indeed, the petitioner had not filed any formal application to raise the issue of maintainability of the execution case but the Court had permitted the petitioner to orally urgeThe learned Judge had then reproduced the five points, which alone were orally urged on behalf of the petitioner through its counsel, as extracted in paragraph 4 above. The High Court examined the said grounds which, obviously, were transcending in the realm of enforceability of the subject foreign awards. In the special leave petitions filed before this Court, the petitioner had articulated questions of law and the grounds also in reference to the scope of Section 48 of the Act which included the enforceability of the subject foreign awards. That can be discerned from the close reading of Questions and Grounds in the previous SLPs, reproduced in paragraph 5 above. Additionally, the learned Single Judge of the High Court vide order date 17 th March, 2015 had made it amply clear that the subject foreign awards were deemed to be decrees, which presupposes that the same were enforceable. That order came to be upheld by the Division Bench whilst disposing of the appeals preferred by the petitioner. These orders have become final and have not been challenged by the petitioner. The petitioner thereafter unsuccessfully resorted to the remedy of review before the High Court. Even the order passed in review petition has become final.14. Be that as it may, the grounds urged by the petitioner in the earlier round regarding the maintainability of the execution case could not have been considered in isolation and de hors the issue of enforceability of the subject foreign awards. For, the same was intrinsically linked to the question of enforceability of the subject foreign awards. In any case, all contentions available to the petitioner in that regard could and ought to have been raised specifically and, if raised, could have been examined by the Court at that stage itself. We are of the considered opinion that the scheme of Section 48 of the Act does not envisage piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of speedy disposal of arbitration proceedings and limited interference by the courts, the Court is expected to consider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot countenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996, in particular, while dealing with the enforcement of foreign awards. For, the scope of interference has been consciously constricted by the legislature in relation to the execution of foreign awards. Therefore, the subject application filed by the petitioner deserves to be rejected, being barred by constructive res judicata, as has been justly observed by the High Court in the impugned judgment.15. There is an additional reason which dissuades us to show any indulgence to the petitioner. We find force in the grievance made by the respondent that the conduct of the petitioner is indicative of an attempt to overreach this Court. For, after an interim order was passed in favour of the respondent, permitting withdrawal of part of the deposited amount, the petitioner lost no time in changing the name of the company within three days thereafter on 23 rd April, 2018. The petitioner also changed its registered office address on 26 th April, 2018 and had no compunction in moving the NCLT, Kolkata on 27 th April, 2018 to prevent the respondent from enjoying the fruits of the subject awards, and saying so brazenly in the petition filed by it under Section 10 of the I & B Code. Strikingly, attention of this Court was invited to these facts by the respondent by moving a formal application. The petitioner has not offered any explanation, much less a plausible one. On this count also, the special leave petitions deserve to be rejected.16. Having said this, we do not wish to examine any other argument of the petitioner, including on merits of the enforceability of the subject foreign awards. Even if we were to do so, we would have agreed with the High Court that the grounds urged by the petitioner to question the enforceability of the subject foreign awards are untenable, not being within the purview of Section 48 of the Act. Be that as it may, we find that the High Court has considered every aspect of the grounds urged by the petitioner; and the view so expressed by the High Court in reference to each of the points considered by it is a possible view. The High Court has correctly noted the limited scope for interference in the matter of foreign awards under Section 48 of the Act, keeping in view the principles enunciated by this Court. The High Court has justly noted that the attempt of the petitioner was to call upon the executing court to have a re-look at the award. That cannot be countenanced. We would also agree with the High Court that all the relevant documents submitted to buttress the claim of the respondent before the Arbitral Tribunal, have been adverted to in the award and the findings reached in the award are based on the interpretation and meaning given to the said documents. That can be discerned from the discussion and findings recorded by the Arbitral Tribunal in the award under consideration.Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues.	0	9,711	### 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: disregard the alterations envisaged by the Amendment to the Contract dated 7 th December 2010, granting an even higher level for “Broken Grains” end “Dead, damaged and Discoloured Grains”, the results provided by ISC were well Within the parameters foreseen for the quality under the Contract.6.11 The Tribunal therefore FINDS THAT the quality of the cargo shipped on the three vessels was within the amended contractual specifications.6.12. In addition to the above, the provision DI the Quality Clause 5 of GAFTA Contract No.48, being Tale Quale contract as such, states, Inter alia: “Certificate of Inspection at time o/ loading –shall be final as to quality”.6.13 Consequently, and under consideration of the Payment Term of the- Contract providing for payment on receipt 01 the shipping documents’, inter alia the above Pre-Shipment Certificates as issued by ISC and provided by Sellers, Sellers were duty entitled to trigger payment under the Contract.6.14 WE THEREFORE FIND THAT Sellers’ claim for payment of IJSD 440.00 per metric ton all three partial shipments succeeds.6.15 In reference with the balance of USD 10.00 per metric ton for each partial shipment, as agreed under the Amendment dated 7 th December 2010, the Amendment Provided that the “Balance amount@ US$10.00 per MT will be payable after receipt of quality inspection report of destination port”.6.16 This indeed establishes an alteration to the original provision of the Contract that the quality would be final at the port of loading, at least as far as the balance of USD 10.00 per metric ton is concerned. On interpretation and construction of the Contract itself and its Amendment dated 7 th December 2010, the Tribunal notes that the Amendment itself defines in“1. Quantity” that the weight in accordance with the Contract would be still “final at loading” while the amended payment term now states that a balance amount of US$ 10.00 per MT would only“be payable after receipt of a quality inspection report of destination port.”6.17 WE THEREFORE FIND THAT the Contract had been validly altered to the provision that Sellers could only have triggered payment of the balance of USD 10.00 per metric ton after presentation of a quality inspection report from the port of destination, i.e. Bangladesh.6.18 As no such quality Inspection had been presented by Buyers, despite various reminders from Sellers, until the present day, the GAFTA Sampling Rules No.124, cl. 6:1 provide that a certificate of analysis should be sent to the other party “within 14 consecutive days” after dispatch of the samples to the analyst.6.19 Buyers in their message of 5 th February 2011 firstly explained that the quality of the cargo on the last vessel i.e. MV Tu man Gang, was inferior.6.20 The Tribunal Therefore finds that buyers, with respect Tribunal THEREFORE FINDS THAT with respect to cl. 6:1 of the GAFTA Sampling Rules No.124 were obliged to provide a certificate of analysis Latter that message dated 5 th February 201 1 therefore latest 20 th February 2011.6.21. The date of default shall therefore be one day later, the 21 st February 2011 and SO WE DO FIND.6.22 As Buyers failed to forward the certificate within this limit of 14 days, any claim for rejection or for an allowance in respect of any matters dealt with under the Contract, and its Amendments. shall be deemed to be waived and absolutely barred, AND SO WE DO FIND.6.23 THE TRIBUNAL THEREFORE FINDS THAT Sellers’ claim for payment of balance invoices of USD 10,00 per metric ton succeeds.6.24 There is no apparent disputes as far as the quantity of the shipment under the contract is concerned as the contract provided for the shipment of 15000 metric tons, +¬5% in buyers option and sellers only shipped 13,729.55 metric tons.6.25 Buyers nevertheless informed Sellers 5 th February 2011 that the original Letter of Credit as foreseen for payment under the Contract not be extended and Buyers therefore planned to “establish Fresh LC for the balance quantity of 2000 ton in the old contract”.6.26 The Tribunal has not seen any new letter of credit for this purpose and as Buyers have not filed such, the Contract came to its end,6.27 WE THEREFORE FIND THAT Sellers’ calculations for sums and interest due should be based on a quantity of 13,729.55 metric tons.6.28 WE FIND AND DECLARE THAT:1) Sellers’ claim for payment of balance of USD 10.00 per metric ton for each of the three shipments amounting to USD 137,148.20 succeeds. Interest to run from 29 th June 2011. The date of Buyers’ email stating that they would not be “obliged and/or liable to pay any sum” to Sellers.2) Sellers’ claim for the balance of as deducted from the invoice in reference to the shipment on board of MV Tuman Gang amounting to USD 382,348.90 succeeds. Interest to run from 20 th February 2011, the date by which Buyers should have provided a ‘quality inspection report at destination port’.Buyers shall pay compound interest on the above sum of USD 137,148.20 at the rate of 4% (four per cent) per annum calculated at quarterly rests, from 29 th June 2011 to the date of payment.7.2 Buyers shall forthwith pay to Sellers USD 382,348.90 (three hundred & eighty¬two thousand, three hundred and forty eight United States dollars and ninety cents). Buyers, shall forthwith pay to sellers USD 332,348.90 at the rate of 4% (four percent) per annum calculated at quarterly rests, from 20 th February 2011 to the date of payment.7.3 WE THEREFORE AWARD THAT Buyers shall pay the fees, costs and expenses of this arbitration as per the attached schedule.” 17. Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues. 18. ### Response: 0
517	Patel India Private Limited Vs. Union of India & Others	that the appellant company had declared the real value of the articles imported by it and in support thereof had produced the manufacturers invoices. The customs authorities had refused to accept the invoice price as real value and charged excess duty. But any doubt with regard to the real value of the several consignments imported by the company was totally eradicated when the Government of India decided the Companys revision and directed that the invoice price should be accepted and duty should be assessed accordingly. In respect of the two items to which the revision related, the Government had also directed refund of the excess duty charged and paid under protest. There was thus no doubt or dispute left thereafter as regards the invoice prices being the real value of the consignments. The direction given in its decision in the said revision that the invoice price should be accepted as real value within the meaning of Section 30 of the Act applied to the rest of the consignments. The customs authorities, therefore, were not right in law in charging excess duty on the rest of the consignments. Indeed, the excess duty was charged in violation of Ss. 29 and 30 and in excess of jurisdiction, since, as held by the Government of India, the real value of the goods was their invoice price.13. This position, indeed, was accepted by the customs authorities when they ordered refund of excess duty charged by them in relation to items 22 to 29 and 33-35.Such refund could only have been ordered on the footing that the excess duty on those consignments had been charged without the authority of law and therefore without jurisdiction. The fact that no application had been made therefor under Sec. 40 was irrelevant to the point that the excess duty was assessed and recovered without the authority of law.14. Section 40 on which the Union of India relied in its return, provides that no customs duties or charges which have been paid, and of which repayment wholly or in part, is claimed in consequence of the same having been paid through inadvertence error or misconstruction, shall be returned, unless such claim is made within three months from the date of such payment. The section clearly applies only to cases where duties have been paid through inadvertence, error or misconstruction, and where refund application has to be made within three months from the date of such payment.15. As rightly observed by the High Court, the present case was not one where the excess duty was paid through any of the three reasons set out in S. 40.The excess duty was demanded on the ground that the invoice price was not the real value of the imported goods and payment under protest was also made on that footing. The ultimate result in the appellant companys revision was that charging of excess duty was not warranted under the Act, and that the value on which duty should have been assessed was the invoice price and nothing else. That being the position, Section 40 did not apply and could not have been relied upon by the customs authorities for refusing to refund the excess duty unlawfully levied on the appellant-company.16. From the fact that the customs authorities refunded the excess duty on items 22 to 29 and 33-35, it follows that the customs authorities had fully realised that the excess duty had been levied without the authority of law, for otherwise they would not have agreed to refund it, and further that they could not lawfully retain it. If the customs authorities were not entitled to levy the excess duty and retain it, they were bound to return it to the appellant company who had paid it under protest and only with a view not to incur demurrage charges, unless there was some provision of the Act which debarred the appellant-company from recovering it17. The only provision relied on by the customs-authorities was Section 40 of the Act. Indeed, their refusal to refund the excess-duty both in their return and in the High Court was on the ground of the omission of the appellant company to apply for the refund within the time provided by that section. It is necessary to emphasise that it was not their case that the invoice price of the items in question was not the real value or that the excess duty was lawfully levied or that the appellant - company was not entitled to the refund thereof for any reason except the omission to apply for it within the time prescribed by S. 40. But since Sec. 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle the appellant-company to the refund on the ground of its right being time-barred or otherwise. No such provision other than Section 40 which disentitled the appellant-company to the refund having been put forward and the customs authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to return the excess duty and a corresponding legal right in the appellant-company to recover it. Besides except S. 40 the Act contains no other provision laying down any limitation within which an importer has to apply for refund. The refusal to return the excess duty on the ground that the appellant-company had not applied within time provided by the Act was clearly unsustainable. Since there was not and could not be any dispute with regard to the invoice price being the real value there was no point in filing any appeal; nor could the omission to file any such appeal be a proper or valid ground for refusing relief to the appellant-company, when there remained no longer any dispute between the parties as to the invoice price being the real value of the imported items.	1[ds]From the fact that the customs authorities refunded the excess duty on items 22 to 29 andit follows that the customs authorities had fully realised that the excess duty had been levied without the authority of law, for otherwise they would not have agreed to refund it, and further that they could not lawfully retain it. If the customs authorities were not entitled to levy the excess duty and retain it, they were bound to return it to the appellant company who had paid it under protest and only with a view not to incur demurrage charges, unless there was some provision of the Act which debarred thefrom recovering it17. The only provision relied on by thewas Section 40 of the Act. Indeed, their refusal to refund theboth in their return and in the High Court was on the ground of the omission of the appellant company to apply for the refund within the time provided by that section. It is necessary to emphasise that it was not their case that the invoice price of the items in question was not the real value or that the excess duty was lawfully levied or that the appellantcompany was not entitled to the refund thereof for any reason except the omission to apply for it within the time prescribed by S. 40. But since Sec. 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle theto the refund on the ground of its right beingor otherwise. No such provision other than Section 40 which disentitled theto the refund having been put forward and the customs authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to return the excess duty and a corresponding legal right in theto recover it. Besides except S. 40 the Act contains no other provision laying down any limitation within which an importer has to apply for refund. The refusal to return the excess duty on the ground that thehad not applied within time provided by the Act was clearly unsustainable. Since there was not and could not be any dispute with regard to the invoice price being the real value there was no point in filing any appeal; nor could the omission to file any such appeal be a proper or valid ground for refusing relief to thewhen there remained no longer any dispute between the parties as to the invoice price being the real value of the imported items.	1	2,531	### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: that the appellant company had declared the real value of the articles imported by it and in support thereof had produced the manufacturers invoices. The customs authorities had refused to accept the invoice price as real value and charged excess duty. But any doubt with regard to the real value of the several consignments imported by the company was totally eradicated when the Government of India decided the Companys revision and directed that the invoice price should be accepted and duty should be assessed accordingly. In respect of the two items to which the revision related, the Government had also directed refund of the excess duty charged and paid under protest. There was thus no doubt or dispute left thereafter as regards the invoice prices being the real value of the consignments. The direction given in its decision in the said revision that the invoice price should be accepted as real value within the meaning of Section 30 of the Act applied to the rest of the consignments. The customs authorities, therefore, were not right in law in charging excess duty on the rest of the consignments. Indeed, the excess duty was charged in violation of Ss. 29 and 30 and in excess of jurisdiction, since, as held by the Government of India, the real value of the goods was their invoice price.13. This position, indeed, was accepted by the customs authorities when they ordered refund of excess duty charged by them in relation to items 22 to 29 and 33-35.Such refund could only have been ordered on the footing that the excess duty on those consignments had been charged without the authority of law and therefore without jurisdiction. The fact that no application had been made therefor under Sec. 40 was irrelevant to the point that the excess duty was assessed and recovered without the authority of law.14. Section 40 on which the Union of India relied in its return, provides that no customs duties or charges which have been paid, and of which repayment wholly or in part, is claimed in consequence of the same having been paid through inadvertence error or misconstruction, shall be returned, unless such claim is made within three months from the date of such payment. The section clearly applies only to cases where duties have been paid through inadvertence, error or misconstruction, and where refund application has to be made within three months from the date of such payment.15. As rightly observed by the High Court, the present case was not one where the excess duty was paid through any of the three reasons set out in S. 40.The excess duty was demanded on the ground that the invoice price was not the real value of the imported goods and payment under protest was also made on that footing. The ultimate result in the appellant companys revision was that charging of excess duty was not warranted under the Act, and that the value on which duty should have been assessed was the invoice price and nothing else. That being the position, Section 40 did not apply and could not have been relied upon by the customs authorities for refusing to refund the excess duty unlawfully levied on the appellant-company.16. From the fact that the customs authorities refunded the excess duty on items 22 to 29 and 33-35, it follows that the customs authorities had fully realised that the excess duty had been levied without the authority of law, for otherwise they would not have agreed to refund it, and further that they could not lawfully retain it. If the customs authorities were not entitled to levy the excess duty and retain it, they were bound to return it to the appellant company who had paid it under protest and only with a view not to incur demurrage charges, unless there was some provision of the Act which debarred the appellant-company from recovering it17. The only provision relied on by the customs-authorities was Section 40 of the Act. Indeed, their refusal to refund the excess-duty both in their return and in the High Court was on the ground of the omission of the appellant company to apply for the refund within the time provided by that section. It is necessary to emphasise that it was not their case that the invoice price of the items in question was not the real value or that the excess duty was lawfully levied or that the appellant - company was not entitled to the refund thereof for any reason except the omission to apply for it within the time prescribed by S. 40. But since Sec. 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle the appellant-company to the refund on the ground of its right being time-barred or otherwise. No such provision other than Section 40 which disentitled the appellant-company to the refund having been put forward and the customs authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to return the excess duty and a corresponding legal right in the appellant-company to recover it. Besides except S. 40 the Act contains no other provision laying down any limitation within which an importer has to apply for refund. The refusal to return the excess duty on the ground that the appellant-company had not applied within time provided by the Act was clearly unsustainable. Since there was not and could not be any dispute with regard to the invoice price being the real value there was no point in filing any appeal; nor could the omission to file any such appeal be a proper or valid ground for refusing relief to the appellant-company, when there remained no longer any dispute between the parties as to the invoice price being the real value of the imported items. ### Response: 1
518	Raja Suriya Pal Singh Vs. State Of U.P. & Anr	and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If therefore it be found that the subject-matter of a Crown grant is within the competence of a provincial legislature, nothing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally.38. Dr. Asthana, who appeared in Appeals Nos. 291 to 294 of 1951, argued the case of the religious institutions. He contended that the properties held by these institutions had already been dedicated for public purposes, that the income of these properties was being used for holding melas, feeding sadhus and other charitable purposes and that any reduction in that income would adversely affect those institutions and the properties that were already dedicated for public purposes could not be acquired under compulsory powers of acquisition. The argument is fallacious. A charity created by a private individual is not immune from the sovereigns power to compulsorily acquire that property for public purposes. It is incorrect to say that the vesting of these properties in the State under the provisions of the Act in any way affects the charity adversely because the net income that the institutions are deriving from the properties has been made the basis of compensation awarded to them.39. Mr. Varma, who appeared in Appeal No. 295 of 1951, raised several new and ingenious points, none of which, however, he was able to substantiate. He contended that the impugned Act may not be void but the notification which the Government was authorised to issue under the powers conferred on it by the statute would be void because the executive government could not infringe fundamental rights by a notification which remained unaffected by articles 31 (4), 31-A and 31-B. The argument does not seem to be valid because it suffers from the defect that if the statute is good, the notification which is of a consequential nature cannot be held to be bad it was next contended by the learned counsel that the zamindars had vested rights in existing law, namely, the Land Acquisition Act and the impugned statute could not deprive them of the benefits of the provisions of that Act. Similar argument was raised in the Bihar appeals and for the reasons given therein it is repelled. It was then contended that in view of the provisions of the Religious Endowments Act, lands of religious endowments could not be acquired under the provisions of the impugned statute. This contention seems to have been raised on some misapprehension as to the scope and extent of the Religious Endowments Act, XX of 1863. It is not proved that Act has any application to the properties sought to be acquired under the impugned Act. Moreover, that Act only deals with management of certain properties and does not stand in the way of their acquisition.40. Great effort was made by Mr. Varma to establish that the impugned Act was a piece of fraud on the Constitution. It was contended that the U.P. Government had been since a long time enacting laws with the fraudulent intention of depriving the zamindars of compensation by reducing their incomes,--he made mention of half a dozen Acts that were enacted in U.P. prior to the impugned Act. The argument, to my mind, is based on a confusion of thought. The enactments referred to were enacted by the legislature of U.P. between 1930 and 1940, before the Constitution came into force, and have no connection whatever with acquisition of properties.41. Mr. Varma attacked the validity of section 840 of the Act which enacts that-"where any orders had been made ................. or jurisdiction exercised under the provisions of the U.P. Agriculture Tenants (Acquisition of Privileges) Act, 1949, the provisions of the said Act shall be so read and construed as if the amendments mentioned in Schedule IV had been made therein and were in force from the commencement of the said Act."42. It was contended that the U.P. Agriculture Tenants (Acquisition of Privileges) Act, 1949 was an existing law in U.P. and had not been repealed by the impugned Act and that being so, this Act could not validate notifications made under that existing law. I have not been able to see the force of this suggestion. Be that as it may, the constitutionality of this section does not affect the legislation as a whole. The point was never raised before the High Court and has no substance.43. It was also contended that mere rights in land apart from the lands themselves could not be acquired under compulsory power and that the U.P. Legislature could not acquire proprietary rights in lands and leave the bhumidari rights with the landlords. This proposition sounds strange. It is open to Government to acquire the whole of the rights of an owner or a part of that right. Leasehold and other similar rights can always be acquired and if a person owns the totality of rights, it is not necessary to acquire the whole interest of that person if it is not needed for public purposes.44. Lastly, it was urged that in truth the legislation in question fell under legislative power conferred by entry 18 of List II and this power could only be exercised subject to the freedom guaranteed by article 19(f) of the Constitution, that the total abolition of the zamindaris could not be protected by the provisions of clause 6 of article 19 in that it could not be regarded a reasonable restriction on the exercise of the right to hold property. This argument loses sight of the fact that no help can be sought in these cases from any of the provisions of Part III; moreover, the legislation in question has been enacted under legislative powers given by entry 36 of List II and not under entry 18 of that List. Mr. Varma raised some other contentions also but during the discussion he eventually abandoned them.45.	0[ds]It is well-settled that recourse cannot be had to the spirit of the Constitution when its provisions are explicit in respect of a certain right or matter. When the fundamental law has not limited either in terms or by necessary implication the general powers conferred on the legislature, it is not possible to deduce a limitation from something supposed to be inherent in the spirit of the Constitution. This elusive spirit is no guide in this matter.truth is that Part III of the Constitution is an important and integral part of it and has not been repealed or abrogated by anything contained in article 31-A of the Constitution; on the other hand, article 31-A, while providing that no law providing for the acquisition by the State of any estate, shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any of the provisions of Part III, clearly provides that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent. This proviso in express terms keeps alive the alternative provisions of Part III of the Constitution in article 31 (3) for judging whether the State law has or has not complied with the provisions of article 31 (2). The provisions of article 31(2). therefore, do not stand repealed by article 31-A. On the other hand, they are kept alive. The difference is that persons whose properties fall within the definition of the expression "estate" in article 31-A are deprived of their remedy under article 32 of the Constitution and the President has been constituted the sole judge of deciding whether a State law acquiring estates under compulsory power has or has not complied with the provisions of article 31 (2). The validity of the law in those eases depends on the subjective opinion of the President and is not justiciable. Once the assent is given, the law is taken to have complied with the provisions of article 31has, however, to be observed that these non-income fetching properties are integral parts of an estate as defined in article 31-A and it cannot be said when payment of compensation is provided for on the basis of the net income of the whole of the estate, that the legislation is of a confiscatory character. Different considerations might have prevailed if the estates as a whole were not being acquired but different pieces of property were made the subject-matter of acquisition. Properties comprised in an estate may be incomefetching and non-income fetching, the value of these to the owner in the market may well be on the basis of income and if the Act has laid down the principle of payment of compensation on the foot of net income, it cannot be said that the legislation is outside the ambit of entry 42 of Listthe provisions of articles 31-A and 31-B completely shelter this law from any attack based on any of the provisions of Part III of the Constitution. This proposition was not disputed. As the validity of the Act could not be impugned on any of the provisions of Part III of the Constitution, that was the reason why the attack on its constitutionality was made on other grounds-ingenious but unsubstantial--lying outside the ambit Part65 in clear terms provides that there shall be paid to every intermediary as compensation the amount declared in that behalf underexpression "public purpose" is not capable of a precise definition and has not a rigid meaning. It can only be denned by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual.In my opinion, legislation, which aims at elevating the status of tenants by conferring upon them the bhumidari rights to which status the big zamindars have also been levelled down cannot be said as Wanting in public purposes in a democratic State. It aims at destroying the inferiority complex in a large number of citizens of the State and giving them a status of equality with their former lords and prevents the accumulation of big tracts of land in the hands of a few individuals which is contrary to the expressed intentions of the Constitution.The Crown cannot deprive a legislature of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If therefore it be found that the subject-matter of a Crown grant is within the competence of a provincial legislature, nothing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely orcharity created by a private individual is not immune from the sovereigns power to compulsorily acquire that property for public purposes. It is incorrect to say that the vesting of these properties in the State under the provisions of the Act in any way affects the charity adversely because the net income that the institutions are deriving from the properties has been made the basis of compensation awarded to them.	0	8,929	### 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: and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If therefore it be found that the subject-matter of a Crown grant is within the competence of a provincial legislature, nothing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally.38. Dr. Asthana, who appeared in Appeals Nos. 291 to 294 of 1951, argued the case of the religious institutions. He contended that the properties held by these institutions had already been dedicated for public purposes, that the income of these properties was being used for holding melas, feeding sadhus and other charitable purposes and that any reduction in that income would adversely affect those institutions and the properties that were already dedicated for public purposes could not be acquired under compulsory powers of acquisition. The argument is fallacious. A charity created by a private individual is not immune from the sovereigns power to compulsorily acquire that property for public purposes. It is incorrect to say that the vesting of these properties in the State under the provisions of the Act in any way affects the charity adversely because the net income that the institutions are deriving from the properties has been made the basis of compensation awarded to them.39. Mr. Varma, who appeared in Appeal No. 295 of 1951, raised several new and ingenious points, none of which, however, he was able to substantiate. He contended that the impugned Act may not be void but the notification which the Government was authorised to issue under the powers conferred on it by the statute would be void because the executive government could not infringe fundamental rights by a notification which remained unaffected by articles 31 (4), 31-A and 31-B. The argument does not seem to be valid because it suffers from the defect that if the statute is good, the notification which is of a consequential nature cannot be held to be bad it was next contended by the learned counsel that the zamindars had vested rights in existing law, namely, the Land Acquisition Act and the impugned statute could not deprive them of the benefits of the provisions of that Act. Similar argument was raised in the Bihar appeals and for the reasons given therein it is repelled. It was then contended that in view of the provisions of the Religious Endowments Act, lands of religious endowments could not be acquired under the provisions of the impugned statute. This contention seems to have been raised on some misapprehension as to the scope and extent of the Religious Endowments Act, XX of 1863. It is not proved that Act has any application to the properties sought to be acquired under the impugned Act. Moreover, that Act only deals with management of certain properties and does not stand in the way of their acquisition.40. Great effort was made by Mr. Varma to establish that the impugned Act was a piece of fraud on the Constitution. It was contended that the U.P. Government had been since a long time enacting laws with the fraudulent intention of depriving the zamindars of compensation by reducing their incomes,--he made mention of half a dozen Acts that were enacted in U.P. prior to the impugned Act. The argument, to my mind, is based on a confusion of thought. The enactments referred to were enacted by the legislature of U.P. between 1930 and 1940, before the Constitution came into force, and have no connection whatever with acquisition of properties.41. Mr. Varma attacked the validity of section 840 of the Act which enacts that-"where any orders had been made ................. or jurisdiction exercised under the provisions of the U.P. Agriculture Tenants (Acquisition of Privileges) Act, 1949, the provisions of the said Act shall be so read and construed as if the amendments mentioned in Schedule IV had been made therein and were in force from the commencement of the said Act."42. It was contended that the U.P. Agriculture Tenants (Acquisition of Privileges) Act, 1949 was an existing law in U.P. and had not been repealed by the impugned Act and that being so, this Act could not validate notifications made under that existing law. I have not been able to see the force of this suggestion. Be that as it may, the constitutionality of this section does not affect the legislation as a whole. The point was never raised before the High Court and has no substance.43. It was also contended that mere rights in land apart from the lands themselves could not be acquired under compulsory power and that the U.P. Legislature could not acquire proprietary rights in lands and leave the bhumidari rights with the landlords. This proposition sounds strange. It is open to Government to acquire the whole of the rights of an owner or a part of that right. Leasehold and other similar rights can always be acquired and if a person owns the totality of rights, it is not necessary to acquire the whole interest of that person if it is not needed for public purposes.44. Lastly, it was urged that in truth the legislation in question fell under legislative power conferred by entry 18 of List II and this power could only be exercised subject to the freedom guaranteed by article 19(f) of the Constitution, that the total abolition of the zamindaris could not be protected by the provisions of clause 6 of article 19 in that it could not be regarded a reasonable restriction on the exercise of the right to hold property. This argument loses sight of the fact that no help can be sought in these cases from any of the provisions of Part III; moreover, the legislation in question has been enacted under legislative powers given by entry 36 of List II and not under entry 18 of that List. Mr. Varma raised some other contentions also but during the discussion he eventually abandoned them.45. ### Response: 0
519	Life Insurance Corporation of India and Another Vs. Gangadhar Vishwanath Ranade (Dead) By Lrs	behalf of the assignee and not the defaulter. Mere information of the assignment to the Income Tax Officer and keeping the assignee informed of the Income Tax Officers action did not amount to discharge of the statutory obligation under Section 226(3)(vi) of the Act, by the Life Insurance Corporation. The statute having expressly provided the mode of raising such an objection in the form of a statement on oath specified in clause (vi), performance of that obligation by the notice had to be made only in that manner. This statutory obligation was performed by the Life Insurance Corporation only on December 5, 1975, as stated earlier. The personal liability arising after making the requisite statement on oath as envisaged by clause (vi) is only if it is discovered that such statement was false in any material particular and not otherwise. 31. Learned counsel for the appellant argued that the requisite statement under Section 226(3)(vi) of the Income Tax Act, 1961, could not be made by the Life Insurance Corporation since it involved the risk of exposing the Life Insurance Corporation or its officer making the statement on oath to personal liability for the income Tax dues of the assessee/defaulter, G. V. Ranade. In the first place, such a statement was, in fact, made without hesitation by the Life Insurance Corporation on December 5, 1975, after the assignee was compelled to obtain such a direction in a writ petition filed by her. That apart, the risk visualised on behalf of the Life Insurance Corporation, in the ultimate analysis, is entirely imaginary and not real. The risk of personal liability envisaged in clause (vi) arises only if it is discovered that such statement was false in any material particular. Thus, there is no risk of personal liability of the person making the statement on oath unless any material particular mentioned in the statement is false. The statement on oath required to be made by clause (vi) is only that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee. The Life Insurance Corporation itself has taken the stand throughout that the sum demanded by the notice issued under Section 226(3) of the Income Tax Act, 1961 by the Income Tax Officer did not belong to the assessee inasmuch as it was payable only to the assignee, Smt. Kamalabai G. Ranade, by virtue of the assignment made, accepted and registered in April, 1969, much earlier to the date of the notice. This being so, the making of this statement on oath of the Life Insurance Corporations own stand which in fact was so made on December 5, 1975 did not involve even remotely the possibility of any risk of personal liability. 32. On the contrary, the real risk of the Life Insurance Corporation being treated deemed defaulter assessee under clause (x) of sub-section (3) of Section 226 of the Act lay in its failure to pay to the Income Tax Officer after receipt of notice under Section 226(3), the amounts of the matured policies within the time given by the Income Tax Officer or a reasonable time, without objecting to the demand by denying its liability to the assessed in the manner prescribed in clause (vi) thereof, instead of in doing so. Prudence also required the Life Insurance Corporation in its own interest, to object to the demand according to clause (vi) instead of refusing or delaying the objection. The argument that such a statement was not made since it involved the likelihood of exposing the Life Insurance Corporation or any of its officers to personal liability has, therefore, no merit. This being the only reason given by the Life Insurance Corporation to justify the inordinate delay in making the requisite statement under Section 226(3)(vi) of the Income Tax Act, 1961, it is obvious that this defence is untenable. 33. Sub-section (3) of Section 226 of the Income Tax Act, 1961 clearly shows that, on a notice thereunder being issued by the Income Tax Officer to the Life Insurance Corporation in the present case, it was incumbent on the Life Insurance Corporation to make the requisite statement on oath under clause (vi) thereof raising an objection on the basis of the registered assignment. It was then for the Income Tax Officer to proceed further and from his final opinion and revoke the notice under clause (vii). It was not possible for the assignee of the policies to obtain revocation of the notice by the Income Tax Officer without the requisite statement on oath being made by the Life Insurance Corporation as envisaged in clause (vi) of sub-section (3) of Section 226 of the Income Tax Act. It is obvious that the inordinate delay in making the statement on oath by the Life Insurance Corporation under Section 226(3)(vi) of the Income Tax Act, 1961 was the result of misconstruction of the provision and misappreciation of its liability thereunder. 34. Obviously, the assignee of the policies who had become entitled to receive the amounts due thereunder on the dates of their maturity must be compensated by the Life Insurance Corporation for its failure to perform its statutory obligation under Section 226(3)(vi) of the Income Tax Act, 1961 within a reasonable time. We have no doubt that this is the proper construction of Section 226(3) of the Income Tax Act, 1961 and the consequential liability resulting from the failure of the notice to raise the objection in the prescribed manner under clause (vi) thereof within a reasonable time. Performance of this statutory obligation by the Life Insurance Corporation in the present case, being after inordinate delay, award of interest to the assignee of the policies to whom the payment there under had to be made even according to the stand of the Life Insurance Corporation is, therefore, clearly justified. This contention which is really the main contention urged on behalf of the appellant, therefore, fails and is rejected.	0[ds]16. We shall first dispose of the last point relating to double payment by the Life Insurance Corporation of the amount of Rs. 3415.70 in view of the express concession made by Shri Sanghi, learned counsel for the respondent that the respondent does not lay any claim to it and that the Life Insurance Corporation may obtain its refund from the Income Tax Officer. In view of this statement of learned counsel for the respondent, Shri Sanghi, it is sufficient to observe that it would be open to the Life Insurance Corporation to obtain refund of the amount of Rs. 3415.70 deposited by it with the Income Tax Officer together with interest, if any, payable on that refund by the Income Tax department, since it has been conceded that the respondent does not claim that amount from the Income Tax Officer. We shall now deal with the remaining arguments of Shri Rao, learned counsel for the appellant17. The first argument of learned counsel for the appellant is that the Income Tax Officer was a necessary party in the writ petition giving rise to this appeal. We are unable to accept this contention. The only claim made in Writ Petition No. 1248 of 1977 decided on January 7, 1981, giving rise to this appeal is for payment of interest by the appellant, and no relief has been sought against the Income Tax Officer. This being so, for effective adjudication of the Life Insurance Corporations liability towards the respondent, the presence of the Income Tax Officer is not necessary. The respondents claim is only against the Life Insurance Corporation without any claim being made, in the alternative or otherwise against the Income Tax Officer. The respondents claim has, therefore, to succeed or fail only on the basis of the Life Insurance Corporations liability vis-a-vis the respondent without involving the Income Tax Officer or anyone else in that process. Merely because the defence of the Life Insurance Corporation was based on an act of the Income tax Officer, it was not incumbent on the respondent to implead the Income Tax Officer, in this proceeding when neither was any relief claimed against the Income Tax Officer nor was any suggestion of the Income Tax Officers liability for payment of interest made in the writ petition. This argument is, therefore, rejected18. The second argument relating to construction of Section 226(3) of the Income Tax Act, 1961, is in fact, the main argument of Shri Rao and, therefore, we shall consider the same after disposing of the remaining arguments which are shorter points22. The fourth contention based on the withdrawal of the writ petition (S.C.A. No. 302 of 1977) being covered by the discussion relating to the third contention, the same is rejected23. The fifth argument relates to the rate of interest. Shri Rao contended that the award of interest at 15 per cent per annum is excessive even if the Life Insurance Corporation is held liable for payment of interest. Reference was made by Shri Rao to Section 244 of the Income Tax Act, 1961 providing for payment of interest on refund which prescribed the rate of 12 per cent per annum from July 1, 1972, to October 1, 1984, the increase to 15 per cent per annum being made therein only from October 1, 1984, by amendment of that Section. It was urged that the period in question in the present case being prior to October 1, 1984, the rate of 15 per cent per annum in excess of the statutory provision of 12 per cent per annum in Section 244 of the Income Tax Act, 1961 is unjustified. Admittedly, the award of interest, in the present case, for payment by the Life Insurance Corporation is not governed by section 244 of the Income Tax Act, 1961. Apparently, for this reason, learned counsel for the appellant relied on Section 244 of the Income Tax Act, 1961, as of persuasive value. We are not impressed by this argument. The High Court has relied on the fact that interest at 15 per cent per annum is reasonable, in the present case, particularly in view of the fact that the Life Insurance Corporation itself charges interest at that rate. It is sufficient for us to state that there is no material produced, in the present case, to suggest that award of interest at 15 per cent per annum is excessive to permit interference with the rate in this appeal particularly when the High Court has come to the conclusion that this is the reasonable rate. This argument also is, therefore, rejected26. Having given our anxious consideration to the argument, we cannot persuade ourselves to accept the same. On a close scrutiny of the provision, we find that the benefit claimed by the Life Insurance Corporation is not available to it, in the facts of the present case27. Admittedly, assignment of the policies was made by the insured, G. V. Ranade and the same was duly accepted and registered by the Life Insurance Corporation in April 1969. It is, therefore, obvious that the Life Insurance Corporation was bound to act on that assignment in favour of Smt. Kamalabai G. Ranade unless the assignment was held to be invalid by a competent authority in a proper proceeding taken for this purpose. It is significant that the Life Insurance Corporation never disputed the validity of the assignment and was throughout prepared to act on it. It is undisputed that the assignment was not declared invalid by any competent authority. Mere issuance of notice under Section 226(3) of the Income Tax Act, 1961 did not have the effect of invalidating the assignment nor did the casual mention of Section 281 of the Income Tax Act, 1961 by the Income Tax Officer in his letter dated August 28, 1972 result in this consequence. Any further step towards formation of the final opinion by the Income Tax Officer could be taken only after the Life Insurance Corporation had made the requisite statement on oath under Section 226(3)(vi) of the Income Tax Act, 1961 on the basis of the registered assignment of policies. This act was performed by the Life Insurance Corporation only on December 5, 1975, which led to revocation of the notice under Section 225(3) of the Act, by the Income Tax Officer. The question is of the liability of the Life Insurance Corporation in these circumstances28. Section 226 consists of several sub-section of which sub-sections (1) and (3) alone are relevant for our purpose. Sub-section (1) enables the Income Tax Officer to recover the tax by any one or more of the further modes provided in this section. Sub-section (3) deals with one such mode where the defaulters money is held by another person. Clause (i) of sub-section (3) enables the Income Tax Officer by notice in writing to require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income Tax Officer that money or so much of it as is sufficient to pay the dues of the assessee in respect of the arrears of tax. It is in exercise of this power that the Income Tax Officer had issued the notice to the Life Insurance Corporation in the present case. Obviously, the Income Tax Officer had assumed that the money payable on maturity of these policies belonged to the insured/assessee/defaulter, G. V. Ranade, overlooking the duly registered assignment made much earlier in favour of the assessees wife in April 1969. The further clauses (ii) to (v) of sub-section (3) deal with ancillary matters and also provide that any claim in respect of property covered by the notice shall be void after the date of the notice as against the demand contained in the notice29. Clause (vi) is relevant for the present purpose and speaks of the obligation of a person to whom such a notice has been sent. Clause (vi) relieves the person receiving such a notice from the liability to pay any sum to the Income Tax Officer in obedience to the notice if he objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee. This clause further provides that if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Income Tax Officer to the extent of the assessees liability on the date of notice. Clause (vii) then provides, inter alia, for amendment or revocation of the notice issued under this sub-section by the Income Tax Officer. This stage of amendment or revocation of the notice under clause (vii) is reached only after the stage provided in clause (vi), in a case where the notice objects that he does not hold the moneys for or on behalf of the defaulter of tax dues30. It is, therefore, obvious that the question of revocation of the notice under clause (vii) of sub-section (3) of Section 226 of the Income Tax Act, 1961 arose in the present case only after the Life Insurance Corporation made the requisite statement on oath under Section 226(3)(vi) of the Act in view of its consistent stand throughout that the moneys due under the policies were held by it for and on behalf of the assignee and not the defaulter. Mere information of the assignment to the Income Tax Officer and keeping the assignee informed of the Income Tax Officers action did not amount to discharge of the statutory obligation under Section 226(3)(vi) of the Act, by the Life Insurance Corporation. The statute having expressly provided the mode of raising such an objection in the form of a statement on oath specified in clause (vi), performance of that obligation by the notice had to be made only in that manner. This statutory obligation was performed by the Life Insurance Corporation only on December 5, 1975, as stated earlier. The personal liability arising after making the requisite statement on oath as envisaged by clause (vi) is only if it is discovered that such statement was false in any material particular and not otherwise33. Sub-section (3) of Section 226 of the Income Tax Act, 1961 clearly shows that, on a notice thereunder being issued by the Income Tax Officer to the Life Insurance Corporation in the present case, it was incumbent on the Life Insurance Corporation to make the requisite statement on oath under clause (vi) thereof raising an objection on the basis of the registered assignment. It was then for the Income Tax Officer to proceed further and from his final opinion and revoke the notice under clause (vii). It was not possible for the assignee of the policies to obtain revocation of the notice by the Income Tax Officer without the requisite statement on oath being made by the Life Insurance Corporation as envisaged in clause (vi) of sub-section (3) of Section 226 of the Income Tax Act. It is obvious that the inordinate delay in making the statement on oath by the Life Insurance Corporation under Section 226(3)(vi) of the Income Tax Act, 1961 was the result of misconstruction of the provision and misappreciation of its liability thereunder34. Obviously, the assignee of the policies who had become entitled to receive the amounts due thereunder on the dates of their maturity must be compensated by the Life Insurance Corporation for its failure to perform its statutory obligation under Section 226(3)(vi) of the Income Tax Act, 1961 within a reasonable time. We have no doubt that this is the proper construction of Section 226(3) of the Income Tax Act, 1961 and the consequential liability resulting from the failure of the notice to raise the objection in the prescribed manner under clause (vi) thereof within a reasonable time. Performance of this statutory obligation by the Life Insurance Corporation in the present case, being after inordinate delay, award of interest to the assignee of the policies to whom the payment there under had to be made even according to the stand of the Life Insurance Corporation is, therefore, clearly justified. This contention which is really the main contention urged on behalf of the appellant, therefore, fails and is rejected	0	7,645	### 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: behalf of the assignee and not the defaulter. Mere information of the assignment to the Income Tax Officer and keeping the assignee informed of the Income Tax Officers action did not amount to discharge of the statutory obligation under Section 226(3)(vi) of the Act, by the Life Insurance Corporation. The statute having expressly provided the mode of raising such an objection in the form of a statement on oath specified in clause (vi), performance of that obligation by the notice had to be made only in that manner. This statutory obligation was performed by the Life Insurance Corporation only on December 5, 1975, as stated earlier. The personal liability arising after making the requisite statement on oath as envisaged by clause (vi) is only if it is discovered that such statement was false in any material particular and not otherwise. 31. Learned counsel for the appellant argued that the requisite statement under Section 226(3)(vi) of the Income Tax Act, 1961, could not be made by the Life Insurance Corporation since it involved the risk of exposing the Life Insurance Corporation or its officer making the statement on oath to personal liability for the income Tax dues of the assessee/defaulter, G. V. Ranade. In the first place, such a statement was, in fact, made without hesitation by the Life Insurance Corporation on December 5, 1975, after the assignee was compelled to obtain such a direction in a writ petition filed by her. That apart, the risk visualised on behalf of the Life Insurance Corporation, in the ultimate analysis, is entirely imaginary and not real. The risk of personal liability envisaged in clause (vi) arises only if it is discovered that such statement was false in any material particular. Thus, there is no risk of personal liability of the person making the statement on oath unless any material particular mentioned in the statement is false. The statement on oath required to be made by clause (vi) is only that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee. The Life Insurance Corporation itself has taken the stand throughout that the sum demanded by the notice issued under Section 226(3) of the Income Tax Act, 1961 by the Income Tax Officer did not belong to the assessee inasmuch as it was payable only to the assignee, Smt. Kamalabai G. Ranade, by virtue of the assignment made, accepted and registered in April, 1969, much earlier to the date of the notice. This being so, the making of this statement on oath of the Life Insurance Corporations own stand which in fact was so made on December 5, 1975 did not involve even remotely the possibility of any risk of personal liability. 32. On the contrary, the real risk of the Life Insurance Corporation being treated deemed defaulter assessee under clause (x) of sub-section (3) of Section 226 of the Act lay in its failure to pay to the Income Tax Officer after receipt of notice under Section 226(3), the amounts of the matured policies within the time given by the Income Tax Officer or a reasonable time, without objecting to the demand by denying its liability to the assessed in the manner prescribed in clause (vi) thereof, instead of in doing so. Prudence also required the Life Insurance Corporation in its own interest, to object to the demand according to clause (vi) instead of refusing or delaying the objection. The argument that such a statement was not made since it involved the likelihood of exposing the Life Insurance Corporation or any of its officers to personal liability has, therefore, no merit. This being the only reason given by the Life Insurance Corporation to justify the inordinate delay in making the requisite statement under Section 226(3)(vi) of the Income Tax Act, 1961, it is obvious that this defence is untenable. 33. Sub-section (3) of Section 226 of the Income Tax Act, 1961 clearly shows that, on a notice thereunder being issued by the Income Tax Officer to the Life Insurance Corporation in the present case, it was incumbent on the Life Insurance Corporation to make the requisite statement on oath under clause (vi) thereof raising an objection on the basis of the registered assignment. It was then for the Income Tax Officer to proceed further and from his final opinion and revoke the notice under clause (vii). It was not possible for the assignee of the policies to obtain revocation of the notice by the Income Tax Officer without the requisite statement on oath being made by the Life Insurance Corporation as envisaged in clause (vi) of sub-section (3) of Section 226 of the Income Tax Act. It is obvious that the inordinate delay in making the statement on oath by the Life Insurance Corporation under Section 226(3)(vi) of the Income Tax Act, 1961 was the result of misconstruction of the provision and misappreciation of its liability thereunder. 34. Obviously, the assignee of the policies who had become entitled to receive the amounts due thereunder on the dates of their maturity must be compensated by the Life Insurance Corporation for its failure to perform its statutory obligation under Section 226(3)(vi) of the Income Tax Act, 1961 within a reasonable time. We have no doubt that this is the proper construction of Section 226(3) of the Income Tax Act, 1961 and the consequential liability resulting from the failure of the notice to raise the objection in the prescribed manner under clause (vi) thereof within a reasonable time. Performance of this statutory obligation by the Life Insurance Corporation in the present case, being after inordinate delay, award of interest to the assignee of the policies to whom the payment there under had to be made even according to the stand of the Life Insurance Corporation is, therefore, clearly justified. This contention which is really the main contention urged on behalf of the appellant, therefore, fails and is rejected. ### Response: 0
520	State Of Rajasthan Vs. Hindustan Zinc Ltd.	virtue of the said amendment, Rule 64B and Rule 64C had been inserted with effect from 25th September, 2000, which read as follows: “64B. Charging of royalty in case of minerals subjected to processing.- (1) In case processing of run-of-mine is carried out within the leased area, then, royalty shall be chargeable on the processed mineral removed from the leased area.(2) In case run-of-mine mineral is removed from the leased area to a processing plant which is located outside the leased area, then, royalty shall be chargeable on the unprocessed run-of-mine mineral and not on the processed product.64C. Royalty on tailings or rejects – On removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty;Provided that in case so dumped tailings or rejects are used for sale or consumption on any later date after the date of such dumping, then, such tailings or rejects shall be liable for payment of royalty.” 27. In the instant case, we are more concerned with the provisions of Rule 64C of the Rules. Upon perusal of the said Rule, it is very clear that unless the tailings or rejects are used for sale or for consumption, such tailings or rejects would not be liable for payment of royalty.28. Moreover, provisions of Rule 64B of the Rules also make it clear that in case of processing of run-of-mine, royalty shall be charged only on the processed mineral removed from the leased area.29. The aforestated amendment and Notification dated 12th September, 2000 clearly denote intention of the Government with regard to the calculation of royalty on the contents of metal in the ore produced and not on tailings or rejects, which are not taken out of the leased area. The negligible contents of metal which remains in the mining area by way of tailings, slimes or rejects, which are returned to the mother earth cannot be said to be the part of metal content in the ore produced.30. This court in the case of National Mineral Development Corporation Limited (supra) has clearly observed as under: “Dumped tailings or rejects may be liable to payment of royalty if only they are sold or consumed”. 31. From the contents of what has been stated hereinabove by this Court, it is very clear that once a portion of the metal is returned back to the mother earth, it cannot be said to have been extracted or cannot be said to have been taken out of the leased area and when the metal which has not been taken out from the leased area or which is not contained in the ore produced, it cannot be made subject to payment of royalty because the lease holder never took out that portion of the metal from the earth and therefore, that cannot be said to be the part of metal contained in the ore produced.32. Though the learned counsel for the State referred to the forms in which information with regard to ore received from the mines and treated ore was required to be filled up and supplied to the concerned Government Authorities by the holder of the mining lease, in our opinion the said information and the averments are not much relevant because each and every information required by the Government may not be necessary for the purpose of calculating royalty. Possibly the information received from the holders of the mining lease would be for some other incidental purpose or for the purpose of cross checking the information given by the holder of the mining lease so as to find out whether the details given by the lease holder on the basis of which royalty is calculated is correct.33. For the afore-stated reasons, in our opinion, we need not refer to the submissions made in relation to the forms referred to in the Rules.34. Upon carefully going through the impugned judgment and the judgment delivered by the learned Single Judge of the High Court, we find that the courts below did not commit any mistake in arriving at the conclusion that the holder of the lease was not liable to pay the amount demanded under the impugned notices because, by virtue of Notification dated 12th September, 2000 read with the relevant Rules, the lease holder is supposed to pay royalty only on the contents of metal in ore produced and not on the metal contained in the tailings, rejects or slimes which had not been taken out of the leased area and which had been dumped into dumping ground of the leased area.35. For the afore-stated reasons, we do not find any substance in the appeal and therefore, the appeal is dismissed with no order as to costs.CIVIL APPEAL NO. 1526 OF 200836. So far as the present appeal is concerned, it has been filed by Hindustan Zinc Limited as it has been aggrieved by the directions whereby the matter has been ordered to be remitted to the mining engineer for re-computing the royalty payable on lead and zinc contained in the ore produced.37. The appellant-company is aggrieved by the afore-stated direction because it was never prayed by the State that the matter be remitted back to the mining engineer for re-computation of the royalty. 38. The submission on behalf of the appellant-company was to the effect that as the entire concentrate has been taken out of the leased area and as the quantity of concentrate of lead and zinc was very much known, it was not necessary to give such a direction because there is no question with regard to re-computation of royalty on the basis of metal contained in ore produced. 39. We find substance in what has been submitted because the metal concentrate which had been taken out from the leased area is known to the parties and therefore, it is not necessary to have any further details regarding the ore produced by the appellant- company.	1[ds]23. Upon hearing the learned counsel at length and upon perusal of the relevant material and the impugned judgment and the judgments referred to by the learned counsel, we are of the view that the conclusion arrived at by the High Court is correct.24. It is pertinent to note that Section 9 of the Act enables the appellant-authority to charge royalty on the minerals extracted by the lease holder from the land given on lease for the purpose of mining. The methodology for calculating the amount of royalty is determined by the Rules and by the Notifications issued by the Central Government from time to time.25. It is also pertinent to note that prior to issuance of Notification dated 12th September, 2000, by virtue of Notification dated 11th April, 1997, royalty was to be calculated on the basis of metal concentrate produced by the lease holder whereas in pursuance of Notification dated 12th September, 2000, the method of calculating the royalty has been substantially changed and in pursuance of the said Notification, royalty is to be calculated on the contents of lead and zinc metal in the ore produced.26. Immediately after the aforestated Notification dated 12th September, 2000 was issued by the Central Government, provisions of Rule 64 of the Rules had also been amended. By virtue of the said amendment, Rule 64B and Rule 64C had been inserted with effect from 25th September, 2000, which read asCharging of royalty in case of minerals subjected to processing.- (1) In case processing of run-of-mine is carried out within the leased area, then, royalty shall be chargeable on the processed mineral removed from the leased area.(2) In case run-of-mine mineral is removed from the leased area to a processing plant which is located outside the leased area, then, royalty shall be chargeable on the unprocessed run-of-mine mineral and not on the processed product.64C. Royalty on tailings or rejects – On removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty;Provided that in case so dumped tailings or rejects are used for sale or consumption on any later date after the date of such dumping, then, such tailings or rejects shall be liable for payment of royalty.In the instant case, we are more concerned with the provisions of Rule 64C of the Rules. Upon perusal of the said Rule, it is very clear that unless the tailings or rejects are used for sale or for consumption, such tailings or rejects would not be liable for payment of royalty.28. Moreover, provisions of Rule 64B of the Rules also make it clear that in case of processing of run-of-mine, royalty shall be charged only on the processed mineral removed from the leased area.29. The aforestated amendment and Notification dated 12th September, 2000 clearly denote intention of the Government with regard to the calculation of royalty on the contents of metal in the ore produced and not on tailings or rejects, which are not taken out of the leased area. The negligible contents of metal which remains in the mining area by way of tailings, slimes or rejects, which are returned to the mother earth cannot be said to be the part of metal content in the ore produced.30. This court in the case of National Mineral Development Corporation Limited (supra) has clearly observed asFrom the contents of what has been stated hereinabove by this Court, it is very clear that once a portion of the metal is returned back to the mother earth, it cannot be said to have been extracted or cannot be said to have been taken out of the leased area and when the metal which has not been taken out from the leased area or which is not contained in the ore produced, it cannot be made subject to payment of royalty because the lease holder never took out that portion of the metal from the earth and therefore, that cannot be said to be the part of metal contained in the ore produced.32. Though the learned counsel for the State referred to the forms in which information with regard to ore received from the mines and treated ore was required to be filled up and supplied to the concerned Government Authorities by the holder of the mining lease, in our opinion the said information and the averments are not much relevant because each and every information required by the Government may not be necessary for the purpose of calculating royalty. Possibly the information received from the holders of the mining lease would be for some other incidental purpose or for the purpose of cross checking the information given by the holder of the mining lease so as to find out whether the details given by the lease holder on the basis of which royalty is calculated is correct.33. For the afore-stated reasons, in our opinion, we need not refer to the submissions made in relation to the forms referred to in the Rules.34. Upon carefully going through the impugned judgment and the judgment delivered by the learned Single Judge of the High Court, we find that the courts below did not commit any mistake in arriving at the conclusion that the holder of the lease was not liable to pay the amount demanded under the impugned notices because, by virtue of Notification dated 12th September, 2000 read with the relevant Rules, the lease holder is supposed to pay royalty only on the contents of metal in ore produced and not on the metal contained in the tailings, rejects or slimes which had not been taken out of the leased area and which had been dumped into dumping ground of the leased area.35. For the afore-stated reasons, we do not find any substance in the appeal and therefore, the appeal is dismissed with no order as to costs.CIVIL APPEAL NO. 1526 OF 200836. So far as the present appeal is concerned, it has been filed by Hindustan Zinc Limited as it has been aggrieved by the directions whereby the matter has been ordered to be remitted to the mining engineer for re-computing the royalty payable on lead and zinc contained in the ore produced.37. Theappellant-company is aggrieved by the afore-stated direction because it was never prayed by the State that the matter be remitted back to the mining engineer for re-computation of the royalty.n on behalf of the appellant-company was to the effect that as the entire concentrate has been taken out of the leased area and as the quantity of concentrate of lead and zinc was very much known, it was not necessary to give such a direction because there is no question with regard to re-computation of royalty on the basis of metal contained in ore produced.We find substance in what has been submitted because the metal concentrate which had been taken out from the leased area is known to the parties and therefore, it is not necessary to have any further details regarding the ore produced by the appellant- company.	1	3,105	### 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: virtue of the said amendment, Rule 64B and Rule 64C had been inserted with effect from 25th September, 2000, which read as follows: “64B. Charging of royalty in case of minerals subjected to processing.- (1) In case processing of run-of-mine is carried out within the leased area, then, royalty shall be chargeable on the processed mineral removed from the leased area.(2) In case run-of-mine mineral is removed from the leased area to a processing plant which is located outside the leased area, then, royalty shall be chargeable on the unprocessed run-of-mine mineral and not on the processed product.64C. Royalty on tailings or rejects – On removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty;Provided that in case so dumped tailings or rejects are used for sale or consumption on any later date after the date of such dumping, then, such tailings or rejects shall be liable for payment of royalty.” 27. In the instant case, we are more concerned with the provisions of Rule 64C of the Rules. Upon perusal of the said Rule, it is very clear that unless the tailings or rejects are used for sale or for consumption, such tailings or rejects would not be liable for payment of royalty.28. Moreover, provisions of Rule 64B of the Rules also make it clear that in case of processing of run-of-mine, royalty shall be charged only on the processed mineral removed from the leased area.29. The aforestated amendment and Notification dated 12th September, 2000 clearly denote intention of the Government with regard to the calculation of royalty on the contents of metal in the ore produced and not on tailings or rejects, which are not taken out of the leased area. The negligible contents of metal which remains in the mining area by way of tailings, slimes or rejects, which are returned to the mother earth cannot be said to be the part of metal content in the ore produced.30. This court in the case of National Mineral Development Corporation Limited (supra) has clearly observed as under: “Dumped tailings or rejects may be liable to payment of royalty if only they are sold or consumed”. 31. From the contents of what has been stated hereinabove by this Court, it is very clear that once a portion of the metal is returned back to the mother earth, it cannot be said to have been extracted or cannot be said to have been taken out of the leased area and when the metal which has not been taken out from the leased area or which is not contained in the ore produced, it cannot be made subject to payment of royalty because the lease holder never took out that portion of the metal from the earth and therefore, that cannot be said to be the part of metal contained in the ore produced.32. Though the learned counsel for the State referred to the forms in which information with regard to ore received from the mines and treated ore was required to be filled up and supplied to the concerned Government Authorities by the holder of the mining lease, in our opinion the said information and the averments are not much relevant because each and every information required by the Government may not be necessary for the purpose of calculating royalty. Possibly the information received from the holders of the mining lease would be for some other incidental purpose or for the purpose of cross checking the information given by the holder of the mining lease so as to find out whether the details given by the lease holder on the basis of which royalty is calculated is correct.33. For the afore-stated reasons, in our opinion, we need not refer to the submissions made in relation to the forms referred to in the Rules.34. Upon carefully going through the impugned judgment and the judgment delivered by the learned Single Judge of the High Court, we find that the courts below did not commit any mistake in arriving at the conclusion that the holder of the lease was not liable to pay the amount demanded under the impugned notices because, by virtue of Notification dated 12th September, 2000 read with the relevant Rules, the lease holder is supposed to pay royalty only on the contents of metal in ore produced and not on the metal contained in the tailings, rejects or slimes which had not been taken out of the leased area and which had been dumped into dumping ground of the leased area.35. For the afore-stated reasons, we do not find any substance in the appeal and therefore, the appeal is dismissed with no order as to costs.CIVIL APPEAL NO. 1526 OF 200836. So far as the present appeal is concerned, it has been filed by Hindustan Zinc Limited as it has been aggrieved by the directions whereby the matter has been ordered to be remitted to the mining engineer for re-computing the royalty payable on lead and zinc contained in the ore produced.37. The appellant-company is aggrieved by the afore-stated direction because it was never prayed by the State that the matter be remitted back to the mining engineer for re-computation of the royalty. 38. The submission on behalf of the appellant-company was to the effect that as the entire concentrate has been taken out of the leased area and as the quantity of concentrate of lead and zinc was very much known, it was not necessary to give such a direction because there is no question with regard to re-computation of royalty on the basis of metal contained in ore produced. 39. We find substance in what has been submitted because the metal concentrate which had been taken out from the leased area is known to the parties and therefore, it is not necessary to have any further details regarding the ore produced by the appellant- company. ### Response: 1
521	Smt. Shyam Kishori Devi Vs. Patna Municipal Corporation & Anr	of the Act. If the Committee under S. 117 of the Act could have been validly constituted even after the supersession of the Municipality, S. N. Sarkar would not have jurisdiction to hear the review petition, for under that section it was the function of the Committee to do so. Mr. Varma contends that after the order of supersession passed by Government all the Commissioners vacated their offices and thereafter it was impossible for the Commissioners to function as members of the Committee or to nominate or elect two other tax-payers to that Committee within the meaning of Section 117 (1) of the Act and that, therefore, the Government validly appointed the Assistant Special Officer to exercise the powers and perform the functions of the Committee under the said section. If this construction be accepted, all the sections whereunder certain powers were conferred and certain duties were imposed on the said Commissioner would cease to be operative after the order of supersession. Only to avoid this contingency S. 386(1)(b) of the Act in express terms says that all the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners, whether at a meeting or otherwise, shall be exercised and performed by such person or persons as the State Government may direct. The effect of that clause is that all the powers and duties of the Commissioners conferred and imposed on them under the various sections of the Act, whether to act in a body or in committees or individually, would be exercised by such person or persons as the State Government might direct thereunder. If that be the interpretation of S. 386 (1), the person or persons appointed by the State Government thereunder would take the place of the Commissioners in the various sections of the Act. So too, in S. 117 (1) of the Act, which would run thus:[After reproducing S. 117 (1) as quoted in Para. 6 above, the judgment continues as under:]If that be the effect of S. 386 on S. 117, the Committee under S. 177 could have been constituted with one or more of the three persons nominated by the Government under S. 386 (1) (b) of the Act and two tax-payers nominated by them and a Deputy Magistrate nominated by the Government. This construction will give full effect to S. 117 of the Act, whereas the construction suggested by the learned counsel for the respondents and accepted by the High court would make it unworkable. It is well known rule of construction that a Court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity.9. By the Notification issued by the Government on November 21, 1949, if it was intended to replace the Committee by one or other of the three persons mentioned therein, it would be beyond its powers conferred under the provisions of S. 386 (1) (b) of the Act. Under the said clause, the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners could be exercised and performed by such person or persons as the State Government may direct. But it does not empower the government to replace persons or authorities other than Commissioners by persons nominated by it. But the said Notification may be reasonably confined to the scope of the authority of the Government. If so confined, it replaced only the two commissioners by the person or persons mentioned therein.10. The argument of the learned counsel for the respondents, if accepted, would lead to an anomaly. Section 117 (1) would become unworkable and the same officer who revised the assessment would sit in judgment over it.11. For the foregoing reasons we hold that the order made by S. N. Sarkar rejecting the objections filed by the appellant and enhancing the valuation of the suit holding to Rs. 8,400 and fixing the quarterly municipal taxes at Rs. 882-8-0 was without jurisdiction.12. There are also merits in the second contention of the learned counsel for the appellant. The periodical revisional assessment of the premises was made in the year 1950 after making the necessary enquiry. It was altered on January 10, 1951, under Section 107 (1) (d) of the Act on the ground that the value had increased by additions made by the owner to the premises. The impugned revaluation of the building and the assessment were made in the year 1952 under S. 107 (1) (c) of the Act, which reads:"The Commissioner may from time to time alter or amend the assessment list in any of the following ways:(c) by enhancing the valuation of, or assessment on, any holding which has been incorrectly valued or assessed by reason of fraud, mis-representation or mistake."Under this section, the burden is certainly upon the Commissioners before they could amend the valuation and the assessment already made to establish that the previous assessment was incorrectly made by reason of fraud, misrepresentation or mistake. The High Court said that not a word had been said in the evidence adduced by the parties that the rental taken into consideration by the Special Officer while making the reassessment in 1952 did not exist at the time of the periodical revisional assessment. This observation was made on the assumption that the burden was upon the assessee. Indeed, when the appellant filed a petition in the suit under O. XI of the C P. C. for the discovery of the relevant records of the three assessments and though the learned Munsif made an order directing the Municipality to do so, it failed to produce them. In the circumstances we must hold that the Municipality had not established the pre-condition for the re-assessment, namely, that the original periodical revisional assessment was vitiated by fraud, misrepresentation or mistake.	1[ds]It is not disputed that S. N. Sarkar had jurisdiction to take action under S. 107 (c) of the Act, but what is contended is that he had no jurisdiction to dispose of the review petition under Section 117 (1) of the Act. If the Committee under S. 117 of the Act could have been validly constituted even after the supersession of the Municipality, S. N. Sarkar would not have jurisdiction to hear the review petition, for under that section it was the function of the Committee to do so. Mr. Varma contends that after the order of supersession passed by Government all the Commissioners vacated their offices and thereafter it was impossible for the Commissioners to function as members of the Committee or to nominate or elect two other tax-payers to that Committee within the meaning of Section 117 (1) of the Act and that, therefore, the Government validly appointed the Assistant Special Officer to exercise the powers and perform the functions of the Committee under the said section. If this construction be accepted, all the sections whereunder certain powers were conferred and certain duties were imposed on the said Commissioner would cease to be operative after the order of supersession. Only to avoid this contingency S. 386(1)(b) of the Act in express terms says that all the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners, whether at a meeting or otherwise, shall be exercised and performed by such person or persons as the State Government may direct. The effect of that clause is that all the powers and duties of the Commissioners conferred and imposed on them under the various sections of the Act, whether to act in a body or in committees or individually, would be exercised by such person or persons as the State Government might direct thereunder. If that be the interpretation of S. 386 (1), the person or persons appointed by the State Government thereunder would take the place of the Commissioners in the various sections of thethat be the effect of S. 386 on S. 117, the Committee under S. 177 could have been constituted with one or more of the three persons nominated by the Government under S. 386 (1) (b) of the Act and two tax-payers nominated by them and a Deputy Magistrate nominated by the Government. This construction will give full effect to S. 117 of the Act, whereas the construction suggested by the learned counsel for the respondents and accepted by the High court would make it unworkable. It is well known rule of construction that a Court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity.By the Notification issued by the Government on November 21, 1949, if it was intended to replace the Committee by one or other of the three persons mentioned therein, it would be beyond its powers conferred under the provisions of S. 386 (1) (b) of the Act. Under the said clause, the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners could be exercised and performed by such person or persons as the State Government may direct. But it does not empower the government to replace persons or authorities other than Commissioners by persons nominated by it. But the said Notification may be reasonably confined to the scope of the authority of the Government. If so confined, it replaced only the two commissioners by the person or persons mentioned therein.For the foregoing reasons we hold that the order made by S. N. Sarkar rejecting the objections filed by the appellant and enhancing the valuation of the suit holding to Rs. 8,400 and fixing the quarterly municipal taxes at Rs. 882-8-0 was without jurisdiction.12. There are also merits in the second contention of the learned counsel for the appellant. The periodical revisional assessment of the premises was made in the year 1950 after making the necessary enquiry. It was altered on January 10, 1951, under Section 107 (1) (d) of the Act on the ground that the value had increased by additions made by the owner to the premises. The impugned revaluation of the building and the assessment were made in the year 1952 under S. 107 (1) (c) of the Act, whichCommissioner may from time to time alter or amend the assessment list in any of the following ways:(c) by enhancing the valuation of, or assessment on, any holding which has been incorrectly valued or assessed by reason of fraud, mis-representation orthis section, the burden is certainly upon the Commissioners before they could amend the valuation and the assessment already made to establish that the previous assessment was incorrectly made by reason of fraud, misrepresentation or mistake. The High Court said that not a word had been said in the evidence adduced by the parties that the rental taken into consideration by the Special Officer while making the reassessment in 1952 did not exist at the time of the periodical revisional assessment. This observation was made on the assumption that the burden was upon the assessee. Indeed, when the appellant filed a petition in the suit under O. XI of the C P. C. for the discovery of the relevant records of the three assessments and though the learned Munsif made an order directing the Municipality to do so, it failed to produce them. In the circumstances we must hold that the Municipality had not established the pre-condition for the re-assessment, namely, that the original periodical revisional assessment was vitiated by fraud, misrepresentation or mistake.The effect of the relevant provisions in the contest of the facts of the case may be stated thus: Where an order superseding a municipality has been passed by the Government, all the Commissioners of the Municipality shall vacate their offices and their power and duties, whether at a meeting or otherwise, shall be exercised and performed by such person or person as the State Government may direct. The State Government accordingly issued two Notifications where under S. N. Sarkar, Assistant Special Officer of the Patna City Municipality, was appointed to exercise and perform the powers and duties under S. 107 of the Act, among others, and each one of the three persons mentioned in the Notification, dated November 21, 1949, to exercise the powers and perform the functions of the Committee under S. 117 of the Act. Pursuant to the said Notifications, S. N. Sarkar, functioning in the place of the Commissioners, enhanced the valuation of the holding of the appellant and the assessment thereof under S. 107 (c) of the Act, and rejected the review petition under S. 117 (1) of the Act.e argument of the learned counsel for the respondents, if accepted, would lead to an anomaly. Section 117 (1) would become unworkable and the same officer who revised the assessment would sit in judgment over it.	1	2,975	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: of the Act. If the Committee under S. 117 of the Act could have been validly constituted even after the supersession of the Municipality, S. N. Sarkar would not have jurisdiction to hear the review petition, for under that section it was the function of the Committee to do so. Mr. Varma contends that after the order of supersession passed by Government all the Commissioners vacated their offices and thereafter it was impossible for the Commissioners to function as members of the Committee or to nominate or elect two other tax-payers to that Committee within the meaning of Section 117 (1) of the Act and that, therefore, the Government validly appointed the Assistant Special Officer to exercise the powers and perform the functions of the Committee under the said section. If this construction be accepted, all the sections whereunder certain powers were conferred and certain duties were imposed on the said Commissioner would cease to be operative after the order of supersession. Only to avoid this contingency S. 386(1)(b) of the Act in express terms says that all the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners, whether at a meeting or otherwise, shall be exercised and performed by such person or persons as the State Government may direct. The effect of that clause is that all the powers and duties of the Commissioners conferred and imposed on them under the various sections of the Act, whether to act in a body or in committees or individually, would be exercised by such person or persons as the State Government might direct thereunder. If that be the interpretation of S. 386 (1), the person or persons appointed by the State Government thereunder would take the place of the Commissioners in the various sections of the Act. So too, in S. 117 (1) of the Act, which would run thus:[After reproducing S. 117 (1) as quoted in Para. 6 above, the judgment continues as under:]If that be the effect of S. 386 on S. 117, the Committee under S. 177 could have been constituted with one or more of the three persons nominated by the Government under S. 386 (1) (b) of the Act and two tax-payers nominated by them and a Deputy Magistrate nominated by the Government. This construction will give full effect to S. 117 of the Act, whereas the construction suggested by the learned counsel for the respondents and accepted by the High court would make it unworkable. It is well known rule of construction that a Court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity.9. By the Notification issued by the Government on November 21, 1949, if it was intended to replace the Committee by one or other of the three persons mentioned therein, it would be beyond its powers conferred under the provisions of S. 386 (1) (b) of the Act. Under the said clause, the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners could be exercised and performed by such person or persons as the State Government may direct. But it does not empower the government to replace persons or authorities other than Commissioners by persons nominated by it. But the said Notification may be reasonably confined to the scope of the authority of the Government. If so confined, it replaced only the two commissioners by the person or persons mentioned therein.10. The argument of the learned counsel for the respondents, if accepted, would lead to an anomaly. Section 117 (1) would become unworkable and the same officer who revised the assessment would sit in judgment over it.11. For the foregoing reasons we hold that the order made by S. N. Sarkar rejecting the objections filed by the appellant and enhancing the valuation of the suit holding to Rs. 8,400 and fixing the quarterly municipal taxes at Rs. 882-8-0 was without jurisdiction.12. There are also merits in the second contention of the learned counsel for the appellant. The periodical revisional assessment of the premises was made in the year 1950 after making the necessary enquiry. It was altered on January 10, 1951, under Section 107 (1) (d) of the Act on the ground that the value had increased by additions made by the owner to the premises. The impugned revaluation of the building and the assessment were made in the year 1952 under S. 107 (1) (c) of the Act, which reads:"The Commissioner may from time to time alter or amend the assessment list in any of the following ways:(c) by enhancing the valuation of, or assessment on, any holding which has been incorrectly valued or assessed by reason of fraud, mis-representation or mistake."Under this section, the burden is certainly upon the Commissioners before they could amend the valuation and the assessment already made to establish that the previous assessment was incorrectly made by reason of fraud, misrepresentation or mistake. The High Court said that not a word had been said in the evidence adduced by the parties that the rental taken into consideration by the Special Officer while making the reassessment in 1952 did not exist at the time of the periodical revisional assessment. This observation was made on the assumption that the burden was upon the assessee. Indeed, when the appellant filed a petition in the suit under O. XI of the C P. C. for the discovery of the relevant records of the three assessments and though the learned Munsif made an order directing the Municipality to do so, it failed to produce them. In the circumstances we must hold that the Municipality had not established the pre-condition for the re-assessment, namely, that the original periodical revisional assessment was vitiated by fraud, misrepresentation or mistake. ### Response: 1
522	Awadesh Mani Tripathi Vs. Union of India	an opinion that the allotment was made on merits and not as a result of political connections or patronage or other extraneous considerations, it would be open to the Committee not to proceed with the probe in detail." 6. The two Judge Committee constituted by this Court gave opportunity to the petitioner and others to submit their representations. They were also given opportunity of personal hearing.7. After considering the representations received from various individuals and scrutinising the record, the Committee submitted a report to this Honble Court which was accepted vide order dated 7.11.2008.8. As a sequel to cancellation of the dealership of Sh. Kameshwar Singh, the petitioner represented for allotment of LPG distributorship to him by relying upon the guidelines issued in 2000. The Corporation did not accept the petitioners claim. Therefore, he filed writ petition no. 58384 of 2009 in the Allahabad High Court and prayed for issue of a mandamus to the Corporation to allot LPG distributorship to him.9. The Division Bench of the High Court dismissed the writ petition by a rather cryptic order, the relevant portions of which are extracted below: "The petitioner was placed at serial no.2 in the panel for allotment of LPG dealership/distributorship. The allotment made in favour of the person who was placed at serial no.1, Kameshwar Singh was not made on merit and therefore the Apex Court cancelled the allotment of LPG dealership/distributorship made in his favour.We are of the opinion that once the Supreme Court has found that the allotment of LPG dealership/distributorship was not done on merits, the entire selection is liable to be cancelled and a fresh selection is required to be made by the respondents." 10. Learned counsel for the petitioner relied upon order dated 1.4.2009 passed by the learned Single Judge of the Rajasthan High Court, Jaipur Bench in S.B. Civil W.P. No.2974 of 2007 whereby a direction was given to the concerned oil company to consider the case of the petitioner in that petition for allotment of distributorship and argued that his client is also entitled to similar relief. He emphasised that in terms of paragraph 4 of the 2000 guidelines, the petitioner is entitled to an allotment of LPG distributorship as of right because the allotment made in favour of Kameshwar Singh was cancelled by this Court.11. Sh. Sidharth Luthra, learned senior counsel appearing for the Corporation argued that the petitioner cannot rely upon the guidelines issued in 2000 and seek a direction for the allotment of LPG distributorship because the entire selection was flawed. He referred to letter No.P.19017/51/2004/ISO dated 17.4.2007 issued by the Ministry of Petroleum and Natural Gas and order dated 4.10.2010 passed by this Court in Civil Appeal No. 8586 of 2010 (Bharat Petroleum Corporation Ltd. and Another v. Ramesh Chand Trivedi) and argued that in view of the directives issued by the Government of India, which have been noticed by this Court, the petitioner is not entitled to allotment of LPG distributorship in terms of the 2000 guidelines. Sh. Luthra also pointed out that after the disposal of Civil Appeal No. 8586 of 2010, the Ministry of Petroleum and Natural Gas issued revised guidelines for selection of LPG distributors and submitted that in the selection held in 2011, Smt. Sunita Singh was declared successful for allotment of LPG distributorship at Rudrapur. 12. We have considered the respective submissions and carefully perused the record. 13. It is true that learned Single Judge of the Rajasthan High Court issued a mandamus for consideration of the second meritorious person for allotment of LPG distributorship but the order passed by him was reversed by this Court and the policy contained in letter dated 17.4.2007 was approved. This is evident from paragraph 4 of order dated 4.10.2010 passed in Civil Appeal No. 8586/2010 which reads as under: "4. Learned counsel for the appellants submitted that the Central Government has taken a policy decision (vide directive dated 17.4.2007) to re-advertisement the distributorship wherever the earlier allotment was set aside in pursuance of this Courts order, and not to allot it to the next person in the panel. The said policy cannot be said to be arbitrary or unreasonable or contrary to any rules. This Court had found that the selection process by the Board resulting in the selection of Naveen Gupta for the distributorship is illegal and vitiated due to extraneous consideration. If a comparative assessment made by a selection Board is vitiated, and the appellants decided to scrap the entire panel and re-advertise the distributorship, the decision is not open to question. It cannot be contended that when the allotment in favour of the first person in the panel is set aside, the distributorship should automatically be allotted to the eligible applicant who is shown as second in the panel. Where the allotment was cancelled on account of irregularity in selection and preparation of panel, the decision to have a fresh selection instead of using the panel which was found to be vitiated, does not call for interference by courts." 14. The petitioner has neither challenged letter dated 17.4.2007 and revised guidelines dated 25.6.2010 nor he has questioned the selection made in 2011 pursuant to advertisement dated 20.10.2011. Therefore, it is not possible to find any fault with the conclusion recorded by the Division Bench of the High Court that the petitioner is not entitled to allotment of LPG distributorship.15. The order passed by the learned Single Judge of the Rajasthan High Court on which reliance has been placed by learned counsel for the petitioner is of no help the cause of the petitioner because the same has already been reversed by this Court.16. We may add that when the merit list prepared by the Selection Board was found to be vitiated due to the influence of extraneous consideration, the petitioner who was placed at No.2 cannot seek a mandamus for allotment of LPG distributorship. Any such direction by the Court would amount to perpetuation of the illegality committed by the Selection Board.	0[ds]14. The petitioner has neither challenged letter dated 17.4.2007 and revised guidelines dated 25.6.2010 nor he has questioned the selection made in 2011 pursuant to advertisement dated 20.10.2011. Therefore, it is not possible to find any fault with the conclusion recorded by the Division Bench of the High Court that the petitioner is not entitled to allotment of LPG distributorship.15. The order passed by the learned Single Judge of the Rajasthan High Court on which reliance has been placed by learned counsel for the petitioner is of no help the cause of the petitioner because the same has already been reversed by this Court.16. We may add that when the merit list prepared by the Selection Board was found to be vitiated due to the influence of extraneous consideration, the petitioner who was placed at No.2 cannot seek a mandamus for allotment of LPG distributorship. Any such direction by the Court would amount to perpetuation of the illegality committed by the Selection Board.	0	1,768	### 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: an opinion that the allotment was made on merits and not as a result of political connections or patronage or other extraneous considerations, it would be open to the Committee not to proceed with the probe in detail." 6. The two Judge Committee constituted by this Court gave opportunity to the petitioner and others to submit their representations. They were also given opportunity of personal hearing.7. After considering the representations received from various individuals and scrutinising the record, the Committee submitted a report to this Honble Court which was accepted vide order dated 7.11.2008.8. As a sequel to cancellation of the dealership of Sh. Kameshwar Singh, the petitioner represented for allotment of LPG distributorship to him by relying upon the guidelines issued in 2000. The Corporation did not accept the petitioners claim. Therefore, he filed writ petition no. 58384 of 2009 in the Allahabad High Court and prayed for issue of a mandamus to the Corporation to allot LPG distributorship to him.9. The Division Bench of the High Court dismissed the writ petition by a rather cryptic order, the relevant portions of which are extracted below: "The petitioner was placed at serial no.2 in the panel for allotment of LPG dealership/distributorship. The allotment made in favour of the person who was placed at serial no.1, Kameshwar Singh was not made on merit and therefore the Apex Court cancelled the allotment of LPG dealership/distributorship made in his favour.We are of the opinion that once the Supreme Court has found that the allotment of LPG dealership/distributorship was not done on merits, the entire selection is liable to be cancelled and a fresh selection is required to be made by the respondents." 10. Learned counsel for the petitioner relied upon order dated 1.4.2009 passed by the learned Single Judge of the Rajasthan High Court, Jaipur Bench in S.B. Civil W.P. No.2974 of 2007 whereby a direction was given to the concerned oil company to consider the case of the petitioner in that petition for allotment of distributorship and argued that his client is also entitled to similar relief. He emphasised that in terms of paragraph 4 of the 2000 guidelines, the petitioner is entitled to an allotment of LPG distributorship as of right because the allotment made in favour of Kameshwar Singh was cancelled by this Court.11. Sh. Sidharth Luthra, learned senior counsel appearing for the Corporation argued that the petitioner cannot rely upon the guidelines issued in 2000 and seek a direction for the allotment of LPG distributorship because the entire selection was flawed. He referred to letter No.P.19017/51/2004/ISO dated 17.4.2007 issued by the Ministry of Petroleum and Natural Gas and order dated 4.10.2010 passed by this Court in Civil Appeal No. 8586 of 2010 (Bharat Petroleum Corporation Ltd. and Another v. Ramesh Chand Trivedi) and argued that in view of the directives issued by the Government of India, which have been noticed by this Court, the petitioner is not entitled to allotment of LPG distributorship in terms of the 2000 guidelines. Sh. Luthra also pointed out that after the disposal of Civil Appeal No. 8586 of 2010, the Ministry of Petroleum and Natural Gas issued revised guidelines for selection of LPG distributors and submitted that in the selection held in 2011, Smt. Sunita Singh was declared successful for allotment of LPG distributorship at Rudrapur. 12. We have considered the respective submissions and carefully perused the record. 13. It is true that learned Single Judge of the Rajasthan High Court issued a mandamus for consideration of the second meritorious person for allotment of LPG distributorship but the order passed by him was reversed by this Court and the policy contained in letter dated 17.4.2007 was approved. This is evident from paragraph 4 of order dated 4.10.2010 passed in Civil Appeal No. 8586/2010 which reads as under: "4. Learned counsel for the appellants submitted that the Central Government has taken a policy decision (vide directive dated 17.4.2007) to re-advertisement the distributorship wherever the earlier allotment was set aside in pursuance of this Courts order, and not to allot it to the next person in the panel. The said policy cannot be said to be arbitrary or unreasonable or contrary to any rules. This Court had found that the selection process by the Board resulting in the selection of Naveen Gupta for the distributorship is illegal and vitiated due to extraneous consideration. If a comparative assessment made by a selection Board is vitiated, and the appellants decided to scrap the entire panel and re-advertise the distributorship, the decision is not open to question. It cannot be contended that when the allotment in favour of the first person in the panel is set aside, the distributorship should automatically be allotted to the eligible applicant who is shown as second in the panel. Where the allotment was cancelled on account of irregularity in selection and preparation of panel, the decision to have a fresh selection instead of using the panel which was found to be vitiated, does not call for interference by courts." 14. The petitioner has neither challenged letter dated 17.4.2007 and revised guidelines dated 25.6.2010 nor he has questioned the selection made in 2011 pursuant to advertisement dated 20.10.2011. Therefore, it is not possible to find any fault with the conclusion recorded by the Division Bench of the High Court that the petitioner is not entitled to allotment of LPG distributorship.15. The order passed by the learned Single Judge of the Rajasthan High Court on which reliance has been placed by learned counsel for the petitioner is of no help the cause of the petitioner because the same has already been reversed by this Court.16. We may add that when the merit list prepared by the Selection Board was found to be vitiated due to the influence of extraneous consideration, the petitioner who was placed at No.2 cannot seek a mandamus for allotment of LPG distributorship. Any such direction by the Court would amount to perpetuation of the illegality committed by the Selection Board. ### Response: 0
523	J. K. Synthetics Ltd Vs. J. K. Synthetics Mazdoor Union	machinery. The evidence of Talwar was equally found to be defective. He was greatly relying on the handbook of Chemical Engineers by John Parry for establishing the life of the machinery. He said that in that Book the life of a Chemical plant working in three shifts is shown to be 11 years. He also admitted that the Author gives only the guideline for Income-tax purposes only. An extract of the Parrys Handbook was also given by the Tribunal which stated its conclusion as under:"In view of the above said infirmities it is evident that the managements claim for rehabilitation is very much inflated. The selection of the average multiplier is rather arbitrary or atleast quite generous to the management and their estimate about the life of the machinery is slightly conservative. From the available evidence on record he then proceeds to make his own estimates which as far as the life of the machinery is concerned was placed between that adopted for textile machinery of 25 years and the life given in the Chemical Engineers Handbook of 11 years. It said after referring to the statement in the Chemical Engineers Handbook that the life of a Chemical machinery must be more than 11 years in America where they work efficiently to the maximum capacity of the machinery. It was observed "here the working conditions being different the machinery is likely to last longer and certainly due to poor economic conditions in the country the management also cannot afford to discard such valuable machines in eleven years only. The life of the plant therefore must be more than 11 years. On the other hand the ordinary life of textile machinery is taken to be 25 years or more. In this view of the matter if we taken the life of the machinery as 14 years it would still be on the side of the conservative estimate". Regarding the multiplier the Tribunal said that:"the 1961-62 Block the machinery would require replacement according to our estimate in 1975-76. The Companys claim of six times the original cost based on a comparative study of invoices Exs. M. 1 to M. 3 on the one hand and Ex. M. 4 to M. 6 on the other is very much inflated ... ... ... The Company has not produced the current price list also the machinery or any price indices indicating the trend of prices of machines. The prices of machines are more stabilised than prices of consumer goods. The production of the machines has also gone up in the country and it is not impossible that by 1975 we might manufacture our own machines for Nylon factory also. Even otherwise the prices of imported machines are not likely to be more than four times. Therefore, in our opinion the multiplier should only be four for the block of 1961-62. in awards also relied upon by Shri Talwar even though they considered only prewar block of machines, in no case they allowed a multiplier of six. For the block of machines installed in the accounting year, ordinarily the unit is taken as the multiplier but as there has been in the meantime devaluation of the rupee we think it would on the whole be fair to adopt two as a suitable multiplier for the block installed in the accounting year".26. It appears to us that this is an unsatisfactory way of determining the two most important factors required for computing the rehabilitation requirement. The evidence produced before the Tribunal consisted only of a few invoices which were to serve as samples of the price of machines to show that they have gone up. We are not impressed with the submission of the learned advocate for the Appellant that a complete set of invoices in respect of all the Departments of the industry which required rehabilitation had been placed before the Tribunal. Indeed the very application for appointment of Assessor demonstrably contradicts this assumption. In this application the management stated that it did "examine S/Shri S. S. Aggarwal, A. C. Talwar as its expert witnesses and have filed some invoices by way of example to show the trend in rising cost in plant and machinery. With regard to useful life of the plant the Respondent places reliance on Chemical Engineers handbook IVth Edition by John Parry" (emphasis ours).27. It is apparent from this application that the management was relying only on a few sample invoices which they said they had produced while depending heavily only on Parrys Handbook for ascertaining the life of the machinery and the probable cost.28. We have also gone through the evidence of the three witnesses and the invoices referred to and we think that the Tribunal rightly rejected this evidence as not being of much assistance. It is quite probable that the price of the indigenous industry as appearing from the bulletin of the Reserve Bank of India has gone up but that does not furnish a basis for arriving at any specific multiplier or deviser for the Appellants plant. All that the invoices produced before the Tribunal establish is only the probable cost of machinery of 2 1/2 lakhs,. In an attempt to prove the cost of replacement of plant and machinery worth Rs. 825 lakhs. The Tribunal was therefore amply, justified in saying that the only evidence given is of the few invoices the value of which is only 2 1/2 per cent of the requirement of the replacement cost which is our view is not sufficient to establish how many machines in each Department of the industry are required, what is the nature of those machines and what is the probable cost of each of those machines. We are far from satisfied that the management has placed before the Tribunal any satisfactory evidence much less sufficient evidence to arrive at a multiplier and deviser nor has the Tribunal any bases for arriving at its own multiplier and deviser except it be on a pure conjecture and guess work.	1[ds]With respect to the first item, the disallowance of Rs. 4.10 lakhs, the management not only claimed this amount but also Rs. 7.5 lakhs as return on paid up capital of Rs. 125 lakhs at 6 per cent, per annum. Obviously even on a cursory glance it would appear that the management was seeking to obtain double benefit in respect of investments made out of the paid up capital. The reasons which impelled the Tribunal to reject the claim of the management have already been noticed and it would therefore be unnecessary to reiterate them. It however, appeared to the Tribunal that if the Company wanted to exclude income from investments it cannot also be allowed 6 per cent, return on that part of the share capital which is invested elsewhere and at the same time be allowed to treat the income of Rs. 4.10 lakhs earned therefrom as extraneous income, because apart from deducting income-tax on this amount the Company also meets the expenses of administration and management in respect of the said investments. In this view it sustained the objection of the Union.The return on paid up capital is one of the prior charges admissible under the Full Bench formula as approved by this Court. It is based on the principle that while the claim of labour to a share in the profits by way of bonus is in furtherance of social justice, the claim of the capital for a fair return to the investor and also to keep the industry running efficiently which will in the long run enure for the benefit of labour is equally based upon that principle. If therefore any amount is earned from the employment of capital unconnected with the business of the Company, the labour cannot claim the right to participate in its returns. Apart from this if any reserves are utilised for working capital whether these reserves are depreciation reserves or any other, a return in respect of these also is allowed as a prior charge at a reduced rate because utilisation of such reserves would obviate the borrowing from outside sources for which a higher interest has to be paid and which in the long run will not be for the benefit of the workers. These principles have been laid down by this Court as well accepted in Industrial adjudication. While it is true that the Company has the discretion to invest its capital in various activities it cannot on that account deprive the workmen of the benefits of the returns derived therefrom unless of course the investments in such activity is extraneous to the activities of the company, in the earning of which they had not made any contribution. Whether in any particular case the return on investments amounts to an extraneous income will depend on the facts and circumstances of each case. So far as the case before us is concerned there can be no doubt that the return from the investments is a return on a part of the paid up capital of the Company which is invested for the purpose of earning an income. It cannot therefore be construed as extraneousas we are not allowing the deduction of Rs. 4.1 lakhs as extraneous income, the question whether the corpus should be treated as being available also has to be considered in the light of the decisions of this Court. The Appellant in our view is fully justified in urging this contention before us, as it cannot be said that this was not raised before the Tribunal. The Tribunal had ample opportunity of considering this aspect since it did specifically consider the nature of the income therefrom.15. Assuming for the present that the adoption by the Tribunal of the multiplier and deviser can be justified, though the validity of the Tribunals award in this behalf has been seriously challenged before us, the question to be determined is whether the investments of the Appellant amounting to Rs. 85.6 lakhs is available for rehabilitation which is turn will depend upon whether these investments are made in the course of the business of the Company or are unconnected with its business and only invested with a view to earning extraneous income.The principles upon which rehabilitation grant is to be calculated as laid down by this Court is that the depreciation reserves, or in the case of other reserves only if they are available as liquid assets and cash and not earmarked for any specific purposes, are deemed to be available and can be taken into account in computing the annual requirement. The depreciation reserve, the object of which is to meet the requirement of replacement, rehabilitation and modernisation at a future date is considered to be always available whether it is in the form of liquid assets or not. It is obvious that even this amount will not achieve the purpose of recouping the cost of replacement of the wasted assets and it is for that reason the claim of the industry for rehabilitation in addition to the admissible depreciation has been recognised. Then there are the general reserves, capital reserves and development reserves all of which will be considered to be available if they are in the form of liquid assets or cash. The question in some of the these cases will be whether they are considered to be the capital assets of the Company kept in that form in the course of its business or kept as investments outside the business of the Company for the purposes of earning an extraneous income. If it is the former then they are available but if it is the latter they cannot be brought into account for calculating the rehabilitation requirement.As it happens in most cases the claim by the employer is that the reserves are either wholly or partly not available because they have been used as working capital and consequently the amount to be utilised should not be excluded from the amount claimed towardsis ample justification in the contention of the Appellants Advocate that the Tribunal did advert to the fact that the Company invested initially a capital of Rs. 75 lakhs as an investment Trust Company and from its inception these investments have been made and that it is only after the amendment in 1960 when it was not possible for it to invest further amounts that it changed its name, increased its capital and started the presentthese observations in view what we must see is whether the Tribunal was justified on the evidence in adopting the particular multiplier and the deviser. The stand taken by the management is that it has produced sufficient evidence in support of its own multiplier and deviser and in any case the learned Advocate says the Tribunal is right in arriving at its own conclusion. In fact it is submitted, the management had made an application for appointment of an assessor to assist the Tribunal as an expert for determining the several questions appertaining to the computation of rehabilitation requirements, but that was rejected as the Tribunal did not feel any necessity for it and there is nothing more which the management could do in the circumstances.24. It is pointed out that the Nylon industry was a new industry at the time when it was started and the evidence of the General Manager, who had been with the Company from the initial stages and throughtout the negotiations for purchase of the machinery, says that according to the manufacturers the life of the machinery could only be six years. That apart the management also produced sample invoices for each year and adduced the evidence of the Manager to prove what would be the cost of rehabilitation. In fact it is said that the appellant was fortunate in having actual invoices of machinery purchased because the Company had only then expanded its undertaking. The Tribunal rejected the oral evidence on the ground that the witnesses produced by the management were no experts and they did not throw any material light on the matters to be adjudicated by it. It also rejected the documentary evidence on the ground that the machinery which was said to have been purchased was not the same as was sought to be replaced and in the any case there was not sufficient evidence for it to accept the multiplier and deviser as claimed by the management. Whether this criticism is valid or not will depend largely on what in fact weighed with the Tribunal in arriving at the multiplier and the deviser. No doubt the employer did make an application to the Tribunal as noticed earlier and the same was rejected on 5-8-1969 as it did not find it necessary to appoint an assessor.The application itself was for requesting the Tribunal to appoint an assessor if it thinks necessary. The management cannot without discharging its duty of placing all the necessary material before the Tribunal ask it to appoint an assessor who would be useless without that material. We do not think in the circumstances the Tribunal was wrong in rejecting the application.25. The Tribunal considered the evidence of Shri Jain, Aggarwal and Talwar in detail. With respect of Jain it noted that certain machinery worth about Rs. 10 lakhs had already been replaced and that there had been hundred per cent increase in prices also due to devaluation. The witness was however not able to give any details as to when the replacement of the parts and machinery took place even though the management kept the record of the replacement of the machinery. He could not also explain what exactly was the impact of the devaluation of Rupee on prices. He did not see the quotations of the machinery. It was therefore concluded that his statement both with regard to the life of the machinery and the replacement cost was quite useless and was based on hearsay. Shri Aggarwals evidence was also considered unsatisfactory, both with respect to the estimate of the replacement cost and the life of the machinery. His calculations were based on a comparison of the original cost of machinery in invoices Exs. M. 1, M. 2 and M. 3 and their cost in 1967, as given in the corresponding invoices Exs. M. 4, M. 5 and M. 6 and the devaluation of the Rupee. The Tribunal then considered the discrepancy between the machines mentioned in various exhibits. No doubt there is some justification in the comment of the learned Advocate for the Appellant that some of these invoices were not relied upon by the Tribunal merely because the machines mentioned therein were different in size and weight to those which were installed in the factory. Undoubtedly there would be a variation because the ingenuity of the inventor and technician is not static and as time goes on there are improvements. Renovations and changes that make the machine more sophisticated and efficient. While this is so the question is whether satisfactory evidence has been produced to prove the total cost of rehabilitation and also the life of the machinery. The evidence of Talwar was equally found to be defective. He was greatly relying on the handbook of Chemical Engineers by John Parry for establishing the life of the machinery. He said that in that Book the life of a Chemical plant working in three shifts is shown to be 11 years. He also admitted that the Author gives only the guideline for Income-tax purposes only.It appears to us that this is an unsatisfactory way of determining the two most important factors required for computing the rehabilitation requirement. The evidence produced before the Tribunal consisted only of a few invoices which were to serve as samples of the price of machines to show that they have gone up. We are not impressed with the submission of the learned advocate for the Appellant that a complete set of invoices in respect of all the Departments of the industry which required rehabilitation had been placed before the Tribunal. Indeed the very application for appointment of Assessor demonstrably contradicts this assumption. In this application the management stated that it did "examine S/Shri S. S. Aggarwal, A. C. Talwar as its expert witnesses and have filed some invoices by way of example to show the trend in rising cost in plant and machinery. With regard to useful life of the plant the Respondent places reliance on Chemical Engineers handbook IVth Edition by John Parry" (emphasis ours).27. It is apparent from this application that the management was relying only on a few sample invoices which they said they had produced while depending heavily only on Parrys Handbook for ascertaining the life of the machinery and the probable cost.28. We have also gone through the evidence of the three witnesses and the invoices referred to and we think that the Tribunal rightly rejected this evidence as not being of much assistance. It is quite probable that the price of the indigenous industry as appearing from the bulletin of the Reserve Bank of India has gone up but that does not furnish a basis for arriving at any specific multiplier or deviser for the Appellants plant. All that the invoices produced before the Tribunal establish is only the probable cost of machinery of 2 1/2 lakhs,. In an attempt to prove the cost of replacement of plant and machinery worth Rs. 825 lakhs. The Tribunal was therefore amply, justified in saying that the only evidence given is of the few invoices the value of which is only 2 1/2 per cent of the requirement of the replacement cost which is our view is not sufficient to establish how many machines in each Department of the industry are required, what is the nature of those machines and what is the probable cost of each of those machines. We are far from satisfied that the management has placed before the Tribunal any satisfactory evidence much less sufficient evidence to arrive at a multiplier and deviser nor has the Tribunal any bases for arriving at its own multiplier and deviser except it be on a pure conjecture and guess work.	1	9,550	### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: machinery. The evidence of Talwar was equally found to be defective. He was greatly relying on the handbook of Chemical Engineers by John Parry for establishing the life of the machinery. He said that in that Book the life of a Chemical plant working in three shifts is shown to be 11 years. He also admitted that the Author gives only the guideline for Income-tax purposes only. An extract of the Parrys Handbook was also given by the Tribunal which stated its conclusion as under:"In view of the above said infirmities it is evident that the managements claim for rehabilitation is very much inflated. The selection of the average multiplier is rather arbitrary or atleast quite generous to the management and their estimate about the life of the machinery is slightly conservative. From the available evidence on record he then proceeds to make his own estimates which as far as the life of the machinery is concerned was placed between that adopted for textile machinery of 25 years and the life given in the Chemical Engineers Handbook of 11 years. It said after referring to the statement in the Chemical Engineers Handbook that the life of a Chemical machinery must be more than 11 years in America where they work efficiently to the maximum capacity of the machinery. It was observed "here the working conditions being different the machinery is likely to last longer and certainly due to poor economic conditions in the country the management also cannot afford to discard such valuable machines in eleven years only. The life of the plant therefore must be more than 11 years. On the other hand the ordinary life of textile machinery is taken to be 25 years or more. In this view of the matter if we taken the life of the machinery as 14 years it would still be on the side of the conservative estimate". Regarding the multiplier the Tribunal said that:"the 1961-62 Block the machinery would require replacement according to our estimate in 1975-76. The Companys claim of six times the original cost based on a comparative study of invoices Exs. M. 1 to M. 3 on the one hand and Ex. M. 4 to M. 6 on the other is very much inflated ... ... ... The Company has not produced the current price list also the machinery or any price indices indicating the trend of prices of machines. The prices of machines are more stabilised than prices of consumer goods. The production of the machines has also gone up in the country and it is not impossible that by 1975 we might manufacture our own machines for Nylon factory also. Even otherwise the prices of imported machines are not likely to be more than four times. Therefore, in our opinion the multiplier should only be four for the block of 1961-62. in awards also relied upon by Shri Talwar even though they considered only prewar block of machines, in no case they allowed a multiplier of six. For the block of machines installed in the accounting year, ordinarily the unit is taken as the multiplier but as there has been in the meantime devaluation of the rupee we think it would on the whole be fair to adopt two as a suitable multiplier for the block installed in the accounting year".26. It appears to us that this is an unsatisfactory way of determining the two most important factors required for computing the rehabilitation requirement. The evidence produced before the Tribunal consisted only of a few invoices which were to serve as samples of the price of machines to show that they have gone up. We are not impressed with the submission of the learned advocate for the Appellant that a complete set of invoices in respect of all the Departments of the industry which required rehabilitation had been placed before the Tribunal. Indeed the very application for appointment of Assessor demonstrably contradicts this assumption. In this application the management stated that it did "examine S/Shri S. S. Aggarwal, A. C. Talwar as its expert witnesses and have filed some invoices by way of example to show the trend in rising cost in plant and machinery. With regard to useful life of the plant the Respondent places reliance on Chemical Engineers handbook IVth Edition by John Parry" (emphasis ours).27. It is apparent from this application that the management was relying only on a few sample invoices which they said they had produced while depending heavily only on Parrys Handbook for ascertaining the life of the machinery and the probable cost.28. We have also gone through the evidence of the three witnesses and the invoices referred to and we think that the Tribunal rightly rejected this evidence as not being of much assistance. It is quite probable that the price of the indigenous industry as appearing from the bulletin of the Reserve Bank of India has gone up but that does not furnish a basis for arriving at any specific multiplier or deviser for the Appellants plant. All that the invoices produced before the Tribunal establish is only the probable cost of machinery of 2 1/2 lakhs,. In an attempt to prove the cost of replacement of plant and machinery worth Rs. 825 lakhs. The Tribunal was therefore amply, justified in saying that the only evidence given is of the few invoices the value of which is only 2 1/2 per cent of the requirement of the replacement cost which is our view is not sufficient to establish how many machines in each Department of the industry are required, what is the nature of those machines and what is the probable cost of each of those machines. We are far from satisfied that the management has placed before the Tribunal any satisfactory evidence much less sufficient evidence to arrive at a multiplier and deviser nor has the Tribunal any bases for arriving at its own multiplier and deviser except it be on a pure conjecture and guess work. ### Response: 1
524	M/s. Meridian Industries Ltd Vs. Commissioner of Central Excise	v. Ballarpur Industries Ltd. (1989) 4 SCC 566 ) wherein this Court has held that the valid tests to determine whether the ingredient qualifies to be called raw material could be that ingredient should be so essential for the chemical processes culminating in the emergence of the desired end product. 18. As already pointed out above, Export and Import Policy 1997-2002 provided the definition of consumables and raw material. The definition of consumables suggest that if a particular item participates in or is required for a manufacturing process, but does not form part of the end product and instead it is specifically or totally consumed during a manufacturing process, the same would be treated as consumables. On the other hand, raw material, inter alia, includes any materials or goods that is required for the manufacturing process for a manufacturer. Though, these terms were not specifically defined at the relevant time when Vanasthali Textiles Industries Limited and Ballarpur Industries Limited cases were decided, going by the dictionary meaning, almost similar test was applied to determine whether a particular input would be treated as consumable or raw material. 19. A cursory glance of these judgments may give an impression that the present case is also covered by those decisions as in the instant case the waxing is ultimately removed from the cotton yarn by the buyer, after using this cotton yarn as raw material for fabricating the cloth. It is this aspect on which great stress and emphasis is laid by Mr. Bagaria, learned senior counsel for the appellant/assessee. However, a fine and subtle distinction is pointed out by Ms. Khajuria that becomes determinative of the outcome and changes the entire complexion, weighing the scales in favour of the respondent. Consumable is an item which does not form part of the end product. The assessee while arguing so is taking into consideration the end product at the hands of buyer which is not only extraneous and irrelevant but clearly impermissible. We are concerned with the article manufactured by the assessee, viz. cotton yarn, and not with the new and altogether different product, viz. knitting hosiery, manufactured by the buyer, who buys the cotton yarn as raw material/input. The article manufactured by the assessee is cotton yarn. Insofar as the assessee is concerned, its end product is cotton yarn. This cotton yarn becomes input for the manufacture of hosiery by the buyer who buys the cotton yarn from the assessee. This is to be kept in mind while determining whether wax as an item used in manufacturing cotton yarn becomes part of this cotton yarn or not. 20. Concentrating on this pertinent aspect, let us revisit the manufacturing process of cotton yarn by the assessee, which is the end product as far as the assessee is concerned. 21. Evidence has emerged on record, on which there is no dispute, that the final product which was cleared by the assessee, namely, cotton yarn was made of indigenous as well as imported cotton coated with imported wax. The wax coating is found to be essential for lubrication of the yarn and was allowed to remain on the yarn in order to facilitate its winding on cones and its use in knitting hosiery. Wax imparts a quality whereby the protruding fibres of the yarn are made to settle uniformly on the surface of the yarn to enable easy winding. This quality of the yarn is essential for its application in the manufacture of knitted fabrics by the buyers. It follows from the above that insofar as assessee is concerned, it manufactured cotton yarn by applying wax coating thereon. This wax coating, or significant portion thereof, remains on the cotton yarn. The buyer wants wax coating to remain as that is needed for lubrication of the yarn to facilitate its winding on cones when the buyer uses the said cotton yarn for manufacture of hosiery. No doubt that cotton yarn can be produced without wax as well. However, such cotton yarn without wax would be of inferior quality for the purposes of buyer in comparison with cotton yarn coated with wax as the use of cotton yarn with wax thereupon acting as lubricant is much more useful and becomes a value addition making it better quality cotton yarn, insofar as requirement of the buyer in using such cotton yarn for manufacture of knitted fabircs is concerned. When matter is examined from this angle, an irresistible conclusion is arrived at, namely, wax was used as raw material and not as consumable, insofar as end product of the assessee is concerned. For the assessee, end product is cotton yarn and not knitted hosiery. Knitted hosiery is the end product of the buyer. If buyer removes the wax after manufacture of knitted fabrics, that may not be of any consequence insofar as the assessee is concerned and would be totally extraneous to determine the issue at the hands of the assessee. 22. Once we examine the matter from the aforesaid angle, other arguments of the learned senior counsel appearing for the assessee also pale into insignificance. It clearly follows that the judgment in the case of Super Spinning Mills Ltd. or the judgments of this Court as noted above would not apply in the present case. Likewise, Circular No.389/22/98-CX issued by the Ministry of Finance giving certain clarifications, would not help the assessee. On the contrary, clarifications given therein go against the assessee. Para 3 (a) thereof which has already been reproduced in the earlier part of the judgment categorically states that those units which manufacture goods out of both imported and indigenous raw material would not be entitled to the benefit of Notification No.8/97. No doubt, as per para 3 (b), if imported consumables are used, benefit of the notification would still be available. However, in the present case, we find, as a fact, that wax is not used as consumable but as raw material. For same reasons, other circulars also will not advance the case of the assessee.	0[ds]19. A cursory glance of these judgments may give an impression that the present case is also covered by those decisions as in the instant case the waxing is ultimately removed from the cotton yarn by the buyer, after using this cotton yarn as raw material for fabricating the cloth. It is this aspect on which great stress and emphasis is laid by Mr. Bagaria, learned senior counsel for the appellant/assessee. However, a fine and subtle distinction is pointed out by Ms. Khajuria that becomes determinative of the outcome and changes the entire complexion, weighing the scales in favour of the respondent. Consumable is an item which does not form part of the end product. The assessee while arguing so is taking into consideration the end product at the hands of buyer which is not only extraneous and irrelevant but clearly impermissible. We are concerned with the article manufactured by the assessee, viz. cotton yarn, and not with the new and altogether different product, viz. knitting hosiery, manufactured by the buyer, who buys the cotton yarn as raw material/input. The article manufactured by the assessee is cotton yarn. Insofar as the assessee is concerned, its end product is cotton yarn. This cotton yarn becomes input for the manufacture of hosiery by the buyer who buys the cotton yarn from the assessee. This is to be kept in mind while determining whether wax as an item used in manufacturing cotton yarn becomes part of this cotton yarn or not.Concentrating on this pertinent aspect, let us revisit the manufacturing process of cotton yarn by the assessee, which is the end product as far as the assessee is concerned.Evidence has emerged on record, on which there is no dispute, that the final product which was cleared by the assessee, namely, cotton yarn was made of indigenous as well as imported cotton coated with imported wax. The wax coating is found to be essential for lubrication of the yarn and was allowed to remain on the yarn in order to facilitate its winding on cones and its use in knitting hosiery. Wax imparts a quality whereby the protruding fibres of the yarn are made to settle uniformly on the surface of the yarn to enable easy winding. This quality of the yarn is essential for its application in the manufacture of knitted fabrics by the buyers. It follows from the above that insofar as assessee is concerned, it manufactured cotton yarn by applying wax coating thereon. This wax coating, or significant portion thereof, remains on the cotton yarn. The buyer wants wax coating to remain as that is needed for lubrication of the yarn to facilitate its winding on cones when the buyer uses the said cotton yarn for manufacture of hosiery. No doubt that cotton yarn can be produced without wax as well. However, such cotton yarn without wax would be of inferior quality for the purposes of buyer in comparison with cotton yarn coated with wax as the use of cotton yarn with wax thereupon acting as lubricant is much more useful and becomes a value addition making it better quality cotton yarn, insofar as requirement of the buyer in using such cotton yarn for manufacture of knitted fabircs is concerned. When matter is examined from this angle, an irresistible conclusion is arrived at, namely, wax was used as raw material and not as consumable, insofar as end product of the assessee is concerned. For the assessee, end product is cotton yarn and not knitted hosiery. Knitted hosiery is the end product of the buyer. If buyer removes the wax after manufacture of knitted fabrics, that may not be of any consequence insofar as the assessee is concerned and would be totally extraneous to determine the issue at the hands of the assessee.Once we examine the matter from the aforesaid angle, other arguments of the learned senior counsel appearing for the assessee also pale into insignificance. It clearly follows that the judgment in the case of Super Spinning Mills Ltd. or the judgments of this Court as noted above would not apply in the present case. Likewise, Circular No.389/22/98-CX issued by the Ministry of Finance giving certain clarifications, would not help the assessee. On the contrary, clarifications given therein go against the assessee. Para 3 (a) thereof which has already been reproduced in the earlier part of the judgment categorically states that those units which manufacture goods out of both imported and indigenous raw material would not be entitled to the benefit of Notification No.8/97. No doubt, as per para 3 (b), if imported consumables are used, benefit of the notification would still be available. However, in the present case, we find, as a fact, that wax is not used as consumable but as raw material. For same reasons, other circulars also will not advance the case of the assessee.The appellant is seeking the benefit of exemption Notification No.8/97-C.E. Since it is an exemption notification, onus lies upon the appellant to show that its case falls within the four corners of this notification and is unambiguously covered by the provisions thereof. It is also to be borne in mind that such exemption notifications are to be given strict interpretation and, therefore, unless the assessee is able to make out a clear case in its favour, it is not entitled to claim the benefit thereof. Otherwise, if there is a doubt or two interpretations are possible, one which favours the Department is to be resorted to while construing an exemption notification.The gravamen of the charge against the appellant is that wax disc which is admittedly imported and used for the production of cotton yarn constitutes raw material and since imported material is used for the production of the aforesaid commodity, benefit of Notification No.8/97-C.E. cannot be extended to the appellant. It is not in dispute that wax is used in the process which is an imported material.	0	5,829	### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: v. Ballarpur Industries Ltd. (1989) 4 SCC 566 ) wherein this Court has held that the valid tests to determine whether the ingredient qualifies to be called raw material could be that ingredient should be so essential for the chemical processes culminating in the emergence of the desired end product. 18. As already pointed out above, Export and Import Policy 1997-2002 provided the definition of consumables and raw material. The definition of consumables suggest that if a particular item participates in or is required for a manufacturing process, but does not form part of the end product and instead it is specifically or totally consumed during a manufacturing process, the same would be treated as consumables. On the other hand, raw material, inter alia, includes any materials or goods that is required for the manufacturing process for a manufacturer. Though, these terms were not specifically defined at the relevant time when Vanasthali Textiles Industries Limited and Ballarpur Industries Limited cases were decided, going by the dictionary meaning, almost similar test was applied to determine whether a particular input would be treated as consumable or raw material. 19. A cursory glance of these judgments may give an impression that the present case is also covered by those decisions as in the instant case the waxing is ultimately removed from the cotton yarn by the buyer, after using this cotton yarn as raw material for fabricating the cloth. It is this aspect on which great stress and emphasis is laid by Mr. Bagaria, learned senior counsel for the appellant/assessee. However, a fine and subtle distinction is pointed out by Ms. Khajuria that becomes determinative of the outcome and changes the entire complexion, weighing the scales in favour of the respondent. Consumable is an item which does not form part of the end product. The assessee while arguing so is taking into consideration the end product at the hands of buyer which is not only extraneous and irrelevant but clearly impermissible. We are concerned with the article manufactured by the assessee, viz. cotton yarn, and not with the new and altogether different product, viz. knitting hosiery, manufactured by the buyer, who buys the cotton yarn as raw material/input. The article manufactured by the assessee is cotton yarn. Insofar as the assessee is concerned, its end product is cotton yarn. This cotton yarn becomes input for the manufacture of hosiery by the buyer who buys the cotton yarn from the assessee. This is to be kept in mind while determining whether wax as an item used in manufacturing cotton yarn becomes part of this cotton yarn or not. 20. Concentrating on this pertinent aspect, let us revisit the manufacturing process of cotton yarn by the assessee, which is the end product as far as the assessee is concerned. 21. Evidence has emerged on record, on which there is no dispute, that the final product which was cleared by the assessee, namely, cotton yarn was made of indigenous as well as imported cotton coated with imported wax. The wax coating is found to be essential for lubrication of the yarn and was allowed to remain on the yarn in order to facilitate its winding on cones and its use in knitting hosiery. Wax imparts a quality whereby the protruding fibres of the yarn are made to settle uniformly on the surface of the yarn to enable easy winding. This quality of the yarn is essential for its application in the manufacture of knitted fabrics by the buyers. It follows from the above that insofar as assessee is concerned, it manufactured cotton yarn by applying wax coating thereon. This wax coating, or significant portion thereof, remains on the cotton yarn. The buyer wants wax coating to remain as that is needed for lubrication of the yarn to facilitate its winding on cones when the buyer uses the said cotton yarn for manufacture of hosiery. No doubt that cotton yarn can be produced without wax as well. However, such cotton yarn without wax would be of inferior quality for the purposes of buyer in comparison with cotton yarn coated with wax as the use of cotton yarn with wax thereupon acting as lubricant is much more useful and becomes a value addition making it better quality cotton yarn, insofar as requirement of the buyer in using such cotton yarn for manufacture of knitted fabircs is concerned. When matter is examined from this angle, an irresistible conclusion is arrived at, namely, wax was used as raw material and not as consumable, insofar as end product of the assessee is concerned. For the assessee, end product is cotton yarn and not knitted hosiery. Knitted hosiery is the end product of the buyer. If buyer removes the wax after manufacture of knitted fabrics, that may not be of any consequence insofar as the assessee is concerned and would be totally extraneous to determine the issue at the hands of the assessee. 22. Once we examine the matter from the aforesaid angle, other arguments of the learned senior counsel appearing for the assessee also pale into insignificance. It clearly follows that the judgment in the case of Super Spinning Mills Ltd. or the judgments of this Court as noted above would not apply in the present case. Likewise, Circular No.389/22/98-CX issued by the Ministry of Finance giving certain clarifications, would not help the assessee. On the contrary, clarifications given therein go against the assessee. Para 3 (a) thereof which has already been reproduced in the earlier part of the judgment categorically states that those units which manufacture goods out of both imported and indigenous raw material would not be entitled to the benefit of Notification No.8/97. No doubt, as per para 3 (b), if imported consumables are used, benefit of the notification would still be available. However, in the present case, we find, as a fact, that wax is not used as consumable but as raw material. For same reasons, other circulars also will not advance the case of the assessee. ### Response: 0
525	Nagar Nigam, Allahabad Through Its Municipal Commissioner Vs. Life Insurance Corporation Of India Through Its Director	(i.e. other than Life Insurance-exclusively carried on by LIC of India).Aforesaid conclusion is further discernible from the fact that the list does not embarrass in itself any charitable hospital or government hospital or other likewise establishments.In that view of the matter we do find a clear distinction between Insurance Company (carrying on business under Insurance Act 1958) vis-a-vis the Life Insurance Corporation carrying business of life insurance under Life Insurance Corporation of India Act, 1956. Otherwise also Principle of Interpretation. It is an accepted principle of Statutory Interpretation that in a case where two interpretations of a provision imposing tax/fee is possible, Court should accept the interpretation which leans in favour of the assessee i.e. the person who is sought to be burdened."3. Mr. B.B. Sawhney, learned Senior Counsel appearing on behalf of the respondents has sought to support the judgment under appeal by advancing slightly different arguments, which we have permitted him to advance. He has referred to the statutory authority to levy licence fee and read to us Section 438 of the Uttar Pradesh Municipal Corporations Act, 1959, which reads as follows:-"438. Certain things not to be kept, and certain trades and operations not to be carried on without licence.- (1) Except under and in conformity with the terms and conditions of a licence granted by the Municipal Commissioner, no person shall-(a) keep in or upon any premises any article specified in the bye-laws in any quantity or in excess of the quantity specified in the bye-laws as the maximum quantity of such article which may at one time be kept in or upon the same premises without a licence; and(b) keep in or upon any building intended for or used as a dwelling or within fifteen feet of such building cotton, in pressed bales or boras or loose, in quantity exceeding four hundred-weight;(c) keep, or allow to be kept, in or upon any premises horses, cattle or other four-footed animals-(i) for sale,(ii) for letting out on hire,(iii) for any purposes for which any charge is made or any remuneration is received, or(iv) for sale of any produce thereof;(d) carry on or allow to be carried on, in or upon any premises-(i) any trade or operations connected with any trade specified in the bye-laws,(ii) any trade or operation which is dangerous to life or health or property, or likely to create a nuisance either from its nature or by reason of the manner in which or the conditions under which, the same, is or is proposed to be carried on;(e) carry on within the City, or use any premises, for the trade or operation of a farrier."He has referred to and relied upon sub-clause (d) of Section 438 which states that a licence fee can be levied only if any trade or operations connected with any trade specified in the bye-laws is there. According to him, the expression "trade" would not, by any stretch of imagination, include the business of insurance since what is referred to in Section 438 is keeping for sale or otherwise goods or animals or the manufacture of goods in premises. To buttress his submission, he has referred to Section 2 sub-sections (78), (79) and (80) which reads as follows:-"(78) "trade effluent" means any liquid either with or without particles of matter in suspension therein, which is so wholly or in part produced in the course of any trade or industry carried on at trade premises and in relation to any trade premises, means any such liquid as aforesaid which is so produced in the course of any trade or industry carried on at those premises, but does not include domestic sewage;(79) "trade premises" means any premises used or intended to be used for carrying on any trade or industry;(80) "trade refuse" means and includes the refuse of any trade, manufacture or business;"4. When the Court questioned learned counsel for the appellant as to this interpretation, the answer it got was that bye-laws can be framed, in any event, under Section 541 and, in particular, sub-clause (41) which reads as follows:-"(41) fixing of fees for any licence, sanction or permission to be granted by or under this Act;"5. We were also referred to Section 452 which reads as follows:-"452. Licence fees, etc.- The Municipal Commissioner may charge a fee to be fixed by bye-law for any licence, sanction or permission which he is entitled or required to grant by or under this Act."6. It will be noticed that both the aforesaid provisions, namely, Section 541 as well as Section 452 only refer back to a provision in the Act which specifies that a levy may be made for licence fees. We were not referred to any provision other than Section 438 for the purpose of locating such levy.7. In our opinion, learned counsel for the respondents appears to be correct in his submission, inasmuch as Section 438 deals with licence fee which is chargeable for activities related to functions of Municipal Corporations, which activities refer to premises in which goods or animals are kept for sale or for any other purpose, and to premises in which manufacture of goods takes place. This becomes further clear when we refer to Section 438(8) of the Act which reads as under:-"(8) Nothing in sub-sections (6) ad (7) shall be deemed to apply to mills for spinning or weaving cotton, jute, wool or silk to any other large mill or factory which the Municipal Commissioner may from time to time with the approval of the Executive Committee, specially exempt from the operation thereof."8. Mr. B.B. Sawhney, learned Senior Counsel, also referred to Section 541(20) which reads as under:-"20. the control and supervision of all premises used for any of the purposes mentioned in Section 438 and of all trades and manufactures carried thereon and the prescribing and regulating of the construction, dimensions, ventilation, lighting, cleansing, drainage and water-supply of any such premises;"This provision also has direct reference to Section 438 and supports the interpretation that he has suggested.	0[ds]6. It will be noticed that both the aforesaid provisions, namely, Section 541 as well as Section 452 only refer back to a provision in the Act which specifies that a levy may be made for licence fees. We were not referred to any provision other than Section 438 for the purpose of locating such levy.7. In our opinion, learned counsel for the respondents appears to be correct in his submission, inasmuch as Section 438 deals with licence fee which is chargeable for activities related to functions of Municipal Corporations, which activities refer to premises in which goods or animals are kept for sale or for any other purpose, and to premises in which manufacture of goods takes place. This becomes further clear when we refer to Section 438(8) of the Act which reads asons (6) ad (7) shall be deemed to apply to mills for spinning or weaving cotton, jute, wool or silk to any other large mill or factory which the Municipal Commissioner may from time to time with the approval of the Executive Committee, specially exempt from the operationprovision also has direct reference to Section 438 and supports the interpretation that he has suggested.	0	1,383	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: (i.e. other than Life Insurance-exclusively carried on by LIC of India).Aforesaid conclusion is further discernible from the fact that the list does not embarrass in itself any charitable hospital or government hospital or other likewise establishments.In that view of the matter we do find a clear distinction between Insurance Company (carrying on business under Insurance Act 1958) vis-a-vis the Life Insurance Corporation carrying business of life insurance under Life Insurance Corporation of India Act, 1956. Otherwise also Principle of Interpretation. It is an accepted principle of Statutory Interpretation that in a case where two interpretations of a provision imposing tax/fee is possible, Court should accept the interpretation which leans in favour of the assessee i.e. the person who is sought to be burdened."3. Mr. B.B. Sawhney, learned Senior Counsel appearing on behalf of the respondents has sought to support the judgment under appeal by advancing slightly different arguments, which we have permitted him to advance. He has referred to the statutory authority to levy licence fee and read to us Section 438 of the Uttar Pradesh Municipal Corporations Act, 1959, which reads as follows:-"438. Certain things not to be kept, and certain trades and operations not to be carried on without licence.- (1) Except under and in conformity with the terms and conditions of a licence granted by the Municipal Commissioner, no person shall-(a) keep in or upon any premises any article specified in the bye-laws in any quantity or in excess of the quantity specified in the bye-laws as the maximum quantity of such article which may at one time be kept in or upon the same premises without a licence; and(b) keep in or upon any building intended for or used as a dwelling or within fifteen feet of such building cotton, in pressed bales or boras or loose, in quantity exceeding four hundred-weight;(c) keep, or allow to be kept, in or upon any premises horses, cattle or other four-footed animals-(i) for sale,(ii) for letting out on hire,(iii) for any purposes for which any charge is made or any remuneration is received, or(iv) for sale of any produce thereof;(d) carry on or allow to be carried on, in or upon any premises-(i) any trade or operations connected with any trade specified in the bye-laws,(ii) any trade or operation which is dangerous to life or health or property, or likely to create a nuisance either from its nature or by reason of the manner in which or the conditions under which, the same, is or is proposed to be carried on;(e) carry on within the City, or use any premises, for the trade or operation of a farrier."He has referred to and relied upon sub-clause (d) of Section 438 which states that a licence fee can be levied only if any trade or operations connected with any trade specified in the bye-laws is there. According to him, the expression "trade" would not, by any stretch of imagination, include the business of insurance since what is referred to in Section 438 is keeping for sale or otherwise goods or animals or the manufacture of goods in premises. To buttress his submission, he has referred to Section 2 sub-sections (78), (79) and (80) which reads as follows:-"(78) "trade effluent" means any liquid either with or without particles of matter in suspension therein, which is so wholly or in part produced in the course of any trade or industry carried on at trade premises and in relation to any trade premises, means any such liquid as aforesaid which is so produced in the course of any trade or industry carried on at those premises, but does not include domestic sewage;(79) "trade premises" means any premises used or intended to be used for carrying on any trade or industry;(80) "trade refuse" means and includes the refuse of any trade, manufacture or business;"4. When the Court questioned learned counsel for the appellant as to this interpretation, the answer it got was that bye-laws can be framed, in any event, under Section 541 and, in particular, sub-clause (41) which reads as follows:-"(41) fixing of fees for any licence, sanction or permission to be granted by or under this Act;"5. We were also referred to Section 452 which reads as follows:-"452. Licence fees, etc.- The Municipal Commissioner may charge a fee to be fixed by bye-law for any licence, sanction or permission which he is entitled or required to grant by or under this Act."6. It will be noticed that both the aforesaid provisions, namely, Section 541 as well as Section 452 only refer back to a provision in the Act which specifies that a levy may be made for licence fees. We were not referred to any provision other than Section 438 for the purpose of locating such levy.7. In our opinion, learned counsel for the respondents appears to be correct in his submission, inasmuch as Section 438 deals with licence fee which is chargeable for activities related to functions of Municipal Corporations, which activities refer to premises in which goods or animals are kept for sale or for any other purpose, and to premises in which manufacture of goods takes place. This becomes further clear when we refer to Section 438(8) of the Act which reads as under:-"(8) Nothing in sub-sections (6) ad (7) shall be deemed to apply to mills for spinning or weaving cotton, jute, wool or silk to any other large mill or factory which the Municipal Commissioner may from time to time with the approval of the Executive Committee, specially exempt from the operation thereof."8. Mr. B.B. Sawhney, learned Senior Counsel, also referred to Section 541(20) which reads as under:-"20. the control and supervision of all premises used for any of the purposes mentioned in Section 438 and of all trades and manufactures carried thereon and the prescribing and regulating of the construction, dimensions, ventilation, lighting, cleansing, drainage and water-supply of any such premises;"This provision also has direct reference to Section 438 and supports the interpretation that he has suggested. ### Response: 0
526	Bharat S. Shah & Others Vs. Rajkumar Jugalkishore Sarad	this Court under section 19 from such an order although the proceeding has remained pending in the High Court.22. In our view, that was in the context that an appeal from an order imitating the contempt proceedings in a given case can be entertained, particularly those where the order decides some disputes raised before the Court by the contemnor asking it to drop the proceedings on one ground or the other. But in the case of Purshotam Dass Goel vs. Justice B. S. Dhillon (supra), the Supreme Court has in terms accepted the preliminary objection raised on behalf of the respondent i.e. the Learned Solicitor General that no appeal lies to this Court under section 19 of the Act from an order issuing notice as nothing yet has been decided by the High Court. The Supreme Court has expressed that it would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of the Bench of the High Court if the order has been made in the exercise of its Jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of a notice on the prima facie view that the case is a fit one, for drawing up the proceeding, does not decide any question. (emphasis supplied)23. In the present case, the learned single Judge while considering whether to initiate the proceedings for contempt has only expressed a prima facie view for justifying initiation of the proceedings without anything further and has not decided any issue against the alleged contemnor i.e. the appellant and therefore, there was no decision in the matter of the nature affecting the right of the party aggrieved.24. In the case of Midnapore Peoples Co-op. Bank Ltd. and others vs. Chunilal Nanda and others (supra), the Honourable Supreme Court had an occasion to exhaustively deal with the subject of maintainability of an appeal on the following issues(i) Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under section 19 of the Contempt of Courts Act, 1971 If not, what is the remedy of the person aggrieved(ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-Court appeal is available under Clause 15 of the Letters Patent(iii) In a contempt proceeding initiated by a delinquent employee (against the enquiry officer as also the Chairman and Secretary in charge of the employer Bank), complaining of disobedience of an order directing completion of the enquiry in a time-bound schedule, whether the Court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary; (d) that the enquiry officer shall cease to be the enquiry officer and the employer shall appoint a fresh enquiry officer; and (e) that the suspension shall be deemed to have been revoked25. The Court has also taken into consideration the decision of the Court in the case of Purshotam Dass Goel vs. Justice B. S. Dhillon (supra) and after taking into consideration various decisions in regard to the appeal against order in contempt proceedings, in reply to the first issue has summarized thusI) An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.II) Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.III) In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.IV) Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "Jurisdiction to punish contempt" and, therefore, not appealable under section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.V) If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intraCourt appeal (if the order was of a learned Single Judge and there is a provision for an intra Court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).	0[ds]We do not think it necessary to reproduce the terms and conditions recorded in the consent terms but needless to state that there are undertakings given to the Court by the parties which have been accepted by the learned Judge of the Small Causes while disposing of the suit between the parties.In the case at hand, the question relates to abiding by the undertaking given to the Court as recorded in the Consent Terms may be that the undertakings were given on happening of certain contingencies that is the issue which will be examined by the learned Judge while dealing with the petition onthe Supreme Court, the issue contended on behalf of the appellants was that in the circumstances, there was no basis for the contempt application and that the High Court ought not to have issued rule in the matter at all and that is how the Supreme Court came to the conclusion that under the coercion of contempt proceeding, the appellants cannot be directed to pay the compensation amount which they are disputing by asserting that the claimants were not the owners of the property in question and that decree was obtained by suppressing material facts and by fraud and if at all the High Court did not grant any stay to the compensation awarded by the trial Court they could have recovered the same by executing the award and, therefore, in such a situation there was no wilful disobedience of the order and the initiation of contempt proceedings was wholly unjustified.In our view, that was in the context that an appeal from an order imitating the contempt proceedings in a given case can be entertained, particularly those where the order decides some disputes raised before the Court by the contemnor asking it to drop the proceedings on one ground or the other. But in the case of Purshotam Dass Goel vs. Justice B. S. Dhillon (supra), the Supreme Court has in terms accepted the preliminary objection raised on behalf of the respondent i.e. the Learned Solicitor General that no appeal lies to this Court under section 19 of the Act from an order issuing notice as nothing yet has been decided by the High Court. The Supreme Court has expressed that it would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of the Bench of the High Court if the order has been made in the exercise of its Jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of a notice on the prima facie view that the case is a fit one, for drawing up the proceeding, does not decide any question. (emphasisIn the present case, the learned single Judge while considering whether to initiate the proceedings for contempt has only expressed a prima facie view for justifying initiation of the proceedings without anything further and has not decided any issue against the alleged contemnor i.e. the appellant and therefore, there was no decision in the matter of the nature affecting the right of the party aggrieved.The Court has also taken into consideration the decision of the Court in the case of Purshotam Dass Goel vs. Justice B. S. Dhillon (supra) and after taking into consideration various decisions in regard to the appeal against order in contempt proceedings, in reply to the first issue has summarized thusI) An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.II) Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.III) In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.IV) Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "Jurisdiction to punish contempt" and, therefore, not appealable under section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.V) If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intraCourt appeal (if the order was of a learned Single Judge and there is a provision for an intra Court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).	0	3,720	### 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: this Court under section 19 from such an order although the proceeding has remained pending in the High Court.22. In our view, that was in the context that an appeal from an order imitating the contempt proceedings in a given case can be entertained, particularly those where the order decides some disputes raised before the Court by the contemnor asking it to drop the proceedings on one ground or the other. But in the case of Purshotam Dass Goel vs. Justice B. S. Dhillon (supra), the Supreme Court has in terms accepted the preliminary objection raised on behalf of the respondent i.e. the Learned Solicitor General that no appeal lies to this Court under section 19 of the Act from an order issuing notice as nothing yet has been decided by the High Court. The Supreme Court has expressed that it would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of the Bench of the High Court if the order has been made in the exercise of its Jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of a notice on the prima facie view that the case is a fit one, for drawing up the proceeding, does not decide any question. (emphasis supplied)23. In the present case, the learned single Judge while considering whether to initiate the proceedings for contempt has only expressed a prima facie view for justifying initiation of the proceedings without anything further and has not decided any issue against the alleged contemnor i.e. the appellant and therefore, there was no decision in the matter of the nature affecting the right of the party aggrieved.24. In the case of Midnapore Peoples Co-op. Bank Ltd. and others vs. Chunilal Nanda and others (supra), the Honourable Supreme Court had an occasion to exhaustively deal with the subject of maintainability of an appeal on the following issues(i) Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under section 19 of the Contempt of Courts Act, 1971 If not, what is the remedy of the person aggrieved(ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-Court appeal is available under Clause 15 of the Letters Patent(iii) In a contempt proceeding initiated by a delinquent employee (against the enquiry officer as also the Chairman and Secretary in charge of the employer Bank), complaining of disobedience of an order directing completion of the enquiry in a time-bound schedule, whether the Court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary; (d) that the enquiry officer shall cease to be the enquiry officer and the employer shall appoint a fresh enquiry officer; and (e) that the suspension shall be deemed to have been revoked25. The Court has also taken into consideration the decision of the Court in the case of Purshotam Dass Goel vs. Justice B. S. Dhillon (supra) and after taking into consideration various decisions in regard to the appeal against order in contempt proceedings, in reply to the first issue has summarized thusI) An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.II) Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.III) In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.IV) Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "Jurisdiction to punish contempt" and, therefore, not appealable under section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.V) If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intraCourt appeal (if the order was of a learned Single Judge and there is a provision for an intra Court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). ### Response: 0
527	R L Jain (D) By Lrs Vs. D D A	also placed strong reliance on Satinder Singh vs. Umrao Singh and another AIR 1961 SC 908 wherein the question of payment of interest in the matter of award of compensation was considered by this Court. In this case the initial notification was issued under Section 4(1) of Land Acquisition Act, 1894 but the proceedings for acquisition were completed under East Punjab Act No. 48 of 1948. The High Court negatived the claim for interest on the ground that the 1948 Act made no provision for award of interest. After quoting with approval the following observations of Privy Council in Inglewood Pulp and Paper Co. Ltd. vs. New Brunswick Electric Power Commissioner AIR 1928 PC 287: "upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principle sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention." the bench held as under: "... When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession of compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation.The normal rule, therefore, is that if on account of acquisition of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest from the date of dispossession till the date of payment thereof. But here the land has been acquired only after the preliminary notification was issued on 9.9.1992 as earlier acquisition proceedings were declared to be null and void in the suit instituted by the land owner himself and consequently he was entitled to compensation or interest thereon for the anterior period." 18. In a case where the land owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property. The provision of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded.19. The case may be examined from the equitable consideration as well. In the earlier acquisition proceedings the notification under Section 4(1) had been published on 13.11.1959 and the Collector had made an award for Rs. 6301/- for the plot in dispute on 30.12.1961. The award was made within 1-1/2 months of dispossession which allegedly took place on 10.11.1961. This amount was paid to R.L. Jain and was retained by him. Learned counsel for the respondent has placed before the Court a copy of the sale certificate issued in favour of R.L. Jain on 31.8.1961 which shows that the plot was purchased by him for Rs. 3200/- only and thus he had received almost double amount of compensation. Therefore, even on equitable ground he is not entitled to any amount from the date of dispossession till the date of second notification under Section 4(1) of the Act which was issued in 1992.20. In this connection, it may be noted that the only plea taken in Suit No. 154 of 1965 filed by R.L. Jain was that it was given out at the time of auction sale of the plot that the same was outside the purview of the preliminary notification issued on 13.11.1959 under Section 4(1) of the Act. Even assuming that it was so but that by itself could not render the acquisition proceedings invalid. At best, he would have been entitled to refund of the sale consideration paid by him. However, the Sub-Judge passed a decree that the acquisition proceedings with regard to the plot in dispute are illegal and the notification issued under Section 6(1) of the Act on 11.10.1961 is null and void. The decree having become final it is binding upon the respondent, DDA. The original appellant R.L. Jain on the one hand received compensation amount in terms of the award of the Collector and sought a reference to the Court on the ground of alleged inadequacy of compensation and at the same time filed the suit challenging the acquisition proceedings wherein he obtained a decree that the acquisition proceedings are null and void. It was on account of this judgment and decree that he succeeded in the second suit (Suit No. 421 of 1967), wherein a decree for demolition of construction made by DDA and restoration of possession in his favour was passed. It is in such circumstances that in order to save the construction the land acquisition proceedings were initiated again by issuing a notification under Section 4(1) of the Act on 9.9.1992. Under the award given by the Collector on 11.6.1994 he has been awarded Rs. 16,54,175/ as the market value of the land and Rs. 4,96,252 as solatium. The appellant has thus been more than adequately compensated and in our opinion even on equitable grounds he is not entitled to any further amount.	0[ds]18. In a case where the land owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property. The provision of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded.19. The case may be examined from the equitable consideration as well. In the earlier acquisition proceedings the notification under Section 4(1) had been published on 13.11.1959 and the Collector had made an award for Rs. 6301/- for the plot in dispute on 30.12.1961. The award was made within 1-1/2 months of dispossession which allegedly took place on 10.11.1961. This amount was paid to R.L. Jain and was retained by him. Learned counsel for the respondent has placed before the Court a copy of the sale certificate issued in favour of R.L. Jain on 31.8.1961 which shows that the plot was purchased by him for Rs. 3200/- only and thus he had received almost double amount of compensation. Therefore, even on equitable ground he is not entitled to any amount from the date of dispossession till the date of second notification under Section 4(1) of the Act which was issued in 1992.20. In this connection, it may be noted that the only plea taken in Suit No. 154 of 1965 filed by R.L. Jain was that it was given out at the time of auction sale of the plot that the same was outside the purview of the preliminary notification issued on 13.11.1959 under Section 4(1) of the Act. Even assuming that it was so but that by itself could not render the acquisition proceedings invalid. At best, he would have been entitled to refund of the sale consideration paid by him. However, the Sub-Judge passed a decree that the acquisition proceedings with regard to the plot in dispute are illegal and the notification issued under Section 6(1) of the Act on 11.10.1961 is null and void. The decree having become final it is binding upon the respondent, DDA. The original appellant R.L. Jain on the one hand received compensation amount in terms of the award of the Collector and sought a reference to the Court on the ground of alleged inadequacy of compensation and at the same time filed the suit challenging the acquisition proceedings wherein he obtained a decree that the acquisition proceedings are null and void. It was on account of this judgment and decree that he succeeded in the second suit (Suit No. 421 of 1967), wherein a decree for demolition of construction made by DDA and restoration of possession in his favour was passed. It is in such circumstances that in order to save the construction the land acquisition proceedings were initiated again by issuing a notification under Section 4(1) of the Act on 9.9.1992. Under the award given by the Collector on 11.6.1994 he has been awarded Rs. 16,54,175/ as the market value of the land and Rs. 4,96,252 as solatium. The appellant has thus been more than adequately compensated and in our opinion even on equitable grounds he is not entitled to any further	0	6,649	### 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: also placed strong reliance on Satinder Singh vs. Umrao Singh and another AIR 1961 SC 908 wherein the question of payment of interest in the matter of award of compensation was considered by this Court. In this case the initial notification was issued under Section 4(1) of Land Acquisition Act, 1894 but the proceedings for acquisition were completed under East Punjab Act No. 48 of 1948. The High Court negatived the claim for interest on the ground that the 1948 Act made no provision for award of interest. After quoting with approval the following observations of Privy Council in Inglewood Pulp and Paper Co. Ltd. vs. New Brunswick Electric Power Commissioner AIR 1928 PC 287: "upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principle sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention." the bench held as under: "... When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession of compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation.The normal rule, therefore, is that if on account of acquisition of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest from the date of dispossession till the date of payment thereof. But here the land has been acquired only after the preliminary notification was issued on 9.9.1992 as earlier acquisition proceedings were declared to be null and void in the suit instituted by the land owner himself and consequently he was entitled to compensation or interest thereon for the anterior period." 18. In a case where the land owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property. The provision of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded.19. The case may be examined from the equitable consideration as well. In the earlier acquisition proceedings the notification under Section 4(1) had been published on 13.11.1959 and the Collector had made an award for Rs. 6301/- for the plot in dispute on 30.12.1961. The award was made within 1-1/2 months of dispossession which allegedly took place on 10.11.1961. This amount was paid to R.L. Jain and was retained by him. Learned counsel for the respondent has placed before the Court a copy of the sale certificate issued in favour of R.L. Jain on 31.8.1961 which shows that the plot was purchased by him for Rs. 3200/- only and thus he had received almost double amount of compensation. Therefore, even on equitable ground he is not entitled to any amount from the date of dispossession till the date of second notification under Section 4(1) of the Act which was issued in 1992.20. In this connection, it may be noted that the only plea taken in Suit No. 154 of 1965 filed by R.L. Jain was that it was given out at the time of auction sale of the plot that the same was outside the purview of the preliminary notification issued on 13.11.1959 under Section 4(1) of the Act. Even assuming that it was so but that by itself could not render the acquisition proceedings invalid. At best, he would have been entitled to refund of the sale consideration paid by him. However, the Sub-Judge passed a decree that the acquisition proceedings with regard to the plot in dispute are illegal and the notification issued under Section 6(1) of the Act on 11.10.1961 is null and void. The decree having become final it is binding upon the respondent, DDA. The original appellant R.L. Jain on the one hand received compensation amount in terms of the award of the Collector and sought a reference to the Court on the ground of alleged inadequacy of compensation and at the same time filed the suit challenging the acquisition proceedings wherein he obtained a decree that the acquisition proceedings are null and void. It was on account of this judgment and decree that he succeeded in the second suit (Suit No. 421 of 1967), wherein a decree for demolition of construction made by DDA and restoration of possession in his favour was passed. It is in such circumstances that in order to save the construction the land acquisition proceedings were initiated again by issuing a notification under Section 4(1) of the Act on 9.9.1992. Under the award given by the Collector on 11.6.1994 he has been awarded Rs. 16,54,175/ as the market value of the land and Rs. 4,96,252 as solatium. The appellant has thus been more than adequately compensated and in our opinion even on equitable grounds he is not entitled to any further amount. ### Response: 0
528	M/S. Daluram Pannalal Modi Vs. The Assistant Commissioner Ofsales Tax Etc	created only as an adjunct to the exercise of the power, a duty which passed necessarily with the delegation of the power. That seems to us to be also commonsense for when a power is delegated it is intended that the delegate would exercise it and therefore it must have been intended that he would perform all the conditions precedent to the exercise of the power.5. The view that we brave taken of this case was taken by the Judicial Committee of a similar statute in the case of Mungani v. Attorney General, 1960 AC 336 an d that case was cited with approval by this Court in Mastarshid Ali Al Quadari v. Commissioner of Wakfs, West Bengal, AIR 1961 SC 1095 where it was observed," Where powers and duties are interconnected and it is not possible to separate one from the other in such state that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties."The duty of being satisfied -if at all it was one -being inseparably connected with the power to re-assess and passing to a delegate along with it, was not a duty which could be independently delegated and was not, therefore a duty the delegation of which could be made under S.30. We, therefore, think that the Assistant Commissioner, as the delegate of the power to re-assess duly exercised the power on his own satisfaction that sales had escaped assessment.6. Then it was said that Mungonis case, 1960 AC 336 and the cases taking the same view, some of which were mentioned in the judgment of the High Court, were of no assistance for the statutes in those cases required only one thing to be done before the power conferred could be exercised, whereas S. 19 (1) of the Act of 1958 required a number of thing to be so done. It was, thereof, contended that it could not be said in the present case that the things which had to be done before the power could be exercised were not duties which could be delegated under S. 30. In Mungonis case, 1960 AC 336 no doubt there was only one condition precedent and we will assume that in the cases referred to in the Judgment of the High Court, the positions was the same. We will also assume that sub-sec. (1) of S. 19 required a number of things to be done before the power to re-assess could be exercised though as at present advised, we doubt if it did. We are however wholly unable to appreciate how the number of conditions precedent could lead to the view that they were independent duties which could be separately delegated. It seems to us that in spite of their number, they remain nonetheless conditions precedent and therefore conditions or limitation of the exercise of the power. They had, like a single condition precedent, no independent existence. If in the case of a single condition precedent it has to be held on the authority of Mungonis case, 1960 AC 336 that the requirement of its performance passed with the delegation of the power to which it was attached, we think that a delegation or a power would take with it all the conditions precedent attached to it whatever be their number. We are unable to distinguish the present case from Mungonis case, 1960 AC 336.7. The other objection to the validity of the order is that it was in respect of sales which had earlier been assessed under the Act of 1950 as sales by one Gajanand Satyanarayan and could not therefore be assessed again. This earlier assessment had been cancelled by an order made under S. 39(2) of the Act of 1958. But it was said that that order could not cancel the assessment which was under the 1950 Act, for under S. 39(2) only in order under the 1958 Act could be cancelled. It seems to us that in order to uphold the validity of the re-assessment order made in this case it is not necessary that the assessment order made on Gajanand Satyanarayan should have been cancelled. We will assume that the sales covered by the order against Gajanand Satyanarayan were the same as those with which the order in hand is concerned. In the re-assessment proceedings however it was found as a fact that Gajanand Satyanarayan was a name only and that no real person bearing that name ever existed. That finding cannot be challenged in the present proceedings and that being so, it seems to us that the assessment order upon Gajanand Satyanarayan was a nullity, obviously, no assessment could be made under the Act on a non-existent person. If that order was a nullity and the learned counsel has not been able to show how it could have been otherwise it could not stand in the way of the re-assessment of the appellant at all. The second challenge to the impugned order must, therefore, also be rejected.8. Learned counsel for the appellant has sought to raise two other points but the was not permitted to do so because these points were not mentioned in the petition for the writ nor raised at any earlier stage. We will however state them here but without expressing any opinion of our own as to their tenability. The first of these points was that under S. 19 (1) of the 1958 Act only those sales could be re-assessed which were chargeable to tax under that Act and the sales brought to tax under the present order were of sugar, a commodity the sale of which was not chargeable under the Act. The other point was that penalty had been imposed by the impugned order under S. 14 of the Act of 1950 but this was illegal since the 1950 Act had been repealed and the right to impose a penalty under the repealed Act had not been saved by the saving section, namely, S. 52.9.	0[ds]We will assume that the sales covered by the order against Gajanand Satyanarayan were the same as those with which the order in hand is concerned. In the re-assessment proceedings however it was found as a fact that Gajanand Satyanarayan was a name only and that no real person bearing that name ever existed. That finding cannot be challenged in the present proceedings and that being so, it seems to us that the assessment order upon Gajanand Satyanarayan was a nullity, obviously, no assessment could be made under the Act on a non-existent person. If that order was a nullity and the learned counsel has not been able to show how it could have been otherwise it could not stand in the way of the re-assessment of the appellant at all. The second challenge to the impugned order must, therefore, also be rejected.8. Learned counsel for the appellant has sought to raise two other points but the was not permitted to do so because these points were not mentioned in the petition for the writ nor raised at any earlier stage. We will however state them here but without expressing any opinion of our own as to their tenability. The first of these points was that under S. 19 (1) of the 1958 Act only those sales could be re-assessed which were chargeable to tax under that Act and the sales brought to tax under the present order were of sugar, a commodity the sale of which was not chargeable under the Act. The other point was that penalty had been imposed by the impugned order under S. 14 of the Act of 1950 but this was illegal since the 1950 Act had been repealed and the right to impose a penalty under the repealed Act had not been saved by the saving section, namely, S. 52.	0	1,855	### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: created only as an adjunct to the exercise of the power, a duty which passed necessarily with the delegation of the power. That seems to us to be also commonsense for when a power is delegated it is intended that the delegate would exercise it and therefore it must have been intended that he would perform all the conditions precedent to the exercise of the power.5. The view that we brave taken of this case was taken by the Judicial Committee of a similar statute in the case of Mungani v. Attorney General, 1960 AC 336 an d that case was cited with approval by this Court in Mastarshid Ali Al Quadari v. Commissioner of Wakfs, West Bengal, AIR 1961 SC 1095 where it was observed," Where powers and duties are interconnected and it is not possible to separate one from the other in such state that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties."The duty of being satisfied -if at all it was one -being inseparably connected with the power to re-assess and passing to a delegate along with it, was not a duty which could be independently delegated and was not, therefore a duty the delegation of which could be made under S.30. We, therefore, think that the Assistant Commissioner, as the delegate of the power to re-assess duly exercised the power on his own satisfaction that sales had escaped assessment.6. Then it was said that Mungonis case, 1960 AC 336 and the cases taking the same view, some of which were mentioned in the judgment of the High Court, were of no assistance for the statutes in those cases required only one thing to be done before the power conferred could be exercised, whereas S. 19 (1) of the Act of 1958 required a number of thing to be so done. It was, thereof, contended that it could not be said in the present case that the things which had to be done before the power could be exercised were not duties which could be delegated under S. 30. In Mungonis case, 1960 AC 336 no doubt there was only one condition precedent and we will assume that in the cases referred to in the Judgment of the High Court, the positions was the same. We will also assume that sub-sec. (1) of S. 19 required a number of things to be done before the power to re-assess could be exercised though as at present advised, we doubt if it did. We are however wholly unable to appreciate how the number of conditions precedent could lead to the view that they were independent duties which could be separately delegated. It seems to us that in spite of their number, they remain nonetheless conditions precedent and therefore conditions or limitation of the exercise of the power. They had, like a single condition precedent, no independent existence. If in the case of a single condition precedent it has to be held on the authority of Mungonis case, 1960 AC 336 that the requirement of its performance passed with the delegation of the power to which it was attached, we think that a delegation or a power would take with it all the conditions precedent attached to it whatever be their number. We are unable to distinguish the present case from Mungonis case, 1960 AC 336.7. The other objection to the validity of the order is that it was in respect of sales which had earlier been assessed under the Act of 1950 as sales by one Gajanand Satyanarayan and could not therefore be assessed again. This earlier assessment had been cancelled by an order made under S. 39(2) of the Act of 1958. But it was said that that order could not cancel the assessment which was under the 1950 Act, for under S. 39(2) only in order under the 1958 Act could be cancelled. It seems to us that in order to uphold the validity of the re-assessment order made in this case it is not necessary that the assessment order made on Gajanand Satyanarayan should have been cancelled. We will assume that the sales covered by the order against Gajanand Satyanarayan were the same as those with which the order in hand is concerned. In the re-assessment proceedings however it was found as a fact that Gajanand Satyanarayan was a name only and that no real person bearing that name ever existed. That finding cannot be challenged in the present proceedings and that being so, it seems to us that the assessment order upon Gajanand Satyanarayan was a nullity, obviously, no assessment could be made under the Act on a non-existent person. If that order was a nullity and the learned counsel has not been able to show how it could have been otherwise it could not stand in the way of the re-assessment of the appellant at all. The second challenge to the impugned order must, therefore, also be rejected.8. Learned counsel for the appellant has sought to raise two other points but the was not permitted to do so because these points were not mentioned in the petition for the writ nor raised at any earlier stage. We will however state them here but without expressing any opinion of our own as to their tenability. The first of these points was that under S. 19 (1) of the 1958 Act only those sales could be re-assessed which were chargeable to tax under that Act and the sales brought to tax under the present order were of sugar, a commodity the sale of which was not chargeable under the Act. The other point was that penalty had been imposed by the impugned order under S. 14 of the Act of 1950 but this was illegal since the 1950 Act had been repealed and the right to impose a penalty under the repealed Act had not been saved by the saving section, namely, S. 52.9. ### Response: 0
529	Lt Col Vivek Singh Vs. Romani Singh	good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother." 16. The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time. This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are right in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellants effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellants view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as The Parental Alienation Syndrome[4]. It has at least two psychological destructive effects: [4 The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No. 2: The American Academy of Psychoanalysis, 1985).] (i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parents distortions of reality. 17. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.	1[ds]14. In the instant case, the factors which weigh in favour of the appellant are that child Saesha is living with him from tender age of 21 months. She is happy in his company. In fact, her desire is to continue to live with the appellant. Normally, these considerations would have prevailed upon us to hold that custody of Saesha remain with the appellant. However, that is only one side of the picture. We cannot, at the same time, ignore the other side. A glimpse, nay, a proper glance at the other side is equally significant. From the events that took place and noted above, following overwhelming factors in favour of respondentFor first 21 months when the parties were living together, it is the respondent who had nursed the child. The appellant cannot even claim to have an edge over the respondent during this period, when the child was still an infant, who would have naturally remained in the care and protection of the respondent - mother, more than the appellant - father. Finding to this effect has been arrived at by the High Court as well. This position even otherwise cannot be disputed.(b) The respondent was forcibly deprived by the custody of Saesha from August 04, 2010 when she was forced to leave the matrimonial house. As per the respondent, on that date the appellant in a drunken state gave beatings to her and threw her out of the house. The respondent had called the police. The police personnel called the military police and a complaint was lodged. The respondent had also called her parents who had come to her house from NOIDA. Her parents took hold of the child and the appellant and when they were about to leave, the appellant pulled out the child from the hands of her mother and went inside the house and locked himself. He was drunk at that time. The police suggested not to do anything otherwise appellant would harm the child. It was assured that the child would be returned to her in the morning. In any case, the respondent and the appellant were instructed to come to the police along with the child, next morning. The appellant did not bring the child and threatened that he would not give the child to her. Since then, she had been running from pillar to post to get the child back but respondent had been refusing. The respondent, therefore, cannot be blamed at all, if the custody of the child remained with the appellant, after the separation of the parties.(c) Within the few days, i.e. on August 26, 2010, the respondent filed the petition seeking custody of the child and for appointment of her guardian. She did not lose any time making her intentions clear that as a natural mother she wanted to have the custody of the child. It was her mis-fortune that the trial court vide its judgment dated December 07, 2011 dismissed her petition. Though, she filed the appeal against the said judgment immediately, but during the pendency of the appeal, the custody remained with the appellant because of the dismissal of the petition by the Family Court. The High Court has, by impugned judgment dated April 02, 2013 granted the custody to the respondent. However, the respondent has not been able to reap the benefit thereof because of the interim orders passed in the instant appeal. It is in these circumstances that child Saesha from the tender age of 21 months has remained with the appellant and today she is 8 years and 3 months. Obviously, because of this reason, as of today, she is very much attached to the father and she thinks that she should remain in the present environment. A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener. Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father. As of today, the assessment and perception are one sided. Few years ago, when the High Court passed the impugned judgment, the ground realities were different.While coming to the conclusion that the respondent as mother was more appropriate to have the custody of the child and under the given circumstances the respondent herein was fully competent to take care of the child, the High Court proceeded with the followingThe role of the mother in the development of a childs personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of ones mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of lover, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child.32. It may be noticed that the stand of the appellant is that since August 04, 2010 she had been pursuing for the custody of her child. She had also visited the police station and approached the CAW Cell. It is also admitted position that within 22 days, i.e., on August 26, 2010 the petition for the grant of custody of child was filed by her. Had she abandoned the child of her own she would not have pursued continuously thereafter for getting the custody of the child. Even she had requested the learned Principal Judge, Family Court for interim custody of the child which was given to her in the form of visitation rights thrice in a month and she and her family had been meeting the child during that period. After filing the appeal, the appellant has been taking the interim custody of the child as is stated above. In thes3e circumstances, it cannot be said that the appellant has not care for the child. Further, respondent is any army Officer. During the course of his service he will be also getting non-family stations and it will be difficult for him to keep the child. Further, even though as per him his parents are looking after the child but when the natural mother is there and has knocked the door of the court without any delay and has all love and affection for the child and is willing to do her duty with all love and affection and since the birth of the child she has been keeping the child. In these circumstances, she should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents cannot be a substitute for natural mother. There is no substitute for mothers love in this world. The grandparents are old. Old age has its own problems. Considering the totality of facts and circumstances, the welfare of the child lies with the mother, i.e, appellant who is educated, working and earning a good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother.The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility.The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.	1	6,211	### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother." 16. The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time. This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are right in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellants effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellants view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as The Parental Alienation Syndrome[4]. It has at least two psychological destructive effects: [4 The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No. 2: The American Academy of Psychoanalysis, 1985).] (i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parents distortions of reality. 17. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights. ### Response: 1
530	Indu Bhusan Bose Vs. Rama Sundari Devi & Anr	conflict between the powers conferred on the various Legislatures in Lists I, II and III has also no force, because the reservation of power for Parliament for the limited purpose of legislating in respect of cantonment areas only amounts to exclusion of this part of the legislative power from the general powers conferred on State Legislatures in the other two Lists. This kind of exclusion is not confined only to legislation in respect of house accommodation in cantonment areas. The same Entry gives Parliament jurisdiction to make provision by legislation for local self-government in cantonment areas which is clearly a curtailment of the general power of the State Legislature to make provision for local self-government in all areas of the State under Entry 5 of List II. That Entry 5 does not specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be competent to make provision for local government, even in cantonment areas. Similarly, power of the State Legislature to legislate in respect of: (i) education, including universities, under Entry 11 of List II is made subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III; (ii) regulation of mines and mineral development in Entry 23 of List II is made subject to the provisions of List I with respect to regulation and development under the control of the Union; (iii) industries in Entry 24 of List II is made subject to the provisions of Entries 7 and 52 of List I; (iv) trade and commerce within the State in Entry 26 of List II is made subject to the provisions of Entry 33 of List III; (v) production, supply and distribution of goods under Entry 27 of List II is made subject to the provisions of Entry 33 of List III; and (vi) theatres and dramatic performances; cinemas in Entry 33 of List II is made subject to the provisions of Entry 60 of List I. Thus, the Constitution itself has specifically put down entries in List II in which the power is expressed in general terms but is made subject to the provisions of entries in enther List I or List III. In these circumstances, no anomaly arises in holding that the exclusive power of Parliament for regulation of house accommodation including control of rents in cantonment areas has the effect of making the legislative powers conferred by Lists II and III subject to this power of Parliament. In this view, we are unable to affirm the decision of the Bombay High Court in A. C. Patels case, ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra) which is based on the interpretation that Entry 2 in List I of the Seventh Schedule to the Government of India Act only permitted laws to be made for requisitioning of property, acquiring of property and allocation of property only. The same High Court, in a subsequent case in F. E. Darukhanawalla v. Khemchand Lalchand, ILR (1954) Bom 544 = (AIR 1954 Bom 254 ), placed the same interpretation on Entry 3 of List I of the Seventh Schedule to the Constitution. That decision was also based on the same interpretation of the scope of regulation of house accommodation as was accepted by that Court in the earlier case. 13. The Nagpur High Court in Kewalchand v. Dashrathlal, ILR (1956) Nag 618 = (AIR 1956 Nag 268) proceeded on the assumption that the decision in the case of ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra) correctly defined the scope of Entry 2 in List I of the Seventh Schedule to the Government of India Act, and considered the narrow question whether the relationship of landlord and tenant specially mentioned in Entry 21 in List II of that Act which covered the requirement of permission to serve a notice for eviction in regulating the relation of landlord and tenant and fell within the scope of Entry 21 in List II or in Entry 2 in List I of that Act. The Court held that it substantially fell in Entry 21 in List II and not in Entry 2 in List I. That Court did not consider it necessary to express any opinion on the question whether the expression regulating of house accommodation included something besides what Chagla, C. J., had said was its ambit in the case of ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra), but expressed the opinion that the expression could not be stretched to include the aspect of the relation of landlord and tenant involved in that particular case. It is clear that, in that case also, a narrow interpretation of the expression regulation of house accommodation was accepted, because it appears that there was no detailed discussion of the full scope of that expression. Similar is the decision of the Patna High Court in Babu Jagtanand v. Sri Satyanarayanji and Lakshmiji, ILR 40 Pat 625 = (AIR 1961 Pat 207 ). In fact, this last case merely followed the decision of the Bombay High Court in the case of ILR (1954) Bom 544 = (AIR 1954 Bom 254 ) (supra). On the other hand, the Rajasthan High Court in Nawal Mal v. Nathu Lal, ILR (1961) 11 Raj 421 = (AIR 1962 Raj 190 ) held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and not in Entry 18 of List II, and that that power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I. That is also the view which the Calcutta High Court has taken in the judgment in appeal before us. We think that the decision given by the Calcutta High Court is correct and must be upheld.	0[ds]We are unable to accept this submission. The language of the entry itself does not justify any such interpretation.In the entry when power is granted to Parliament to make laws for the regulation of house accommodation in cantonment areas, there are no qualifying words to indicate that the house accommodation, which is to be subject to such legislation, must be accommodation required for military purposes, or must be accommodation that has already been acquired, requisitioned or allotted to the military.In fact, if a legislation in respect of any cantonment was to be undertaken by Parliament for the first time under this entry, there would be, at the time of that legislation, no house in the cantonment already acquired, requisitioned or allotted for military purposes; and, if the interpretation sought to be put on behalf of the appellant were accepted, the power of Parliament to pass laws cannot be exercised by Parliament at all. It is also significant that, in the entry, various items, which can be the subject-matter of legislation by Parliament, are mentioned separately, and these are:(i) Delimitation of cantonment areas;(ii) local self-government in such areas;(iii) the constitution and powers within such areas of cantonment authorities; and(iv) the regulation of house accommodation (including the control of rents) in such areas4. In none of these clauses there is any specification that the legislation is to be confined to areas or accommodation required for military purposes. When legislating in respect of local self-government in cantonment areas, it is obvious that Parliament will have to legislate for the entire cantonment area including portions of it which may be in possession of civilians and not military authorities or military officers. Similarly, the powers of the cantonment authorities, which could be granted by legislation by Parliament, cannot be confined to those areas or buildings which are in actual possession of military authorities or officers and must be in respect of the entire cantonment area including those buildings and lands which may be in actual ownership as well as occupation of civilians. In these circumstances, there is no reason to narrow down the scope of legislation on regulation of house accommodation and confine it to houses which are required or are actually in possession of military authorities or military officers. The power to regulate house accommodation by law must extend to all house accommodation in the cantonment area irrespective of its being owned by, or in the possession of, civilians. In fact, if a law were to be made for the first time under this entry, all the houses would be either vacant or occupied by owners or occupied by tenants of owners under private agreements and the law, when first made, will have to govern such houses. The scope of the expression regulation of house accommodation in this entry cannot, therefore, be confined as urged on behalf of the appellantWe cannot accept that the word regulation can be so narrowly interpreted as to be confined to allotment only and not to other incidents, such as termination of existing tenancies and eviction of persons in possession of the house accommodation. The dictionary meaning of the word regulation in the Shorter Oxford Dictionary is the act of regulating and the word regulate is given the meaning to control, govern or direct by rule or regulation.This entry, thus, gives the power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas. Clearly, this power to direct or control will include within it all aspects as to who is to make the constructions under what conditions the construction can be altered, who is to occupy the accommodation and for how long, on what terms it is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilised. All these are ingredients of regulation of house accommodation and we see no reason to hold that this word regulation has not been used in this wide sense in this entry6. It appears that, in the Government of India Act, 1935, the corresponding entry No.2 in List I of the Seventh Schedule to that Act was similar to this entry No.3 of List I of the Seventh Schedule to the Constitution, but the expression including control of rents which is now in Entry No. 3 of List I within brackets did not exist. An argument was sought to be built on it that regulation of house accommodation was not intended to cover control of rents when that expression was used in the corresponding entry in the Government of India Act, and that this expression used in the Constitution should also be interpreted to cover the same field, so that, but for the addition made within brackets, Parliament could not have legislated for control of rents of house accommodation within cantonment areas. It is further urged that, if the expression regulation of house accommodation is interpreted as not including within it regulation or control of rents, it should also be held that it will not include regulation of eviction of private tenants. This argument is based on the premises that the words including control of rents was introduced in entry 3 of List I of the Seventh Schedule to the Constitution for the purpose of enlarging the scope of the legislative authority of Parliament and making it wider than that of the Federal Legislature under the Government of India Act. Such an assumption is not necessarily justified. It may be that the words including the control of rents were introduced by way of abundant caution or to clarify that the regulation of house accommodation is wide enough to include control of rents. The addition may have been made so as to concentrate attention on the fact that legislation was needed for control of rents in the situation that existed at the time when the Constitution was passed by the Constituent Assembly. It has to be remembered that cantonments are intended to be and are, in fact, military enclaves and regulation of occupation of house accommodation in the cantonment areas by Parliamentary law is necessary from the point of view of security of military installations in cantonments and requirements of military authorities and personnel for accommodation in such areas. Such a purpose could only be served by ensuring that Parliament could legislate in respect of house accommodation in cantonment areas in all its aspect, including regulation of grant of leases, ejectment of lessees, and ensuring that the accommodation is available on proper terms as to rents. On an interpretation of the contents of the entry itself, therefore, we are led to the conclusion that Parliament was given the exclusive power to legislate in respect of house accommodation in cantonment areas for regulating the accommodation in all its aspectsAll these three cases clearly show that whenever any legislation is passed relating to control of rents, that legislation can be effective and can serve its purpose only if it also regulates eviction of tenants. Consequently, when in Entry 3 of List I the power is granted to Parliament specifically to legislate on control of rents, that power cannot be effectively exercised unless it is held that Parliament also has the power to regulate eviction of tenants whose rents are to be controlled. Such power must, therefore, be necessarily read in the expression regulation of house accommodation. Of course, it has to be remembered that this power reserved for Parliament is to be exercised in respect of house accommodation situated in cantonment areas only and not other areas the legislative power in respect of which is governed by entries either in List II or in List III10. This view that we are taking is also borne out by the historical background provided by the legislation relating to cantonments and house accommodation in cantonments in India11. Another aspect that strengthens our view is that if we were to accept the interpretation sought to be put on behalf of the appellant that the power of Parliament in confined to legislation for the purpose of obtaining house accomodation in cantonment areas for military purposes and excludes legislation in respect of house accommodation not immediately required for military purposes, all that Parliament will be able to do will be to make provision for acquisition or requisition of house accommodation. On the house accommodation being acquired or requisitioned, it will be available for use by military authorities. Such power, obviously, could not be intended to be conferred by Entry 3 in List I when the same power is specifically granted concurrently to both Parliament and the State Legislature under Entry 42 of the List III of the Seventh Schedule to the ConstitutionWe have felt considerable doubt whether the power of legislating on relationship between landlord and tenant in respect of house accommodation or buildings would appropriately fall in Entry 21 of List II of the Seventh Schedule to the Government of India Act, or in the ocrresponding Entry 18 of List II of the Seventh Schedule to the Constitution. These Entries permit legislation in respect of land and explain the scope by equating it with rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents. It is to be noted that the relation of landlord and tenant is mentioned as being included in land tenures and the expression land tenures would not, in our opinion, appropriately cover tenancy of buildings or of house accommodation. That expression is only used with reference to relationship between landlord and tenant in respect of vacant lands. In fact, leases in respect of non-agricultural property are dealt with in the Transfer of Property Act and would much more appropriately fall within the scope of Entry 8 of List III in the Seventh Schedule to the Government of India Act read with Entry 10 in the same List, or within the scope of Entry 6 of List III in the Seventh Schedule to the Constitution read with Entry 7 in the same List. Leases and all rights governed by leases, including the termination of leases and eviction from property leased, would be covered by the field of transfer of property and contracts relating thereto.However, it is not necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment areas is clearly covered by the Entries in List I. In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List II or List III.Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List I, notwithstanding the concurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and II respectively. The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II or Entries 6 and 7 of List III is subject to the overriding power of Parliament in respect of matters in List I, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and not the State Legislatures.The submission made that this interpretation will lead to a conflict between the powers conferred on the various Legislatures in Lists I, II and III has also no force, because the reservation of power for Parliament for the limited purpose of legislating in respect of cantonment areas only amounts to exclusion of this part of the legislative power from the general powers conferred on State Legislatures in the other two Lists. This kind of exclusion is not confined only to legislation in respect of house accommodation in cantonment areas. The same Entry gives Parliament jurisdiction to make provision by legislation for local self-government in cantonment areas which is clearly a curtailment of the general power of the State Legislature to make provision for local self-government in all areas of the State under Entry 5 of List II. That Entry 5 does not specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be competent to make provision for local government, even in cantonment areas. Similarly, power of the State Legislature to legislate in respect of: (i) education, including universities, under Entry 11 of List II is made subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III; (ii) regulation of mines and mineral development in Entry 23 of List II is made subject to the provisions of List I with respect to regulation and development under the control of the Union; (iii) industries in Entry 24 of List II is made subject to the provisions of Entries 7 and 52 of List I; (iv) trade and commerce within the State in Entry 26 of List II is made subject to the provisions of Entry 33 of List III; (v) production, supply and distribution of goods under Entry 27 of List II is made subject to the provisions of Entry 33 of List III; and (vi) theatres and dramatic performances; cinemas in Entry 33 of List II is made subject to the provisions of Entry 60 of List I. Thus, the Constitution itself has specifically put down entries in List II in which the power is expressed in general terms but is made subject to the provisions of entries in enther List I or List III. In these circumstances, no anomaly arises in holding that the exclusive power of Parliament for regulation of house accommodation including control of rents in cantonment areas has the effect of making the legislative powers conferred by Lists II and III subject to this power of Parliament. In this view, we are unable to affirm the decision of the Bombay High Court in A. C. Patels case, ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra) which is based on the interpretation that Entry 2 in List I of the Seventh Schedule to the Government of India Act only permitted laws to be made for requisitioning of property, acquiring of property and allocation of property only13. The Nagpur High Court in Kewalchand v. Dashrathlal, ILR (1956) Nag 618 = (AIR 1956 Nag 268) proceeded on the assumption that the decision in the case of ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra) correctly defined the scope of Entry 2 in List I of the Seventh Schedule to the Government of India Act, and considered the narrow question whether the relationship of landlord and tenant specially mentioned in Entry 21 in List II of that Act which covered the requirement of permission to serve a notice for eviction in regulating the relation of landlord and tenant and fell within the scope of Entry 21 in List II or in Entry 2 in List I of that Act. The Court held that it substantially fell in Entry 21 in List II and not in Entry 2 in List I. That Court did not consider it necessary to express any opinion on the question whether the expression regulating of house accommodation included something besides what Chagla, C. J., had said was its ambit in the case of ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra), but expressed the opinion that the expression could not be stretched to include the aspect of the relation of landlord and tenant involved in that particular case. It is clear that, in that case also, a narrow interpretation of the expression regulation of house accommodation was accepted, because it appears that there was no detailed discussion of the full scope of that expression. Similar is the decision of the Patna High Court in Babu Jagtanand v. Sri Satyanarayanji and Lakshmiji, ILR 40 Pat 625 = (AIR 1961 Pat 207 ). In fact, this last case merely followed the decision of the Bombay High Court in the case of ILR (1954) Bom 544 = (AIR 1954 Bom 254 ) (supra). On the other hand, the Rajasthan High Court in Nawal Mal v. Nathu Lal, ILR (1961) 11 Raj 421 = (AIR 1962 Raj 190 ) held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and not in Entry 18 of List II, and that that power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I. That is also the view which the Calcutta High Court has taken in the judgment in appeal before us. We think that the decision given by the Calcutta High Court is correct and must be upheld.	0	5,880	### 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: conflict between the powers conferred on the various Legislatures in Lists I, II and III has also no force, because the reservation of power for Parliament for the limited purpose of legislating in respect of cantonment areas only amounts to exclusion of this part of the legislative power from the general powers conferred on State Legislatures in the other two Lists. This kind of exclusion is not confined only to legislation in respect of house accommodation in cantonment areas. The same Entry gives Parliament jurisdiction to make provision by legislation for local self-government in cantonment areas which is clearly a curtailment of the general power of the State Legislature to make provision for local self-government in all areas of the State under Entry 5 of List II. That Entry 5 does not specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be competent to make provision for local government, even in cantonment areas. Similarly, power of the State Legislature to legislate in respect of: (i) education, including universities, under Entry 11 of List II is made subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III; (ii) regulation of mines and mineral development in Entry 23 of List II is made subject to the provisions of List I with respect to regulation and development under the control of the Union; (iii) industries in Entry 24 of List II is made subject to the provisions of Entries 7 and 52 of List I; (iv) trade and commerce within the State in Entry 26 of List II is made subject to the provisions of Entry 33 of List III; (v) production, supply and distribution of goods under Entry 27 of List II is made subject to the provisions of Entry 33 of List III; and (vi) theatres and dramatic performances; cinemas in Entry 33 of List II is made subject to the provisions of Entry 60 of List I. Thus, the Constitution itself has specifically put down entries in List II in which the power is expressed in general terms but is made subject to the provisions of entries in enther List I or List III. In these circumstances, no anomaly arises in holding that the exclusive power of Parliament for regulation of house accommodation including control of rents in cantonment areas has the effect of making the legislative powers conferred by Lists II and III subject to this power of Parliament. In this view, we are unable to affirm the decision of the Bombay High Court in A. C. Patels case, ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra) which is based on the interpretation that Entry 2 in List I of the Seventh Schedule to the Government of India Act only permitted laws to be made for requisitioning of property, acquiring of property and allocation of property only. The same High Court, in a subsequent case in F. E. Darukhanawalla v. Khemchand Lalchand, ILR (1954) Bom 544 = (AIR 1954 Bom 254 ), placed the same interpretation on Entry 3 of List I of the Seventh Schedule to the Constitution. That decision was also based on the same interpretation of the scope of regulation of house accommodation as was accepted by that Court in the earlier case. 13. The Nagpur High Court in Kewalchand v. Dashrathlal, ILR (1956) Nag 618 = (AIR 1956 Nag 268) proceeded on the assumption that the decision in the case of ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra) correctly defined the scope of Entry 2 in List I of the Seventh Schedule to the Government of India Act, and considered the narrow question whether the relationship of landlord and tenant specially mentioned in Entry 21 in List II of that Act which covered the requirement of permission to serve a notice for eviction in regulating the relation of landlord and tenant and fell within the scope of Entry 21 in List II or in Entry 2 in List I of that Act. The Court held that it substantially fell in Entry 21 in List II and not in Entry 2 in List I. That Court did not consider it necessary to express any opinion on the question whether the expression regulating of house accommodation included something besides what Chagla, C. J., had said was its ambit in the case of ILR (1954) Bom 434 = (AIR 1954 Bom 204 ) (supra), but expressed the opinion that the expression could not be stretched to include the aspect of the relation of landlord and tenant involved in that particular case. It is clear that, in that case also, a narrow interpretation of the expression regulation of house accommodation was accepted, because it appears that there was no detailed discussion of the full scope of that expression. Similar is the decision of the Patna High Court in Babu Jagtanand v. Sri Satyanarayanji and Lakshmiji, ILR 40 Pat 625 = (AIR 1961 Pat 207 ). In fact, this last case merely followed the decision of the Bombay High Court in the case of ILR (1954) Bom 544 = (AIR 1954 Bom 254 ) (supra). On the other hand, the Rajasthan High Court in Nawal Mal v. Nathu Lal, ILR (1961) 11 Raj 421 = (AIR 1962 Raj 190 ) held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and not in Entry 18 of List II, and that that power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I. That is also the view which the Calcutta High Court has taken in the judgment in appeal before us. We think that the decision given by the Calcutta High Court is correct and must be upheld. ### Response: 0
531	Krishena Kumar Vs. S.P. Saksena & Others	148 of the Constitution and after consultation with the Comptroller and the Auditor General. That Rule empowered the President to make a general or special order specifying the authorities competent to make the appointments mentioned in Rule 11 (2). It has been sought to be argued before us also that the conditions of Art. 148 (5) of the Constitution had not been satisfied and therefore the notification which constituted the Chief Auditor among others as the appointing authority was invalid and the said authority could not be regarded as the appropriate authority within the terms of Note I to Rule 56 of the Fundamental Rules.6. In our judgment the contention sought to be raised did not arise for the short reason that according to the appellant himself the Comptroller and Auditor General was the competent authority within the meaning of Note I to cl. (j) of Fundamental Rule 56. The notice of retirement dated August 22, 1966 clearly states that the same had been approved by the Comptroller and Auditor General. Mr. S. Ranganathan the then Comptroller and Auditor General of India who was impleaded as respondent No. 2 filed an affidavit in the High Court to the effect that the notice of retirement had been issued with his approval and that he was of the opinion that it was in the public interest to retire the appellant after he had attained the age of 55 years. There can be no manner of doubt, therefore, that although the notice had been signed by the Chief Auditor it had been done with the approval and under the authority of the Comptroller and Auditor General of India. On this short ground the first contention based on the lack of competency for taking action under cl. (j) of Fundamental Rule 56 cannot possibly be sustained.7. On the second submission our attention has been drawn to the fact that the arguments in the writ petition in the High Court had concluded on September 10, 1968 but additional affidavits were sought to be filed by respondents on the following day which were admitted on the record by the High Court. However, it is not disputed that the High Court gave full opportunity to the appellant to file a counter affidavit. One of the supplementary affidavits was that of Mr. S. Ranganathan, Comptroller and Auditor General of India. This is what he said in para 2 of his affidavit :"That the notice of retirement (Exhibit B) was issued by respondent No. 1 with my approval. I studied the provisions of the amended Fundamental Rule 56. I studied the recommendations of the Committee consisting of Shri S. P. Saksena, Chief Auditor, Northern Railway, Miss P. Lal, Deputy Chief Auditor, Northern, Railway, and Shri P. C. Doshi Deputy Chief Auditor, Northern Railway which met on 24-5-1966 to consider the petitioners suitability for retention in service beyond the age of 55 years and also considered the physical capacity, work and conduct of the petitioner as revealed from the official records in order to form an opinion whether it was in public interest to retire the petitioner after he had attained the age of 55 years or not. After a consideration of this material I was of the opinion that it was in public interest to retire the petitioner after he had attained the age of 55 years. On 22-8-1966, I approved the issuance of the Notice of retirement (Exhibit B) by Respondent No. 1 to the petitioner".Annexure R-4 which appears to have been filed along with this affidavit contained the report of a committee with the Chief Auditor as Chairman and the Deputy Chief Auditor (Admn.) and the Deputy Chief Auditor (Divisional) as members which met on May 24, 1966 to review the cash of the appellant. It is stated in that annexure that the committee decided to review his case from the point of view of physical fitness, integrity and efficiency. After giving the various details the committee expressed the following opinion in para 6 of its report:"Taking into account all the above facts, the committee was of the opinion that it would be neither in public interest nor in the interest of his own personal longivity to retain Shri Krishena Kumar in service beyond the age of 55 years."The Committee further directed that the minutes of the meeting may be forwarded to the Comptroller and Auditor General of India.It is clear from the affidavit of the Comptroller and Auditor General clause 2 of which has been reproduced above that he studied the recommendation of the committee and also considered the physical capacity, work and conduct of the appellant as revealed from his official records in order to form an opinion whether it was in public interest to retire the appellant after he had attained the age of 55 years. It was only after consideration of the entire material that he formed the opinion that it was in public interest to retire him. We are wholly unable to see how in the presence of this material any argument can be raised that the appropriate authority did not form any opinion that the retirement of the appellant would be in public interest.8. Lastly it has been pointed out to us that neither the emoluments due to the appellant nor the amount due on account of the contributions to the Railway Contributory Provident Fund or the government contributions to the Provident Fund etc. have been paid to the appellant and that he is being deprived of the amount due to him to which he is legally entitled. This matter was not raised in the writ petition and did not form the subject-matter of any inquiry or discussion by the High Court. We have no manner of doubt that the authorities concerned will, within a reasonable period, and if possible, not exceeding three months, pay to the appellant all the amount by way of salary, emoluments Provident Fund etc. to which he may be entitled under the law and the Rules.	0[ds]6. In our judgment the contention sought to be raised did not arise for the short reason that according to the appellant himself the Comptroller and Auditor General was the competent authority within the meaning of Note I to cl. (j) of Fundamental Rule 56. The notice of retirement dated August 22, 1966 clearly states that the same had been approved by the Comptroller and Auditor General. Mr. S. Ranganathan the then Comptroller and Auditor General of India who was impleaded as respondent No. 2 filed an affidavit in the High Court to the effect that the notice of retirement had been issued with his approval and that he was of the opinion that it was in the public interest to retire the appellant after he had attained the age of 55 years. There can be no manner of doubt, therefore, that although the notice had been signed by the Chief Auditor it had been done with the approval and under the authority of the Comptroller and Auditor General of India. On this short ground the first contention based on the lack of competency for taking action under cl. (j) of Fundamental Rule 56 cannot possibly bewas only after consideration of the entire material that he formed the opinion that it was in public interest to retire him. We are wholly unable to see how in the presence of this material any argument can be raised that the appropriate authority did not form any opinion that the retirement of the appellant would be in public interest.8. Lastly it has been pointed out to us that neither the emoluments due to the appellant nor the amount due on account of the contributions to the Railway Contributory Provident Fund or the government contributions to the Provident Fund etc. have been paid to the appellant and that he is being deprived of the amount due to him to which he is legally entitled. This matter was not raised in the writ petition and did not form theof any inquiry or discussion by the High Court. We have no manner of doubt that the authorities concerned will, within a reasonable period, and if possible, not exceeding three months, pay to the appellant all the amount by way of salary, emoluments Provident Fund etc. to which he may be entitled under the law and the Rules.	0	2,030	### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: 148 of the Constitution and after consultation with the Comptroller and the Auditor General. That Rule empowered the President to make a general or special order specifying the authorities competent to make the appointments mentioned in Rule 11 (2). It has been sought to be argued before us also that the conditions of Art. 148 (5) of the Constitution had not been satisfied and therefore the notification which constituted the Chief Auditor among others as the appointing authority was invalid and the said authority could not be regarded as the appropriate authority within the terms of Note I to Rule 56 of the Fundamental Rules.6. In our judgment the contention sought to be raised did not arise for the short reason that according to the appellant himself the Comptroller and Auditor General was the competent authority within the meaning of Note I to cl. (j) of Fundamental Rule 56. The notice of retirement dated August 22, 1966 clearly states that the same had been approved by the Comptroller and Auditor General. Mr. S. Ranganathan the then Comptroller and Auditor General of India who was impleaded as respondent No. 2 filed an affidavit in the High Court to the effect that the notice of retirement had been issued with his approval and that he was of the opinion that it was in the public interest to retire the appellant after he had attained the age of 55 years. There can be no manner of doubt, therefore, that although the notice had been signed by the Chief Auditor it had been done with the approval and under the authority of the Comptroller and Auditor General of India. On this short ground the first contention based on the lack of competency for taking action under cl. (j) of Fundamental Rule 56 cannot possibly be sustained.7. On the second submission our attention has been drawn to the fact that the arguments in the writ petition in the High Court had concluded on September 10, 1968 but additional affidavits were sought to be filed by respondents on the following day which were admitted on the record by the High Court. However, it is not disputed that the High Court gave full opportunity to the appellant to file a counter affidavit. One of the supplementary affidavits was that of Mr. S. Ranganathan, Comptroller and Auditor General of India. This is what he said in para 2 of his affidavit :"That the notice of retirement (Exhibit B) was issued by respondent No. 1 with my approval. I studied the provisions of the amended Fundamental Rule 56. I studied the recommendations of the Committee consisting of Shri S. P. Saksena, Chief Auditor, Northern Railway, Miss P. Lal, Deputy Chief Auditor, Northern, Railway, and Shri P. C. Doshi Deputy Chief Auditor, Northern Railway which met on 24-5-1966 to consider the petitioners suitability for retention in service beyond the age of 55 years and also considered the physical capacity, work and conduct of the petitioner as revealed from the official records in order to form an opinion whether it was in public interest to retire the petitioner after he had attained the age of 55 years or not. After a consideration of this material I was of the opinion that it was in public interest to retire the petitioner after he had attained the age of 55 years. On 22-8-1966, I approved the issuance of the Notice of retirement (Exhibit B) by Respondent No. 1 to the petitioner".Annexure R-4 which appears to have been filed along with this affidavit contained the report of a committee with the Chief Auditor as Chairman and the Deputy Chief Auditor (Admn.) and the Deputy Chief Auditor (Divisional) as members which met on May 24, 1966 to review the cash of the appellant. It is stated in that annexure that the committee decided to review his case from the point of view of physical fitness, integrity and efficiency. After giving the various details the committee expressed the following opinion in para 6 of its report:"Taking into account all the above facts, the committee was of the opinion that it would be neither in public interest nor in the interest of his own personal longivity to retain Shri Krishena Kumar in service beyond the age of 55 years."The Committee further directed that the minutes of the meeting may be forwarded to the Comptroller and Auditor General of India.It is clear from the affidavit of the Comptroller and Auditor General clause 2 of which has been reproduced above that he studied the recommendation of the committee and also considered the physical capacity, work and conduct of the appellant as revealed from his official records in order to form an opinion whether it was in public interest to retire the appellant after he had attained the age of 55 years. It was only after consideration of the entire material that he formed the opinion that it was in public interest to retire him. We are wholly unable to see how in the presence of this material any argument can be raised that the appropriate authority did not form any opinion that the retirement of the appellant would be in public interest.8. Lastly it has been pointed out to us that neither the emoluments due to the appellant nor the amount due on account of the contributions to the Railway Contributory Provident Fund or the government contributions to the Provident Fund etc. have been paid to the appellant and that he is being deprived of the amount due to him to which he is legally entitled. This matter was not raised in the writ petition and did not form the subject-matter of any inquiry or discussion by the High Court. We have no manner of doubt that the authorities concerned will, within a reasonable period, and if possible, not exceeding three months, pay to the appellant all the amount by way of salary, emoluments Provident Fund etc. to which he may be entitled under the law and the Rules. ### Response: 0
532	Vithal Das Vs. Rupchand & Ors	rent from the tenants. If the co-owner is to he clothed with the status of a trustee it must be shown that he has gained some advantage in derogation of the other co-owners interested in the property and that he gained such an advantage by availing himself of his position as co-owner. In the present case, there is no allegation made by the plaintiffs that the defendant has gained any advantage in derogation of the rights of the plaintiffs, nor is there any finding of the lower Courts that the defendant gained any advantage by availing himself of his position as co-owner. We shall, however, assume in favour of the respondents that the defendant is in the position of a constructive trustee in view of the provisions of S. 90 of the Trusts Act. Even upon that assumption we are of opinion that the defendant is not liable to pay interest to the plaintiffs for their share of the rent of the properties. The reason is that the trustee is liable to pay interest only if he commits a breach of trust under S. 23 of the Trusts Act. There is also the restriction contained in S. 23 of the Trusts Act, namely, that a trustee committing a breach of trust is not liable to pay interest except in the cases mentioned in that section. It was argued by Mr. S. P. Sinha for the respondents that the defendant was liable to pay interest under S. 23 (b) of the Trusts Act because there was unreasonable delay in paying the trust money to the beneficiary. We are unable to accept this argument as correct. In our opinion, S. 23 (b) contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand. In our opinion, there is no question of breach of trust on the part of the defendant in the present case and the provisions of S. 23 (b) of the Trusts Act are not attracted. The view that we have expressed is borne out by several authorities. In Blogg v. Johnson, (1867) 2 Ch A 225, Lord Chelmsford, L. C. stated that "the Court will not charge an executor who has been guilty of delay in accounting, with interest on arrears of income unpaid by him". In that case, I, wag entitled to a life income from the estate of her husband, and died in 1861. A bill was flied by her executor, in 1862 against the executor of her husbands will, Who had been his partner in business, for an account of income due to her estate: in 1863 accounts were directed. In 1866 a certificate was made, finding that a large sum was due from the husbands executor. It was held by Lord Chelmsford, L. C. that he was not chargeable with interest before the date of the certificate. Again, in Silkstone and Haigh Moor Coal Co. v. Edey, 1900-1 Ch 167, it was held by the Chancery Court that upon the setting aside of a sale by a trustee of trust property to himself, and the reconveyance of the property to the beneficiaries, it is not the practice of the Court to charge the trustee with interest on the rents and profits received by him since the date of the sale. Interest was, however, charged on arrears in some cases as in Melland v. Gray, (1845) 63 ER 741 (744) and Gilroy v. Stephen, (1882) 46 LT 761, but these cases fall within the range of another principle of equity that where an executor or a trustee unnecessarily detains money in his hand which he ought either to have invested or to have paid over to the person entitled to it, he will have to pay interest for it. As Lord Chelmsford, L. C. observed in (1867) 2 Ch A 225 at p. 228 :Where money is thus improperly retained, it appears to me to be immaterial how the sum has arisen, whether from a legacy, or a distributive share, or a residue, or the arrears of income. In the latter case, the claim for interest is not made on account of the arrears, but for the improper keeping back of a sum of money, from whatever source derived, which the executor or trustee ought to have paid over." 7. We have already given reasons for holding that the provisions of S. 23(b) of the Trusts Act do not apply to the present case and the plaintiffs are not entitled to claim any interest on arrears of rent and the High Court has fallen into an error in granting such interest. 8. The next contention raised on behalf of the appellant is that the Commissioner examined the accounts and submitted his report from July 2, 1937 to December 31, 1954 and the High Court was not justified in granting a decree to the plaintiffs for the subsequent period from January 1, 1955 to April 11, 1957 on the basis of the figures found from the Commissioners report. It was argued that the High Court had no basis for assuming that the same rental income was received by the defendant for the period from January 1, 1955 to April 11, 1957 as for the prior period. In our opinion, there is great force in this argument and we should, in the normal course, remand the case to the High Court for a finding as to the accounts of the subsequent period. Mr. Sinha, however, pointed out that the litigation commenced in 1942 and has already been protracted too long. We do not, therefore, wish to remand the case to the High Court for further inquiry. Having examined the evidence on record of this ease, we consider that, in the circumstances a sum of Rs. 2,400 (instead of Rs. 3,100) for the period from January 1, 1955 to April 11, l957 should be granted to the plaintiffs as their share of profits.	1[ds]6. We do not agree with the contention of the respondents that S. 90 of the Trusts Act applies to this case. A co-owner in possession of all the joint properties does not become a trustee by the mere fact of his collection of the full amount of rent from the tenants. If the co-owner is to he clothed with the status of a trustee it must be shown that he has gained some advantage in derogation of the other co-owners interested in the property and that he gained such an advantage by availing himself of his position as co-owner. In the present case, there is no allegation made by the plaintiffs that the defendant has gained any advantage in derogation of the rights of the plaintiffs, nor is there any finding of the lower Courts that the defendant gained any advantage by availing himself of his position as co-owner. We shall, however, assume in favour of the respondents that the defendant is in the position of a constructive trustee in view of the provisions of S. 90 of the Trusts Act. Even upon that assumption we are of opinion that the defendant is not liable to pay interest to the plaintiffs for their share of the rent of the properties. The reason is that the trustee is liable to pay interest only if he commits a breach of trust under S. 23 of the Trusts Act. There is also the restriction contained in S. 23 of the Trusts Act, namely, that a trustee committing a breach of trust is not liable to pay interest except in the cases mentioned in that section. It was argued by Mr. S. P. Sinha for the respondents that the defendant was liable to pay interest under S. 23 (b) of the Trusts Act because there was unreasonable delay in paying the trust money to the beneficiary. We are unable to accept this argument as correct. In our opinion, S. 23 (b) contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand. In our opinion, there is no question of breach of trust on the part of the defendant in the present case and the provisions of S. 23 (b) of the Trusts Act are not attracted. The view that we have expressed is borne out by several authorities. In Bloggv. Johnson, (1867) 2 Ch A225, Lord Chelmsford, L. C. stated that "the Court will not charge an executor who has been guilty of delay in accounting, with interest on arrears of income unpaid by him". In that case, I, wag entitled to a life income from the estate of her husband, and died in 1861. A bill was flied by her executor, in 1862 against the executor of her husbands will, Who had been his partner in business, for an account of income due to her estate: in 1863 accounts were directed. In 1866 a certificate was made, finding that a large sum was due from the husbands executor. It was held by Lord Chelmsford, L. C. that he was not chargeable with interest before the date of the certificate. Again, ine and Haigh Moor Coal Co. v. Edey, 1900-1 Ch167, it was held by the Chancery Court that upon the setting aside of a sale by a trustee of trust property to himself, and the reconveyance of the property to the beneficiaries, it is not the practice of the Court to charge the trustee with interest on the rents and profits received by him since the date of the sale. Interest was, however, charged on arrears in some cases as ind v. Gray, (1845) 63 ER 741 (744) and Gilroy v. Stephen, (1882) 46 LT761, but these cases fall within the range of another principle of equity that where an executor or a trustee unnecessarily detains money in his hand which he ought either to have invested or to have paid over to the person entitled to it, he will have to pay interest for itWe do not, therefore, wish to remand the case to the High Court for further inquiry. Having examined the evidence on record of this ease, we consider that, in the circumstances a sum of Rs. 2,400 (instead of Rs. 3,100) for the period from January 1, 1955 to April 11, l957 should be granted to the plaintiffs as their share of profitsA certified copy of the judgment was delivered to the plaintiffs on May 4, 1957 but the endorsement on the certified copy with regard to the date was fraudulently made. An application was made by the defendant to the High Court on November 20, 1961 drawing the attention of the High Court with regard to the endorsement on the certified copy of the judgment. There is however, no reference in the judgment of the High Court on the question of limitation and it should, therefore, be taken that the point was not pressed on behalf of the defendant at the time of the hearing of the appeal by the High Court. It is, therefore, not possible for us to entertain the argument of the appellant at the present stage, in the absence of any finding of the High CourtIt was said that the High Court was wrong in holding that the defendant was liable as a trustee for the rents he ought to have realised even though there was no letting of the building. The Solicitor-General may be right in his argument that the defendant cannot be held liable as a constructive trustee for the rent he has not realised from the tenants and for the premises which were not let out to tenants and which had been lying vacant, but the ground upon which the High Court has made the defendant liable is different. The High Court has taken the view that the defendant has not kept proper accounts of the income of the rents realised from the shops. In the absence of proper accounts it is not possible to accept the case of the defendant regarding the vacancies. In our opinion, the finding of the High Court on this point is not vitiated by any error of law and the argument of the Solicitor-General must be rejected on this aspect of the caseIn our opinion, the contention put forward by thel is well founded and must be accepted as correct7. We have already given reasons for holding that the provisions of S. 23(b) of the Trusts Act do not apply to the present case and the plaintiffs are not entitled to claim any interest on arrears of rent and the High Court has fallen into an error in granting such interest.	1	3,646	### 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: rent from the tenants. If the co-owner is to he clothed with the status of a trustee it must be shown that he has gained some advantage in derogation of the other co-owners interested in the property and that he gained such an advantage by availing himself of his position as co-owner. In the present case, there is no allegation made by the plaintiffs that the defendant has gained any advantage in derogation of the rights of the plaintiffs, nor is there any finding of the lower Courts that the defendant gained any advantage by availing himself of his position as co-owner. We shall, however, assume in favour of the respondents that the defendant is in the position of a constructive trustee in view of the provisions of S. 90 of the Trusts Act. Even upon that assumption we are of opinion that the defendant is not liable to pay interest to the plaintiffs for their share of the rent of the properties. The reason is that the trustee is liable to pay interest only if he commits a breach of trust under S. 23 of the Trusts Act. There is also the restriction contained in S. 23 of the Trusts Act, namely, that a trustee committing a breach of trust is not liable to pay interest except in the cases mentioned in that section. It was argued by Mr. S. P. Sinha for the respondents that the defendant was liable to pay interest under S. 23 (b) of the Trusts Act because there was unreasonable delay in paying the trust money to the beneficiary. We are unable to accept this argument as correct. In our opinion, S. 23 (b) contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand. In our opinion, there is no question of breach of trust on the part of the defendant in the present case and the provisions of S. 23 (b) of the Trusts Act are not attracted. The view that we have expressed is borne out by several authorities. In Blogg v. Johnson, (1867) 2 Ch A 225, Lord Chelmsford, L. C. stated that "the Court will not charge an executor who has been guilty of delay in accounting, with interest on arrears of income unpaid by him". In that case, I, wag entitled to a life income from the estate of her husband, and died in 1861. A bill was flied by her executor, in 1862 against the executor of her husbands will, Who had been his partner in business, for an account of income due to her estate: in 1863 accounts were directed. In 1866 a certificate was made, finding that a large sum was due from the husbands executor. It was held by Lord Chelmsford, L. C. that he was not chargeable with interest before the date of the certificate. Again, in Silkstone and Haigh Moor Coal Co. v. Edey, 1900-1 Ch 167, it was held by the Chancery Court that upon the setting aside of a sale by a trustee of trust property to himself, and the reconveyance of the property to the beneficiaries, it is not the practice of the Court to charge the trustee with interest on the rents and profits received by him since the date of the sale. Interest was, however, charged on arrears in some cases as in Melland v. Gray, (1845) 63 ER 741 (744) and Gilroy v. Stephen, (1882) 46 LT 761, but these cases fall within the range of another principle of equity that where an executor or a trustee unnecessarily detains money in his hand which he ought either to have invested or to have paid over to the person entitled to it, he will have to pay interest for it. As Lord Chelmsford, L. C. observed in (1867) 2 Ch A 225 at p. 228 :Where money is thus improperly retained, it appears to me to be immaterial how the sum has arisen, whether from a legacy, or a distributive share, or a residue, or the arrears of income. In the latter case, the claim for interest is not made on account of the arrears, but for the improper keeping back of a sum of money, from whatever source derived, which the executor or trustee ought to have paid over." 7. We have already given reasons for holding that the provisions of S. 23(b) of the Trusts Act do not apply to the present case and the plaintiffs are not entitled to claim any interest on arrears of rent and the High Court has fallen into an error in granting such interest. 8. The next contention raised on behalf of the appellant is that the Commissioner examined the accounts and submitted his report from July 2, 1937 to December 31, 1954 and the High Court was not justified in granting a decree to the plaintiffs for the subsequent period from January 1, 1955 to April 11, 1957 on the basis of the figures found from the Commissioners report. It was argued that the High Court had no basis for assuming that the same rental income was received by the defendant for the period from January 1, 1955 to April 11, 1957 as for the prior period. In our opinion, there is great force in this argument and we should, in the normal course, remand the case to the High Court for a finding as to the accounts of the subsequent period. Mr. Sinha, however, pointed out that the litigation commenced in 1942 and has already been protracted too long. We do not, therefore, wish to remand the case to the High Court for further inquiry. Having examined the evidence on record of this ease, we consider that, in the circumstances a sum of Rs. 2,400 (instead of Rs. 3,100) for the period from January 1, 1955 to April 11, l957 should be granted to the plaintiffs as their share of profits. ### Response: 1
533	C.I.T Vs. N.C.Budharaja And Co	counsel for t he Revenue, disputes the correctness of the assessees submission. According to him sub-section (2) of Section 32-A must be interpreted and understood in the following manner: Clause (a) speaks of acquisition of a new ship or aircraft while clause (b) speaks of new machinery or plant installed (i) for the purposes of business of generation or distribution of electricity or any other form of power, (ii) in a small scale industrial undertaking for the purposes of business of manufacture or production of any article or thing, and (iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing; if an assessee installs any new machinery or plant for the construction of ships he can claim investment allowance only under clause (b)(iii); he cannot claim it under clause (a) for the reason that clause (1) is confined only to an assessee who acquires i.e., who purchases a new ship o r a new aircraft after the specified date and the investment allowance is granted on the actual cost of ship or aircraft; the meaning of the word "construction" as well as the word "thing"0 59 Cal App 2d 255: 138 P. 2d 763, 768 1 (1861) 11 CB (NS) 246: 142 ER 791 2 (1903) 88 LT 803: 19 TLR 500must be determined having regard to the context in which the said words occur viz., machinery or plant installed in an industrial undertaking for production of any article or thing; the word "construction" in the sub-clause is thus akin to manufacture or production; similarly the expression "thing" is used as interchangeable with the expression article; a perusal of the list in the Eleventh Schedule reinforces this submission inasmuch as the articles and things mentioned in the Eleventh Schedule are all moveables; it would not be correct to associate the word "construction" with the word "thing"; the appropriate way to read them is in the order in which they occur in the sub-clause says the learned counsel. 27.Though at first sight, the use of the words "construction" and "thing" appear to lend some substance to the contention of the learned counsel for the assessee, a deeper scrutiny and in particular the legislative history of the relevant provisions militates against the acceptance of his submission. Subclauses (ii) and (iii) of clause (b) of sub-section (2) of Section 32-A were substituted by Finance Act (No. 2) of 1977 with effect from April 1, 1978. Prior to the said amendment, the sub-clauses read as follows- "(ii) for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the Ninth Schedule; or (iii)in a small scale industrial undertaking for the purposes of business of manufacture or production of any other articles or things." * 28.The unmended sub-clause (ii), which corresponds to present sub-clause (iii), was thus confined to the "articles and things" in the IXth Schedule. The IXth Schedule, since omitted, contained as many as 33 items. Item 15 therein related to "ships". All the items referred only to moveables; none of them refers to an immovable object like a building, factory or bridge. Since the appropriate word in the case of ships is "construction" in common parlance one speaks of construction of ships and not manufacture of ships the legislature used the expression "construction" in unamended sub-clause (ii). The said sub-clause also referred to "articles or things", which is the heading of the IXth Schedule After amendment, sub-clause (ii), which became sub-clause (iii) underwent a certain change. Not only were the words "in any other industrial undertaking were added at the beginning of the sub-clause, the applicability of the sub. clause was extended to al l articles and things except those articles and thing.,mentioned in the Xlth Schedule. The heading of Xlth Schedule is again "list of articles or things", but the list does not include ships. In other words, sub clause (iii), after amendment, continues to apply to ships. Ships are among the articles or things to which the present sub-clause (iii) applies. And that in precisely the reason the word "construction" is retained in amended sub-clause (iii) the sub-clause corresponding to unamended sub-clause (ii). So far as the use of the word "thing" is concerned, it has no special significance inasmuch a the IXth Schedule and the Xlth Schedule both contain a list of articles or thing, , Both the IXth Schedule, to which alone the unamended sub- clause (ii) applies as well as the Xlth Schedule, the articles and things wherein are excluded from the purview of amended sub-clause (iii), refer only to moveable objects called articles or things. In this background, it is not possible or permissible to read the word "construction" as referring to construction of dams, bridge, , buildings, roads or canals. The association of words in former sub-clause (ii) and the present sub-clause (iii) is also no t without significance. The words are: "construction, manufacture or production of any one or more of the articles and things...... and "construction, manufacture or production of any articles and things...... respectively. It is equally evident that in these sub- clauses as well as in the IXth Schedule and Xlth Schedule, the words "articles" and "things" are used interchangeably. In the scheme and context of the provision, it would not be right to isolate the word "thing ", ascertain its meaning with reference to Law Lexicons and attach to it a meaning which it was never intended to bear. A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and as in this case to the legislative history of the provision. We are, therefore, of the opinion that sub-clause (iii) of clause (b) of sub-section (2) of Section 32-A does not comprehend within its ambit construction of a dam, a bridge, a building, a road, a canal and other similar constructions.	1[ds]14.For all the above reasons, we are of the opinion that it is not possible to accede to the contention that the activity of construction of a dam can be characterised as manufacture or producing of article or articles, as the case may be, within the meaning of Section 80-HH(2)(i) of the Act.15.Another set of appeals in the first group (Civil Appeal Nos. 5865-5866 of 1983) are preferred against the j udgment of the Bombay High Court in CIT v. Pressure Piling Co. (India) Pvt. Ltd.- The respondent-assessee in these appeals is engaged in the business of laying foundations for buildings and other structures by a specialised patented meth od known as pressure piling. For the assessment years 1963-64 and 1964-65, it claimed the benefit under Section 84 of the Income Tax Act, 1961 on the ground that it is a newly established industrial undertaking within the meaning of the said provision. The ITO denied the said relief on the ground that the assessee did not satisfy the condition in Section 84(2)(iii). In other words, he was of the opinion that the assessee was not engaged in manufacture or production of articles. The assessees appeal to AAC was dismissed, whereupon he carried the matter in further appeal to the Tribunal. There, a difference of opinion arose between the Accountant Member and Judicial Member who heard the appeal. The Accountant Member was for allowing the appeal whereas the Judicial Member was for its dismissal. The matter was referred to a third member, who agreed with the Accountant Member. Thereupon the Revenue applied for and obtained reference of the following question under Section 256(1) of the Income Taxon the facts and in the circumstances of the case, the assessee- company was engaged in the manufacture or production of articles within the meaning of Section 84(1) of the Income Tax Act, 1961, for the assessment year 1963-64, and relief under Section 84(1) and Section 101 for the assessment year 1964-65? "High Court examined the process by which the assessee carried out its worked held that it can be characterised as manufacture or production of an article. Accordingly it answered the question referred in the affirmative i.e., in favour of the assessee and against the Revenue. The correctness of the said view is questioned in these appeals.17.The process adopted by the assessee for laying pressure piles has been set out in the statement of the case in the followingpiles are cast in site and piles are formed in bore holes previously excavated by suitable boring plant at each pile position. The borings are sunk to suitable bearing stratum and concrete is then introduced into the holes under applied air pressure. This, when set, forms a permanent pile giving a very high surface friction in addition to the bea ring value obtained at the foot of the pile. The method adopted of sinking pressure piles is as under: A boring is first made for each pile, the hole being bored with steel tubes. As the boring proceeds, these steel tubes are sunk in the ground, the soil being excavated through the tube itself in the manner employed by well bores. In this way the underlying soil is thoroughly explored, samples of the succeeding strata being obtained as each hole is sunk. This permits the correct depth of boring to be determined in every case. If necessary, steel reinforcements of any required design can then be lowered down the casing and fixed in a correct position so that the rods will be properly embedded when concrete is added. If the bore hole is dry, concrete is introduced to the casings and compressed air is admitted. The air pressure forces the concrete down the casing and presses it into t he interstices of the bottom part of the bored hole from which the casing is withdrawn. In this way, the actual diameter of the pile is made to exceed that of the casing itself and it also forms a rough surface that bonds into the strata penetrated by the pile. As each section of the tube is raised above ground, it is unscrewed and further batch of concrete is added. This process is continued until the pile is completed.Section 84 insofar as it is relevant for our purpose readsIncome of newly established industrial undertakings or hotels.- (1) Save as otherwise hereinafter provided, Income Tax shall not be payable by an assessee on so much of the profits or gains derived from any industrial under taking or hotel to which this section applies as do not exceed six per cent per annum on the capital employed in the undertaking or hotel, computed in the prescribed manner.(2)Th is section applies to any industrial undertaking which fulfills all the following conditions, namely:(i) it is not formed by the splitting up, or the reconstruction of, a business already in existence; (ii)it is not formed by the transfer to a new business of a building, machinery or plant previously used for any purpose; (iii)it has begun or begins to manufacture or produce articles in any part of India at any time within a period of eighteen years from the 1st day of April, 1948, or such further period as the Central Government may, by notification in the Official Gazette, specify with reference to any particular industrialwould be noticed that the language of Section 84(2)(iii), insofar as it is relevant, is identical with the relevant language in Section 80-HH. In the light of our discussion hereinbefore, can it be said that the assessee herein is engaged in manufacture or production of articles? We find it difficult to say so. According to the statement of case, the process adopted by the assessee, in short, is this: in the first instance holes are bored into earth at the site of construction with steel tubes; as the boring proceeds, these steel tubes are sunk into the ground; the soil is excavated through the tube itself; after reaching the correct depth, concrete is poured into the casings and compressed air is admitted; the air pressure forces the concrete down the casing and presses it into interstices; if necessary, steel re-enforcements are also provided to keep the rods in correct position. In this manner a strong foundation is laid. Upon that foundation further construction whether it is a building, bridge, dam or any other structure is raised. Can it be said t hat the said activity is one of manufacturing or producing articles? If the construction of a dam, a bridge or a building as a whole does not amount to manufacture or production of an article, it is difficult to see how the laying of foundation or foundations for such dam, bridge or building can be characterised as manufacturing or production of articles. The process of laying foundation is an integral part of the construction of a dam, bridge or building. Each such structure requires a foundation. The assessee does no more than lay the foundation(s) by a technologically innovative method, which lends to the strength of the foundation. It cannot be said that if a person constructs the entire dam including the foundation, he is not manufacturing or producing an article but where he merely lays the foundation for such dam he is manufacturing or producing an article. The piles, which the assessee lays by his particular method become a fixture in the earth. It ultimately becomes an integral part of the dam, bridge or building, as the case may be. It is not as if the assessee supplies prefabricated piles, which are bored into the earth by the contractor or owner, as the case may be. The work is done on the spot and it is a works-contract. It is no different from any other works contract which is done on the spot and becomes a part and parcel of a larger construction.In such matters one has to look to the precise activity and decide whether it can be said to amount to manufacturing or producing an article. For the above reasons and those given hereinbefore in Budharaja, these appeals are also liable to succeed.20.We may now take up the second group of appeals comprising Civil Appeal Nos. 4239-4248 of 1992. These appeals are preferred by the Commissioner of Income Tax against the decision of the Karnataka High Court in CIT v. Shankar Construction Co.6 Shankar Construction Company is the respondent-assessee in all these appeals. For the relevant assessment years, the respondent claimed deduction on account of investment allowance in terms of Section 32-A. Sub-section (1) of Section 32-A provides inter alia that in respect of machinery or plant specified in sub-section (2), owned by the assessee and wholly used for the purposes of the business carried on by him, he shall be allowed a deduction in respect of the previous year in which the machinery or plant was installed a sum equal t o 25 per cent of the actual cost of the machinery or plant by way of investment allowance. Sub-section (1) provides for such an allowance even in the case of a ship or aircraft. Sub- section (2) specifies the ship or aircraft or machinery or plant referred to in sub-section (1). Having regard to its relevance, sub-section (2) may be set out hereinbelow submitting the portions not necessary to be noticed for the purpose of these(2) The ship or aircraft o r machinery or plant referred to in sub-section (1) shall be the following, namely:(a) a new ship or new aircraft acquired after the 31 st day of March, 1976, by an as sessee engaged in the business of operation of ships or aircraft; (b) any new machinery or plant installed after the 31st day of March, 1976, - (i) for the purposes of business of generation or distribution of electricity or any other form of power; or (ii)in a small-scale industrial undertaking for the purposes of business of manufacture or production of any article or thing; or (iii)in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule:"The claimfor the said allowance was disallowed by the Assessing officer. On appeal, the CIT appeals accepted the assessees claim against which the department went up in appeal to the Tribunal. The Tribunal allowed the Revenues appeal following the decision in I.T.A. No. 715/Bang/1982 (pertaining to Shankaranarayana Construction Company). The assessee thereupon applied for and obtained a reference under Section 256 of the Income Tax Act. The question referred for the opinion of the High Court reads thus: "Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in upholding the disallowance of investment allowance?" With a view to pinpoint the controversy, the High Court reframed the question in the followingon the facts and in the circumstances of the case, the allowance provided for under sub-clause (iii) of clause (b) of sub-section (2) of Section 32-A of the Act will enure to the benefit of the assesses?"is a registered firm, carrying on business in the manufacture and sale of tiles and in construction work on a large scale. It has specialised in the construction of dams and canals. The question before us is whether the assessee is entitled to investment allowance on the actual cost of the machinery and plant installed for the purpose of its business pertaining to construction of dams and canals. In other words , the question is whether such machinery or plant can be said to have been installed "for the purposes of business of construction, manufacture or production of any article or thing" and further whether the assessee or the work undertaken by it ca n be called an "industrial undertaking" within the meaning of sub-clause (iii) of clause (b) of sub-section (2). The sub-clause specifies three requirements which must have been satisfied viz., (1) The new machinery or plant must be installed in an industrial undertaking after the 31 st day of March 1976. (2) The machinery on plant must have been installed for the purposes of business of construction manufacture or production of an article or thing; and (3) the article or thing should not be one of those specified in the Eleventh Schedule to the Act.23.There is no dispute about the third requirement. The controversy is only about the first and second requirements. Even here, the learned counsel for Revenue, Shri Murti concentrated only upon the second requirement. He did no address any arguments with respect to the first, for which reason we do no propose to express any opinion thereon. We shall confine ourselves to the question whether the new machinery or plant installed by the assessee for the purpose of construction of a dam or irrigation canals is entitled to investment allowance. It would be noticed immediately that sub-clause (iii) of clause (b) on sub-section (2) of Section 32-A employs certain words which are not found in Section 80-HH(2)(i) or in Section 84(2)(ii). The relevant words in those two sections are "manufacture or produce articles" whereas the relevant words in Section 32-A are "construction, manufacture or production of any article of thing". Because the sub-clause in Section 32-A employs the additional words "construction" and "thing", it is argued for the assessee that the scope of the sub-clause is wider than the relevant sub-clauses in Section 80-HH and Section 84. It is submitted that the sub-clause concerned in these appeals speak expressly of the construction of a thing. The expression "thing", it is argued, wider than the expression "article" and takes in immovable properties like dams, bridges, roads and canals. If it is not so construed, it is argued, the words "construction" and "thing" in this sub- clause would be rendered super flour Learned counsel brought to our notice the meanings given to the said word various dictionaries , namely from the Lexicon Webster Dictionary, The Conci, Oxford Dictionary of Current English, Blacks Law Dictionary and Strouds Judicial Dictionary. So far as the first two dictionaries are concerned, the said word does not take in immovable property like buildings etc. within its ambit.However, in Blacks Law Dictionary, the following meanings are assigned to the expressionThe objects of dominion or property as contra-distinguished from persons. Gayer v. Whelan10. The object of a right; i.e., whatever is treated by the law as the object over which one person exercises a right, and with reference to which another person lies under a duty.Such permanent objects, not being persons, as are sensible, or perceptible through the senses. Things are distributed into three kinds: (1) Things real or immovable, comprehending lands, tenements, and here determents; (2) things personal or moveable, comprehending goods and chattels; and (3) things mixed, partaking of the characteristics of the two former, as a title- deed, a term for years. The civil law divided things into corporeal (tangi possunt) and incorporeal (tangi non possunt)."	1	7,579	### 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: counsel for t he Revenue, disputes the correctness of the assessees submission. According to him sub-section (2) of Section 32-A must be interpreted and understood in the following manner: Clause (a) speaks of acquisition of a new ship or aircraft while clause (b) speaks of new machinery or plant installed (i) for the purposes of business of generation or distribution of electricity or any other form of power, (ii) in a small scale industrial undertaking for the purposes of business of manufacture or production of any article or thing, and (iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing; if an assessee installs any new machinery or plant for the construction of ships he can claim investment allowance only under clause (b)(iii); he cannot claim it under clause (a) for the reason that clause (1) is confined only to an assessee who acquires i.e., who purchases a new ship o r a new aircraft after the specified date and the investment allowance is granted on the actual cost of ship or aircraft; the meaning of the word "construction" as well as the word "thing"0 59 Cal App 2d 255: 138 P. 2d 763, 768 1 (1861) 11 CB (NS) 246: 142 ER 791 2 (1903) 88 LT 803: 19 TLR 500must be determined having regard to the context in which the said words occur viz., machinery or plant installed in an industrial undertaking for production of any article or thing; the word "construction" in the sub-clause is thus akin to manufacture or production; similarly the expression "thing" is used as interchangeable with the expression article; a perusal of the list in the Eleventh Schedule reinforces this submission inasmuch as the articles and things mentioned in the Eleventh Schedule are all moveables; it would not be correct to associate the word "construction" with the word "thing"; the appropriate way to read them is in the order in which they occur in the sub-clause says the learned counsel. 27.Though at first sight, the use of the words "construction" and "thing" appear to lend some substance to the contention of the learned counsel for the assessee, a deeper scrutiny and in particular the legislative history of the relevant provisions militates against the acceptance of his submission. Subclauses (ii) and (iii) of clause (b) of sub-section (2) of Section 32-A were substituted by Finance Act (No. 2) of 1977 with effect from April 1, 1978. Prior to the said amendment, the sub-clauses read as follows- "(ii) for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the Ninth Schedule; or (iii)in a small scale industrial undertaking for the purposes of business of manufacture or production of any other articles or things." * 28.The unmended sub-clause (ii), which corresponds to present sub-clause (iii), was thus confined to the "articles and things" in the IXth Schedule. The IXth Schedule, since omitted, contained as many as 33 items. Item 15 therein related to "ships". All the items referred only to moveables; none of them refers to an immovable object like a building, factory or bridge. Since the appropriate word in the case of ships is "construction" in common parlance one speaks of construction of ships and not manufacture of ships the legislature used the expression "construction" in unamended sub-clause (ii). The said sub-clause also referred to "articles or things", which is the heading of the IXth Schedule After amendment, sub-clause (ii), which became sub-clause (iii) underwent a certain change. Not only were the words "in any other industrial undertaking were added at the beginning of the sub-clause, the applicability of the sub. clause was extended to al l articles and things except those articles and thing.,mentioned in the Xlth Schedule. The heading of Xlth Schedule is again "list of articles or things", but the list does not include ships. In other words, sub clause (iii), after amendment, continues to apply to ships. Ships are among the articles or things to which the present sub-clause (iii) applies. And that in precisely the reason the word "construction" is retained in amended sub-clause (iii) the sub-clause corresponding to unamended sub-clause (ii). So far as the use of the word "thing" is concerned, it has no special significance inasmuch a the IXth Schedule and the Xlth Schedule both contain a list of articles or thing, , Both the IXth Schedule, to which alone the unamended sub- clause (ii) applies as well as the Xlth Schedule, the articles and things wherein are excluded from the purview of amended sub-clause (iii), refer only to moveable objects called articles or things. In this background, it is not possible or permissible to read the word "construction" as referring to construction of dams, bridge, , buildings, roads or canals. The association of words in former sub-clause (ii) and the present sub-clause (iii) is also no t without significance. The words are: "construction, manufacture or production of any one or more of the articles and things...... and "construction, manufacture or production of any articles and things...... respectively. It is equally evident that in these sub- clauses as well as in the IXth Schedule and Xlth Schedule, the words "articles" and "things" are used interchangeably. In the scheme and context of the provision, it would not be right to isolate the word "thing ", ascertain its meaning with reference to Law Lexicons and attach to it a meaning which it was never intended to bear. A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and as in this case to the legislative history of the provision. We are, therefore, of the opinion that sub-clause (iii) of clause (b) of sub-section (2) of Section 32-A does not comprehend within its ambit construction of a dam, a bridge, a building, a road, a canal and other similar constructions. ### Response: 1
534	Prabhu Vs. State Of U. P	the aforesaid two witnesses also establishes that the appellant and his father came to Bhagwan about a month and a half before the occurrence and asked for some land. Bhagwan refused to give any land to the appellant. We think that this motive has been established even though it would influence both the appellant and his father.7. The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained. shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery. According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohamad. Lal Bahadur Singh was examined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Dodi Baksh Singh was examined as prosecution witness No. 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him ; then the a appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Dobi Baksh (P.W.3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by ss.25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s.27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within the meaning of s.27. Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, -so much of such information, .whether it amounts to a confession or not, as, relates distinctly to the fact thereby discovery may be proved. In Pulukuri Kotayya v. King Emperor ((1947) L.R. 74 I.A 65) the Privy Council considered the true interpretation of s.27 and said : "It is fallacious to treat the fact discove- red within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinc- tly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife ; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p.77) We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.Therefore, the question before us is this. Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer ? It is well-settled that circumstantial evidence must be much as to lead to a conclusion which on any reasonable hypothesis in consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub- Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconstant with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible.8. Learned counsel for the respondent has submitted to us that in State of U. P. v. Deoman Upadhyaya ((1961) 1 S.C.R. 14.) this Court accepted as sufficient evidence the production of a blood stained weapon. We are unable to agree.	1[ds]There can be no doubt that Bhagwan was murdered on the night in question. The postmortem examination disclosed that he had sustained as many as thirteen injuries, eleven of which were incised on different parts of the body. The injuries inflicted on the head and face had out through skull bones and the doctor who held the postmortem examination was of the opinion that Bhagwan had died as a result of fractures of the skull bones and hemorrhage and shock. There can, therefore, be no doubt that Bhagan was murdered. It is equally clear that nobody saw who killed Bhagwan. The evidence of Naiku (P.W.1) shows clearly enough that neither he nor other persons whom he called saw the appellant. The grand-child who was sleeping with Bhagwan was also fast asleep and did not even awake when the injuries were inflicted on Bhagwan. Bhagwan might or might not have raised shouts when the injuries were caused to him. The evidence of Naiku does not disclose that he heard any other sound excepting the sound of movement of steps of a person wearing shoes.We are satisfied that the evidence as to motive is satisfactory, Both Naiku (P.W.1) and Brij Lal (P.W.2) have stated about the motive. The appellant and his mother stayed with Bhagwan about four years ago in order to render assistance to Bhagwan in his cultivation. The appellant did not, however, do any work and was turned out. This is proved by the evidence of Naiku and Brij Lal. The evidence of the aforesaid two witnesses also establishes that the appellant and his father came to Bhagwan about a month and a half before the occurrence and asked for some land. Bhagwan refused to give any land to the appellant. We think that this motive has been established even though it would influence both the appellant and hismain difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained. shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery. According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohamad. Lal Bahadur Singh was examined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Dodi Baksh Singh was examined as prosecution witness No. 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him ; then the a appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Dobi Baksh (P.W.3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by ss.25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s.27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within the meaning ofare, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.Therefore, the question before us is this. Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer ? It is well-settled that circumstantial evidence must be much as to lead to a conclusion which on any reasonable hypothesis in consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub- Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconstant with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible.	1	2,581	### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: the aforesaid two witnesses also establishes that the appellant and his father came to Bhagwan about a month and a half before the occurrence and asked for some land. Bhagwan refused to give any land to the appellant. We think that this motive has been established even though it would influence both the appellant and his father.7. The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained. shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery. According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohamad. Lal Bahadur Singh was examined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Dodi Baksh Singh was examined as prosecution witness No. 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him ; then the a appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Dobi Baksh (P.W.3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by ss.25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s.27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within the meaning of s.27. Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, -so much of such information, .whether it amounts to a confession or not, as, relates distinctly to the fact thereby discovery may be proved. In Pulukuri Kotayya v. King Emperor ((1947) L.R. 74 I.A 65) the Privy Council considered the true interpretation of s.27 and said : "It is fallacious to treat the fact discove- red within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinc- tly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife ; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p.77) We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.Therefore, the question before us is this. Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer ? It is well-settled that circumstantial evidence must be much as to lead to a conclusion which on any reasonable hypothesis in consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub- Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconstant with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible.8. Learned counsel for the respondent has submitted to us that in State of U. P. v. Deoman Upadhyaya ((1961) 1 S.C.R. 14.) this Court accepted as sufficient evidence the production of a blood stained weapon. We are unable to agree. ### Response: 1
535	Hindustan Almunium Corpn. Ltd Vs. Satya Narain Singh	S. Rajendra Babu, J. On the termination of the services of the first respondent on 27.8.1969 by the appellant an industrial dispute was raised by the former which was referred for adjudication to the Labour Court at Gorakhpur. The Labour Court raised preliminary issues and, inter alia, held that the inquiry conducted by the appellant-Management in relation to the alleged mis-conduct is valid, fair and proper. An argument was raised before the Labour Court that on the construction of Standing Order Nos. 21-H and 21-Z the inquiry was not competent because the Hindalco hospital where the incident in relation to alleged mis-conduct of respondent is stated to have taken place is away from the factory premises and so was not committed within the premises of the industrial establishment and reliance was placed in support of this contention on Management of S.R.P. Tools Ltd, Madras v. Presiding Officer (2), Additional Labour Court, Madras and others, 1974(29) FLR 416, while the Management relied upon Moolchandani Electrical and Radio Industries Ltd. v. Workman, 1974(3)) FLR 1969, a decision of this Court. The Labour Court held that even if the mis-conduct has been committed in Hindalco hospital which is away from factory premises it cannot be established that the standing orders of the company have been violated and, therefore, it reached the conclusion that the domestic inquiry was competent and had been conducted in a fair and proper manner. That preliminary order was passed on 21.2.1977. thereafter the Labour Court proceeded to consider the question of the termination of the workman, the first respondent herein, and it was held that the termination of the services of the respondent was not called for and the punishment imposed upon him resulting in the termination of his services is not disproportionate to the charge alleged against him and, therefore, applying the scope of the provisions of Section 11-A of the Industrial Disputes Act the punishment awarded by the employer should be set aside particularly because the firstrespondent went to the hospital to save the life of his colleague on humanitarian grounds. The Labour Court accepted the argument advanced on behalf of the appellant that Section 11-A of the Industrial Disputes Act has been inserted in the Industrial Disputes Act whereas the reference has been made to the Labour Court under Section 4-K of the U.P. Industrial Disputes Act, 1947, which does not contain a similar provision. On that basis, the Labour Court did not adjudicate on that aspect of the matter and merely stated that the punishment awarded to the first respondent is not proved by the respondent as harsh and disproportionate and made an award dismissing the claim of the first respondent. On a writ petition being filed to the High Court, a learned Single Judge examined the matter and relying upon a decision of this Court in Krishna District Co-operative Marketing Society Ltd. v. N.V. Purnachandra Rao and others, 1987(4) SCC 99, wherein the question was as to whether Section 25-F of the Central Act would be applicable to a proceeding under the U.P. Act, it was held by this court that a special provision of the Central Act would apply and rights and liabilities created under the Central Act would over-ride those created by the State Act in terms of Article 254 of the Constitution, particularly keeping in view the fact that the Central Act has been enacted by Parliament after the enactment of the State Act and both of which have received the assent of the President. It is not necessary for us, particularly in the light of the order made by the High Court, to examine this aspect of the matter and we keep this question open to be decided, if necessary, at a later stage. At this stage, it is suffice to say that the matter will have to be examined in the light of the provisions of Section I-A of the Industrial Disputes Act, as directed by the High Court. 2. As regards the findings recorded by the Labour Court that the punishment imposed on the first respondent is not disproportionate to the charge levelled against him, the learned Single Judge of the High Court, after referring to certain decisions, directed that in view of the incidents alleged were outside the factory premises, a finding has to be reached applying Section 11-A of the Central Act. In the circumstances, the learned Single Judge set aside the award, remitted the matter to the Labour Court for a fresh decision in accordance with law and gave certain time frame for disposal. 3. Considering the nature of the order made by the High Court which merely remits the matter for a fresh consideration by the Labour Court and at this stage of the proceeding it is not necessary to decide either the question of law or fact arising in the case, we think, there is no justification to interfere with the order made by the High Court. We keep open the questions arising in the case for consideration at a later stage as and when they may become necessary.	0[ds]3. Considering the nature of the order made by the High Court which merely remits the matter for a fresh consideration by the Labour Court and at this stage of the proceeding it is not necessary to decide either the question of law or fact arising in the case, we think, there is no justification to interfere with the order made by the High Court. We keep open the questions arising in the case for consideration at a later stage as and when they may become necessary.	0	919	### 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: S. Rajendra Babu, J. On the termination of the services of the first respondent on 27.8.1969 by the appellant an industrial dispute was raised by the former which was referred for adjudication to the Labour Court at Gorakhpur. The Labour Court raised preliminary issues and, inter alia, held that the inquiry conducted by the appellant-Management in relation to the alleged mis-conduct is valid, fair and proper. An argument was raised before the Labour Court that on the construction of Standing Order Nos. 21-H and 21-Z the inquiry was not competent because the Hindalco hospital where the incident in relation to alleged mis-conduct of respondent is stated to have taken place is away from the factory premises and so was not committed within the premises of the industrial establishment and reliance was placed in support of this contention on Management of S.R.P. Tools Ltd, Madras v. Presiding Officer (2), Additional Labour Court, Madras and others, 1974(29) FLR 416, while the Management relied upon Moolchandani Electrical and Radio Industries Ltd. v. Workman, 1974(3)) FLR 1969, a decision of this Court. The Labour Court held that even if the mis-conduct has been committed in Hindalco hospital which is away from factory premises it cannot be established that the standing orders of the company have been violated and, therefore, it reached the conclusion that the domestic inquiry was competent and had been conducted in a fair and proper manner. That preliminary order was passed on 21.2.1977. thereafter the Labour Court proceeded to consider the question of the termination of the workman, the first respondent herein, and it was held that the termination of the services of the respondent was not called for and the punishment imposed upon him resulting in the termination of his services is not disproportionate to the charge alleged against him and, therefore, applying the scope of the provisions of Section 11-A of the Industrial Disputes Act the punishment awarded by the employer should be set aside particularly because the firstrespondent went to the hospital to save the life of his colleague on humanitarian grounds. The Labour Court accepted the argument advanced on behalf of the appellant that Section 11-A of the Industrial Disputes Act has been inserted in the Industrial Disputes Act whereas the reference has been made to the Labour Court under Section 4-K of the U.P. Industrial Disputes Act, 1947, which does not contain a similar provision. On that basis, the Labour Court did not adjudicate on that aspect of the matter and merely stated that the punishment awarded to the first respondent is not proved by the respondent as harsh and disproportionate and made an award dismissing the claim of the first respondent. On a writ petition being filed to the High Court, a learned Single Judge examined the matter and relying upon a decision of this Court in Krishna District Co-operative Marketing Society Ltd. v. N.V. Purnachandra Rao and others, 1987(4) SCC 99, wherein the question was as to whether Section 25-F of the Central Act would be applicable to a proceeding under the U.P. Act, it was held by this court that a special provision of the Central Act would apply and rights and liabilities created under the Central Act would over-ride those created by the State Act in terms of Article 254 of the Constitution, particularly keeping in view the fact that the Central Act has been enacted by Parliament after the enactment of the State Act and both of which have received the assent of the President. It is not necessary for us, particularly in the light of the order made by the High Court, to examine this aspect of the matter and we keep this question open to be decided, if necessary, at a later stage. At this stage, it is suffice to say that the matter will have to be examined in the light of the provisions of Section I-A of the Industrial Disputes Act, as directed by the High Court. 2. As regards the findings recorded by the Labour Court that the punishment imposed on the first respondent is not disproportionate to the charge levelled against him, the learned Single Judge of the High Court, after referring to certain decisions, directed that in view of the incidents alleged were outside the factory premises, a finding has to be reached applying Section 11-A of the Central Act. In the circumstances, the learned Single Judge set aside the award, remitted the matter to the Labour Court for a fresh decision in accordance with law and gave certain time frame for disposal. 3. Considering the nature of the order made by the High Court which merely remits the matter for a fresh consideration by the Labour Court and at this stage of the proceeding it is not necessary to decide either the question of law or fact arising in the case, we think, there is no justification to interfere with the order made by the High Court. We keep open the questions arising in the case for consideration at a later stage as and when they may become necessary. ### Response: 0
536	E.P. Poulose Vs. State of Kerala & Another	the site condition to be as represented in the schedule to the notification inviting tenders and submitted his original design on that basis and since, however, the site condition was found to be different and on the advice of the Research Institute jetting had to be resorted to involving extra expenditure he was entitled to claim to additional amount for the work of jetting. The Department, however, refused the claim which led, to the arbitration under clause 34 of the tender notification. The Arbitrator was the Chief Engineer. It appears the award was based on examination of documents and after hearing arguments of the parties.3. The award with which we are concerned is a speaking one and gives the reasons for the decision against the contractor. Mr. Gupte, the learned counsel for the appellant submits that the Arbitrator was guilty of legal misconduct in conducting the proceedings. He submitted that two very material documents, Exts P. 11 and P. 16, were absolutely ignored by the Arbitrator resulting in miscarriage of justice. On the other hand Mr. Krishnamurthi Iyer submitted that these documents were not even marked before the Arbitrator; they were marked only before the Subordinate Judge. According to him, therefore, there is no foundation for the grievance.4. We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ext. P. 11 and Ext. P.16 are material, document to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P.11 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs. The following extract will explain the position then taken by the Department:"The contention of the Accountant General that jetting was resorted to by the contractor to facilitate the driving of the piles is not correct. Had it not been for jetting, it would not have been possible for the piles to reach the required depth of 30, passing through sandy strata and we would have been constrained to stop with a smaller depth viz., up to the point of refusal for penetration of the pile by hammering. It was, therefore, in the interest of the work that jetting was insisted upon by the Department for pile driving. The contractor had to resort to jetting under instructions from the Department.The Accountant General has stated that the department is not bound to pay extra for adopting the method of jetting for pile driving. This does not appear correct since the method of jetting was adopted in the interest of the department in view of the sandy stratum obtaining at the site as against the indication given by the department that the soil is clayey up to a depth of nearly 200 ft. No doubt the contractor was asked to ascertain the nature of the soil; but this does not imply that he was to conduct exploratory borings to confirm the classification given by the department in the tender within the short span of time available for submitting tenders".Earlier also on July 25, 1966, as per Ext. P, 16 the Executive Engineer had written to the Chief Engineer where from paragraph 4 is revealing:"Even though while inviting tenders for the work there was a condition that the tenderer should examine the soil condition it was not expected of them to do soil testing in detail within the period available to them to tender for the work. A clear indication regarding the nature of the strata that is likely to be met with was also furnished at the time of inviting tenders. After complete soil investigation the strata was found to be different from that furnished by the department and so in my opinion technical specification has changed. In the circumstances jetting done by the contractor can be considered as an extra item".5. We now come to the award. Although the Arbitrator has held that "jetting, however, is not an authorised extra covered by the agreement", he has made the following significant observation which is inconsistent with his conclusion that the contractor has no right for extra payment for the jetting:"The Chief Engineer has rejected the claims of the contractor on grounds of non-inclusion of this (jetting) in the agreement which was executed subsequent to the direction issued by the department to adopt jetting. The Chief Engineers decision totally ignores the next sentence in that letter Meanwhile you may execute the agreement. By this sentence the issue of extra payment for jetting is left open even after the execution of the agreement."If the above is the conclusion of the Arbitrator, rejection of the claim on the ground that "jetting, however, is not an authorised extra covered by the agreement" cannot be anything but rationally inconsistent. The award, therefore, suffers from a manifest error apparent ex facie.6. Under Section 30 (a) of the Arbitration Act an award can be set aside when an Arbitrator has misconduct himself or the proceedings. Misconducted under Section 30 (a) has not a connotation of moral lapse. It comprises legal misconduct which is completed if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material document which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in this case. We have, therefore, no hesitation in setting aside such an award. In the result the judgment of the High Court is set aside and that of the Subordinate Judge is restored.	1[ds]3. The award with which we are concerned is a speaking one and gives the reasons for the decision against the contractor.We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ext. P. 11 and Ext. P.16 are material, document to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P.11 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs.We now come to the award. Although the Arbitrator has held that "jetting, however, is not an authorised extra covered by the agreement", he has made the following significant observation which is inconsistent with his conclusion that the contractor has no right for extra payment for theUnder Section 30 (a) of the Arbitration Act an award can be set aside when an Arbitrator has misconduct himself or the proceedings. Misconducted under Section 30 (a) has not a connotation of moral lapse. It comprises legal misconduct which is completed if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material document which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in this case. We have, therefore, no hesitation in setting aside such an award. In the result the judgment of the High Court is set aside and that of the Subordinate Judge is restored.	1	1,687	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: the site condition to be as represented in the schedule to the notification inviting tenders and submitted his original design on that basis and since, however, the site condition was found to be different and on the advice of the Research Institute jetting had to be resorted to involving extra expenditure he was entitled to claim to additional amount for the work of jetting. The Department, however, refused the claim which led, to the arbitration under clause 34 of the tender notification. The Arbitrator was the Chief Engineer. It appears the award was based on examination of documents and after hearing arguments of the parties.3. The award with which we are concerned is a speaking one and gives the reasons for the decision against the contractor. Mr. Gupte, the learned counsel for the appellant submits that the Arbitrator was guilty of legal misconduct in conducting the proceedings. He submitted that two very material documents, Exts P. 11 and P. 16, were absolutely ignored by the Arbitrator resulting in miscarriage of justice. On the other hand Mr. Krishnamurthi Iyer submitted that these documents were not even marked before the Arbitrator; they were marked only before the Subordinate Judge. According to him, therefore, there is no foundation for the grievance.4. We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ext. P. 11 and Ext. P.16 are material, document to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P.11 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs. The following extract will explain the position then taken by the Department:"The contention of the Accountant General that jetting was resorted to by the contractor to facilitate the driving of the piles is not correct. Had it not been for jetting, it would not have been possible for the piles to reach the required depth of 30, passing through sandy strata and we would have been constrained to stop with a smaller depth viz., up to the point of refusal for penetration of the pile by hammering. It was, therefore, in the interest of the work that jetting was insisted upon by the Department for pile driving. The contractor had to resort to jetting under instructions from the Department.The Accountant General has stated that the department is not bound to pay extra for adopting the method of jetting for pile driving. This does not appear correct since the method of jetting was adopted in the interest of the department in view of the sandy stratum obtaining at the site as against the indication given by the department that the soil is clayey up to a depth of nearly 200 ft. No doubt the contractor was asked to ascertain the nature of the soil; but this does not imply that he was to conduct exploratory borings to confirm the classification given by the department in the tender within the short span of time available for submitting tenders".Earlier also on July 25, 1966, as per Ext. P, 16 the Executive Engineer had written to the Chief Engineer where from paragraph 4 is revealing:"Even though while inviting tenders for the work there was a condition that the tenderer should examine the soil condition it was not expected of them to do soil testing in detail within the period available to them to tender for the work. A clear indication regarding the nature of the strata that is likely to be met with was also furnished at the time of inviting tenders. After complete soil investigation the strata was found to be different from that furnished by the department and so in my opinion technical specification has changed. In the circumstances jetting done by the contractor can be considered as an extra item".5. We now come to the award. Although the Arbitrator has held that "jetting, however, is not an authorised extra covered by the agreement", he has made the following significant observation which is inconsistent with his conclusion that the contractor has no right for extra payment for the jetting:"The Chief Engineer has rejected the claims of the contractor on grounds of non-inclusion of this (jetting) in the agreement which was executed subsequent to the direction issued by the department to adopt jetting. The Chief Engineers decision totally ignores the next sentence in that letter Meanwhile you may execute the agreement. By this sentence the issue of extra payment for jetting is left open even after the execution of the agreement."If the above is the conclusion of the Arbitrator, rejection of the claim on the ground that "jetting, however, is not an authorised extra covered by the agreement" cannot be anything but rationally inconsistent. The award, therefore, suffers from a manifest error apparent ex facie.6. Under Section 30 (a) of the Arbitration Act an award can be set aside when an Arbitrator has misconduct himself or the proceedings. Misconducted under Section 30 (a) has not a connotation of moral lapse. It comprises legal misconduct which is completed if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material document which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in this case. We have, therefore, no hesitation in setting aside such an award. In the result the judgment of the High Court is set aside and that of the Subordinate Judge is restored. ### Response: 1
537	Government Of A.P. Vs. Mohd. Nasrullah Khan	additional evidence. The finding has been clearly recorded by the Inquiry Officer on the basis of the evidence adduced by PWs. 1,2,3 and 4 during the Inquiry. By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In Union of India v. Parma Nanda (1989) 2 SCC 177 , K. Jagannatha Shetty, J., speaking for the Bench, observed at page SCC 189 as under: "We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter." 9. Again, the same principle has been reiterated by this Court in B.C. Chaturvedi v. Union of India & Ors. (1995) 6 SCC 749. K. Ramaswamy, J., speaking for the Court, observed at page SCC 759 as under: "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of each case." 10. As already said, in the present case there is no allegation of violation of principles of natural justice or the inquiry being held inconsistent with the mode of procedure prescribed by the rules or regulations. This takes us to the last submission of the counsel for the respondent. Learned counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of the Discipline Force holding the rank of Head Constable. The duty assigned to him was a bandobast duty during the visit of the then President Bill Clinton, who ran a security risk of the highest grade. His misconduct could have led to serious security lapse resulting into fatal consequences. But, because of timely detection of the electrician - PW4, the lens was recovered and immediately restored. 11. We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of Disciplinary Force, who deserved stringent punishment. To instill the confidence of the public in the Establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded. It is stated that the respondent was reinstated on 19.6.04, pursuant to the order passed by the High Court and has been working since then and pay and allowances have been paid from 19.6.04. Since, he has been paid for the period he has worked, the salary and allowances already paid to him shall not be disturbed.	1[ds]in the present case there is no allegation of violation of principles of natural justice or the inquiry being held inconsistent with the mode of procedure prescribed by the rules or regulations. This takes us to the last submission of the counsel for the respondent. Learned counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of the Discipline Force holding the rank of Head Constable. The duty assigned to him was a bandobast duty during the visit of the then President Bill Clinton, who ran a security risk of the highest grade. His misconduct could have led to serious security lapse resulting into fatal consequences. But, because of timely detection of the electrician - PW4, the lens was recovered and immediately restored11. We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of Disciplinary Force, who deserved stringent punishment. To instill the confidence of the public in the Establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded. It is stated that the respondent was reinstated on 19.6.04, pursuant to the order passed by the High Court and has been working since then and pay and allowances have been paid from 19.6.04. Since, he has been paid for the period he has worked, the salary and allowances already paid to him shall not be disturbed	1	2,997	### 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: additional evidence. The finding has been clearly recorded by the Inquiry Officer on the basis of the evidence adduced by PWs. 1,2,3 and 4 during the Inquiry. By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In Union of India v. Parma Nanda (1989) 2 SCC 177 , K. Jagannatha Shetty, J., speaking for the Bench, observed at page SCC 189 as under: "We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter." 9. Again, the same principle has been reiterated by this Court in B.C. Chaturvedi v. Union of India & Ors. (1995) 6 SCC 749. K. Ramaswamy, J., speaking for the Court, observed at page SCC 759 as under: "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of each case." 10. As already said, in the present case there is no allegation of violation of principles of natural justice or the inquiry being held inconsistent with the mode of procedure prescribed by the rules or regulations. This takes us to the last submission of the counsel for the respondent. Learned counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of the Discipline Force holding the rank of Head Constable. The duty assigned to him was a bandobast duty during the visit of the then President Bill Clinton, who ran a security risk of the highest grade. His misconduct could have led to serious security lapse resulting into fatal consequences. But, because of timely detection of the electrician - PW4, the lens was recovered and immediately restored. 11. We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of Disciplinary Force, who deserved stringent punishment. To instill the confidence of the public in the Establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded. It is stated that the respondent was reinstated on 19.6.04, pursuant to the order passed by the High Court and has been working since then and pay and allowances have been paid from 19.6.04. Since, he has been paid for the period he has worked, the salary and allowances already paid to him shall not be disturbed. ### Response: 1
538	Sayaji Mills Limited Vs. P.A. Bhaskar	out the intention of the legislation". The learned Judge refers to the definition of the "factory" in Section 2 (g) and concludes that the change of ownership cannot start a fresh date of the establishment of a factory, nor even the fact that subsequently, the original machinery was reconditioned. According to the learned Judge, the emphasis in the Scheme is on the factory which carries on manufacturing process and on the employees who are the beneficiaries under the Act, and the exemption cannot apply merely because the factory has changed hands. The same view has been taken by Mr. Justice Grover. as His Lordship then was, in Hindustan Electric Co. Ltd. v. Regional Provident Fund Commr. , AIR 1959 Punj 27. In that case the Government of India sold a factory belonging to it on the 17th February, 1955. The Regional Provident Fund Commissioner called upon the purchasers to contribute to the Provident Fund but they contended that they established the factory after their purchase in October, 1955 and, therefore, they would be entitled to the protection available to the infant factories under Section 16 (1) of the Act This contention was rejected on the ground that the date of the establishment of a factory is the date when the factory starts its manufacturing process and the fact that a new company or concern subsequently takes over acquires the factory,. does not shift the date of the establishment of the factory to the date of its being taken over. The period of three years under Section 16 (1) was held to begin from the date of the original establishment of the factory and not from the date when the purchasers started manufacturing operations.(24) This judgment went in appeal in Regional Provident Fund Commissioner, Punjab v. Lakshnri Ratten Engineering Works Ltd. . AIR 1962 Punj 507 where a Division Bench, consisting of Dulat J. and Dua, J. (as His Lordship then was) affirmed the view of Grover, J. In regard to the interpretation of Section 16 (1) of the Act. The learned Judges held that what was exempted by Section 16 was only the factory which was not established for more than three years. If the factory was being used for manufacturing purposes long before the new purchasers acquired it, it could not be said that the factory was not established for more than three yeara(25) The only decision which has struck a discordant note is that of Anant-narayanan, J. In Vittaldas Jagannathdas v. Regional Provident Fund Commr. , AIR 1965 Mad 508 in which it was held:--"that an establishment means an "organised body of men maintained for a purpose". . . . . Where, therefore, on the entire complex of facts of a given case, it can be concluded that the legal entity "the establishment" had come totally to an end. and was succeeded by a fresh legal entity, then that fresh entity is the entity to which the Act applies as a first impact and, if that entity is entitled to infancy protection, that protection will have to be granted as a matter of course; even if it happens by coincidence to have employed a large part of the personnel of the previous establishment". That was a case of a lease of a cinema house and the learned Judge held that on the termination of the old lease of the talkies a new establishment must be deemed to have come into existence so as to attract the exemption of Section 16 (1). With respect we are unable to agree with this decision. In the case of a lease of a cinema house, it would, in our opinion, be difficult to hold that the new lessee who conducts the same business has set up a new establishment so as to be able to claim the exemption under Section 16 (1). If a new lessee or a new purchaser comes on the scene one may say that a new concern has come into existence. What Is, however, relevant for the purposes of Section 16 is not whether it is an old or a new concern, but whether it is a new establishment.(26) The decision of Anantanarayan, J. was overruled by a Division Bench in M/s. E. L. Sahni and Co. v. Union of India, AIR 19s6 Mad 416, while hearing an appeal in another matter. The learned Chief Justice who delivered the Judgment of the Bench savs that the exemption under Section 16 (1) is available to the establishment as such and not to the owner or the lessee or the manager thereof. It cannot be postulated that each time there is a change of hands, a new establishment comes into existence. In taking this view, the Division Bench has followed the decision of the High Courts of Calcutta and Punjab, to which we have referred earlier,(27) A Division Bench of the High Court of Kerala in Kunnath Textiles v. Regional Provident Fund Commr. , AIR 1959 Ker 3 , a Division Bench of the High Court of Andhra Pradesh in Nazeena Traders (P) Ltd. v. Regional Provident Fund Commr, Hyderabad, AIR 1965 Andh Pra 200 and a single Judge" of the High Court of Guj-rat in New Ahmedabad Bansidar Mills Pvt. Ltd. , v. Union of India, AIR 1968 Guj 71 , have taken the same view. The decision of the Kerala High Court is not apposite to the point before us because there the existing owners had resorted to a subterfuge for evading their liability under the Act. The Judgment of the Andhra Pradesh High Court does not refer to previous authorities, but the learned Judge of the Guiarat High Court has relied on the judgment of Tendolkar, J. and on AIR 1958 Punj 55 and AIR 1959 Cal 783 , to which we have already referred.(28) In the result, we hold that the provisions of the Act and the Scheme are applicable to the plaintiffs. They are, therefore, liable to make their contribution to the Employers Provident Fund.	0[ds](14) We are unable to accept this argument. In the first place, it is necessary to clarify that no evidence was led by the plaintiffs to show that they had in fact renovated the old Mills or that they had brought in new capital. Mr.says that the averments made by the plaintiffs in paragraph 3 of the plaint, that they had put in their own capital, that they had brought new machinery, that they had renovated the old machinery, that they had employed new staff and workmen, entered into fresh commitments for supply of raw materials, made new arrangements for the sale of finished goods and commenced production of goods of an entirely different type, were not traversed by the defendant in his written statement. Now, by paragraph 7 of his written statement the defendant denied that the factory set up by the plaintiffs on 12th November, 1955 was a new factory within the meaning of the Act. The defendant also denied that on the closure of the Hirji Mills Ltd. , the provisions of the Act had ceased to apply to the factory run by them, because according to the defendant, the Act would apply to the factory irrespective of the closure of the Mills. The burden of establishing that the exemption contained in Section 16 (1) applied to the particular establishment was on the plaintiffs. It was not enough for them to say in the plaint that they had brought in fresh capital or had renovated the old machinery or had purchased new machinery. Pleadings are not evidence, and therefore, we cannot assume the existence of the multifarious facts on which the plaintiffs counsel relies.(15) The importance of considerations such as those referred to by the plaintiffs in paragraph 3 of the plaint is that whether the exemption under Section 16 (1) of the Act can apply, i. e. , whether a particular establishment is an infant factory, must primarily depend upon the facts and circumstances of each case. The mere circumstance that the ownership has changed hands, cannot justify the conclusion that the Act will cease to apply to the particular establishment if prior to the change of hands, the Act was applicable toThe learned Judge rejected the contention of the Company that the Mills ceased to be established when the liquidation order was passed, that they ceased to be established for a second time when the lease of Kotak and Co. expired or that the new establishment was set up when Messrs. Babulal Shrivallabh obtained a fresh lease. After referring to the provision contained in Section 1 (3) of the Act, the learned Judge says: "the important point to notice about this provision is that the Act is made applicable to factories and not to the owners thereof; or, in other words, it applies to factories irrespective of who the owners from time to time may be". The learned Judge proceeds:"the question is whether the order of liquidation and the consequent temporary discontinuance of business until a lease was granted to Kotak and Company has the consequence of making the factory which was established cease to be established. In my opinion the answer to this question must be in the negative. A temporary cessation of the activities of an established factory cannot lead to the result that the factory ceases to be established for the purposes of the Employees Provident Funds Act, for if it did, the class of employers who spare no ingenuity in seeking to deprive the employees of all the benefits conferred upon them by statute would have convenient handle whereby the activities of an established factory have to be discontinued for a few months in order to deprive the employees of the benefits under the Employees Provident Funds Act. I take it that the establishment of a factory involves that the factory has gone into production and no more. . . . . but once it goes into production, a temporary cessation of its activities, for whatever reasons that cessation takes place, cannot, in my opinion, take the factory out of the category of an established factory for the purposes of the Employees Provident Funds Act. "towards the conclusion of his judgment, the learned Judge says that:". . . . . even a complete change in the whole body of employees cannot make a factory which is established, cease to be established. In any event, the Employees Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion, must be rejected, unless the clear language of the Act leave no option to the Court but to accept such an interpretation. "we are in respectful agreement with thisIn the result, we hold that the provisions of the Act and the Scheme are applicable to the plaintiffs. They are, therefore, liable to make their contribution to the Employers Provident Fund.	0	5,274	### 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: out the intention of the legislation". The learned Judge refers to the definition of the "factory" in Section 2 (g) and concludes that the change of ownership cannot start a fresh date of the establishment of a factory, nor even the fact that subsequently, the original machinery was reconditioned. According to the learned Judge, the emphasis in the Scheme is on the factory which carries on manufacturing process and on the employees who are the beneficiaries under the Act, and the exemption cannot apply merely because the factory has changed hands. The same view has been taken by Mr. Justice Grover. as His Lordship then was, in Hindustan Electric Co. Ltd. v. Regional Provident Fund Commr. , AIR 1959 Punj 27. In that case the Government of India sold a factory belonging to it on the 17th February, 1955. The Regional Provident Fund Commissioner called upon the purchasers to contribute to the Provident Fund but they contended that they established the factory after their purchase in October, 1955 and, therefore, they would be entitled to the protection available to the infant factories under Section 16 (1) of the Act This contention was rejected on the ground that the date of the establishment of a factory is the date when the factory starts its manufacturing process and the fact that a new company or concern subsequently takes over acquires the factory,. does not shift the date of the establishment of the factory to the date of its being taken over. The period of three years under Section 16 (1) was held to begin from the date of the original establishment of the factory and not from the date when the purchasers started manufacturing operations.(24) This judgment went in appeal in Regional Provident Fund Commissioner, Punjab v. Lakshnri Ratten Engineering Works Ltd. . AIR 1962 Punj 507 where a Division Bench, consisting of Dulat J. and Dua, J. (as His Lordship then was) affirmed the view of Grover, J. In regard to the interpretation of Section 16 (1) of the Act. The learned Judges held that what was exempted by Section 16 was only the factory which was not established for more than three years. If the factory was being used for manufacturing purposes long before the new purchasers acquired it, it could not be said that the factory was not established for more than three yeara(25) The only decision which has struck a discordant note is that of Anant-narayanan, J. In Vittaldas Jagannathdas v. Regional Provident Fund Commr. , AIR 1965 Mad 508 in which it was held:--"that an establishment means an "organised body of men maintained for a purpose". . . . . Where, therefore, on the entire complex of facts of a given case, it can be concluded that the legal entity "the establishment" had come totally to an end. and was succeeded by a fresh legal entity, then that fresh entity is the entity to which the Act applies as a first impact and, if that entity is entitled to infancy protection, that protection will have to be granted as a matter of course; even if it happens by coincidence to have employed a large part of the personnel of the previous establishment". That was a case of a lease of a cinema house and the learned Judge held that on the termination of the old lease of the talkies a new establishment must be deemed to have come into existence so as to attract the exemption of Section 16 (1). With respect we are unable to agree with this decision. In the case of a lease of a cinema house, it would, in our opinion, be difficult to hold that the new lessee who conducts the same business has set up a new establishment so as to be able to claim the exemption under Section 16 (1). If a new lessee or a new purchaser comes on the scene one may say that a new concern has come into existence. What Is, however, relevant for the purposes of Section 16 is not whether it is an old or a new concern, but whether it is a new establishment.(26) The decision of Anantanarayan, J. was overruled by a Division Bench in M/s. E. L. Sahni and Co. v. Union of India, AIR 19s6 Mad 416, while hearing an appeal in another matter. The learned Chief Justice who delivered the Judgment of the Bench savs that the exemption under Section 16 (1) is available to the establishment as such and not to the owner or the lessee or the manager thereof. It cannot be postulated that each time there is a change of hands, a new establishment comes into existence. In taking this view, the Division Bench has followed the decision of the High Courts of Calcutta and Punjab, to which we have referred earlier,(27) A Division Bench of the High Court of Kerala in Kunnath Textiles v. Regional Provident Fund Commr. , AIR 1959 Ker 3 , a Division Bench of the High Court of Andhra Pradesh in Nazeena Traders (P) Ltd. v. Regional Provident Fund Commr, Hyderabad, AIR 1965 Andh Pra 200 and a single Judge" of the High Court of Guj-rat in New Ahmedabad Bansidar Mills Pvt. Ltd. , v. Union of India, AIR 1968 Guj 71 , have taken the same view. The decision of the Kerala High Court is not apposite to the point before us because there the existing owners had resorted to a subterfuge for evading their liability under the Act. The Judgment of the Andhra Pradesh High Court does not refer to previous authorities, but the learned Judge of the Guiarat High Court has relied on the judgment of Tendolkar, J. and on AIR 1958 Punj 55 and AIR 1959 Cal 783 , to which we have already referred.(28) In the result, we hold that the provisions of the Act and the Scheme are applicable to the plaintiffs. They are, therefore, liable to make their contribution to the Employers Provident Fund. ### Response: 0
539	Marathwada University Vs. Seshrao Balwant Rao Chavan	in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agents act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agents unauthorised act as from the date of the ratification : it is antedated so as to take effect from the time of the agents act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is equivalent to an antecedent authority" 26. In Bowstead on Agency (14th edn.) at p. 39 it is statedEvery act whether lawful or unlawful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done..... The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the principle, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying. 27. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. 28. The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta v. Union of India ((1973) 2 SCC 543 : (1974) 1 SCR 304 ). It was a case of termination of services of the Secretary of a Company. The Board of Directors decided to terminate the services of the Secretary. The Chairman of the Board of Directors in fact terminated his services. Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed. In the suit instituted by the Secretary challenging the termination of his services, the court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors. Mathew, J. while considering this aspect of the matter, observed : (SCC pp. 546-47, para 14 : SCR pp. 307-08)Even if it be assumed that the telegram and the letter terminating the service of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validity terminated on December 17, 1953. The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim. 29. These principles of ratification governing transactions of a company where the general body is the repository of all powers cannot be extended to the present case. We were also referred to the decision of the Court of Appeal in Barnard v. National Dock Labour Board ((1953) 1 All ER 1113) and in particular the observation of Denning, L. J. : (All ER 1118 and 1119) "While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions, unless it is enabled to do so expressly or by necessary implication. In Local Government Board v. Arlidge ((1915) AC 120 : 84 LJKB 72) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a timeNext, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he had already done. The effect of ratification is to make it equal to a prior command, but as a prior command, in the shape of delegation, would be useless, so also is a ratification." 30. These observations again are of little assistance to us since we have already held that there was no prior delegation of power to the Vice-Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice-Chancellor, nor the ratification by the Executive Council could be sustained.	0[ds]22. This resolution, in our opinion, is basically faulty at least for two reasons. It may be recalled that the Executive Council without considering the report of Mr Chavan, wanted the Vice-Chancellor to take a decision thereon. It may also be noted that the Vice-Chancellor was present at the meeting of the Executive Council when the resolution was passed. He was given "full power to take a decision" which in the context, was obviously on the report of Mr Chavan, and not on any other matter or question. He said that he would take a decision in about a month. In our opinion, by the power delegated under the resolution, the Vice-Chancellor could either accept or reject the report with intimation to the Executive Council. He could not have taken any other action and indeed, he was not authorised to take any otherThe other infirmity in the said resolution goes deeper than what it appears. The resolution was not in harmony with the statutory requirement. Section 84 of the Act provides for delegation of powers and it states that any officer or authority of the University may by order, delegate his or its power (except power to make Ordinance and Regulations) to any other officer or authority subject to provisions of the Act and statutes. Section 24 (1)(xli) provides for delegation of power by the Executive Council. It states that the Executive Council may delegate any of its power (except power to make Ordinances) to the Vice-Chancellor or to any other officer subject to the approval of the Chancellor. (emphasis ours) The approval of the Chancellor is mandatory. Without such approval the power cannot be delegated to the Vice-Chancellor. The record does not reveal that the approval of the Chancellor was ever obtained. Therefore, the resolution which was not in conformity with the statutory requirement could not confer power on the Vice-Chancellor to take action against theBy this resolution, we are told that the Executive Council has ratified the action taken by the Vice-Chancellor. Ratification is generally an act of principal with regard to a contract or an act done by his agent. In Friedmans Law of Agency (5th edn.) Chapter 5 at p. 73, the principle of ratification has beenthe agent does on behalf of the principal is done at a time when the relation of principal and agent does not exist : (hence the use in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agents act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agents unauthorised act as from the date of the ratification : it is antedated so as to take effect from the time of the agents act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is equivalent to an antecedentIn Bowstead on Agency (14th edn.) at p. 39 it is statedEvery act whether lawful or unlawful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done..... The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the principle, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another byThese principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot beThe counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta v. Union of India ((1973) 2 SCC 543 : (1974) 1 SCR 304 ). It was a case of termination of services of the Secretary of a Company. The Board of Directors decided to terminate the services of the Secretary. The Chairman of the Board of Directors in fact terminated his services. Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed. In the suit instituted by the Secretary challenging the termination of his services, the court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors. Mathew, J. while considering this aspect of the matter, observed : (SCC pp. 546-47, para 14 : SCR pp. 307-08)Even if it be assumed that the telegram and the letter terminating the service of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validity terminated on December 17, 1953. The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing theThese principles of ratification governing transactions of a company where the general body is the repository of all powers cannot be extended to the present case. We were also referred to the decision of the Court of Appeal inBarnard v. National Dock Labour Board ((1953) 1 All ER1113) and in particular the observation of Denning, L. J. : (All ER 1118 andan administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions, unless it is enabled to do so expressly or by necessary implication. In LocalGovernment Board v. Arlidge ((1915) AC 120 : 84 LJKB 72)the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a timeNext, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he had already done. The effect of ratification is to make it equal to a prior command, but as a prior command, in the shape of delegation, would be useless, so also is aThese observations again are of little assistance to us since we have already held that there was no prior delegation of power to the Vice-Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice-Chancellor, nor the ratification by the Executive Council could be sustained	0	5,163	### 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: in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agents act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agents unauthorised act as from the date of the ratification : it is antedated so as to take effect from the time of the agents act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is equivalent to an antecedent authority" 26. In Bowstead on Agency (14th edn.) at p. 39 it is statedEvery act whether lawful or unlawful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done..... The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the principle, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying. 27. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. 28. The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta v. Union of India ((1973) 2 SCC 543 : (1974) 1 SCR 304 ). It was a case of termination of services of the Secretary of a Company. The Board of Directors decided to terminate the services of the Secretary. The Chairman of the Board of Directors in fact terminated his services. Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed. In the suit instituted by the Secretary challenging the termination of his services, the court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors. Mathew, J. while considering this aspect of the matter, observed : (SCC pp. 546-47, para 14 : SCR pp. 307-08)Even if it be assumed that the telegram and the letter terminating the service of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validity terminated on December 17, 1953. The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim. 29. These principles of ratification governing transactions of a company where the general body is the repository of all powers cannot be extended to the present case. We were also referred to the decision of the Court of Appeal in Barnard v. National Dock Labour Board ((1953) 1 All ER 1113) and in particular the observation of Denning, L. J. : (All ER 1118 and 1119) "While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions, unless it is enabled to do so expressly or by necessary implication. In Local Government Board v. Arlidge ((1915) AC 120 : 84 LJKB 72) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a timeNext, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he had already done. The effect of ratification is to make it equal to a prior command, but as a prior command, in the shape of delegation, would be useless, so also is a ratification." 30. These observations again are of little assistance to us since we have already held that there was no prior delegation of power to the Vice-Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice-Chancellor, nor the ratification by the Executive Council could be sustained. ### Response: 0
540	JAGJEET SINGH LYALLPURI (DEAD) THROUGH L.RS Vs. M/S UNITOP APARTMENTS AND BUILDERS LTD	very order dated 28.11.2009 the issues for consideration on which the arguments would be addressed was settled and the matter was proceeded on that understanding without raising any objection, the grievance put forth by the respondent and accepted by the learned Single Judge that the learned Arbitrator has not answered each of the claims separately in the award, cannot also be accepted. A perusal of the award would indicate that the learned Arbitrator has adverted to all aspects in a sequential manner and has recorded his conclusion in answer to the contentions that were put forth. 16. One other aspect which has been recorded by the learned Single Judge as the reason for which the matter requires reconsideration by the learned Arbitrator is that the claim put forth by the respondent that the sum of Rs. 1,22,00,000/- spent by them has not been considered by the learned Arbitrator. In that regard the learned Single Judge has held that though the respondent herein would not be entitled to continue the project due to lapse of time the learned Arbitrator has not considered the right of the parties relating to the extent of the cost incurred for the existing construction and the manner in which it is to be dealt with. On this aspect, a perusal of the award passed by the learned Arbitrator would indicate that after having arrived at the conclusion that the respondent has committed the breach, the learned Arbitrator has also adverted to the said contention relating to the cost incurred for the extent of construction made, as claimed and has rejected the same. The consideration as made is as hereunder;"I may examine, at this stage the claimant?s contention that construction worth about Rs. 1 crore 20 lacs has been done on the project. The claimant has primarily relied on the balance sheet of the Company for the relevant year in support of this argument. The balance sheet is Annexure-K at page 118-126 of the statement of Claim. In the schedule forming part of the accounts for the year ending 31 st March, 1999, the balance sheet shows an expenditure of about 1 crore 20 lacs on the project in process. This includes Rs. 44 lacs as advance given to the respondents (land owners) as guarantee money. Expenditure incurred has been shown under various headings such as advertisement and publicity, salary, entertainment, iron and steel, cement, GC sheets, stand, bricks, marble, crusher, electrical, GI pipes, gate, professional charges, telephone expenses, electricity expenses, labour and construction charges. An amount of Rs. 56,58,530/- has been shown under the heading purchase. It is not indicted so as to what was purchased. All the items required for the construction of the project have been shown separately but it is not clear on what purchase/purchase this amount was spent. No explanation is forthcoming from the claimant in this respect. Mr. Mahajan while controverting the argument of Mr. Lekhi has stated that Local Commissioner?s report Annexure-W makes it clear that the amount which may have been spent on the construction was much less. Be that as it may there is no expert evidence on the record to show as to how much money was spent on the construction. The claimant company did receive some money as advance against flats and offices to be constructed. It is in the evidence that Rs. 23 lacs was received by the Company in this respect. The balance sheet as on 31 st March, 1999 at page 121 shows that the Company received Rs. 19,79,488/- as advance against flats and offices. In the absence of reliable evidence on the record, it is not possible to accept the argument of the learned counsel for the claimant.? 17. In that circumstance when the learned Arbitrator has noticed the contention and recorded a finding of fact it cannot be accepted that the learned Arbitrator has not adverted to the same so as to require reconsideration. To be fair to the learned Arbitrator, it has in fact been noticed by the learned Arbitrator relating to the change of Directors and shareholders of the company in 2007 as against the shareholders who existed as on 30.09.2005 and also that the erstwhile Directors/shareholders who had personal knowledge have not been examined by filing their affidavits and even though an application dated 12.09.2009 for summoning them as witnesses was filed, the same was not pressed and the evidence was closed on 28.11.2009 with the consent of the parties. The learned Arbitrator has in fact recorded that none of them have come forward to render assistance in the proceedings. In such circumstance when the respondent herein, who were themselves the claimants before the learned Arbitrator have not conducted the matter in an appropriate manner by securing affidavit evidence of the erstwhile directors / shareholders, they cannot at this stage turn around and contend that the learned Arbitrator has misconducted himself. In any event the challenge to the award does not fall under any of the clauses of Section 34 of Act, 1996. In such circumstance the reliance placed by the learned Single Judge on a decision in the case of ONGC (supra) is highly misplaced. Therefore, the order dated 31.07.2015 passed by the learned Single Judges is not sustainable and the same is liable to be set aside. 18. During the course of hearing we had also made an endeavour to see that the parties amicably settle the matter by enabling the respondent herein to receive some amount towards the expended portion, also by not ignoring the loss suffered by the appellants due to delay. From the photographs produced before us we have noticed that except raising some columns, there is no major construction that is put up. In so far as the expense as claimed by the respondent, as indicated by the learned Arbitrator as extracted above, there is no conclusive evidence to that effect. Though such columns are raised, admittedly construction activity has not taken place beyond March, 1999 and already two decades have elapsed.	0[ds]9. In the light of the contentions put forth we have perused the appeal papers and made reference to the material on record. With regard to the agreement dated 14.12.1996 and the clauses contained therein to regulate the parties there is no serious dispute between the parties11. Since the learned Single Judge has presently accepted the contention raised on behalf of the respondent herein that the procedure followed by the learned Arbitrator is contrary to law and has prejudiced the respondent herein since the witnesses were not cross-examined, this aspect of the matter is required to be noticed at the outset. As rightly pointed out by the learned senior counsel for the appellant, the rules of procedure to be followed by an Arbitral Tribunal is flexible and can be agreed upon by the parties as provided under Section 19 of the Act, 199613. From a perusal of the proceedings dated 28.11.2009 it would be clear that both contentions raised by the learned counsel for the respondent herein and which were accepted by the learned Single Judge to ultimately remand the matter, would not be justified. Firstly, in the presence of the parties and their learned counsel it has been recorded that they do not wish to cross-examine any of the witnesses whose affidavits have been filed by the parties concerned and one of the witness who was present was discharged without being cross examined and no grievance was made either by the parties or their learned counsel who were present. It is in that view the evidence was taken as closed on 28.11.2009 and the issues for consideration was settled for arguments on the same day. In that circumstance having consented to the said procedure, it would not be open for the respondent herein to approbate and reprobate so as to raise a different contention at this point. Having accepted the said procedure the respondent is estopped from raising such contention before the learned Single Judge that the arbitrator misconducted himself by not permitting the parties to cross-examine the witness and also that the learned Arbitrator being more than 70 years of age and suffering from knee problem has pressurized the respondent to speed up the matter and the evidence was closed. It is rather intriguing for us to note that such contention has not only been permitted to be raised, but also accepted by the learned Single Judge to remand the matter, which is wholly unjustified14. We are of such opinion for the reason that the procedure to be followed in arbitration proceedings was settled by a separate order dated 28.11.2009 during the course of the proceedings before the learned Arbitrator. Thereafter the award was passed only on 13.01.2010. Though the respondent was represented by their learned counsel and the order dated 28.11.2009 was passed while recording the proceedings of that day, neither any application had been filed before the learned Arbitrator to recall the said order and provide opportunity to tender evidence or cross examine, nor was a challenge raised by initiating any other proceedings, before the award was passed. It is only subsequent to the award being passed such contention is being raised as an afterthought, which in such event cannot be accepted. That apart, the agreement being entered into on 14.12.1996 and the work not having progressed subsequent to March,1999 was not seriously in dispute and in that circumstance based on the affidavit, the admitted documents have been taken note by the learned Arbitrator due to which the non-cross- examination in any event has not prejudiced the respondent herein. One aspect of the matter no doubt was with regard to the claim that was put forth by the appellant herein that a cancellation agreement dated 26.10.2004 was entered into and the security deposit of Rs. 40 Lakhs and the advance of Rs. 23 Lakhs has been re-paid to Mr. S. Surinder Singh which was disputed by the respondent. On that aspect the learned Arbitrator in any event has concluded that the said payment if any cannot be considered as a payment made to the respondent company but has been received by Mr. Surinder Singh who had made gain unto himself. In such event since the respondent has not filed the affidavit of Mr. Surinder Singh disputing the same, it is an inter-se matter to claim from Mr. Surinder Singh and therefore, the non- cross-examination on that aspect also has not resulted in any prejudice. Be that as it may, as already taken note, the procedure to be followed in the arbitral proceedings has been agreed to by the parties. Hence the respondent cannot be heard to complain as and when it suits them15. Further, since through the very order dated 28.11.2009 the issues for consideration on which the arguments would be addressed was settled and the matter was proceeded on that understanding without raising any objection, the grievance put forth by the respondent and accepted by the learned Single Judge that the learned Arbitrator has not answered each of the claims separately in the award, cannot also be accepted. A perusal of the award would indicate that the learned Arbitrator has adverted to all aspects in a sequential manner and has recorded his conclusion in answer to the contentions that were put forth16. One other aspect which has been recorded by the learned Single Judge as the reason for which the matter requires reconsideration by the learned Arbitrator is that the claim put forth by the respondent that the sum of Rs. 1,22,00,000/- spent by them has not been considered by the learned Arbitrator. In that regard the learned Single Judge has held that though the respondent herein would not be entitled to continue the project due to lapse of time the learned Arbitrator has not considered the right of the parties relating to the extent of the cost incurred for the existing construction and the manner in which it is to be dealt with. On this aspect, a perusal of the award passed by the learned Arbitrator would indicate that after having arrived at the conclusion that the respondent has committed the breach, the learned Arbitrator has also adverted to the said contention relating to the cost incurred for the extent of construction made, as claimed and has rejected the same.17. In that circumstance when the learned Arbitrator has noticed the contention and recorded a finding of fact it cannot be accepted that the learned Arbitrator has not adverted to the same so as to require reconsideration. To be fair to the learned Arbitrator, it has in fact been noticed by the learned Arbitrator relating to the change of Directors and shareholders of the company in 2007 as against the shareholders who existed as on 30.09.2005 and also that the erstwhile Directors/shareholders who had personal knowledge have not been examined by filing their affidavits and even though an application dated 12.09.2009 for summoning them as witnesses was filed, the same was not pressed and the evidence was closed on 28.11.2009 with the consent of the parties. The learned Arbitrator has in fact recorded that none of them have come forward to render assistance in the proceedings. In such circumstance when the respondent herein, who were themselves the claimants before the learned Arbitrator have not conducted the matter in an appropriate manner by securing affidavit evidence of the erstwhile directors / shareholders, they cannot at this stage turn around and contend that the learned Arbitrator has misconducted himself. In any event the challenge to the award does not fall under any of the clauses of Section 34 of Act, 1996. In such circumstance the reliance placed by the learned Single Judge on a decision in the case of ONGC (supra) is highly misplaced. Therefore, the order dated 31.07.2015 passed by the learned Single Judges is not sustainable and the same is liable to be set aside18. During the course of hearing we had also made an endeavour to see that the parties amicably settle the matter by enabling the respondent herein to receive some amount towards the expended portion, also by not ignoring the loss suffered by the appellants due to delay. From the photographs produced before us we have noticed that except raising some columns, there is no major construction that is put up. In so far as the expense as claimed by the respondent, as indicated by the learned Arbitrator as extracted above, there is no conclusive evidence to that effect. Though such columns are raised, admittedly construction activity has not taken place beyond March, 1999 and already two decades have elapsed.	0	4,955	### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: very order dated 28.11.2009 the issues for consideration on which the arguments would be addressed was settled and the matter was proceeded on that understanding without raising any objection, the grievance put forth by the respondent and accepted by the learned Single Judge that the learned Arbitrator has not answered each of the claims separately in the award, cannot also be accepted. A perusal of the award would indicate that the learned Arbitrator has adverted to all aspects in a sequential manner and has recorded his conclusion in answer to the contentions that were put forth. 16. One other aspect which has been recorded by the learned Single Judge as the reason for which the matter requires reconsideration by the learned Arbitrator is that the claim put forth by the respondent that the sum of Rs. 1,22,00,000/- spent by them has not been considered by the learned Arbitrator. In that regard the learned Single Judge has held that though the respondent herein would not be entitled to continue the project due to lapse of time the learned Arbitrator has not considered the right of the parties relating to the extent of the cost incurred for the existing construction and the manner in which it is to be dealt with. On this aspect, a perusal of the award passed by the learned Arbitrator would indicate that after having arrived at the conclusion that the respondent has committed the breach, the learned Arbitrator has also adverted to the said contention relating to the cost incurred for the extent of construction made, as claimed and has rejected the same. The consideration as made is as hereunder;"I may examine, at this stage the claimant?s contention that construction worth about Rs. 1 crore 20 lacs has been done on the project. The claimant has primarily relied on the balance sheet of the Company for the relevant year in support of this argument. The balance sheet is Annexure-K at page 118-126 of the statement of Claim. In the schedule forming part of the accounts for the year ending 31 st March, 1999, the balance sheet shows an expenditure of about 1 crore 20 lacs on the project in process. This includes Rs. 44 lacs as advance given to the respondents (land owners) as guarantee money. Expenditure incurred has been shown under various headings such as advertisement and publicity, salary, entertainment, iron and steel, cement, GC sheets, stand, bricks, marble, crusher, electrical, GI pipes, gate, professional charges, telephone expenses, electricity expenses, labour and construction charges. An amount of Rs. 56,58,530/- has been shown under the heading purchase. It is not indicted so as to what was purchased. All the items required for the construction of the project have been shown separately but it is not clear on what purchase/purchase this amount was spent. No explanation is forthcoming from the claimant in this respect. Mr. Mahajan while controverting the argument of Mr. Lekhi has stated that Local Commissioner?s report Annexure-W makes it clear that the amount which may have been spent on the construction was much less. Be that as it may there is no expert evidence on the record to show as to how much money was spent on the construction. The claimant company did receive some money as advance against flats and offices to be constructed. It is in the evidence that Rs. 23 lacs was received by the Company in this respect. The balance sheet as on 31 st March, 1999 at page 121 shows that the Company received Rs. 19,79,488/- as advance against flats and offices. In the absence of reliable evidence on the record, it is not possible to accept the argument of the learned counsel for the claimant.? 17. In that circumstance when the learned Arbitrator has noticed the contention and recorded a finding of fact it cannot be accepted that the learned Arbitrator has not adverted to the same so as to require reconsideration. To be fair to the learned Arbitrator, it has in fact been noticed by the learned Arbitrator relating to the change of Directors and shareholders of the company in 2007 as against the shareholders who existed as on 30.09.2005 and also that the erstwhile Directors/shareholders who had personal knowledge have not been examined by filing their affidavits and even though an application dated 12.09.2009 for summoning them as witnesses was filed, the same was not pressed and the evidence was closed on 28.11.2009 with the consent of the parties. The learned Arbitrator has in fact recorded that none of them have come forward to render assistance in the proceedings. In such circumstance when the respondent herein, who were themselves the claimants before the learned Arbitrator have not conducted the matter in an appropriate manner by securing affidavit evidence of the erstwhile directors / shareholders, they cannot at this stage turn around and contend that the learned Arbitrator has misconducted himself. In any event the challenge to the award does not fall under any of the clauses of Section 34 of Act, 1996. In such circumstance the reliance placed by the learned Single Judge on a decision in the case of ONGC (supra) is highly misplaced. Therefore, the order dated 31.07.2015 passed by the learned Single Judges is not sustainable and the same is liable to be set aside. 18. During the course of hearing we had also made an endeavour to see that the parties amicably settle the matter by enabling the respondent herein to receive some amount towards the expended portion, also by not ignoring the loss suffered by the appellants due to delay. From the photographs produced before us we have noticed that except raising some columns, there is no major construction that is put up. In so far as the expense as claimed by the respondent, as indicated by the learned Arbitrator as extracted above, there is no conclusive evidence to that effect. Though such columns are raised, admittedly construction activity has not taken place beyond March, 1999 and already two decades have elapsed. ### Response: 0
541	U.O.I. Vs. Charanjit S. Gill	by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State legislative enactments which are replete with such provisions. The twentieth amendment of the Constitution is an instance where the de facto doctrine was applied by the constituent body to remove any suspicion or taint of illegality or invalidity that may be argued to have attached itself to judgments, decrees, sentences or orders passed or made by certain District Judges appointed before 1966, otherwise that in accordance with the provision of Article 233 and Article 235 of the Constitution. The twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of U.P., 1967(1) SCR 77, that appointments of District Judges made otherwise that in accordance with the provisions of Articles 233 and 235 were invalid. As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the constituent body by amending the Constitution. Shri Phadke, learned counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superfluous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the twentieth amendment of the Constitution that, but for the amendment, the judgments, decrees, etc. of the District Judges appointed otherwise than in accordance with the provisions of Article 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make superfluous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious). When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to particular case does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case this Court had held that appointments of District Judges made otherwise than in accordance with Article 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and not to alter the law that the twentieth amendment of the Constitution was made. This is clear from the Statement of Objects and Reasons appended to the Bill which was Â? passed as Constitution (20th Amendment) Act, 1966. The statement said :Amendments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of Article 233 of the Constitution...... As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of writ petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically come to a standstill. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States......"This position of law was again reiterated in State of U.P. v. Rafiquddin, 1988(1) SLR 491 : 1987 Supp. SCC 401 wherein it was held :"We have recorded findings that 21 unplaced candidates of 1970 examination were appointed to the service illegally in breach of the Rules. We would, however, like to add that even though their appointment was not in accordance with the law but the judgments and orders passed by them are not rendered invalid. The unplaced candidate are not usurpers of office, they were appointed by the competent authority to the posts of munsifs with the concurrence of the High Court, though they had not been found suitable for appointment according to the norms fixed by the Public Service Commission. They have been working in the judicial service during all these years and some of them have been promoted also and they have performed their functions and duties as de facto judicial officers. "A person who is ineligible to judgeship, but who has nevertheless been duly appointed and who exercises the powers and duties of the office of a de facto judge, he acts validly until he is properly removed". Judgment and orders of a de facto judge cannot be challenged on the ground of his ineligibility for appointment." 22. In view of this position of law the judgments rendered by the court-martial which have attained finality cannot be permitted to be re-opened on the basis of law laid down in this judgment. The proceedings of any court-martial, if already challenged on this ground and are pending adjudication in any Court in the country would, however, be not governed by the principles of `de facto doctrine. No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification of Judge-Advocate on the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the fit persons as Judge-Advocate in pending court-martials, if so required.	0[ds]It is contended by Shri Rawal, learned ASG that a person fit to be appointed asis such officer who does not suffer from any ineligibility or disqualification in terms of Rule 39 alone. It is further contended that Rule 40 does not refer to disqualifications. We cannot agree with this general proposition made on behalf of the appellant inasmuch as(2) of Rule 40 specifically provides that members of afor trial of an officer should be of a rank not lower than that of the officer facing the trial unless such officer is not available regarding which specific opinion is required to be recorded in the convening order. Rule 102 unambiguously provides that "an officer who is disqualified for sitting on a court martial shall be disqualified for acting as ain a court martial". A combined reading of Rules 39, 40 and 102 suggest that an officer who is disqualified to be a part of court martial is also disqualified from acting and sitting as aat the court martial. It follows, therefore, that if an officer lower in rank than the officer facing the trial cannot become a part of the court martial, the officer of such rank would be disqualified for acting as aat the trial before a GCM. Accepting a plea to the contrary, would be invalidating the legal bar imposed upon the composition of the Court in(2) of Rule 40.14. Arguments of the learned ASG, if analysed critically, and accepted would mean that in effect and essence no disqualification or eligibility can be assigned to any officer in becoming aStretching it further it can be argued that as Rule 40 does not refer to the ineligibility or disqualification of an officer to be aeven an officer below the rank of a Captain can become a member of the court martial for the trial of a Field Officer as bar of(3) of Rule 40 is not applicable. Such an interpretation is uncalled for and apparently contradictory in terms.15. The purpose and object of prescribing the conditions of eligibility and qualification along with desirability of having members of the court martial of the rank not lower than the officer facing the trial is obvious. The law makers and the rule framers appear to have in mind the respect and dignity of the officer facing the trial till guilt is proved against him by not exposing him to humiliation of being subjected to trial by officers of lower in rank. The importance of theas noticed earlier being of a paramount nature requires that he should be such person who inspires confidence and does not subject the officer facing the trial to humiliation because the accused is also entitled to the opinion and services of theAvailing of the services or seeking advise from a person junior in rank may apparently be not possible ultimately resulting in failure of justice.16. It has been argued that as officers of the same rank or higher in rank than the officers facing the trial in court martials are not available, an interpretation as rendered by the impugned judgment would render the holding of court martials impossible. Such an argument is to be noticed for only being rejected.(2) of Rule 40 itself gives a discretion to the convening officer who is authorised to appoint a member of thete who is lower in rank than the officers facing the trial, if he is of the opinion that officer of such rank is not (having due regard to the exigencies of the public service) available, subject to a further condition that such opinion is required to be recorded in the convening order. It implied, therefore, that the provisions of(2) of Rule 40 are not mandatory because they give a discretion to appoint a member of the court martial or awho is lower in rank than the officer facing the trial under the circumstances specified. Rule 39, admittedly, has no exception and is thus mandatory.17. Further relying upon Note 2 mentioned at the foot of Rule 102 providing, "as to disqualification of aCAR 39(2)", the learned ASG submitted that the said Note having the force of law has been followed by the Army authorities from the very beginning and thus disqualifications of aIt is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All Rules and Regulations made under the Act are required to be published in the official gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the effect of the Rules made under the Act. Rules and Regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the Rules and Regulations framed thereunder. The administrative instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by ato the effect that a person lower in rank shall not be a member of the court martial or be athe insertion of Note 2 to Rule 102 cannot be held to have the effect of a Rule or Regulation. It appears that the `notes have been issued by the authorities of the Armed Forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of theconducted against the respondent No. 1, we are of the opinion that thethough not forming a part of the Court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to theIn other words aappointed with theshould not be an officer of a rank lower than that of the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public service) available and the opinion regardingis specifically recorded in the convening order. As in the instant case,was lower in rank to the accused officer and no satisfactionopinion in terms of(2) of Rule 40 was recorded, the Division Bench of the High Court was justified in passing the impugned judgment, giving the authorities liberty to initiate freshproceedings, if any, if they are so advised in accordance with law and also in the light of the judgment delivered by the High Court.21. Fears have been expressed that in case the proceedings of theare quashed on the ground of thebeing lower in rank than the officer facing trial before themany judgments delivered, orders passed and actions taken by varioustill date would be rendered illegal as according to appellants a number ofhave already been held and conducted under the assumption of the disqualification not being referable to Rule 40(2), on the strength of Note 2 attached to Rule 102 of the Rules. In that event, it is apprehended, aof new litigation would be opened which ultimately is likely to not only weaken the discipline in the Armed Forces but also result in great hardship to all those whose rights have already been determined. Such an apprehension is misplaced in view of "de facto doctrine" born out of necessity as acknowledged and approved by various pronouncements of the Courts.In view of this position of law the judgments rendered by thewhich have attained finality cannot be permitted to beon the basis of law laid down in this judgment. The proceedings of anyif already challenged on this ground and are pending adjudication in any Court in the country would, however, be not governed by the principles of `de facto doctrine. No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification ofon the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the fit persons asls, if so required.	0	11,312	### 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: by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State legislative enactments which are replete with such provisions. The twentieth amendment of the Constitution is an instance where the de facto doctrine was applied by the constituent body to remove any suspicion or taint of illegality or invalidity that may be argued to have attached itself to judgments, decrees, sentences or orders passed or made by certain District Judges appointed before 1966, otherwise that in accordance with the provision of Article 233 and Article 235 of the Constitution. The twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of U.P., 1967(1) SCR 77, that appointments of District Judges made otherwise that in accordance with the provisions of Articles 233 and 235 were invalid. As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the constituent body by amending the Constitution. Shri Phadke, learned counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superfluous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the twentieth amendment of the Constitution that, but for the amendment, the judgments, decrees, etc. of the District Judges appointed otherwise than in accordance with the provisions of Article 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make superfluous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious). When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to particular case does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case this Court had held that appointments of District Judges made otherwise than in accordance with Article 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and not to alter the law that the twentieth amendment of the Constitution was made. This is clear from the Statement of Objects and Reasons appended to the Bill which was Â? passed as Constitution (20th Amendment) Act, 1966. The statement said :Amendments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of Article 233 of the Constitution...... As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of writ petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically come to a standstill. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States......"This position of law was again reiterated in State of U.P. v. Rafiquddin, 1988(1) SLR 491 : 1987 Supp. SCC 401 wherein it was held :"We have recorded findings that 21 unplaced candidates of 1970 examination were appointed to the service illegally in breach of the Rules. We would, however, like to add that even though their appointment was not in accordance with the law but the judgments and orders passed by them are not rendered invalid. The unplaced candidate are not usurpers of office, they were appointed by the competent authority to the posts of munsifs with the concurrence of the High Court, though they had not been found suitable for appointment according to the norms fixed by the Public Service Commission. They have been working in the judicial service during all these years and some of them have been promoted also and they have performed their functions and duties as de facto judicial officers. "A person who is ineligible to judgeship, but who has nevertheless been duly appointed and who exercises the powers and duties of the office of a de facto judge, he acts validly until he is properly removed". Judgment and orders of a de facto judge cannot be challenged on the ground of his ineligibility for appointment." 22. In view of this position of law the judgments rendered by the court-martial which have attained finality cannot be permitted to be re-opened on the basis of law laid down in this judgment. The proceedings of any court-martial, if already challenged on this ground and are pending adjudication in any Court in the country would, however, be not governed by the principles of `de facto doctrine. No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification of Judge-Advocate on the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the fit persons as Judge-Advocate in pending court-martials, if so required. ### Response: 0
542	S. Mohan Vs. Central Bureau Of Investigation	committed by the appellant Hiten P. Dalal. He has not acted contrary to the direction of any person who has entrusted these units to him and it is proved that it was the appellant Hiten P. Dalal himself who was the apparent owner of these units.12. As regards appellant S. Mohan who was one of the Asst. Vice- Presidents of CANFINA, the prosecution case is that he had telephonically informed PW 6 Mr. Vernekar to accept the CANCIGO Units. PW 6 Vernekar is an Officer of the Canara Bank who had been authorized by the Board Resolution to deal in Securities/Bonds and execute securities transactions on behalf of CANFINA. He deposed that he used to receive telephonic instructions from Bangalore and recorded these instructions in rough transaction sheets. He has proved the rough transaction sheets including the rough transaction sheet on which Ex-51A has been noted. PW-6 deposed that the Entry pertaining to purchase of CANCIGO Units of the face value of Rs. 33 crores from accused No. 4 was made on the basis of the instructions received from accused no. 3, namely, appellant S. Mohan. He also deposed that the appellant S. Mohan sent an Inter Branch Advice No. 32894 by which the funds were transferred from Bangalore to Bombay in order to facilitate the payment. He deposed that the date 6th February 1992 was written because CANFINA Bangalore had purchased CANCIGO Units of face value of Rs. 33 crores on 6th February 1992. He also deposed that appellant S. Mohan had told him that a sum of Rs. 25,01,67,129/- was recoverable from accused no. 4 against some transactions and that this amount was to be adjusted against the transaction of purchase of CANCIGO Units of face value of Rs. 33 crores. All these evidence would only show that the appellant S. Mohan was involved in the transaction. The prosecution could not prove that there was any illegality in these transactions. The only illegality pointed out by the learned Counsel for the CBI is that these CANCIGO Units were not liable to be transferred and the Andhra Bank and Andhra Bank Financial Services Limited could not have transferred it to the appellant Hiten P. Dalal. So long as the CANFINA has no grievance or complaintagainst the appellant S. Mohan that he acted contrary to their directions and accepted the CANCIGO Units and paid the money to the appellant Hiten P. Dalal, no offence is made out against the appellant S. Mohan either of Criminal Breach of Trust or conspiracy. In fact, PW 1 (Mr. Kini, Executive Vice President) has admitted that CANFINA used to regularly deal in CANCIGO Units, that neither the Audit nor RBI made any remarks regarding transactions relating to CANCIGO Units and all the transactions relating to CANCIGO Units were in the ordinary course of business. Neither Canara Bank nor CANFINA had initiated any disciplinary proceedings against him. They have also not disputed the genuineness of the CANCIGO Units which were got encashed by the appellant Hiten P. Dalal. 13. The Managing Director of CANFINA (K.N. Kamath) was examined as PW 16. He admitted that CANFINA did not file any complaint with CBI regarding purchase of CANCIGO Units of Rs. 33 crores; that according to CANFINA, the CANCIGO Units were purchased for valuable consideration in the normal course of business; that CANFINA stood by the transactions of purchase of CANCIGO Units of Rs. 33 crores; that CANFINA was not induced to purchase the CANCIGO Units of Rs. 33 crores by any false representation. 14. In the circumstances, no ingredient of criminal breach of trust is made out against either of the appellants.15. The prosecution also could not prove any conspiracy by these accused persons to commit any criminal acts. So long as there was no such evidence, the offence of conspiracy is not proved against these appellants.16. The appellant Hiten P. Dalal has been found guilty for the offence punishable under Section 411 alleging that he dishonestly received the stolen property or retained the same. No ingredients of this offence have been proved against him. So long as the prosecution admits that the CANCIGO Units worth Rs. 33 crores were purchased by making use of the money owned by him, they were not stolen property in the hands of the appellant Hiten P. Dalal. Neither, the Andhra Bank nor the Andhra Bank Financial Services Limited has any case that these CANCIGO Units were stolen by the appellant Hiten P. Dalal. As the offence of Criminal Breach of Trust is also not made, the conviction of the appellant under Section 411 is not sustainable and is liable to be quashed. So also, the appellant S. Mohan is not liable for the conspiracy to commit offence under Section 411 IPC.17. The appellant S. Mohan has been found guilty of offence punishable under Section 13(1) (c) and 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act. This appellant was one of the Asst. Vice-Presidents of the CANFINA dealing with CANCIGO Units. There is no allegation that he committed any illegality. The allegation against him is to the extent that he accepted the CANCIGO Units though they stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited. These CANCIGO Units were worth Rs. 33 crores and they were accepted with the proper authorization by the higher authorities in the CANFINA. It is highly improbable to believe that appellant S. Mohan on his own decided to accept CANCIGO Units worth Rs. 33 crores without any instructions. CANFINA did not file any complaint alleging any unauthorized transaction carried out by him. Now it has been held by this Court that the entire transaction was legal and the CANFINA was entitled to the proceeds of these CANCIGO Units and not the "Custodian" under the Act. Therefore, the appellant S. Mohan is not guilty of the offence punishable under Section 13(1) (c ) and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act.	1[ds]9. These two appellants were found guilty by the Special Court mainly on the ground that the CANCIGO Units issued by CBMF of the face value of Rs. 33 crores stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited and the appellant Hiten P. Dalal was not entitled to get transfer of these CANCIGO Units and that the appellant S. Mohan (in Criminal Appeal No. 906 of 1998) was instrumental in such transaction and thus entered into a conspiracy with the accused no. 4. Both the appellants have been found guilty of offences punishable under Section 406 namely, Criminal Breach of Trust. It is important to note that, in the instant case, there was no complaint either by the Andhra Bank or the Andhra Bank Financial Services Limited that these appellants committed any criminal breach ofis true that if a person entrusted with property dishonestly misappropriates that property, such misappropriation in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made in regard to discharge of such trust, will be guilty of criminal breach of trust. According to the prosecution, both these appellants acted contrary to the express condition that these CANCIGO Units were not liable to be transferred within a period of one year and in spite of this, the Andhra Bank as well as Andhra Bank Financial Services Limited transferred the units in favour of the appellant Hiten P. Dalal and enabled him to encash the CANCIGO Units with the connivance of appellant S. Mohan and that constituted the offence of Criminal Breach of Trust. It was alleged that Accused No. 3 while employed by CANFINA, obtained for Accused No. 4, a pecuniary advantage of Rs. 33 crores by illegally purchasing CANCIGO Units and committed criminal breach of trust in regard to the employers funds of Rs. 33 crores. It is important to note that these Units were issued by CBMF. They had imposed restrictions regarding transfer of CANCIGO Units. They have not filed any complaint alleging that transfer of these Units by appellant Hiten P. Dalal was contrary to rules. There is no express law or statutory rules prohibiting the transfer of CANCIGO Units except the terms of the scheme framed by CBMF. They are not statutory rules and purely contractual. It is also pertinent to note that neither the Andhra Bank nor the Andhra Bank Financial Services Limited filed any complaint alleging that the appellant Hiten P. Dalal acted contrary to their directions. Nor did CANFINA complain that appellant S. Mohan had committed criminal breach of trust in regard to these transactions of CANCIGO Units.It is not disputed that CANCIGO Units worth Rs. 33 crores were purchased by Andhra Bank or Andhra Bank Financial Services Limited by making use of the money owned by the appellant Hiten P. Dalal. These two financial institutions impliedly agreed to lend their name and allowed the appellant Hiten P. Dalal to purchase CANCIGO Units in their name. It is also important to note that interest due on the CANCIGO Units worth Rs. 33 crores received from CBMF by Andhra Bank and Andhra Bank Financial Services Ltd. were credited to the account of the appellant Hiten P. Dalal. Therefore, it is clear for all practical purposes that the CANCIGO Units worth Rs. 33 crores were purchased by the appellant Hiten P. Dalal and he transferred these units to CANFINA and CBMF did not raise any objection in respect of transfer of the CANCIGO Units by the appellant Hiten P. Dalal. If at all, it was for the CBMF to raise any objection but they did not raise any objection for the transfer of the CANCIGO Units. It has been held by this Court in Canbank Financial Services Ltd. (supra) that the custodian was not entitled to get the value of the CANCIGO Units and that the CANFINA had a just right to possess the CANCIGO Units to the exclusion of Hiten P. Dalal. It is also not in dispute that CANFINA had succeeded in getting the proceeds of these CANCIGO Units. Therefore, no offence of Criminal Breach of Trust is committed by the appellant Hiten P. Dalal. He has not acted contrary to the direction of any person who has entrusted these units to him and it is proved that it was the appellant Hiten P. Dalal himself who was the apparent owner of these units.12. As regards appellant S. Mohan who was one of the Asst. VicePresidents of CANFINA, the prosecution case is that he had telephonically informed PW 6 Mr. Vernekar to accept the CANCIGO Units. PW 6 Vernekar is an Officer of the Canara Bank who had been authorized by the Board Resolution to deal in Securities/Bonds and execute securities transactions on behalf of CANFINA. He deposed that he used to receive telephonic instructions from Bangalore and recorded these instructions in rough transaction sheets. He has proved the rough transaction sheets including the rough transaction sheet on whichhas been noted.deposed that the Entry pertaining to purchase of CANCIGO Units of the face value of Rs. 33 crores from accused No. 4 was made on the basis of the instructions received from accused no. 3, namely, appellant S. Mohan. He also deposed that the appellant S. Mohan sent an Inter Branch Advice No. 32894 by which the funds were transferred from Bangalore to Bombay in order to facilitate the payment. He deposed that the date 6th February 1992 was written because CANFINA Bangalore had purchased CANCIGO Units of face value of Rs. 33 crores on 6th February 1992. He also deposed that appellant S. Mohan had told him that a sum of Rs. 25,01,67,129/was recoverable from accused no. 4 against some transactions and that this amount was to be adjusted against the transaction of purchase of CANCIGO Units of face value of Rs. 33 crores. All these evidence would only show that the appellant S. Mohan was involved in the transaction. The prosecution could not prove that there was any illegality in these transactions. The only illegality pointed out by the learned Counsel for the CBI is that these CANCIGO Units were not liable to be transferred and the Andhra Bank and Andhra Bank Financial Services Limited could not have transferred it to the appellant Hiten P. Dalal. So long as the CANFINA has no grievance or complaintagainst the appellant S. Mohan that he acted contrary to their directions and accepted the CANCIGO Units and paid the money to the appellant Hiten P. Dalal, no offence is made out against the appellant S. Mohan either of Criminal Breach of Trust or conspiracy. In fact, PW 1 (Mr. Kini, Executive Vice President) has admitted that CANFINA used to regularly deal in CANCIGO Units, that neither the Audit nor RBI made any remarks regarding transactions relating to CANCIGO Units and all the transactions relating to CANCIGO Units were in the ordinary course of business. Neither Canara Bank nor CANFINA had initiated any disciplinary proceedings against him. They have also not disputed the genuineness of the CANCIGO Units which were got encashed by the appellant Hiten P. Dalal.In the circumstances, no ingredient of criminal breach of trust is made out against either of the appellants.15. The prosecution also could not prove any conspiracy by these accused persons to commit any criminal acts. So long as there was no such evidence, the offence of conspiracy is not proved against these appellants.16. The appellant Hiten P. Dalal has been found guilty for the offence punishable under Section 411 alleging that he dishonestly received the stolen property or retained the same. No ingredients of this offence have been proved against him. So long as the prosecution admits that the CANCIGO Units worth Rs. 33 crores were purchased by making use of the money owned by him, they were not stolen property in the hands of the appellant Hiten P. Dalal. Neither, the Andhra Bank nor the Andhra Bank Financial Services Limited has any case that these CANCIGO Units were stolen by the appellant Hiten P. Dalal. As the offence of Criminal Breach of Trust is also not made, the conviction of the appellant under Section 411 is not sustainable and is liable to be quashed. So also, the appellant S. Mohan is not liable for the conspiracy to commit offence under Section 411 IPC.17. The appellant S. Mohan has been found guilty of offence punishable under Section 13(1) (c) and 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act. This appellant was one of the Asst.of the CANFINA dealing with CANCIGO Units. There is no allegation that he committed any illegality. The allegation against him is to the extent that he accepted the CANCIGO Units though they stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited. These CANCIGO Units were worth Rs. 33 crores and they were accepted with the proper authorization by the higher authorities in the CANFINA. It is highly improbable to believe that appellant S. Mohan on his own decided to accept CANCIGO Units worth Rs. 33 crores without any instructions. CANFINA did not file any complaint alleging any unauthorized transaction carried out by him. Now it has been held by this Court that the entire transaction was legal and the CANFINA was entitled to the proceeds of these CANCIGO Units and not the "Custodian" under the Act. Therefore, the appellant S. Mohan is not guilty of the offence punishable under Section 13(1) (c ) and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act.	1	4,568	### 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: committed by the appellant Hiten P. Dalal. He has not acted contrary to the direction of any person who has entrusted these units to him and it is proved that it was the appellant Hiten P. Dalal himself who was the apparent owner of these units.12. As regards appellant S. Mohan who was one of the Asst. Vice- Presidents of CANFINA, the prosecution case is that he had telephonically informed PW 6 Mr. Vernekar to accept the CANCIGO Units. PW 6 Vernekar is an Officer of the Canara Bank who had been authorized by the Board Resolution to deal in Securities/Bonds and execute securities transactions on behalf of CANFINA. He deposed that he used to receive telephonic instructions from Bangalore and recorded these instructions in rough transaction sheets. He has proved the rough transaction sheets including the rough transaction sheet on which Ex-51A has been noted. PW-6 deposed that the Entry pertaining to purchase of CANCIGO Units of the face value of Rs. 33 crores from accused No. 4 was made on the basis of the instructions received from accused no. 3, namely, appellant S. Mohan. He also deposed that the appellant S. Mohan sent an Inter Branch Advice No. 32894 by which the funds were transferred from Bangalore to Bombay in order to facilitate the payment. He deposed that the date 6th February 1992 was written because CANFINA Bangalore had purchased CANCIGO Units of face value of Rs. 33 crores on 6th February 1992. He also deposed that appellant S. Mohan had told him that a sum of Rs. 25,01,67,129/- was recoverable from accused no. 4 against some transactions and that this amount was to be adjusted against the transaction of purchase of CANCIGO Units of face value of Rs. 33 crores. All these evidence would only show that the appellant S. Mohan was involved in the transaction. The prosecution could not prove that there was any illegality in these transactions. The only illegality pointed out by the learned Counsel for the CBI is that these CANCIGO Units were not liable to be transferred and the Andhra Bank and Andhra Bank Financial Services Limited could not have transferred it to the appellant Hiten P. Dalal. So long as the CANFINA has no grievance or complaintagainst the appellant S. Mohan that he acted contrary to their directions and accepted the CANCIGO Units and paid the money to the appellant Hiten P. Dalal, no offence is made out against the appellant S. Mohan either of Criminal Breach of Trust or conspiracy. In fact, PW 1 (Mr. Kini, Executive Vice President) has admitted that CANFINA used to regularly deal in CANCIGO Units, that neither the Audit nor RBI made any remarks regarding transactions relating to CANCIGO Units and all the transactions relating to CANCIGO Units were in the ordinary course of business. Neither Canara Bank nor CANFINA had initiated any disciplinary proceedings against him. They have also not disputed the genuineness of the CANCIGO Units which were got encashed by the appellant Hiten P. Dalal. 13. The Managing Director of CANFINA (K.N. Kamath) was examined as PW 16. He admitted that CANFINA did not file any complaint with CBI regarding purchase of CANCIGO Units of Rs. 33 crores; that according to CANFINA, the CANCIGO Units were purchased for valuable consideration in the normal course of business; that CANFINA stood by the transactions of purchase of CANCIGO Units of Rs. 33 crores; that CANFINA was not induced to purchase the CANCIGO Units of Rs. 33 crores by any false representation. 14. In the circumstances, no ingredient of criminal breach of trust is made out against either of the appellants.15. The prosecution also could not prove any conspiracy by these accused persons to commit any criminal acts. So long as there was no such evidence, the offence of conspiracy is not proved against these appellants.16. The appellant Hiten P. Dalal has been found guilty for the offence punishable under Section 411 alleging that he dishonestly received the stolen property or retained the same. No ingredients of this offence have been proved against him. So long as the prosecution admits that the CANCIGO Units worth Rs. 33 crores were purchased by making use of the money owned by him, they were not stolen property in the hands of the appellant Hiten P. Dalal. Neither, the Andhra Bank nor the Andhra Bank Financial Services Limited has any case that these CANCIGO Units were stolen by the appellant Hiten P. Dalal. As the offence of Criminal Breach of Trust is also not made, the conviction of the appellant under Section 411 is not sustainable and is liable to be quashed. So also, the appellant S. Mohan is not liable for the conspiracy to commit offence under Section 411 IPC.17. The appellant S. Mohan has been found guilty of offence punishable under Section 13(1) (c) and 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act. This appellant was one of the Asst. Vice-Presidents of the CANFINA dealing with CANCIGO Units. There is no allegation that he committed any illegality. The allegation against him is to the extent that he accepted the CANCIGO Units though they stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited. These CANCIGO Units were worth Rs. 33 crores and they were accepted with the proper authorization by the higher authorities in the CANFINA. It is highly improbable to believe that appellant S. Mohan on his own decided to accept CANCIGO Units worth Rs. 33 crores without any instructions. CANFINA did not file any complaint alleging any unauthorized transaction carried out by him. Now it has been held by this Court that the entire transaction was legal and the CANFINA was entitled to the proceeds of these CANCIGO Units and not the "Custodian" under the Act. Therefore, the appellant S. Mohan is not guilty of the offence punishable under Section 13(1) (c ) and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act. ### Response: 1
543	Secretary Irrigation Department Government Of Orissa Secretary & Ors Vs. G.C. Roy	the institution of the suit. (It was not a case under Arbitration Act but was a Civil Suit). In that connection the Court referred to Thawardas, as laying down the correct law in that behalf, along with Bengal Nagpur Railway (AIR 1938 PC 67 ) (supra) and Union of India v. A. L. Rallia Ram, (1964) 3 SCR 164 : (AIR 1963 SC 1685 ). It is not possible to read this paragraph as approving or affirming the decision of Thawardas insofar as it held that an arbitrator had no power to award interest pendente lite. 41. Mr. Sanghi then relied upon the decision in Rallia Ram (supra) to which a brief reference would be sufficient. That case related to the power of the Arbitrator to award interest for the pre-reference period. Following the decision of the Privy Council in Bengal Nagpur Railway and the decision of this Court in Thawardas it held that the Arbitrator had no power to award interest for the said period merely because he thought it to be just in the circumstances. It was held that interest for the pre-reference period is a matter of substantive law, usage or agreement. Accordingly, they held that in the absence of usage, contract or any provision of law to justify the award of interest, interest cannot be awarded by way of damages. We do not think that this case has any relevance on the question of arbitrators power to award interest pendente lite. 42. A few other decisions were also cited by both sides but we do not think it necessary to burden this judgment with them since those are not cases arising under the Arbitration Act or arbitration matters. 43. The question still remains whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does not provide for grant of such interest nor does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest. On a conspectus of aforementioned decisions, the following principles emerge: (i) A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This basic consideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of S.34,C.P.C., and there is no reason or principle to hold otherwise in the case of arbitrator. (ii) An arbitrator is an alternative form for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. if the arbitrator has no power to award interest pendente lite, the party claiming it would have to approach the Court for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings. (iii) An arbitrator is the creature of an agreement. It is open to the parties to confer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are not opposed to law. (The proviso to S.41 and S.3 of Arbitration Act illustrate this point). All the same, the agreement must be in conformity with law. The arbitrator must also act and make his award in accordance with the generallaw of the land and the agreement. (iv) Over the years, the English and Indian Courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. Thawardas (AIR 1955 SC 468 ) has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jenas case (AIR 1988 SC 1520 ) almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law. (v) Interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred. 44. Having regard to the above considerations, we think that the following is the correct principle which should be followed in this behalf:45. Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes - or refer the dispute as to interest as such to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view.46. For the reason afore said we must hold that the decision in Jena (AIR 1988 SC 1520 ), insofar as it runs counter to the above proposition, did not lay down correct law.	0[ds]if the arbitration agreement or the contract itself provides for award of interest on the amount found due from one arty to the other, no question regarding the absence of arbitrators jurisdiction to award the interest could arise as in that case the Arbitrator has power to award interest pendente lite as well. Similarly, where the agreement expressly provides that no interest pendente lite shall be payable on the amount due, the Arbitrator has no power to award pendente lite interest.It would be appropriate to deal,at this stage, with a submission of Sri Sanghi that inthis case, the Court stated in so many words that "all the disputes in the suit, including the question of interest were referred to the arbitrator for his decision". He urged that in the face of the said statement, it is not open to this Court to say that it was not a reference in a pending suit. But he conceded that on a reading of the judgment. it does not appear to be a reference in a pending suit, yet he contended that we cannot treat it as a case of reference otherwise than in a pending suit in view of the above quoted sentence.We cannot agree. On perusal of the facts as narrated in the judgment it is evident that the use of the words "in the suit" in the sentence quoted above is an accidental or typographicalhave already referred to the facts of all six cases hereinabove and we find that the learned counsel appears to be right in his submission. We must also point out that Nachiappa Chettiar decision dealt with interest for all three periods, viz. pre-reference, pendente lite and post-award, whereas Firm Madanlal Roshanlal dealt with pendente lite interest alone. Satinder Singhs case as has been pointed out hereinabove, was not a case under Arbitration Act at all but one arising under Punjab Requisition and Acquisition of Immovable Property Act, 1948. Bungo Steel dealt with the interest for the post-award period while Ashok Construction dealt generally with the power of the arbitrator to award interest from the due date onwards which evidently included pendente lite interest as well. Saith and Skelton dealt with power of the arbitrator to award interest for the period prior to reference.The first decision relied upon by him is in Union of India v. West Punjab Factories Ltd. (1966) 1 SCR 580 : (AIR 1966 SC 395 ).He referred to the passage at Page 590 to contend that the Constitution Bench in this case has approved decision in Thawardas (AIR 1955 SC 468 ).We do not agree.The question, the Constitution Bench was considering in the said paragraph was whether interest could be awarded for the period prior to the institution of the suit. (It was not a case under Arbitration Act but was a Civil Suit). In that connection the Court referred to Thawardas, as laying down the correct law in that behalf, along with Bengal Nagpur Railway (AIR 1938 PC 67 ) (supra) and Union of India v. A. L. Rallia Ram, (1964) 3 SCR 164 : (AIR 1963 SC 1685 ).It is not possible to read this paragraph as approving or affirming the decision of Thawardas insofar as it held that an arbitrator had no power to award interest pendente lite.Having regard to the above considerations, we think that the following is the correct principle which should be followed in this behalf:45. Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes - or refer the dispute as to interest as such to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view.46. For the reason afore said we must hold that the decision in Jena (AIR 1988 SC 1520 ), insofar as it runs counter to the above proposition, did not lay down correct law.	0	13,216	### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: the institution of the suit. (It was not a case under Arbitration Act but was a Civil Suit). In that connection the Court referred to Thawardas, as laying down the correct law in that behalf, along with Bengal Nagpur Railway (AIR 1938 PC 67 ) (supra) and Union of India v. A. L. Rallia Ram, (1964) 3 SCR 164 : (AIR 1963 SC 1685 ). It is not possible to read this paragraph as approving or affirming the decision of Thawardas insofar as it held that an arbitrator had no power to award interest pendente lite. 41. Mr. Sanghi then relied upon the decision in Rallia Ram (supra) to which a brief reference would be sufficient. That case related to the power of the Arbitrator to award interest for the pre-reference period. Following the decision of the Privy Council in Bengal Nagpur Railway and the decision of this Court in Thawardas it held that the Arbitrator had no power to award interest for the said period merely because he thought it to be just in the circumstances. It was held that interest for the pre-reference period is a matter of substantive law, usage or agreement. Accordingly, they held that in the absence of usage, contract or any provision of law to justify the award of interest, interest cannot be awarded by way of damages. We do not think that this case has any relevance on the question of arbitrators power to award interest pendente lite. 42. A few other decisions were also cited by both sides but we do not think it necessary to burden this judgment with them since those are not cases arising under the Arbitration Act or arbitration matters. 43. The question still remains whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does not provide for grant of such interest nor does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest. On a conspectus of aforementioned decisions, the following principles emerge: (i) A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This basic consideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of S.34,C.P.C., and there is no reason or principle to hold otherwise in the case of arbitrator. (ii) An arbitrator is an alternative form for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. if the arbitrator has no power to award interest pendente lite, the party claiming it would have to approach the Court for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings. (iii) An arbitrator is the creature of an agreement. It is open to the parties to confer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are not opposed to law. (The proviso to S.41 and S.3 of Arbitration Act illustrate this point). All the same, the agreement must be in conformity with law. The arbitrator must also act and make his award in accordance with the generallaw of the land and the agreement. (iv) Over the years, the English and Indian Courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. Thawardas (AIR 1955 SC 468 ) has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jenas case (AIR 1988 SC 1520 ) almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law. (v) Interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred. 44. Having regard to the above considerations, we think that the following is the correct principle which should be followed in this behalf:45. Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes - or refer the dispute as to interest as such to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view.46. For the reason afore said we must hold that the decision in Jena (AIR 1988 SC 1520 ), insofar as it runs counter to the above proposition, did not lay down correct law. ### Response: 0
544	The State Of Bihar Vs. Rat Bahadur Hurdut Roy-Mott Lall Jute Mills & Another	proviso in the light of the explanation to S. 5 of the Act.The explanation in terms enumerates deductions which have to be made in determining the taxable turnover of the registered dealer and it is to these deductions which are allowable under the three sections specified in the explanation to which the latter part of the proviso to R. 19 refers.A claim for the exclusion of a part of the first respondents turnover on the strength of S. 33(1) (a) (i) cannot, therefore, be said to be an allowable deduction under the proviso.16. This question can be considered from another point of view. The provisions which allow deductions to be made or grant exemptions in respect of certain transactions obviously postulate that but for them the transactions in question would be liable to tax under the Act; and so when such transactions are included in the return the registered dealer is allowed to claim appropriate deductions in respect of them. But, the position with regard to S. 33 is entirely different; transactions which attract the provisions of the said section are in substance outside the scope of the Act and no tax can be imposed on them at all.If that be the true position the claim which can be made by the registered dealer in respect of such transactions cannot in law be regarded as a claim for allowable deductions or exemptions properly so-called; it is really a claim that the Act itself does not apply to the said transactions. Therefore, in our opinion it would be straining the language of the second part of the proviso to R. 19 to hold that the transactions in question fell within its purview.17. There is one more point to be considered in this connection. Form VI which has been prescribed for making the returns under S. 12 requires the gross turnover to be mentioned at the outset, and then it provides for the different deductions allowable under the Act. This form was prescribed in 1949 and has not been amended after the addition of S. 33 to the Act. On looking at this form it seems difficult to entertain the argument that the claim for the total exclusion of the transactions in question can be made under any of the headings prescribed in the form. The appellant, however, contends that the first item of gross turnover means the whole of the gross turnover which must include all sale transactions whether they took place within Bihar or outside it, and in support of this argument reliance is placed on the definition of "turnover" contained in S. 2(i). If the whole of the gross turnover has to be mentioned under item 1, it is urged, the claim for the exclusion of the transactions in question can well be adjusted under one or the other of the deduction items prescribed in the form. We are not inclined to accept this argument. The form as it has been prescribed construed in the light of the material provisions contained in Ss. 6, 7 and 8 does not support the case that in prescribing its several items it was intended that the transactions falling under S. 33 should be first shown under item I and then excluded under one or the other of the remaining items of deduction. Besides it may be relevant to point out that the heading of Chapter VII which deals with the submission of returns by dealers is "return of taxable turnover" and it is arguable that the gross turnover mentioned in Form VI may mean "gross taxable turnover" and not the gross turnover including the transactions which are outside the scope of the Act.18. Then as to the argument about the contravention of S. 14A itself it is difficult to appreciate how any provision of S. 14A can be said to have been contravened. S. 14A consists of two parts both of which are put in a negative form. The second part with which we are concerned in effect means nothing more than this, that a registered dealer can make collections of such tax only as is payable by him in accordance with the restrictions and conditions as may be prescribed.If the argument is that the first respondent was not liable to pay any tax and as such was not entitled to make any corresponding collection, then the collection made by him may fall outside S. 14A and be otherwise unjustified or improper; but it does not amount to the contravention of any provision of S. 11A as such.In fact S. 14A itself refers to the restrictions and conditions which may be prescribed, and, as we have already seen, these conditions and restrictions are prescribed by the Rules in general and by R. 19 in particular. So the argument urged under S. 14A takes us back to the question as to whether the proviso to R. 19 has been contravened. In dealing with this question we cannot ignore the fact that the relevant provisions which fall to be construed in the present appeal impose a serious penalty on the registered dealer, and so, even if the view for which the appellant contends may perhaps be a possible view, we seen no reason why the other view for which the first respondent contends and which appears to us to be more reasonable should not be accepted.In the result we hold that the proviso to S. 14A cannot be invoked against the first respondent and so the order of forfeiture passed against him by the second respondent in unjustified and illegal.19. In view of this conclusion it is unnecessary to consider the objections raised by the first respondent against the validity of the proviso on the ground that it contravenes Arts. 20(1) and 31(2) of the Constitution. We may incidentally add that during the course of the arguments before us we have also heard all the learned counsel on the question as to whether the said proviso contravenes the provisions of Art. 19(1)(f) as well.	0[ds]16. This question can be considered from another point of view. The provisions which allow deductions to be made or grant exemptions in respect of certain transactions obviously postulate that but for them the transactions in question would be liable to tax under the Act; and so when such transactions are included in the return the registered dealer is allowed to claim appropriate deductions in respect of them. But, the position with regard to S. 33 is entirely different; transactions which attract the provisions of the said section are in substance outside the scope of the Act and no tax can be imposed on them at all.If that be the true position the claim which can be made by the registered dealer in respect of such transactions cannot in law be regarded as a claim for allowable deductions or exemptions properly so-called; it is really a claim that the Act itself does not apply to the said transactions. Therefore, in our opinion it would be straining the language of the second part of the proviso to R. 19 to hold that the transactions in question fell within its purview.17. There is one more point to be considered in this connection. Form VI which has been prescribed for making the returns under S. 12 requires the gross turnover to be mentioned at the outset, and then it provides for the different deductions allowable under the Act. This form was prescribed in 1949 and has not been amended after the addition of S. 33 to the Act. On looking at this form it seems difficult to entertain the argument that the claim for the total exclusion of the transactions in question can be made under any of the headings prescribed in the form. The appellant, however, contends that the first item of gross turnover means the whole of the gross turnover which must include all sale transactions whether they took place within Bihar or outside it, and in support of this argument reliance is placed on the definition of "turnover" contained in S. 2(i). If the whole of the gross turnover has to be mentioned under item 1, it is urged, the claim for the exclusion of the transactions in question can well be adjusted under one or the other of the deduction items prescribed in the form. We are not inclined to accept this argument. The form as it has been prescribed construed in the light of the material provisions contained in Ss. 6, 7 and 8 does not support the case that in prescribing its several items it was intended that the transactions falling under S. 33 should be first shown under item I and then excluded under one or the other of the remaining items of deduction. Besides it may be relevant to point out that the heading of Chapter VII which deals with the submission of returns by dealers is "return of taxable turnover" and it is arguable that the gross turnover mentioned in Form VI may mean "gross taxable turnover" and not the gross turnover including the transactions which are outside the scope of the Act.18. Then as to the argument about the contravention of S. 14A itself it is difficult to appreciate how any provision of S. 14A can be said to have been contravened. S. 14A consists of two parts both of which are put in a negative form. The second part with which we are concerned in effect means nothing more than this, that a registered dealer can make collections of such tax only as is payable by him in accordance with the restrictions and conditions as may be prescribed.If the argument is that the first respondent was not liable to pay any tax and as such was not entitled to make any corresponding collection, then the collection made by him may fall outside S. 14A and be otherwise unjustified or improper; but it does not amount to the contravention of any provision of S. 11A as such.In fact S. 14A itself refers to the restrictions and conditions which may be prescribed, and, as we have already seen, these conditions and restrictions are prescribed by the Rules in general and by R. 19 in particular. So the argument urged under S. 14A takes us back to the question as to whether the proviso to R. 19 has been contravened. In dealing with this question we cannot ignore the fact that the relevant provisions which fall to be construed in the present appeal impose a serious penalty on the registered dealer, and so, even if the view for which the appellant contends may perhaps be a possible view, we seen no reason why the other view for which the first respondent contends and which appears to us to be more reasonable should not be accepted.In the result we hold that the proviso to S. 14A cannot be invoked against the first respondent and so the order of forfeiture passed against him by the second respondent in unjustified and illegal.19. In view of this conclusion it is unnecessary to consider the objections raised by the first respondent against the validity of the proviso on the ground that it contravenes Arts. 20(1) and 31(2) of the Constitution. We may incidentally add that during the course of the arguments before us we have also heard all the learned counsel on the question as to whether the said proviso contravenes the provisions of Art. 19(1)(f) as well.	0	5,184	### 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: proviso in the light of the explanation to S. 5 of the Act.The explanation in terms enumerates deductions which have to be made in determining the taxable turnover of the registered dealer and it is to these deductions which are allowable under the three sections specified in the explanation to which the latter part of the proviso to R. 19 refers.A claim for the exclusion of a part of the first respondents turnover on the strength of S. 33(1) (a) (i) cannot, therefore, be said to be an allowable deduction under the proviso.16. This question can be considered from another point of view. The provisions which allow deductions to be made or grant exemptions in respect of certain transactions obviously postulate that but for them the transactions in question would be liable to tax under the Act; and so when such transactions are included in the return the registered dealer is allowed to claim appropriate deductions in respect of them. But, the position with regard to S. 33 is entirely different; transactions which attract the provisions of the said section are in substance outside the scope of the Act and no tax can be imposed on them at all.If that be the true position the claim which can be made by the registered dealer in respect of such transactions cannot in law be regarded as a claim for allowable deductions or exemptions properly so-called; it is really a claim that the Act itself does not apply to the said transactions. Therefore, in our opinion it would be straining the language of the second part of the proviso to R. 19 to hold that the transactions in question fell within its purview.17. There is one more point to be considered in this connection. Form VI which has been prescribed for making the returns under S. 12 requires the gross turnover to be mentioned at the outset, and then it provides for the different deductions allowable under the Act. This form was prescribed in 1949 and has not been amended after the addition of S. 33 to the Act. On looking at this form it seems difficult to entertain the argument that the claim for the total exclusion of the transactions in question can be made under any of the headings prescribed in the form. The appellant, however, contends that the first item of gross turnover means the whole of the gross turnover which must include all sale transactions whether they took place within Bihar or outside it, and in support of this argument reliance is placed on the definition of "turnover" contained in S. 2(i). If the whole of the gross turnover has to be mentioned under item 1, it is urged, the claim for the exclusion of the transactions in question can well be adjusted under one or the other of the deduction items prescribed in the form. We are not inclined to accept this argument. The form as it has been prescribed construed in the light of the material provisions contained in Ss. 6, 7 and 8 does not support the case that in prescribing its several items it was intended that the transactions falling under S. 33 should be first shown under item I and then excluded under one or the other of the remaining items of deduction. Besides it may be relevant to point out that the heading of Chapter VII which deals with the submission of returns by dealers is "return of taxable turnover" and it is arguable that the gross turnover mentioned in Form VI may mean "gross taxable turnover" and not the gross turnover including the transactions which are outside the scope of the Act.18. Then as to the argument about the contravention of S. 14A itself it is difficult to appreciate how any provision of S. 14A can be said to have been contravened. S. 14A consists of two parts both of which are put in a negative form. The second part with which we are concerned in effect means nothing more than this, that a registered dealer can make collections of such tax only as is payable by him in accordance with the restrictions and conditions as may be prescribed.If the argument is that the first respondent was not liable to pay any tax and as such was not entitled to make any corresponding collection, then the collection made by him may fall outside S. 14A and be otherwise unjustified or improper; but it does not amount to the contravention of any provision of S. 11A as such.In fact S. 14A itself refers to the restrictions and conditions which may be prescribed, and, as we have already seen, these conditions and restrictions are prescribed by the Rules in general and by R. 19 in particular. So the argument urged under S. 14A takes us back to the question as to whether the proviso to R. 19 has been contravened. In dealing with this question we cannot ignore the fact that the relevant provisions which fall to be construed in the present appeal impose a serious penalty on the registered dealer, and so, even if the view for which the appellant contends may perhaps be a possible view, we seen no reason why the other view for which the first respondent contends and which appears to us to be more reasonable should not be accepted.In the result we hold that the proviso to S. 14A cannot be invoked against the first respondent and so the order of forfeiture passed against him by the second respondent in unjustified and illegal.19. In view of this conclusion it is unnecessary to consider the objections raised by the first respondent against the validity of the proviso on the ground that it contravenes Arts. 20(1) and 31(2) of the Constitution. We may incidentally add that during the course of the arguments before us we have also heard all the learned counsel on the question as to whether the said proviso contravenes the provisions of Art. 19(1)(f) as well. ### Response: 0
545	Yash Raj Films Private Limited Vs. Assistant Commissioner of Income-Tax & Others	again sought to reopen the assessment for the assessment year 2004-2005 by recording reasons as follows :-The assessee company is engaged in the business of production and distribution of films. The return of the A.Y.2004-05 was filed on 31/10/2004 declaring total income of Rs.4,57,64,160/-. The assessment was completed u/s 143(3) on 19/12/2006 determining total income at Rs. 473,63,940/-.Subsequently it was noticed that the assessee company has debited an amount of Rs.95,41,541/- in P & L A/c .(Schedule 14 Administrative Expenses) as bad debt written of. As per Assessees letter dated 13/11/2006 ,the details of bad debts written of is Rs.94,41,540/- and the major parties are "Aum Creaters Unlimited" for Rs.86,94,516/-and "Raam Raj Kalamandir" for Rs. 500,000/-.The amount due from Amu Creaters Unlimited of Rs.85,94,516/-relates to advances paid and expenses incurred by the assessee in the F.Y.2002-03 .The amount due from Raam Raj Kalamandir of Rs.500,000/- also relates to advance paid to the party. It is noticed that the advances so paid to the above parties by the assessee have not been shown as income and the nature of business of the assessee is not money lending. The said expenses incurred by the assessee in the earlier year on behalf of the above parties are also not shown as income in the P & L A./c.As per section 36(1)(vii) of the I.T.Act Amount of any debt or part thereof is allowable as deduction subject to the debt has been taken into account in computing the income of the assessee of the previous year or of an earlier previous years, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee.The assessee company has deliberately concealed the fact that Rs.94,41,540/-was never offered as an income. In this case provisions to section 147 is clearly applicable as there was failure on the part of the assessee company to declare fully and truly all material facts necessary for its assessment for the A.Y.2004-05.In view of the above reason, income chargeable to tax of Rs.95,41,540/- has escaped assessment for A.Y.2004-05 within the meaning of section 147. The assessees case is covered within the meaning of Section 149(1)(b) of the I.T.Act ,1961 as the concealed income exceeds Rs.1,00,000/-.7. On perusal of the reasons recorded it is seen that the assessment for the assessment year 2004-2005 is sought to be reopened mainly on the ground that as per section 36(1)(vii) of the I.T.Act amount of any debt or part thereof which has become irrecoverable can be allowed provided the debt has been taken into account in computing the income of the assessee of that previous year or of an earlier previous year, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee. In the present case during the assessment proceedings the assessing officer enquired the very same issue and on being satisfied allowed the claim. Thereafter notice under section 148 of the Act was issued on 23/3/2009 within four years from the end of the relevant assessment year and again on receiving explanation from the assessee, no further action was taken on the notice dated 23/3/20098. Once again, by the impugned notice dated 22/3/2010 the assessment is sought to be reopened on the very same grounds after the expiry four years from the end of the relevant assessment year.9. As per the proviso to section 147 of the Income Tax Act, 1961 assessment beyond four years from the end of the relevant assessment year can be reopened only if there is failure on the part of the assessee to disclose fully and truly the material facts. In the present case admittedly the question regarding availability of Rs.94 lacs as bad debt was specifically raised in the original assessment proceedings and on receiving explanation from the assessee the claim of the assessee was allowed. In these circumstances it cannot be said that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for the purpose of assessment.10. Reliance is placed by the counsel for the Revenue on the decision of this Court in the case of Dr. Amins Pathology Laboratory Vs. P.N.Prasad, Joint Commissioner of Income Tax and others (No.1), 252 ITR 673 (Bom.) In that case it was held that mere production of balance sheet or account books would not amount to disclosure of material facts necessary for assessment . As noted earlier in the present case the very specific issue regarding allowability of the bad debt was raised during the course of assessment proceedings and only after being satisfied the Assessment Officer allowed the claim of the assessee. Therefore, the decision of this Court in the case of Dr.Amin Pathology Laboratory has no relevance in the facts and circumstances of this case.11. Similarly reliance is placed by the counsel for the Revenue on the decisions in the case of Smt.Nilofer Hameed And Another Vs.Income Tax Officer, 235 ITR 161 (Kerala) and Sukhlal Ice and Cold Storage Company V. Income Tax Officer and Another 1993 ITR 129 (Allahabad High Court). These rulings have no relevance to the facts and circumstances of the present case.In both the aforesaid cases, since the first notice issued for reopening of the assessment was held to be invalid, the second notice issued was held to be valid. In the present case, the notice is invalid not because it is the second notice, but because, there was no failure to disclose fully and truly all material facts. Therefore, both the aforesaid decisions relied upon by the counsel for the revenue have no relevance to the facts of the present case.12. Once it is held that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, the impugned notice issued beyond the period of four years from the end of the relevant assessment year cannot be sustained .	1[ds]7. On perusal of the reasons recorded it is seen that the assessment for the assessment yearis sought to be reopened mainly on the ground that as per section 36(1)(vii) of the I.T.Act amount of any debt or part thereof which has become irrecoverable can be allowed provided the debt has been taken into account in computing the income of the assessee of that previous year or of an earlier previous year, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee. In the present case during the assessment proceedings the assessing officer enquired the very same issue and on being satisfied allowed the claim. Thereafter notice under section 148 of the Act was issued on 23/3/2009 within four years from the end of the relevant assessment year and again on receiving explanation from the assessee, no further action was taken on the notice datedAs per the proviso to section 147 of the Income Tax Act, 1961 assessment beyond four years from the end of the relevant assessment year can be reopened only if there is failure on the part of the assessee to disclose fully and truly the material facts. In the present case admittedly the question regarding availability of Rs.94 lacs as bad debt was specifically raised in the original assessment proceedings and on receiving explanation from the assessee the claim of the assessee was allowed. In these circumstances it cannot be said that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for the purpose ofnoted earlier in the present case the very specific issue regarding allowability of the bad debt was raised during the course of assessment proceedings and only after being satisfied the Assessment Officer allowed the claim of the assessee. Therefore, the decision of this Court in the case of Dr.Amin Pathology Laboratory has no relevance in the facts and circumstances of this case.11. Similarly reliance is placed by the counsel for the Revenue on the decisions in the case of Smt.Nilofer Hameed And Another Vs.Income Tax Officer, 235 ITR 161 (Kerala) and Sukhlal Ice and Cold Storage Company V. Income Tax Officer and Another 1993 ITR 129 (Allahabad High Court). These rulings have no relevance to the facts and circumstances of the present case.In both the aforesaid cases, since the first notice issued for reopening of the assessment was held to be invalid, the second notice issued was held to be valid. In the present case, the notice is invalid not because it is the second notice, but because, there was no failure to disclose fully and truly all material facts. Therefore, both the aforesaid decisions relied upon by the counsel for the revenue have no relevance to the facts of the present case.12. Once it is held that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, the impugned notice issued beyond the period of four years from the end of the relevant assessment year cannot be sustained .	1	1,783	### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: again sought to reopen the assessment for the assessment year 2004-2005 by recording reasons as follows :-The assessee company is engaged in the business of production and distribution of films. The return of the A.Y.2004-05 was filed on 31/10/2004 declaring total income of Rs.4,57,64,160/-. The assessment was completed u/s 143(3) on 19/12/2006 determining total income at Rs. 473,63,940/-.Subsequently it was noticed that the assessee company has debited an amount of Rs.95,41,541/- in P & L A/c .(Schedule 14 Administrative Expenses) as bad debt written of. As per Assessees letter dated 13/11/2006 ,the details of bad debts written of is Rs.94,41,540/- and the major parties are "Aum Creaters Unlimited" for Rs.86,94,516/-and "Raam Raj Kalamandir" for Rs. 500,000/-.The amount due from Amu Creaters Unlimited of Rs.85,94,516/-relates to advances paid and expenses incurred by the assessee in the F.Y.2002-03 .The amount due from Raam Raj Kalamandir of Rs.500,000/- also relates to advance paid to the party. It is noticed that the advances so paid to the above parties by the assessee have not been shown as income and the nature of business of the assessee is not money lending. The said expenses incurred by the assessee in the earlier year on behalf of the above parties are also not shown as income in the P & L A./c.As per section 36(1)(vii) of the I.T.Act Amount of any debt or part thereof is allowable as deduction subject to the debt has been taken into account in computing the income of the assessee of the previous year or of an earlier previous years, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee.The assessee company has deliberately concealed the fact that Rs.94,41,540/-was never offered as an income. In this case provisions to section 147 is clearly applicable as there was failure on the part of the assessee company to declare fully and truly all material facts necessary for its assessment for the A.Y.2004-05.In view of the above reason, income chargeable to tax of Rs.95,41,540/- has escaped assessment for A.Y.2004-05 within the meaning of section 147. The assessees case is covered within the meaning of Section 149(1)(b) of the I.T.Act ,1961 as the concealed income exceeds Rs.1,00,000/-.7. On perusal of the reasons recorded it is seen that the assessment for the assessment year 2004-2005 is sought to be reopened mainly on the ground that as per section 36(1)(vii) of the I.T.Act amount of any debt or part thereof which has become irrecoverable can be allowed provided the debt has been taken into account in computing the income of the assessee of that previous year or of an earlier previous year, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee. In the present case during the assessment proceedings the assessing officer enquired the very same issue and on being satisfied allowed the claim. Thereafter notice under section 148 of the Act was issued on 23/3/2009 within four years from the end of the relevant assessment year and again on receiving explanation from the assessee, no further action was taken on the notice dated 23/3/20098. Once again, by the impugned notice dated 22/3/2010 the assessment is sought to be reopened on the very same grounds after the expiry four years from the end of the relevant assessment year.9. As per the proviso to section 147 of the Income Tax Act, 1961 assessment beyond four years from the end of the relevant assessment year can be reopened only if there is failure on the part of the assessee to disclose fully and truly the material facts. In the present case admittedly the question regarding availability of Rs.94 lacs as bad debt was specifically raised in the original assessment proceedings and on receiving explanation from the assessee the claim of the assessee was allowed. In these circumstances it cannot be said that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for the purpose of assessment.10. Reliance is placed by the counsel for the Revenue on the decision of this Court in the case of Dr. Amins Pathology Laboratory Vs. P.N.Prasad, Joint Commissioner of Income Tax and others (No.1), 252 ITR 673 (Bom.) In that case it was held that mere production of balance sheet or account books would not amount to disclosure of material facts necessary for assessment . As noted earlier in the present case the very specific issue regarding allowability of the bad debt was raised during the course of assessment proceedings and only after being satisfied the Assessment Officer allowed the claim of the assessee. Therefore, the decision of this Court in the case of Dr.Amin Pathology Laboratory has no relevance in the facts and circumstances of this case.11. Similarly reliance is placed by the counsel for the Revenue on the decisions in the case of Smt.Nilofer Hameed And Another Vs.Income Tax Officer, 235 ITR 161 (Kerala) and Sukhlal Ice and Cold Storage Company V. Income Tax Officer and Another 1993 ITR 129 (Allahabad High Court). These rulings have no relevance to the facts and circumstances of the present case.In both the aforesaid cases, since the first notice issued for reopening of the assessment was held to be invalid, the second notice issued was held to be valid. In the present case, the notice is invalid not because it is the second notice, but because, there was no failure to disclose fully and truly all material facts. Therefore, both the aforesaid decisions relied upon by the counsel for the revenue have no relevance to the facts of the present case.12. Once it is held that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, the impugned notice issued beyond the period of four years from the end of the relevant assessment year cannot be sustained . ### Response: 1
546	Trust Mai Lachmi Sialkoti Bradri Vs. The Chairman, Amritsar Imppovementtrust	of India Act, the Act of 1947 expired and ceased to be in force.8. Based on the fact that the Act of 1949 practically reproduces the earlier Act of 1947 the contention urged before us was that the Act of 1947 was in effect repealed and reenacted by the Act of 1949, that by virtue of S. 22. of the Punjab General Clauses Act, which runs:"22. Where any Punjab Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment notification, order, scheme, rule, form of bye-law made or issued under the provisions so re-enacted" the notification issued under the Act of 1947 should be deemed to have been issued under the Act of 1949 and that in consequence the reference to a notification under the Act of 1949 in S. 2 (d) of the Act of 1951 would include the notification of 1948 made under the Act of 1947.We are unable to accept this argument. In the first place, there was no repeal of the Act of 1947 to attract the application of the rule of construction embodied in S. 22 of the Punjab General Clauses Act. No doubt, even temporary enactments could be repealed and re-enacted so as to attract the operation of provisions like S. 22 of the Punjab General Clauses Act vice, for instance, State of Punjab v. Mohar Singh, 1955-1 SCR 893 : ((S) AIR 1955 SC 84 ). It is however conceded that here theres no express repeal of the Act of 1947. Learned Counsel for the respondents submitted that by reason of the very existence of the enactments of 1947 and 1949 on the Statute Book in terms identical with each other, the earlier statute should be held to have been impliedly repealed by the later enactment. If, as we have pointed out earlier, the first Act was temporary and its place was taken by a later enactment after the former ceased to be in force, it is obvious that there could be no scope for invoking the principle embodied in S. 22 of the Punjab General Clauses Act. Further, apart from the larger question as to whether implied repeals are within the contemplation of S. 22 of the Punjab General Clauses Act or similar provisions in like enactments, we consider that there is no basis for invoking the doctrine of implied repeal in the present case for that assumes that there is an inconsistency between the two enactments such that the two cannot stand together. It is maxim of the law that implied repeals are not to be favored, and where two statutes are entirely affirmative and identical no question of inconsistency could arise. Where the operative terms of the two enactments are identical and the enactments, so to speak, run parallel to each other there would be no scope for the application of the doctrine of implied repeal and that would be so particularly in a case where the earlier enactment is one of temporary duration while the later is a permanent enactment, even ignoring the fact that Ss. 4 to 21 of the Act of 1949 were not in force during the life of the Act of 1947.9. Ultimately, the question would have to be decided on the proper interpretation of S. 2(d) of the Act of 1951 under which the impugned scheme was framed and proceedings for acquisition are sought to be taken. It is clear that besides the areas notified under the Act of l951 the only other areas contemplated are those which were notified under the Act of 1949 which on any normal and reasonable construction could only include the areas which were the subject of notification under S. 3 of the Act of -1949 and not those under the Act of 1947 but which are deemed to be areas notified under the Act of 1949 assuming every submission of the respondent to be correct. In this view we consider that the appellant is entitled to the relief sought because the acquisition was in respect of a scheme for an area which it was not within the power of the Improvement Trust to frame under S. 3 of the Act.10. Learned Counsel for the Improvement Trust made a further submission that the appellant was precluded from challenging the validity of the scheme by reason of the provisions of S. 5 (4) of the Act (already extracted) which imparted a conclusive effect as to the legality of the scheme which had received the approval of the government and had been published under S. 5 (3) of the Act. We are clearly of the opinion that there is no substance in this argument. The foundation of the jurisdiction of the Improvement Trust to frame a scheme and for the government to approve of the same depends upon the scheme relating to a "damaged area" and if, as we have held, the property now sought to be acquired is within an area which does not fall within the definition of a damaged area under S. 2 (d) of the Act, it follows that there was total lack of jurisdiction on the part of the Improvement Trust or the government to frame a scheme for this area. The position is not very different from what it would have been if the Act itself had not been extended to an area in regard to which a scheme has been framed. The conclusive effect postulated by S. 5 (4) can only be in regard to the formalities prescribed by Ss. 3, 4 and 5 and does not touch a case where there is complete lack of jurisdiction in the authorities to frame a scheme.	1[ds]This definition therefore contemplates only two classes of areas as falling within it: (1) areas which the State Government may, by notification declare to be "a damaged area, i.e., which may be so declared in the future- after the comma into force of the Act, and (2) the areas already notified under the Punjab Damaged Areas Act, 1949. It is common ground that the area in respect of which the scheme has been framed at present and in pursuance of which the impugned acquisition is sought to be made, falls neither under the one nor the other of these two classes. on a plain reading of the definition therefore it is manifest that the scheme is without legal foundation since it is in regard to an area which is not "a damaged area" within the definition for which alone schemes may be framed under Ss. 3 to 5 and in pursuance of which an acquisition may be made under the provisions following in the Act.Ultimately, the question would have to be decided on the proper interpretation of S. 2(d) of the Act of 1951 under which the impugned scheme was framed and proceedings for acquisition are sought to be taken. It is clear that besides the areas notified under the Act of l951 the only other areas contemplated are those which were notified under the Act of 1949 which on any normal and reasonable construction could only include the areas which were the subject of notification under S. 3 of the Act of -1949 and not those under the Act of 1947 but which are deemed to be areas notified under the Act of 1949 assuming every submission of the respondent to be correct. In this view we consider that the appellant is entitled to the relief sought because the acquisition was in respect of a scheme for an area which it was not within the power of the Improvement Trust to frame under S. 3 of thefoundation of the jurisdiction of the Improvement Trust to frame a scheme and for the government to approve of the same depends upon the scheme relating to a "damaged area" and if, as we have held, the property now sought to be acquired is within an area which does not fall within the definition of a damaged area under S. 2 (d) of the Act, it follows that there was total lack of jurisdiction on the part of the Improvement Trust or the government to frame a scheme for this area. The position is not very different from what it would have been if the Act itself had not been extended to an area in regard to which a scheme has been framed. The conclusive effect postulated by S. 5 (4) can only be in regard to the formalities prescribed by Ss. 3, 4 and 5 and does not touch a case where there is complete lack of jurisdiction in the authorities to frame a scheme.	1	2,882	### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: of India Act, the Act of 1947 expired and ceased to be in force.8. Based on the fact that the Act of 1949 practically reproduces the earlier Act of 1947 the contention urged before us was that the Act of 1947 was in effect repealed and reenacted by the Act of 1949, that by virtue of S. 22. of the Punjab General Clauses Act, which runs:"22. Where any Punjab Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment notification, order, scheme, rule, form of bye-law made or issued under the provisions so re-enacted" the notification issued under the Act of 1947 should be deemed to have been issued under the Act of 1949 and that in consequence the reference to a notification under the Act of 1949 in S. 2 (d) of the Act of 1951 would include the notification of 1948 made under the Act of 1947.We are unable to accept this argument. In the first place, there was no repeal of the Act of 1947 to attract the application of the rule of construction embodied in S. 22 of the Punjab General Clauses Act. No doubt, even temporary enactments could be repealed and re-enacted so as to attract the operation of provisions like S. 22 of the Punjab General Clauses Act vice, for instance, State of Punjab v. Mohar Singh, 1955-1 SCR 893 : ((S) AIR 1955 SC 84 ). It is however conceded that here theres no express repeal of the Act of 1947. Learned Counsel for the respondents submitted that by reason of the very existence of the enactments of 1947 and 1949 on the Statute Book in terms identical with each other, the earlier statute should be held to have been impliedly repealed by the later enactment. If, as we have pointed out earlier, the first Act was temporary and its place was taken by a later enactment after the former ceased to be in force, it is obvious that there could be no scope for invoking the principle embodied in S. 22 of the Punjab General Clauses Act. Further, apart from the larger question as to whether implied repeals are within the contemplation of S. 22 of the Punjab General Clauses Act or similar provisions in like enactments, we consider that there is no basis for invoking the doctrine of implied repeal in the present case for that assumes that there is an inconsistency between the two enactments such that the two cannot stand together. It is maxim of the law that implied repeals are not to be favored, and where two statutes are entirely affirmative and identical no question of inconsistency could arise. Where the operative terms of the two enactments are identical and the enactments, so to speak, run parallel to each other there would be no scope for the application of the doctrine of implied repeal and that would be so particularly in a case where the earlier enactment is one of temporary duration while the later is a permanent enactment, even ignoring the fact that Ss. 4 to 21 of the Act of 1949 were not in force during the life of the Act of 1947.9. Ultimately, the question would have to be decided on the proper interpretation of S. 2(d) of the Act of 1951 under which the impugned scheme was framed and proceedings for acquisition are sought to be taken. It is clear that besides the areas notified under the Act of l951 the only other areas contemplated are those which were notified under the Act of 1949 which on any normal and reasonable construction could only include the areas which were the subject of notification under S. 3 of the Act of -1949 and not those under the Act of 1947 but which are deemed to be areas notified under the Act of 1949 assuming every submission of the respondent to be correct. In this view we consider that the appellant is entitled to the relief sought because the acquisition was in respect of a scheme for an area which it was not within the power of the Improvement Trust to frame under S. 3 of the Act.10. Learned Counsel for the Improvement Trust made a further submission that the appellant was precluded from challenging the validity of the scheme by reason of the provisions of S. 5 (4) of the Act (already extracted) which imparted a conclusive effect as to the legality of the scheme which had received the approval of the government and had been published under S. 5 (3) of the Act. We are clearly of the opinion that there is no substance in this argument. The foundation of the jurisdiction of the Improvement Trust to frame a scheme and for the government to approve of the same depends upon the scheme relating to a "damaged area" and if, as we have held, the property now sought to be acquired is within an area which does not fall within the definition of a damaged area under S. 2 (d) of the Act, it follows that there was total lack of jurisdiction on the part of the Improvement Trust or the government to frame a scheme for this area. The position is not very different from what it would have been if the Act itself had not been extended to an area in regard to which a scheme has been framed. The conclusive effect postulated by S. 5 (4) can only be in regard to the formalities prescribed by Ss. 3, 4 and 5 and does not touch a case where there is complete lack of jurisdiction in the authorities to frame a scheme. ### Response: 1
547	M/S. Surajmull Nagarmull Vs. State Of West Bengal	dated August 17, 1943, and issued under R. 75A of the Defence of India Rules, 1939, the warehouses were requisitioned and possession thereof was taken on September 21,1943. As the amount of compensation payable to the owner of warehouses could not be fixed by agreement an Arbitrator, was appointed under S.19(1)(b) of the Defence of India Act, 1939. Before the Arbitrator, Sri Hanuman Seva Trust claimed compensation as owners of the warehouses. The appellants claimed compensation for loss of earnings, "damages to business" and cost of removal of 18,000 maunds of jute and some iron implements, which the appellants claimed had to be removed in consequence of the order of requisition. The appellants estimated the compensation at Rs. one lakh. The Arbitrator by his order dated December 13, 1947, observed that the appellants had failed to prove any actual loss of business in consequence of the requisition, and rejected the claim of the appellants.2. Against the order passed by the Arbitrator an appeal was preferred to the High Court of Judicature at Calcutta. The appellants valued the claim at Rs. 1,50,000/-. At the hearing of the appeal, the State of West Bengal contended that the appeal was not maintainable in view of the provisions of S. 19(1)(f) and (g) and S. 19(3)(c) of the Defence of India Act and the 2nd Proviso to R. 19 framed under the Defence of India Act. The High Court upheld the contention raised by the State of West Bengal and dismissed the appeal. With special leave the appellants have appealed to this Court.3. Under cl. (1) of S. 19 of the Defence of India Act, 35 of 1939, it is provided, in so far as it is material :"Where under S. l9A or by or under any rule made under this Act any action is taken of the nature described in sub-sec. (2) of S. 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner and in accordance with principles hereinafter set out, that is to say :* * * (f) An appeal shall lie to the High Court against an award of the Arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government.(g) Save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrations under this section".Sub-section (3), in so far as it is material, provides :-"(3) In particular and without any prejudice to the generality of foregoing power, such rules may prescribe :- * * (c) the maximum amount of an award against which no appeal shall lie."By notification dated March 22, 1945, Rules were framed under S. 19 relating to arbitration for settlement of compensation. Rule 19 of the Rules provided:"19. Any appeal against the award of the Arbitrator shall be presented within six weeks from the date of receipt by the Collector or the party by whom the appeal is preferred of the copy of the award sent under Rule 17:Provided that * * *Provided further that no appeal shall lie against an award made under these Rules where the amount of the compensation awarded does not exceed Rs. 5,000 in lump or Rs.250 per mensem".The Arbitrator appointed under S.19 of the Defence of India Act is not a court or a tribunal subject to the Appellate jurisdiction of the High Court. By the Defence of India Act a right to appeal against the award of the Arbitrator is conferred, but that right is restricted in the manner prescribed by the Rules. It is provided by the second proviso to R. 19 that an appeal shall not lie against an award where the amount of compensation does not exceed Rs. 5,000/-.4. The claim of the appellants was rejected by the Arbitrator and they were not awarded any compensation. Mr. Vishwanatha Sastri appearing on behalf of the appellants, contends that by cl. (f) of S. 19(1) the Legislature provided a right of appeal against all awards and has imposed a restriction only in those cases where some amount is awarded but the amount so awarded is less than Rs. 5,000/-. Counsel submits that the restriction limiting the right of appeal must be strictly construed. He says that where for any reason no compensation at all is awarded the bar contained in cl. (f) of S. 19(1) and the second proviso to R. 19 would not apply. In our judgment, there is no force in that contention. An appeal is a creature of statute. The Arbitrator not being a court subordinate to the High Court, an appeal would lie only if it is expressly so provided. The Legislature has provided that where the amount of compensation awarded does not exceed Rs. 5,000/- no appeal shall lie against the award. The rule does not contemplate that the bar to the maintainability of the appeal will be effective only if some amount is awarded but the compensation so awarded is less than Rs. 5,000/-. If the Arbitrator rejects the claim and refuses to award anything the case would, in our judgment, fall within the 2nd proviso to R. 19 as being one where the amount of compensation awarded does not exceed Rs. 5,000/-.5. The second proviso to R.19 enacts a rule of which a parallel is difficult to find. The right to appeal does not depend upon the claim made by the claimant either before the acquiring authority or the Arbitrator or before the High Court it depends solely upon the amount of compensation awarded by the Arbitrator. But however, unusual the rule may appear to be, it would not be open to the Court to extend the right to appeal and to enable a claimant whose claim has been rejected completely to appeal to the High Court. The right to appeal is exercisable only if the amount awarded exceeds Rs. 5,000/-.	0[ds]In our judgment, there is no force in that contention. An appeal is a creature of statute. The Arbitrator not being a court subordinate to the High Court, an appeal would lie only if it is expressly so provided. The Legislature has provided that where the amount of compensation awarded does not exceed Rs. 5,000/- no appeal shall lie against the award. The rule does not contemplate that the bar to the maintainability of the appeal will be effective only if some amount is awarded but the compensation so awarded is less than Rs. 5,000/-. If the Arbitrator rejects the claim and refuses to award anything the case would, in our judgment, fall within the 2nd proviso to R. 19 as being one where the amount of compensation awarded does not exceed Rs. 5,000/-.5. The second proviso to R.19 enacts a rule of which a parallel is difficult to find. The right to appeal does not depend upon the claim made by the claimant either before the acquiring authority or the Arbitrator or before the High Court it depends solely upon the amount of compensation awarded by the Arbitrator. But however, unusual the rule may appear to be, it would not be open to the Court to extend the right to appeal and to enable a claimant whose claim has been rejected completely to appeal to the High Court. The right to appeal is exercisable only if the amount awarded exceeds Rs. 5,000/-.	0	1,205	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: dated August 17, 1943, and issued under R. 75A of the Defence of India Rules, 1939, the warehouses were requisitioned and possession thereof was taken on September 21,1943. As the amount of compensation payable to the owner of warehouses could not be fixed by agreement an Arbitrator, was appointed under S.19(1)(b) of the Defence of India Act, 1939. Before the Arbitrator, Sri Hanuman Seva Trust claimed compensation as owners of the warehouses. The appellants claimed compensation for loss of earnings, "damages to business" and cost of removal of 18,000 maunds of jute and some iron implements, which the appellants claimed had to be removed in consequence of the order of requisition. The appellants estimated the compensation at Rs. one lakh. The Arbitrator by his order dated December 13, 1947, observed that the appellants had failed to prove any actual loss of business in consequence of the requisition, and rejected the claim of the appellants.2. Against the order passed by the Arbitrator an appeal was preferred to the High Court of Judicature at Calcutta. The appellants valued the claim at Rs. 1,50,000/-. At the hearing of the appeal, the State of West Bengal contended that the appeal was not maintainable in view of the provisions of S. 19(1)(f) and (g) and S. 19(3)(c) of the Defence of India Act and the 2nd Proviso to R. 19 framed under the Defence of India Act. The High Court upheld the contention raised by the State of West Bengal and dismissed the appeal. With special leave the appellants have appealed to this Court.3. Under cl. (1) of S. 19 of the Defence of India Act, 35 of 1939, it is provided, in so far as it is material :"Where under S. l9A or by or under any rule made under this Act any action is taken of the nature described in sub-sec. (2) of S. 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner and in accordance with principles hereinafter set out, that is to say :* * * (f) An appeal shall lie to the High Court against an award of the Arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government.(g) Save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrations under this section".Sub-section (3), in so far as it is material, provides :-"(3) In particular and without any prejudice to the generality of foregoing power, such rules may prescribe :- * * (c) the maximum amount of an award against which no appeal shall lie."By notification dated March 22, 1945, Rules were framed under S. 19 relating to arbitration for settlement of compensation. Rule 19 of the Rules provided:"19. Any appeal against the award of the Arbitrator shall be presented within six weeks from the date of receipt by the Collector or the party by whom the appeal is preferred of the copy of the award sent under Rule 17:Provided that * * *Provided further that no appeal shall lie against an award made under these Rules where the amount of the compensation awarded does not exceed Rs. 5,000 in lump or Rs.250 per mensem".The Arbitrator appointed under S.19 of the Defence of India Act is not a court or a tribunal subject to the Appellate jurisdiction of the High Court. By the Defence of India Act a right to appeal against the award of the Arbitrator is conferred, but that right is restricted in the manner prescribed by the Rules. It is provided by the second proviso to R. 19 that an appeal shall not lie against an award where the amount of compensation does not exceed Rs. 5,000/-.4. The claim of the appellants was rejected by the Arbitrator and they were not awarded any compensation. Mr. Vishwanatha Sastri appearing on behalf of the appellants, contends that by cl. (f) of S. 19(1) the Legislature provided a right of appeal against all awards and has imposed a restriction only in those cases where some amount is awarded but the amount so awarded is less than Rs. 5,000/-. Counsel submits that the restriction limiting the right of appeal must be strictly construed. He says that where for any reason no compensation at all is awarded the bar contained in cl. (f) of S. 19(1) and the second proviso to R. 19 would not apply. In our judgment, there is no force in that contention. An appeal is a creature of statute. The Arbitrator not being a court subordinate to the High Court, an appeal would lie only if it is expressly so provided. The Legislature has provided that where the amount of compensation awarded does not exceed Rs. 5,000/- no appeal shall lie against the award. The rule does not contemplate that the bar to the maintainability of the appeal will be effective only if some amount is awarded but the compensation so awarded is less than Rs. 5,000/-. If the Arbitrator rejects the claim and refuses to award anything the case would, in our judgment, fall within the 2nd proviso to R. 19 as being one where the amount of compensation awarded does not exceed Rs. 5,000/-.5. The second proviso to R.19 enacts a rule of which a parallel is difficult to find. The right to appeal does not depend upon the claim made by the claimant either before the acquiring authority or the Arbitrator or before the High Court it depends solely upon the amount of compensation awarded by the Arbitrator. But however, unusual the rule may appear to be, it would not be open to the Court to extend the right to appeal and to enable a claimant whose claim has been rejected completely to appeal to the High Court. The right to appeal is exercisable only if the amount awarded exceeds Rs. 5,000/-. ### Response: 0
548	ASSISTANT EXCISE COMMISSIONER, KOTTAYAM & ORS Vs. ESTHAPPAN CHERIAN & ANR	As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 32. The obvious basis of the principle against retrospectivity is the principle of fairness, which must be the basis of every legal rule as was observed in the decision reported in LOffice Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 15. Another equally important principle applies: in the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively. In Union of India v M.C. Ponnose 1970 SCR (1) 678 this rule was spelt out in the following terms: The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect. 16. The principle has been affirmed in many decisions such as Hukum Chand v Union of India (1973) 1 SCR 896 , Regional Transport Officer v Associated Transport Madras (1980) 4 SCC 597 ; Federation of Indian Mineral Industries v Union of India (2017) 16 SCC 186 and recently, in Union of India v G.S. Chatha Rice Mills 2021 (2) SCC 209. 17. The decision in Lucka(f.no.1), therefore, correctly stated the law. In these circumstances, the amounts calculated by the state as departmental management fees for the period September 1993 to March 1994, when it actually was in charge of the vend, and carried out transactions, had to be adjusted. In other words, the amounts collected could not be again recovered as department management fees. Likewise, it is not in dispute that during the same period, the state was able to collect revenue i.e. excise duty, as well of Rs. 16 lakhs. 18. It appears that an amnesty scheme was introduced by the State(By an order, dated 26.5.2008), in 2008. The respondent sought to deposit amounts in terms of the said scheme. However, the state rejected this request by its letter dated 25-08-2008, contending that the department management fee could not be adjusted against arrears. This court permitted the respondent to deposit 50% of the amount it claimed as payable to the government, in terms of a subsequent amnesty scheme, framed in 2011. By the order dated 08-12-2008 this court clarified the previous order dated 29-03-2011, regarding deposit of amounts under the amnesty scheme: we accordingly direct in the light of the fact that amnesty scheme has been extended up to 31 March 2011, that the petitioner may deposit 50% of the amount due within one week from today, and the balance into monthly instalments in court. 19. According to the respondent, the reduced arrears are Rs. 40,51,288 in terms of amnesty scheme issued on 26-05-2008. The licensee respondent had applied under the scheme; however, the appellant state refused to process it on the ground that since the license was cancelled due to non-replenishment of security, the departmental management fee collected could not be adjusted. 20. This court had noticed that the Division Bench in Lucka(f.no.1), correctly reasoned that the amended Rule 13 was inapplicable to contracts previously awarded or entered into. The sequitur is that departmental management fee collected by the state, for the period the vend (or outlet) was in its direct management, could not be recovered again, and had to be adjusted. Apparently, the state had preferred appeals, by special leave from the common judgment in Lucka(f.no.1). Those appeals were ultimately dismissed on 19.2.2008.(In Civil Appeal Nos. 4976-4987/2002 and connected cases as well as a special leave petition (SLP (C) 19586/2007).) In these circumstances, and having regard to the principle that retrospectivity cannot be presumed, unless there is clear intention in the new rule or amendment, it is held that there is no infirmity with the judgment of the High Court. 21. The findings and conclusions previously recorded would have been dispositive of the issues arising in this appeal. However, this court is mindful of the fact that the respondent had succeeded before the High Court and was thus entitled to claim adjustment of the departmental management fees, for the period after its contract was terminated. The respondent was also entitled to claim relief under the Amnesty Scheme, which was denied to it despite having succeeded before the High Court. Eventually, when the Scheme was announced afresh in 2011, this Court permitted the respondent to deposit 50% of the admitted amount(The admitted amount being Rs. 40,51,288/-).	1[ds]8. The facts stated shows that the licensee was a successful bidder in an auction held by the State of Kerala and had deposited a security amount, to ensure the timely payment of the amounts (kist) due in terms of the contract entered into. Alleging that the licensee did not remit the kist due to the State in a timely manner, a show-cause notice was issued and eventually the license was cancelled. Indisputably the license entered into was effective for the period, commencing from 01-04-1993. The cancellation of license occurred by an order dated 19-08-1993. The State repeatedly put up the shops in question for auction- seven times, but was unsuccessful in securing the proper bids. Therefore, it had to manage the shops- which it did. The shops appear to have been re-auctioned subsequently and given out in the next financial year. For the period 13-09-1993 (when the State took over the possession) to 31-03-1994 the state collected Rs. 14,94,570/- as Departmental Management Fee and Rs. 16,59,771/- as Excise Duty on rectified spirit.11. The petitioner deposited Rs. 31,81,800/- being 30% of the bid amount as security deposit in terms of Rule 10 of Chapter IV of Abkari (Disposal in Auction) Rules. This constituted the cash security for due performance of the conditions of the licence. The amount was to be credited towards kist dues for the last two or more instalments as the case may be of the contract unless previously appropriated under the rules as per Rule 5(19) of the Abkari Shops (Disposal in Auction) Rules. There are 10 instalments of kist. Each kist fell due on the 10th day of each and every subsequent month. A period of 15 days is allowed, from 10th onwards as the grace period to remit the kist instalment under Rule 6 (28) of the Abkari Disposal in Auction Rules. The petitioner was to pay seven instalments of kist up to 10-10-1992, leaving three instalments to be adjusted from security deposit, provided he had fulfilled all the conditions of the license.12. This court notices that the impugned judgment relied on a previous Division Bench ruling of the High Court, which dealt with the applicability of the amended Rule 13 to pre-existing contracts, and held that the condition of non-adjustability was inapplicable for contracts entered into, and vends auctioned, before it came into force. In that judgment, Lucka v State of Kerala & Ors (Dated 11-08-2000 in OP 8271/1994) the High Court had to deal with a similar situation, i.e. the rules applicable in the event of cancellation of an excise liquor vend. The court held that:On combined reading of the provisions of the act and rules, especially section 8 of the Act Rules 5, 10, 15 and 16 of the Abkari Shops Disposal Rule and Rule 13 of the Abkari Shops Departmental Management Rules, shows that due to the cancellation of the contract of the licensees any losses suffered by the revenue loss has to be reimbursed by the licensees. While calculating the loss amount obtained by the departmental management also should be taken into account and given credit as to that amount was received by the government and only after deducting the same actual loss can be found out. The words at the risk shows that only the actual loss suffered can be recovered from the licensees. This is apart from imposing any damages by the Government, according to law or passing a discretionary or order by the excess commissioner regarding the future of departmental fee for valid reasons after issuing show cause notice at the time when licences cancelled.The Division Bench also held that:With regard to Abkari contracts entered in 1992-93, there is not a question for dispute at all, as the contract period was over on 31. 3. 1993, before the amendment of rules and admittedly amended rules are not applicable and if no damages by way of kist ordered at the time of cancellation on the basis of amended Rule 13, no recovery steps can be issued with legal contracts and licensees for the Abkari year 1992-93. Other contracts and license under question in these original petitions were also entered before the amendment of the rules with effect from 1.4.1993. The amendment of Rules 13 was made on in December 1993. Therefore, contracts, executed after the amendment of rules may be bound by it if the rules are valid. But contracts covered in these years were executed prior to the amendment of the above rule.13. In this case, it is evident that when the state initiated recovery proceedings it did not give credit of the amounts collected under the head of department management fee -as was required under pre-existing Rule 13. Its main contention before this court is that amounts collected as departmental management fee were not adjustable. In view of the decision in Lucka(f.no. 1), there cannot be any dispute that contracts entered into before amendment of Rule 13-as in this case-were not to be treated as those transactions for which amounts were non- adjustable. There is no indication that Rule 13 applied retrospectively.14. There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary. In Commissioner of Income Tax v Vatika Township (2015) 1 SCC 1 this court, speaking through a Constitution Bench, observed as follows:31. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrows backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.32. The obvious basis of the principle against retrospectivity is the principle of fairness, which must be the basis of every legal rule as was observed in the decision reported in LOffice Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later.16. The principle has been affirmed in many decisions such as Hukum Chand v Union of India (1973) 1 SCR 896 , Regional Transport Officer v Associated Transport Madras (1980) 4 SCC 597 ; Federation of Indian Mineral Industries v Union of India (2017) 16 SCC 186 and recently, in Union of India v G.S. Chatha Rice Mills 2021 (2) SCC 209. 17. The decision in Lucka(f.no.1), therefore, correctly stated the law. In these circumstances, the amounts calculated by the state as departmental management fees for the period September 1993 to March 1994, when it actually was in charge of the vend, and carried out transactions, had to be adjusted. In other words, the amounts collected could not be again recovered as department management fees. Likewise, it is not in dispute that during the same period, the state was able to collect revenue i.e. excise duty, as well of Rs. 16 lakhs.18. It appears that an amnesty scheme was introduced by the State(By an order, dated 26.5.2008), in 2008. The respondent sought to deposit amounts in terms of the said scheme. However, the state rejected this request by its letter dated 25-08-2008, contending that the department management fee could not be adjusted against arrears. This court permitted the respondent to deposit 50% of the amount it claimed as payable to the government, in terms of a subsequent amnesty scheme, framed in 2011.20. This court had noticed that the Division Bench in Lucka(f.no.1), correctly reasoned that the amended Rule 13 was inapplicable to contracts previously awarded or entered into. The sequitur is that departmental management fee collected by the state, for the period the vend (or outlet) was in its direct management, could not be recovered again, and had to be adjusted. Apparently, the state had preferred appeals, by special leave from the common judgment in Lucka(f.no.1). Those appeals were ultimately dismissed on 19.2.2008.(In Civil Appeal Nos. 4976-4987/2002 and connected cases as well as a special leave petition (SLP (C) 19586/2007).) In these circumstances, and having regard to the principle that retrospectivity cannot be presumed, unless there is clear intention in the new rule or amendment, it is held that there is no infirmity with the judgment of the High Court.21. The findings and conclusions previously recorded would have been dispositive of the issues arising in this appeal. However, this court is mindful of the fact that the respondent had succeeded before the High Court and was thus entitled to claim adjustment of the departmental management fees, for the period after its contract was terminated. The respondent was also entitled to claim relief under the Amnesty Scheme, which was denied to it despite having succeeded before the High Court. Eventually, when the Scheme was announced afresh in 2011, this Court permitted the respondent to deposit 50% of the admitted amount(The admitted amount being Rs. 40,51,288/-).	1	3,917	### 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: As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 32. The obvious basis of the principle against retrospectivity is the principle of fairness, which must be the basis of every legal rule as was observed in the decision reported in LOffice Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 15. Another equally important principle applies: in the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively. In Union of India v M.C. Ponnose 1970 SCR (1) 678 this rule was spelt out in the following terms: The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect. 16. The principle has been affirmed in many decisions such as Hukum Chand v Union of India (1973) 1 SCR 896 , Regional Transport Officer v Associated Transport Madras (1980) 4 SCC 597 ; Federation of Indian Mineral Industries v Union of India (2017) 16 SCC 186 and recently, in Union of India v G.S. Chatha Rice Mills 2021 (2) SCC 209. 17. The decision in Lucka(f.no.1), therefore, correctly stated the law. In these circumstances, the amounts calculated by the state as departmental management fees for the period September 1993 to March 1994, when it actually was in charge of the vend, and carried out transactions, had to be adjusted. In other words, the amounts collected could not be again recovered as department management fees. Likewise, it is not in dispute that during the same period, the state was able to collect revenue i.e. excise duty, as well of Rs. 16 lakhs. 18. It appears that an amnesty scheme was introduced by the State(By an order, dated 26.5.2008), in 2008. The respondent sought to deposit amounts in terms of the said scheme. However, the state rejected this request by its letter dated 25-08-2008, contending that the department management fee could not be adjusted against arrears. This court permitted the respondent to deposit 50% of the amount it claimed as payable to the government, in terms of a subsequent amnesty scheme, framed in 2011. By the order dated 08-12-2008 this court clarified the previous order dated 29-03-2011, regarding deposit of amounts under the amnesty scheme: we accordingly direct in the light of the fact that amnesty scheme has been extended up to 31 March 2011, that the petitioner may deposit 50% of the amount due within one week from today, and the balance into monthly instalments in court. 19. According to the respondent, the reduced arrears are Rs. 40,51,288 in terms of amnesty scheme issued on 26-05-2008. The licensee respondent had applied under the scheme; however, the appellant state refused to process it on the ground that since the license was cancelled due to non-replenishment of security, the departmental management fee collected could not be adjusted. 20. This court had noticed that the Division Bench in Lucka(f.no.1), correctly reasoned that the amended Rule 13 was inapplicable to contracts previously awarded or entered into. The sequitur is that departmental management fee collected by the state, for the period the vend (or outlet) was in its direct management, could not be recovered again, and had to be adjusted. Apparently, the state had preferred appeals, by special leave from the common judgment in Lucka(f.no.1). Those appeals were ultimately dismissed on 19.2.2008.(In Civil Appeal Nos. 4976-4987/2002 and connected cases as well as a special leave petition (SLP (C) 19586/2007).) In these circumstances, and having regard to the principle that retrospectivity cannot be presumed, unless there is clear intention in the new rule or amendment, it is held that there is no infirmity with the judgment of the High Court. 21. The findings and conclusions previously recorded would have been dispositive of the issues arising in this appeal. However, this court is mindful of the fact that the respondent had succeeded before the High Court and was thus entitled to claim adjustment of the departmental management fees, for the period after its contract was terminated. The respondent was also entitled to claim relief under the Amnesty Scheme, which was denied to it despite having succeeded before the High Court. Eventually, when the Scheme was announced afresh in 2011, this Court permitted the respondent to deposit 50% of the admitted amount(The admitted amount being Rs. 40,51,288/-). ### Response: 1
549	K. S. SAHU Vs. UNION OF INDIA & ORS	chance, there wont be any complaint against him. By the letter dated 8th March 2011, the Commodore of Integrated Headquarters of the Ministry of Defence (Navy) informed the appellants father that the case of the appellant was reconsidered and after reconsideration of the entire case, the request made by the appellants father could not be accepted on the grounds mentioned therein. It was mentioned therein that the appellant was offered every opportunity to improve. In fact, feedback on his progress at INA was communicated to the appellants father and he was requested to guide the appellant and encourage him to show progress. The said communication recorded that as the appellant met the mandatory educational requirement of the University of Goa, in the Graduation ceremony conducted on 27th November 2010, a B.Sc Degree of Goa University was granted to the appellant. By another letter dated 18th February 2011, the Commander and Training Captain clarified that the invitation for the passing out parade to be held on 5th December 2010 was dispatched to the appellants father on 22nd October 2010 as a procedural norm. The appellants father was informed on 2nd December 2010 about the decision of the Headquarters of approving the proposal for withdrawal of the appellant. He specifically stated that on 2nd December 2010, Lt. Commodore Ashutosh Bobade informed the appellants father over telephone about the said decision and requested him to avoid attending passing out parade. It is stated in the said letter that the appellant never participated in the passing out parade. We may also note here that an appeal was thereafter preferred by the appellant to the Central Government on 7th July 2011. 15. Regulation 216 deals with the dismissal of an officer from service on disciplinary grounds. The appellant has not been dismissed from service. On the contrary, his service as a sailor was protected and even his seniority was protected. The withdrawal did not affect his service in any manner. In this case, we are not dealing with disciplinary action, but the action of withdrawal of the appellant from the course on the ground that the appellant was found deficient in basic character and other officer like qualities. As narrated above, based on the search of his cabin, a show cause notice was issued way back on 16th July 2009 to the appellant calling for his explanation. The appellant accepted that he was in possession of objectionable articles including pornographic magazines. Though a recommendation was made for withdrawal on 6th November 2009, the appellant was only relegated and was given one more opportunity to improve. Even thereafter, the appellant indulged in tampering with the record which led to the issuance of a fresh show cause notice and warning to the appellant on 11th May 2010. Only thereafter, on 26th June 2010 that a proposal was submitted to the Naval Headquarters for grant of approval to the proposed action of withdrawal. 16. We are dealing with a very disciplined force like the Navy. The appellant who was already in Naval service as a sailor was given an opportunity to undergo training. While assessing whether the appellant was found deficient in basic character and other officer like qualities, the conduct of the appellant, which is reflected from the Inquiry Report, two show cause notices and his own statement, has been taken into consideration. We have already quoted relevant Rules which provide that only the withdrawal on medical grounds will be governed by Regulation 216 of the said Regulations. There are four other grounds mentioned therein, on the basis of which, withdrawal can be made. As can be seen from the said Rules and considering the fact that the question was of continuing training of the appellant, the competent authority could have always taken the decision of withdrawal on the basis of its subjective satisfaction of the existence of one of the grounds for withdrawal provided in the Rules. In this case, the subjective satisfaction of the competent authority is on the basis of material on record. At least on two occasions, the appellant was put to notice and warning and was given an opportunity to explain his conduct. While taking action of withdrawal of the appellant from training, the competent authority made the assessment of the performance and conduct of the cadet in INA during his training. There was material on record to come to a subjective satisfaction that the appellant was deficient in basic character and officer like qualities. Two show cause notices were served upon the appellant before taking the action of withdrawal. There was an opportunity given on two occasions to the appellant to explain his conduct and improve his conduct. His conduct as reflected from record, certainly supports the conclusion that he lacked the qualities which an officer of Navy must possess. 17. As regards the argument that the power of withdrawal could have been exercised only by the Government, in the counter affidavit, reliance has been placed on the letter dated 17th August 2001 of the Ministry of Defence of the Government of India. The Chief of Personnel (COP) has been delegated the powers of withdrawal of officers and cadets under training. Hence, no fault can be found with the action of withdrawal on the ground that the approval of the Government was not taken. 18. A perusal of the impugned judgment of the Tribunal shows that the entire material has been carefully examined by the Tribunal. The Tribunal consisted of an administrative member who is an expert in the field as he was a Lieutenant General. The entire conduct of the appellant during training at INA has been considered in the context of the qualities which an officer of the Navy must possess and the discipline required to be maintained in the Navy. While taking action of withdrawal, the competent authority has ensured that the service of the appellant with Navy is not affected in any manner and even the Degree of University of Goa has been conferred on the appellant.	0[ds]6. In the present case, impugned action which was the subject matter of challenge before the said Tribunal, was of the withdrawal of the appellant from the course which he was undergoing in INA. Regulation 216 of the said Regulations deals with the termination of service of an officer by the Government on the ground of misconduct. Clause (1) of Regulation 216 contemplates the issuance of show cause notice to the officer. Clause (2) of the Regulation 216 requires information to be given to the officer about all reports adverse to him and to give an opportunity to him to submit his explanation and defence in writing. However, the action of withdrawal of the appellant from the course was not taken in terms of Regulation 216. The said Regulation is applicable to termination of service. In this case, the service of the appellant has not been terminated.14. Before we deal with the legal submissions, we may note here that on 14th January 2011, the appellants father made a representation to the Chief of the Naval Staff for reconsideration of the action of withdrawal. He requested on behalf of the family that one more opportunity may be granted to the appellant. He assured that if the appellant was given one more chance, there wont be any complaint against him. By the letter dated 8th March 2011, the Commodore of Integrated Headquarters of the Ministry of Defence (Navy) informed the appellants father that the case of the appellant was reconsidered and after reconsideration of the entire case, the request made by the appellants father could not be accepted on the grounds mentioned therein. It was mentioned therein that the appellant was offered every opportunity to improve. In fact, feedback on his progress at INA was communicated to the appellants father and he was requested to guide the appellant and encourage him to show progress. The said communication recorded that as the appellant met the mandatory educational requirement of the University of Goa, in the Graduation ceremony conducted on 27th November 2010, a B.Sc Degree of Goa University was granted to the appellant. By another letter dated 18th February 2011, the Commander and Training Captain clarified that the invitation for the passing out parade to be held on 5th December 2010 was dispatched to the appellants father on 22nd October 2010 as a procedural norm. The appellants father was informed on 2nd December 2010 about the decision of the Headquarters of approving the proposal for withdrawal of the appellant. He specifically stated that on 2nd December 2010, Lt. Commodore Ashutosh Bobade informed the appellants father over telephone about the said decision and requested him to avoid attending passing out parade. It is stated in the said letter that the appellant never participated in the passing out parade. We may also note here that an appeal was thereafter preferred by the appellant to the Central Government on 7th July 2011.15. Regulation 216 deals with the dismissal of an officer from service on disciplinary grounds. The appellant has not been dismissed from service. On the contrary, his service as a sailor was protected and even his seniority was protected. The withdrawal did not affect his service in any manner. In this case, we are not dealing with disciplinary action, but the action of withdrawal of the appellant from the course on the ground that the appellant was found deficient in basic character and other officer like qualities. As narrated above, based on the search of his cabin, a show cause notice was issued way back on 16th July 2009 to the appellant calling for his explanation. The appellant accepted that he was in possession of objectionable articles including pornographic magazines. Though a recommendation was made for withdrawal on 6th November 2009, the appellant was only relegated and was given one more opportunity to improve. Even thereafter, the appellant indulged in tampering with the record which led to the issuance of a fresh show cause notice and warning to the appellant on 11th May 2010. Only thereafter, on 26th June 2010 that a proposal was submitted to the Naval Headquarters for grant of approval to the proposed action of withdrawal.16. We are dealing with a very disciplined force like the Navy. The appellant who was already in Naval service as a sailor was given an opportunity to undergo training. While assessing whether the appellant was found deficient in basic character and other officer like qualities, the conduct of the appellant, which is reflected from the Inquiry Report, two show cause notices and his own statement, has been taken into consideration. We have already quoted relevant Rules which provide that only the withdrawal on medical grounds will be governed by Regulation 216 of the said Regulations. There are four other grounds mentioned therein, on the basis of which, withdrawal can be made. As can be seen from the said Rules and considering the fact that the question was of continuing training of the appellant, the competent authority could have always taken the decision of withdrawal on the basis of its subjective satisfaction of the existence of one of the grounds for withdrawal provided in the Rules. In this case, the subjective satisfaction of the competent authority is on the basis of material on record. At least on two occasions, the appellant was put to notice and warning and was given an opportunity to explain his conduct. While taking action of withdrawal of the appellant from training, the competent authority made the assessment of the performance and conduct of the cadet in INA during his training. There was material on record to come to a subjective satisfaction that the appellant was deficient in basic character and officer like qualities. Two show cause notices were served upon the appellant before taking the action of withdrawal. There was an opportunity given on two occasions to the appellant to explain his conduct and improve his conduct. His conduct as reflected from record, certainly supports the conclusion that he lacked the qualities which an officer of Navy must possess.17. As regards the argument that the power of withdrawal could have been exercised only by the Government, in the counter affidavit, reliance has been placed on the letter dated 17th August 2001 of the Ministry of Defence of the Government of India. The Chief of Personnel (COP) has been delegated the powers of withdrawal of officers and cadets under training. Hence, no fault can be found with the action of withdrawal on the ground that the approval of the Government was not taken.18. A perusal of the impugned judgment of the Tribunal shows that the entire material has been carefully examined by the Tribunal. The Tribunal consisted of an administrative member who is an expert in the field as he was a Lieutenant General. The entire conduct of the appellant during training at INA has been considered in the context of the qualities which an officer of the Navy must possess and the discipline required to be maintained in the Navy. While taking action of withdrawal, the competent authority has ensured that the service of the appellant with Navy is not affected in any manner and even the Degree of University of Goa has been conferred on the appellant.	0	3,723	### 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: chance, there wont be any complaint against him. By the letter dated 8th March 2011, the Commodore of Integrated Headquarters of the Ministry of Defence (Navy) informed the appellants father that the case of the appellant was reconsidered and after reconsideration of the entire case, the request made by the appellants father could not be accepted on the grounds mentioned therein. It was mentioned therein that the appellant was offered every opportunity to improve. In fact, feedback on his progress at INA was communicated to the appellants father and he was requested to guide the appellant and encourage him to show progress. The said communication recorded that as the appellant met the mandatory educational requirement of the University of Goa, in the Graduation ceremony conducted on 27th November 2010, a B.Sc Degree of Goa University was granted to the appellant. By another letter dated 18th February 2011, the Commander and Training Captain clarified that the invitation for the passing out parade to be held on 5th December 2010 was dispatched to the appellants father on 22nd October 2010 as a procedural norm. The appellants father was informed on 2nd December 2010 about the decision of the Headquarters of approving the proposal for withdrawal of the appellant. He specifically stated that on 2nd December 2010, Lt. Commodore Ashutosh Bobade informed the appellants father over telephone about the said decision and requested him to avoid attending passing out parade. It is stated in the said letter that the appellant never participated in the passing out parade. We may also note here that an appeal was thereafter preferred by the appellant to the Central Government on 7th July 2011. 15. Regulation 216 deals with the dismissal of an officer from service on disciplinary grounds. The appellant has not been dismissed from service. On the contrary, his service as a sailor was protected and even his seniority was protected. The withdrawal did not affect his service in any manner. In this case, we are not dealing with disciplinary action, but the action of withdrawal of the appellant from the course on the ground that the appellant was found deficient in basic character and other officer like qualities. As narrated above, based on the search of his cabin, a show cause notice was issued way back on 16th July 2009 to the appellant calling for his explanation. The appellant accepted that he was in possession of objectionable articles including pornographic magazines. Though a recommendation was made for withdrawal on 6th November 2009, the appellant was only relegated and was given one more opportunity to improve. Even thereafter, the appellant indulged in tampering with the record which led to the issuance of a fresh show cause notice and warning to the appellant on 11th May 2010. Only thereafter, on 26th June 2010 that a proposal was submitted to the Naval Headquarters for grant of approval to the proposed action of withdrawal. 16. We are dealing with a very disciplined force like the Navy. The appellant who was already in Naval service as a sailor was given an opportunity to undergo training. While assessing whether the appellant was found deficient in basic character and other officer like qualities, the conduct of the appellant, which is reflected from the Inquiry Report, two show cause notices and his own statement, has been taken into consideration. We have already quoted relevant Rules which provide that only the withdrawal on medical grounds will be governed by Regulation 216 of the said Regulations. There are four other grounds mentioned therein, on the basis of which, withdrawal can be made. As can be seen from the said Rules and considering the fact that the question was of continuing training of the appellant, the competent authority could have always taken the decision of withdrawal on the basis of its subjective satisfaction of the existence of one of the grounds for withdrawal provided in the Rules. In this case, the subjective satisfaction of the competent authority is on the basis of material on record. At least on two occasions, the appellant was put to notice and warning and was given an opportunity to explain his conduct. While taking action of withdrawal of the appellant from training, the competent authority made the assessment of the performance and conduct of the cadet in INA during his training. There was material on record to come to a subjective satisfaction that the appellant was deficient in basic character and officer like qualities. Two show cause notices were served upon the appellant before taking the action of withdrawal. There was an opportunity given on two occasions to the appellant to explain his conduct and improve his conduct. His conduct as reflected from record, certainly supports the conclusion that he lacked the qualities which an officer of Navy must possess. 17. As regards the argument that the power of withdrawal could have been exercised only by the Government, in the counter affidavit, reliance has been placed on the letter dated 17th August 2001 of the Ministry of Defence of the Government of India. The Chief of Personnel (COP) has been delegated the powers of withdrawal of officers and cadets under training. Hence, no fault can be found with the action of withdrawal on the ground that the approval of the Government was not taken. 18. A perusal of the impugned judgment of the Tribunal shows that the entire material has been carefully examined by the Tribunal. The Tribunal consisted of an administrative member who is an expert in the field as he was a Lieutenant General. The entire conduct of the appellant during training at INA has been considered in the context of the qualities which an officer of the Navy must possess and the discipline required to be maintained in the Navy. While taking action of withdrawal, the competent authority has ensured that the service of the appellant with Navy is not affected in any manner and even the Degree of University of Goa has been conferred on the appellant. ### Response: 0
550	Madhavamani Transport Private Limited Vs. M/s. Vasavi Transport Company, Madukkur and Others	SHINGHAL, J.1. These two appeals by certificates arise out of judgments of the Madras High Court in writ appeals 64 of 1964 dated October 9, 1964 and 38 of 1963 dated August 5, 1964, in these circumstances.2. The Regional Transport Authority, Thanjavur, granted a permit to N. Sundaresa Thevar to ply a stage carriage on Pattukottai-Simalkudi route. Madhavamani Transport (P) Ltd. and Vasavi Transport Company felt aggrieved and filed their appeals. The State transport Appellate Tribunal heard those and the other appeals together, and disposed them off by a common judgment dated December 30, 1960. It set aside the order in favour of N. Sundaresa Thevar and granted the permit to Madhavamani Transport (P) Ltd. N. Sundaresa Thevar thereupon filed a writ petition (106 of 1961) in the Madras High Court. Vasavi Transport Company also filed a writ petition (314 of 1962). The High Court allowed N. Sundaresa Thevars writ petition by its judgment dated February 11, 1964, quashed the tribunals order and directed it to dispose of the appeals afresh in accordance with its order. The writ petition of Vasavi Transport Company was however dismissed in limine on March 1, 1962. That led to writ appeals 64 of 1964 by M/s. Madhavamani Transport (P) Ltd. and 38 of 1963 by Vasavi Transport Company. As appeal 64 of 1964 has been dismissed by the judgment dated October 9, 1964, and appeal 38 of 1963 has been allowed by the judgment dated August 5, 1964, the present two appeals have been filed on certificates granted by the High Court.3. It cannot be doubted that Home Department G.O. No. 2265 dated August 9, 1958, formed the basis of consideration of the competing claims before the authorities concerned. In its impugned judgment dated October 9, 1964 (in Writ Appeal 64 of 1964), the High Court has taken the view that as the tribunal "felt the constraining influence" of the G.O. No. 2265 which was entirely outside the purview of Section 43-A of the Motor Vehicles Act, hereinafter referred to as the Act, it was needless to go into the merits of the contentions of the parties. It therefore upheld the direction that the tribunal should dispose of the matter afresh "freed from the constraining influence of the G.O. issued under Section 43-A of the Act". The other appeal (38 of 1963) has been disposed of by the High Court by its judgment dated August 5, 1964, in accordance with this Courts decision in B. Rajagopala Naidu v. State Transport Appellate Tribunal ((1964) 7 SCR 1 : AIR 1964 SC 1573 ) holding that as theimpugned government orders have thus entered into the decision of the tribunal as a major factor of that decision, that vitiates it and constitutes an error of law apparent on the face of the record.That is the reason why the High Court has ordered a rehearing and determination of the matter by the tribunal.4. After the decision in Naidus case, the matter has been examined again by this Court with specific reference to the aforesaid government order number 2265 dated August 9, 1958 in P. Palaniswami v. Shri Ram Popular Service (P) Ltd. ((1974) 1 SCC 197 ) and Southern Rajamani Transports (P) Ltd. v. Rahim Transport (P) Ltd. ((1974) 2 SCC 590 ) and it has been reiterated that an order for the grant of a permit under the constraining influence of the impugned government order would be improper and that there is nothing wrong in quashing it and in directing the tribunal to make a fresh order in accordance with the law.5. We have made a reference to the finding of the High Court that the order of the tribunal has been vitiated by the constraining influence of the directions contained in the government order No. 2265. There is therefore nothing wrong if the High Court has followed the above mentioned decisions of this Court, quashed the decision of the tribunal and directed it to dispose of the matter afresh.	0[ds]3. It cannot be doubted that Home Department G.O. No. 2265 dated August 9, 1958, formed the basis of consideration of the competing claims before the authorities concerned. In its impugned judgment dated October 9, 1964 (in Writ Appeal 64 of 1964), the High Court has taken the view that as the tribunal "felt the constraining influence" of the G.O. No. 2265 which was entirely outside the purview of Sectionof the Motor Vehicles Act, hereinafter referred to as the Act, it was needless to go into the merits of the contentions of the parties. It therefore upheld the direction that the tribunal should dispose of the matter afresh "freed from the constraining influence of the G.O. issued under Sectionof the Act". The other appeal (38 of 1963) has been disposed of by the High Court by its judgment dated August 5, 1964, in accordance with this Courts decision in B. Rajagopala Naidu v. State Transport Appellate Tribunal ((1964) 7 SCR 1 : AIR 1964 SC 1573 ) holding that as theimpugned government orders have thus entered into the decision of the tribunal as a major factor of that decision, that vitiates it and constitutes an error of law apparent on the face of the record.	0	749	### 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: SHINGHAL, J.1. These two appeals by certificates arise out of judgments of the Madras High Court in writ appeals 64 of 1964 dated October 9, 1964 and 38 of 1963 dated August 5, 1964, in these circumstances.2. The Regional Transport Authority, Thanjavur, granted a permit to N. Sundaresa Thevar to ply a stage carriage on Pattukottai-Simalkudi route. Madhavamani Transport (P) Ltd. and Vasavi Transport Company felt aggrieved and filed their appeals. The State transport Appellate Tribunal heard those and the other appeals together, and disposed them off by a common judgment dated December 30, 1960. It set aside the order in favour of N. Sundaresa Thevar and granted the permit to Madhavamani Transport (P) Ltd. N. Sundaresa Thevar thereupon filed a writ petition (106 of 1961) in the Madras High Court. Vasavi Transport Company also filed a writ petition (314 of 1962). The High Court allowed N. Sundaresa Thevars writ petition by its judgment dated February 11, 1964, quashed the tribunals order and directed it to dispose of the appeals afresh in accordance with its order. The writ petition of Vasavi Transport Company was however dismissed in limine on March 1, 1962. That led to writ appeals 64 of 1964 by M/s. Madhavamani Transport (P) Ltd. and 38 of 1963 by Vasavi Transport Company. As appeal 64 of 1964 has been dismissed by the judgment dated October 9, 1964, and appeal 38 of 1963 has been allowed by the judgment dated August 5, 1964, the present two appeals have been filed on certificates granted by the High Court.3. It cannot be doubted that Home Department G.O. No. 2265 dated August 9, 1958, formed the basis of consideration of the competing claims before the authorities concerned. In its impugned judgment dated October 9, 1964 (in Writ Appeal 64 of 1964), the High Court has taken the view that as the tribunal "felt the constraining influence" of the G.O. No. 2265 which was entirely outside the purview of Section 43-A of the Motor Vehicles Act, hereinafter referred to as the Act, it was needless to go into the merits of the contentions of the parties. It therefore upheld the direction that the tribunal should dispose of the matter afresh "freed from the constraining influence of the G.O. issued under Section 43-A of the Act". The other appeal (38 of 1963) has been disposed of by the High Court by its judgment dated August 5, 1964, in accordance with this Courts decision in B. Rajagopala Naidu v. State Transport Appellate Tribunal ((1964) 7 SCR 1 : AIR 1964 SC 1573 ) holding that as theimpugned government orders have thus entered into the decision of the tribunal as a major factor of that decision, that vitiates it and constitutes an error of law apparent on the face of the record.That is the reason why the High Court has ordered a rehearing and determination of the matter by the tribunal.4. After the decision in Naidus case, the matter has been examined again by this Court with specific reference to the aforesaid government order number 2265 dated August 9, 1958 in P. Palaniswami v. Shri Ram Popular Service (P) Ltd. ((1974) 1 SCC 197 ) and Southern Rajamani Transports (P) Ltd. v. Rahim Transport (P) Ltd. ((1974) 2 SCC 590 ) and it has been reiterated that an order for the grant of a permit under the constraining influence of the impugned government order would be improper and that there is nothing wrong in quashing it and in directing the tribunal to make a fresh order in accordance with the law.5. We have made a reference to the finding of the High Court that the order of the tribunal has been vitiated by the constraining influence of the directions contained in the government order No. 2265. There is therefore nothing wrong if the High Court has followed the above mentioned decisions of this Court, quashed the decision of the tribunal and directed it to dispose of the matter afresh. ### Response: 0
551	Hardie Trading Ltd. & Another Vs. Addisons Paint & Chemicals Ltd	it would be absurd to suppose he lost his trade market by not putting more goods in the market when it was glutted". 58. More recently, Justice Ungoed Thomas in BALI Trade Mark (Rectification Ch.D.) 1966 RPC 397 said: "It is quite clear, however, that the proprietors, the Bali Company, could not have used the token import scheme, unless an interested firm in this country made the appropriate application and no such application was made. It was thus not possible for the company to import under the token scheme, and that was not their fault. Further, what has to be considered is not merely the existence of an absolute prohibition to import, as might be thought from one passage in the Assistant Comptrollers decision, or a complete impossibility of importing, but in the words of Evershed, L.J. (supra), the existence of conditions "making impracticable the ordinary usages of international trade." "A trade mark is a commercial asset intended to be used commercially by business men, and it seems to me that "special circumstances" have to be understood and applied in a business sense. In my view, this token import scheme modification to the earlier general prohibition did not convert what was before impossible into what was in a business sense, practicable, even if a firm in this country had made the necessary application under the scheme. The non-use of the trade mark by the Bali Company, even during the token import scheme, is thus in my view, shown to have been due to special circumstances in the trade." (Emphasis supplied) 59. The Court of Appeal reversed this decision on another issue. The House of Lords in turn reversed the decision of the Court of Appeal and reaffirmed the decision of Justice Ungoed Thomas in Berlei (U.K.) Ltd. V. Bali Brassiere Co., Inc. 1969(2) ALL ER 812. 60. This view has been accepted as good law in this country. [See A.J. Vulcan vs. V.S. Palanichamy AIR 1969 Cal. 43 and Express Bottlers Services Pvt. Ltd. vs. Pepsi Inc. & Others 1989 PTC 14]. The law therefore is that even an economical impracticability would amount to special circumstances. 61. The indisputable evidence shows and the admitted position is that from 1946 to 1971 Addisons was using the trademark first as the chief agent of Hardie under the collaborative agreement, and then under the registered users agreement. Apart from the express clauses in the two agreement by which Hardie retained its rights over the trademarks, under Sections 48(2) read with S. 2(m): "The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of Section 46 or for any other purpose for which such use is material under this Act or any other law." Addisons therefore never used the trade marks on its own account. For the purposes of Section 46, its use of the trademarks prior to 1971 was agreement and by the fiction created under Section 48(2), Hardies use. [See: Cycle Corporation of India Ltd. vs. T.I. Raleigh Industries Pvt. Ltd. (1996) 9 SCC 430 , 436]. Addisons had not even attempted to use the trademarks at any time subsequent to 1971 i.e. after it had publicly disassociated itself from the marks. In fact Addisons admitted that it did not use the trademarks from 1963 to 1977 in the written statements filed in the suits for infringement pending in Calcutta. 62. We cannot ignore the fundamental fact that what Hardie and Addisons had been engaged in together was the introduction and sale in the Indian market of the paints and lacquers prepared according to Hardies preparation and under Hardies trademark. In this background, where, by legal fiction atleast Hardie had used the trademarks from 1946 to 1961, it would be a legally insupportable proposition if we were to hold that the names Spartan and Spartan Velox were associated with Addisons and not with Hardie. Therefore, when the applications for rectification were made, there was nothing in law to associate Addisons with the trademarks in question. This background coupled with Hardies attempts to appoint Hansa as the registered user of the trademark in India must be kept in sight while considering the plausibility of the defence of special circumstances under the provisions of Section 46(3) of the Act.63. Hardie had brought on record the Import Trade Control Policies for the relevant years. We have considered the same and it is quite clear that paints, distempers, varnishes and lacquers could be imported only for use by actual users i.e. by manufacturers or producers of the paints etc. in India. Hardie had no such factory. There was in the circumstances no question of Hardie importing any paints and lacquers manufactured by it outside India into the country. There was a second restriction under the Import Control Policies even on actual users who imported paint for their own use. They had to use the imported goods for producing goods as specified only for export. The intention of the policy clearly was to keep the domestic market for the domestic producers of paints and lacquers. Concerns like Hardie could not, without making an enormous investment by setting up a factory, import the goods.64. In the circumstance, for Buttress to have said that it was not economically possible for Hardie to itself put its manufactured goods in the market immediately, cannot be taken as being a circumstance which was peculiar to Hardie alone. It was a circumstance which was generally applicable to all foreign manufacturers of paints and lacquers. Therefore, the conclusion of the Joint Registrar and the High Court that there were no special circumstances in the trade which justified the alleged non-user for he period in question was wrong. In view of our findings, it is not necessary to go into the further question of the discretionary power of the Registrar to refuse rectification even if the application is otherwise maintainable.	1[ds]29. The phrase person aggrieved is a common enough statutory precondition for valid complaint or appeal. The phrase has been variously construed depending on the context in which it occurs. Three sections viz. Sections 46, 56 and 69 of the Act contain the phrase. Section 46 deals with the removal of a registered trademark from the register on the ground ofThis section presupposes that the registration which was validly made is liable to to be taken off by subsequentSection 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. The situations covered by this section includea) the contravention or failure to observe a condition for registration; (b) the absence of an entry; (c) an entry made without sufficient cause; (d) a wrong entry; and (e) any error or defect in the entry. Such type of actions are commenced for the purity of the register which it is in public interest to maintain. Applications under sections 46 and 56 may be made to the Registrar who is competent to grant the relief. "Persons aggrieved" may also apply for cancellation or varying an entry in the register relating to a certification trademark to the Central Government in certain circumstances. Since we are not concerned with a certification trademark, the process or registration of which is entirely different, we may exclude the interpretation of the phrase "person aggrieved" occurring in section 69 from consideration for the purposes of this judgment.30. In our opinion the phrase person aggrieved for the purposes of removal on the ground ofunder section 46 has a different connotation from the phrase used in section 56 for canceling or expunging or varying an entry wrongly made or remaining in the Register.31. In the latter case the locus standi would be ascertained liberally, since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed.The observation of the Division Bench that apart from special circumstances, there was no other defence available to a proprietor in proceedings to remove his trademark from the register, is as we have already indicated, incorrect. The proprietor can show, as Hardie, has done in this case, that there was no intention to abandon the trademarks. If, that is established it is a complete defence to the action. The second erroneous finding of the Division Bench was that economic viability or existing market condition was outside the concept of special circumstances. The finding does not follow from the Section and is against the weight of authority.56. Special circumstances have been defined in Aktiebolaget Manus vs. R.J. Fullwood and Bland, Ltd., (1949) 66 RPC 71, as "some external forces as distinct from voluntary acts of an individual.." where the impact of local condition makes impractical the ordinary usage of international trade". In that case it was held prohibitive tariffs which were practically effective to keep out of England altogether machines manufactured abroad which had, till the tariffs had been imposed, been imported to the country amounted to special circumstances. The facts in Manus case are similar to the facts which we have to consider. In dispute were trademarks as applied to milking machines. The proprietor of the marks was a Swedish company. The machines had been imported into Britain through the defendant as its agent. When the import of the milking machines was stopped by the registered proprietors, the agent claimed the trademarks as its own and started manufacturing and selling milking machines bearing the same trademarks. The proprietor brought an action for infringement of its trademarks. The question before the Court was whether the actions of the defendant subsequent to the tapering off of the import of the Swedish Companys machines, were effective to appropriate to themselves what had been before the Swedish Companys property or as having been effective to destroy the distinctive character of the name as indicating the Swedish Companys business so as to put an end to its right to the name in England. The question was answered in the negative and it was held that thewas justified because of the special circumstances prevailing at the relevant period.57. In Mouson & Co. vs. Boechm (supra), it was said that "A man who has a trade mark may properly have regard to the state of the market and the demand for the goods; it would be absurd to suppose he lost his trade market by not putting more goods in the market when it was glutted".We cannot ignore the fundamental fact that what Hardie and Addisons had been engaged in together was the introduction and sale in the Indian market of the paints and lacquers prepared according to Hardies preparation and under Hardies trademark. In this background, where, by legal fiction atleast Hardie had used the trademarks from 1946 to 1961, it would be a legally insupportable proposition if we were to hold that the names Spartan and Spartan Velox were associated with Addisons and not with Hardie. Therefore, when the applications for rectification were made, there was nothing in law to associate Addisons with the trademarks in question. This background coupled with Hardies attempts to appoint Hansa as the registered user of the trademark in India must be kept in sight while considering the plausibility of the defence of special circumstances under the provisions of Section 46(3) of the Act.63. Hardie had brought on record the Import Trade Control Policies for the relevant years. We have considered the same and it is quite clear that paints, distempers, varnishes and lacquers could be imported only for use by actual users i.e. by manufacturers or producers of the paints etc. in India. Hardie had no such factory. There was in the circumstances no question of Hardie importing any paints and lacquers manufactured by it outside India into the country. There was a second restriction under the Import Control Policies even on actual users who imported paint for their own use. They had to use the imported goods for producing goods as specified only for export. The intention of the policy clearly was to keep the domestic market for the domestic producers of paints and lacquers. Concerns like Hardie could not, without making an enormous investment by setting up a factory, import the goods.64. In the circumstance, for Buttress to have said that it was not economically possible for Hardie to itself put its manufactured goods in the market immediately, cannot be taken as being a circumstance which was peculiar to Hardie alone. It was a circumstance which was generally applicable to all foreign manufacturers of paints and lacquers. Therefore, the conclusion of the Joint Registrar and the High Court that there were no special circumstances in the trade which justified the allegedfor he period in question was wrong. In view of our findings, it is not necessary to go into the further question of the discretionary power of the Registrar to refuse rectification even if the application is otherwise maintainable.Therefore, Addisons voluntarily undertook to the High Court that it would not use the mark Spartan or the device of theuntil the disposal of the suit. It is not in dispute that the suit is still pending. It has never been and is not Addisons case that the consent was obtained by any fraud or by exerting undue pressure. In fact on 30th April 1982, there is an order of the High Court of Calcutta which records Addisons reiteration that it would not use the markwhich was claimed by Hardie and Hansa. Irrespective of whether these orders sanctioned the use ofby Hansa and Hardie, the question is whether they show that Addisons had ever used or showed any intention to use the device ofThe third part of the consent order is that Addisons would not object to Hardie and Hansa selling their products as long as they distinguish their goods from those of Addisons. Pursuant to the consent order dated 22nd February 1979 w.e.f. 3rd September 1979 Hansa started using the Spartan trade mark with the warrior device of Hardie on the products manufactured by it and has continued to do so.78. It has not been shown to us how a consent order differs from any other form of agreement except that it may have additional sanctity by reason of the imprimatur of the Court. And yet, the High Court came to the conclusion that Hansas use of the device subsequent to the consent order was "by brute use in controversial circumstances". We are at a loss to understand how the High Court could have deduced that the use of the mark by Hansa during the pendency of the proceedings was not bona fide.79. The High Court in wrongly casting the onus on Hardie and Hansa by saying that they had not been able to produce "any other relevant material to indicate that there was no bona fide intention on the part of Addisons to use the mark at the time when they made their applications: did not consider whether Addisons had positively proved its use and intention to use the device.80. We are of the view that the dissenting judgment of Swamidurai, J. was correct. The learned Judge had correctly emphasised that Hardie had manufactured and was the first to market its goods under its registered trade mark and device in India. the learned Judge also correctly construed the consent order. No one hadAddisons into giving its consent. That is also not Addisons case. There are other factual errors in the majority view but it is not necessary to go into those as what we have found is sufficient to set aside the decision impugned and to allow the appeals.81. Even if we had held in Addisons favour on all other points we would have thought that this was a fit case where the Assistant Registrar should have exercised his discretion under Section 18 and rejected Addisons application for registration. Not only was no positive proof of an intention to use the device or the trade marks adduced by Addisons but the evidence shows a conscious abandonment of the device in 1971 by the issuance of the public advertisements. When did Addisons intention to use the device form? What was the necessity to revive the use of the device mark in respect of paints after an interval of almost 7 years? The answer to these issues would be relevant on the question of the bona fides of the Addisons applications and yet was neither raised nor considered either by the Registrar or by the High Court. On the other hand taking into consideration the continued user of the mark since 1979 by Hansa, it should have been assumed that the device had over the period of so many years become distinctive of Hansas product and therefore to allow registration of the device in Addisons name might deceive the public.There is no dispute that the marks which were the subject matte of Addisons application for registration before the Registrar of trademarks at Madras were identical with Hardies marks of Spartan and Spartan Velox. Although, the appellant has impugned the decision of the Registrar inter alia on the ground that the order passed by the Registrar on 2nd June, 1992 was without notice to the appellant and in violation of Section 102 of the Act, it is not necessary to express any opinion on the submissions. The appeals must be allowed on the short ground that we have held that Hardies trademarks could not have been removed from the Register and a long as the registration of the marks continue in the name of Hardie, the application for registration of the same marks in the absence of any plea of bonafide concurrent user under Section 12 would not arise.	1	9,113	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: it would be absurd to suppose he lost his trade market by not putting more goods in the market when it was glutted". 58. More recently, Justice Ungoed Thomas in BALI Trade Mark (Rectification Ch.D.) 1966 RPC 397 said: "It is quite clear, however, that the proprietors, the Bali Company, could not have used the token import scheme, unless an interested firm in this country made the appropriate application and no such application was made. It was thus not possible for the company to import under the token scheme, and that was not their fault. Further, what has to be considered is not merely the existence of an absolute prohibition to import, as might be thought from one passage in the Assistant Comptrollers decision, or a complete impossibility of importing, but in the words of Evershed, L.J. (supra), the existence of conditions "making impracticable the ordinary usages of international trade." "A trade mark is a commercial asset intended to be used commercially by business men, and it seems to me that "special circumstances" have to be understood and applied in a business sense. In my view, this token import scheme modification to the earlier general prohibition did not convert what was before impossible into what was in a business sense, practicable, even if a firm in this country had made the necessary application under the scheme. The non-use of the trade mark by the Bali Company, even during the token import scheme, is thus in my view, shown to have been due to special circumstances in the trade." (Emphasis supplied) 59. The Court of Appeal reversed this decision on another issue. The House of Lords in turn reversed the decision of the Court of Appeal and reaffirmed the decision of Justice Ungoed Thomas in Berlei (U.K.) Ltd. V. Bali Brassiere Co., Inc. 1969(2) ALL ER 812. 60. This view has been accepted as good law in this country. [See A.J. Vulcan vs. V.S. Palanichamy AIR 1969 Cal. 43 and Express Bottlers Services Pvt. Ltd. vs. Pepsi Inc. & Others 1989 PTC 14]. The law therefore is that even an economical impracticability would amount to special circumstances. 61. The indisputable evidence shows and the admitted position is that from 1946 to 1971 Addisons was using the trademark first as the chief agent of Hardie under the collaborative agreement, and then under the registered users agreement. Apart from the express clauses in the two agreement by which Hardie retained its rights over the trademarks, under Sections 48(2) read with S. 2(m): "The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of Section 46 or for any other purpose for which such use is material under this Act or any other law." Addisons therefore never used the trade marks on its own account. For the purposes of Section 46, its use of the trademarks prior to 1971 was agreement and by the fiction created under Section 48(2), Hardies use. [See: Cycle Corporation of India Ltd. vs. T.I. Raleigh Industries Pvt. Ltd. (1996) 9 SCC 430 , 436]. Addisons had not even attempted to use the trademarks at any time subsequent to 1971 i.e. after it had publicly disassociated itself from the marks. In fact Addisons admitted that it did not use the trademarks from 1963 to 1977 in the written statements filed in the suits for infringement pending in Calcutta. 62. We cannot ignore the fundamental fact that what Hardie and Addisons had been engaged in together was the introduction and sale in the Indian market of the paints and lacquers prepared according to Hardies preparation and under Hardies trademark. In this background, where, by legal fiction atleast Hardie had used the trademarks from 1946 to 1961, it would be a legally insupportable proposition if we were to hold that the names Spartan and Spartan Velox were associated with Addisons and not with Hardie. Therefore, when the applications for rectification were made, there was nothing in law to associate Addisons with the trademarks in question. This background coupled with Hardies attempts to appoint Hansa as the registered user of the trademark in India must be kept in sight while considering the plausibility of the defence of special circumstances under the provisions of Section 46(3) of the Act.63. Hardie had brought on record the Import Trade Control Policies for the relevant years. We have considered the same and it is quite clear that paints, distempers, varnishes and lacquers could be imported only for use by actual users i.e. by manufacturers or producers of the paints etc. in India. Hardie had no such factory. There was in the circumstances no question of Hardie importing any paints and lacquers manufactured by it outside India into the country. There was a second restriction under the Import Control Policies even on actual users who imported paint for their own use. They had to use the imported goods for producing goods as specified only for export. The intention of the policy clearly was to keep the domestic market for the domestic producers of paints and lacquers. Concerns like Hardie could not, without making an enormous investment by setting up a factory, import the goods.64. In the circumstance, for Buttress to have said that it was not economically possible for Hardie to itself put its manufactured goods in the market immediately, cannot be taken as being a circumstance which was peculiar to Hardie alone. It was a circumstance which was generally applicable to all foreign manufacturers of paints and lacquers. Therefore, the conclusion of the Joint Registrar and the High Court that there were no special circumstances in the trade which justified the alleged non-user for he period in question was wrong. In view of our findings, it is not necessary to go into the further question of the discretionary power of the Registrar to refuse rectification even if the application is otherwise maintainable. ### Response: 1
552	Serifinance & Investment Company Private Limited Vs. Videocon Leasing & Industrial Finance Limited	suits, that certain sums of money which were paid by the appellant herein were adjusted towards the dues of the appellant sister concern. In view of the said adjustment no amount remained due from the appellant s sister concern - the defendant in the other summary suit. In view of the same the appellant also sought leave to withdraw the other summary suit filed against the appellants sister concern.4. Before the learned Single Judge the appellant contended that the respondent had no authority to appropriate the payment made by it towards the alleged dues of its sister concern. The appellant had not given any authority to the respondent to appropriate the payment made by it for the dues of the other company, even though it was its sister concern. According to the appellant a company incorporated under the Companies Act is a separate legal entity, distinct from its members. The appellant company and its sister concern, in law, were two different concerns having separate legal personalities. Therefore the payments made by the appellant could not be appropriated and adjusted towards the dues of another legal person. If the payments made by the appellant are accounted in appellant s own account no amount was due by the appellant to the respondent. The appellant was therefore entitled to an unconditional leave to defend.5. After considering the material available before him the learned Single Judge came to the conclusion that the appellant its sister concern were separate legal entities, and maintained separate accounts. He also came to the conclusion that in the circumstances the defence of the appellant that the payment made by it could not be appropriated in the account of its sister concern raised a triable issue. He however held that though it was a triable issue, it was not a bona fide defence. The learned Single Judge held that in any event money (about Rs.70,00,000/-) would be due either by the appellant or by its sister concern to the respondent. The learned Single Judge therefore granted conditional leave to the appellant to defend the suit, subject to deposit of Rs.70,00,000.6. Mr. Thakkar, Sr. Counsel appearing for the appellant, submitted that having recorded a finding of fact that the appellant had a defence which gave rise to a triable issue, the learned Single Judge ought to have granted unconditional leave to the appellant to defend the suit. The question of bona fides or otherwise of the appellant were irrelevant if a triable issue otherwise was raised, submitted the counsel. Mr. Thakkar referred to and relied upon the decision of the Supreme Court in M/s. Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation, reported in AIR 1977 SC 577 . In para 8 of the decision the Supreme Court has laid down the proposition for grant of leave in the following words:"(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.."7. In para (b) it has been specifically laid that if the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a adversely good defence he is entitled to an unconditional leave to defend. Once a reasonable defence is made out the defendant is entitled to an unconditional leave.8. We have examined the defence of the appellant. The appellant had made the payments to the respondent, some of which have been adjusted towards the dues of another legal person. Whether the appellant had given instructions to appropriate part of the payment for the dues of its sister concern or not raises a triable issue. Prima facie there is nothing placed on record to show that appellant had ever authorized the respondent to appropriate payment towards the dues of the sister concern. The appellant is a company and the defendant in the other summary suit is a separate company which are two legal entities in the eye of law. In the circumstances, the question whether the respondent was right in appropriating any payment made by the appellant towards the dues of appellant s sister concern raises a triable issue. In this view of the matter we are of the view that the appellant is entitled to unconditional leave to defend.	1[ds]8. We have examined the defence of the appellant. The appellant had made the payments to the respondent, some of which have been adjusted towards the dues of another legal person. Whether the appellant had given instructions to appropriate part of the payment for the dues of its sister concern or not raises a triable issue. Prima facie there is nothing placed on record to show that appellant had ever authorized the respondent to appropriate payment towards the dues of the sister concern. The appellant is a company and the defendant in the other summary suit is a separate company which are two legal entities in the eye of law. In the circumstances, the question whether the respondent was right in appropriating any payment made by the appellant towards the dues of appellant s sister concern raises a triable issue. In this view of the matter we are of the view that the appellant is entitled to unconditional leave to defend.	1	1,444	### 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: suits, that certain sums of money which were paid by the appellant herein were adjusted towards the dues of the appellant sister concern. In view of the said adjustment no amount remained due from the appellant s sister concern - the defendant in the other summary suit. In view of the same the appellant also sought leave to withdraw the other summary suit filed against the appellants sister concern.4. Before the learned Single Judge the appellant contended that the respondent had no authority to appropriate the payment made by it towards the alleged dues of its sister concern. The appellant had not given any authority to the respondent to appropriate the payment made by it for the dues of the other company, even though it was its sister concern. According to the appellant a company incorporated under the Companies Act is a separate legal entity, distinct from its members. The appellant company and its sister concern, in law, were two different concerns having separate legal personalities. Therefore the payments made by the appellant could not be appropriated and adjusted towards the dues of another legal person. If the payments made by the appellant are accounted in appellant s own account no amount was due by the appellant to the respondent. The appellant was therefore entitled to an unconditional leave to defend.5. After considering the material available before him the learned Single Judge came to the conclusion that the appellant its sister concern were separate legal entities, and maintained separate accounts. He also came to the conclusion that in the circumstances the defence of the appellant that the payment made by it could not be appropriated in the account of its sister concern raised a triable issue. He however held that though it was a triable issue, it was not a bona fide defence. The learned Single Judge held that in any event money (about Rs.70,00,000/-) would be due either by the appellant or by its sister concern to the respondent. The learned Single Judge therefore granted conditional leave to the appellant to defend the suit, subject to deposit of Rs.70,00,000.6. Mr. Thakkar, Sr. Counsel appearing for the appellant, submitted that having recorded a finding of fact that the appellant had a defence which gave rise to a triable issue, the learned Single Judge ought to have granted unconditional leave to the appellant to defend the suit. The question of bona fides or otherwise of the appellant were irrelevant if a triable issue otherwise was raised, submitted the counsel. Mr. Thakkar referred to and relied upon the decision of the Supreme Court in M/s. Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation, reported in AIR 1977 SC 577 . In para 8 of the decision the Supreme Court has laid down the proposition for grant of leave in the following words:"(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.."7. In para (b) it has been specifically laid that if the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a adversely good defence he is entitled to an unconditional leave to defend. Once a reasonable defence is made out the defendant is entitled to an unconditional leave.8. We have examined the defence of the appellant. The appellant had made the payments to the respondent, some of which have been adjusted towards the dues of another legal person. Whether the appellant had given instructions to appropriate part of the payment for the dues of its sister concern or not raises a triable issue. Prima facie there is nothing placed on record to show that appellant had ever authorized the respondent to appropriate payment towards the dues of the sister concern. The appellant is a company and the defendant in the other summary suit is a separate company which are two legal entities in the eye of law. In the circumstances, the question whether the respondent was right in appropriating any payment made by the appellant towards the dues of appellant s sister concern raises a triable issue. In this view of the matter we are of the view that the appellant is entitled to unconditional leave to defend. ### Response: 1
553	NATIONAL CO-OPERATIVE DEVELOPMENT CORPORATION Vs. COMMISSIONER OF INCOME TAX, DELHI-V	does not specify as to who should be the grantee; what should be amount to be granted. All that is prescribed is that the business of the appellant-Corporation is to provide loans or grants for the avowed object for which it has been set up. The decision with regard to who should get the grant is taken by the appellant-Corporation directly in the course of, and for the purpose of its business. Thus, the amount agreed to be given should be given as a loan or grant, or both is entirely at the business discretion of the appellant-Corporation. No grantee has a superior title to the funds. Hence, this is not a case of diversion of income by overriding title. 38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down: 6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business... There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income. 39. We may also note that even though in the own view of the appellant-Corporation for preceding years in question, it never claimed any such adjustments, but that of course does not preclude the right of the appellant-Corporation as they sought to make out a case of mistake at a subsequent date. 40. We may also note another statutory development. The Finance Act of 2003 added a provision in Section 36 of the IT Act as sub-clause (1) (xii) in the following terms: 36. Other deductions. – (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 – (i) to (xi) xxxx (xii) any expenditure (not being in the nature of capital expenditure) incurred by a corporation or a body corporate, by whatever name called, if, - (a) It is constituted or established by a Central, State or Provincial Act; (b) Such corporation or body corporate, having regard to the objects and purposes of the Act referred to in sub-clause (a), is notified by the Central Government in the Official Gazette for the purposes of this clause; and (c) The expenditure is incurred for the objects and purposes authorised by the Act under which it is constituted or established; xxx 41. The amendment has to be appreciated in the context of the Departmental Circular No.7/2003 dated 5.9.2003, which provides for deduction for expenditure incurred by entities established under any Central, State or Provincial Act. Entities that are created under an Act of Parliament have the basic object and function of carrying on developmental activities in the areas as specified in the said Acts. By the Finance Act, 2001 and the Finance Act, 2002, tax exemption of certain bodies set up through an Act of Parliament was withdrawn. Subsequent to the removal of the tax shield, a doubt has arisen that some of the activities having no profit motive being carried on by such entities cannot be said to be business and therefore, expenditure incurred on such developmental activities may not be allowed as a deduction when computing the income under the head profits and gains of business or profession. 42. The Finance Act, 2003, thus, inserted a new clause mentioned aforesaid so as to provide that an expenditure not being capital expenditure incurred by a corporation or body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorised by such Act under which such corporation or body corporate was constituted or established, shall be allowed as a deduction in computing the income under the head profits and gains of business or profession. The amendment had been introduced into the Act with effect from 1.4.2002. (Chaturvedi & Pithisarias Income Tax Law, Volume 3, Sixth Edition (2014), Pg. 3310, published by LexisNexis). 43. The question, thus, arises whether prior to this amendment such expenses were not allowable under the prevailing tax regime for such entitles which were not exempt from tax. In the years prior to the amendment, as we are dealing with AY 1976-77 onwards, the tax jurisprudence has evolved on the basis of ordinary principles of commercial accountancy for determining the taxable income. Thus, prior to insertion of this sub-clause, such expenses would be permissible under the general Section 37(1) of the IT Act, which provides for deduction of permissible expenses on principles of commercial accountancy. Post amendment, such expenses get allowed under the specific section, viz. Section 36(1)(xii) after the amendment by the Finance Act, 2003. 44. We would, thus, like to conclude that we are unable to agree with the findings arrived at by the AO, ITAT and the High Court albeit for different reasons and concur with the view taken by the CIT(A) for the reasons set out hereinbefore.	1[ds]In terms of Section 28 of the IT Act such profits and gains of any business or profession under the head D of Section 14 of the IT Act would be chargeable to income tax if the income is relatable to profits and gains of business or profession carried out by the assessee at any time during the previous year [Clause (i) of Section 28 of the IT Act]. Section 56 of the IT Act is in the nature of a residuary clause, i.e., if the income of every kind which is not to be excluded from total income under the IT Act would be chargeable under this head if it is not chargeable under Section 14 heads A to E.22. The aforesaid aspect did not form a part of the rationale of the view taken by the AO, but the CIT(A) opined that the grants made by the appellant-Corporation undisputedly fall within its authorised business activities and, thus, even the advancing of grants from the interest income would be a revenue expense as it had not resulted in acquisition of capital assets by the appellant-Corporation and, thus, would be adjustable under Section 37(1) of the IT Act. The ITAT, while reversing the order of the CIT(A), does not deal with this aspect but the impugned judgment of the High Court, once again, adverted to this aspect and came to the conclusion that the interest income would fall under head D of Section 14 of the IT Act and would not fall under the head of income from other sources under Section 56 of the IT Act.23. We are in agreement with this view taken by the High Court, as the only business of the appellant-Corporation is to receive funds and then to advance them as loans or grants. The interest income arose on account of the fund so received and it may not have been utilised for a certain period of time, being put in fixed deposits so that the amount does not lie idle. That the income generated was again applied to the disbursement of grants and loans. The income generated from interest is necessarily inter- linked to the business of the appellant-Corporation and would, thus, fall under the head of profits and gains of business or profession. There would, therefore, be no requirement of taking recourse to Section 56 of the IT Act for taxing the interest income under this residuary clause as income from other sources. In our view, to decide the question as to whether a particular source of income is business income, one would have to look to the notions of what is the business activity. The activity from which the income is derived must have a set purpose. The business activity of the appellant-Corporation is really that of an intermediary to lend money or give grants. Thus, the generation of interest income in support of this only business (not even primary) for a period of time when the funds are lying idle, and utilised for the same purpose would ultimately be taxable as business income. The fact that the appellant- Corporation does not carry on business activity for profit motive is not material as profit making is not an essential ingredient on account of self- imposed and innate restriction arising from the very statute which creates the appellant-Corporation and the very purpose for which the appellant- Corporation has been set up. Our view finds support from the judgment in The Sole Trustee, Lok Shikshana Trust v. The Commissioner of Income Tax, Mysore. (1976) 1 SCC 254. 25. The facts before us clearly set out that undoubtedly the amount received to be advanced as loans and grants by the appellant-Corporation from the Central Government are treated as capital receipts. In fact, if it was otherwise, they would have become taxable in the hands of the appellant-Corporation. Over this, there is no dispute. The line of argument on behalf of the appellant-Corporation was, however, predicated on a plea that assuming it to be so, the grants (and not loans) cannot be treated as a capital expenditure as neither any enduring advantage or benefit has accrued to the appellant-Corporation nor has any asset come into existence which belongs to or was owned by the appellant-Corporation. Thus, what may be a capital receipt in the hands of the appellant-Corporation may still be a revenue expenditure and it is in that context that the observations in Atherton v. British Insulated and Helsby Cables Ltd. (supra) referred to in Commissioner of Income Tax, Bombay v. Associated Cement Companies Ltd., Bombay (supra) were relied upon. The context was slightly different in those cases because if an expenditure was to bring into existence an asset or advantage for enduring benefit of the trade, it was opined that a case could be made out attributed not to revenue but to capital. In this case, of course, this proposition is really the reverse and advantage was sought to be taken of the aforesaid principle.27. No doubt the interest income is not directly received as a capital amount. It is actually generated by utilising the capital receipts when the fund is lying idle though the income so generated is then applied for the very objective for which the appellant-Corporation was set up, i.e., disbursement of grants and advancement of loans. The impugned judgment of the High Court appears to us to have dealt with both loans and grants, but the question of references framed, and which is a position accepted before us, is that the dispute related to only grants. It was not the appellant-Corporations case that the amounts advanced as loans, the same being payable with interest, could be adjusted as expenses against the business income generated by investing the amounts and consequently earning interest on the same. The argument was predicated on a reasoning that since the interest generated is treated as a business income, the grants made, which would never come back, should be adjustable as expenses against the same. In fact, to the extent grants were returned back, the CIT(A) did not allow the entire deduction as claimed for but only did so qua the amount which was disbursed as grant and never received back.28. To decide the aforesaid question, it would be appropriate to advert to the very purpose for which the statutory appellant-Corporation has been set up. It is in this context that we have set out the functions of the appellant-Corporation in para 3 hereinabove, i.e., to advance loans or grant subsidies to State Governments for financing cooperative societies, etc. There is no other function which the appellant-Corporation carries out nor does it generate any funds of its own from any other business. In a sense the role is confined to receiving funds from the Central Government and appropriately advancing the same as loans, grants or subsidies. In a larger canvas the appellant-Corporation plans, promotes and makes financial programmes for the benefit of these societies and other entities to which such loans, grants and subsidies are advanced. We may say it is really in the nature of an intermediary with expertise in the financial sector to carry forward the intent of the Central Government to assist State Governments, Cooperative Societies, etc. Since this is the business activity, that is what has persuaded us to opine that the income generated in the form of interest on the unutilised capital is in the nature of business income. The objectives are wholly socio-economic and the amounts received including grants come with a prior stipulation for the funds received to be passed on to the downstream entities. This is the reason they have been treated as capital receipts. However, we are unable to opine that since this is a pass-through entity on the basis of a statutory obligation, the advancement of loans and grants is not a business activity, when really it is the only business activity. Once it is business activity, the interest generated on the unutilised capital has been held by us to be the business income.29. We are unable to accept the contention of the Revenue Department that merely because the interest income received has merged with the monies in the common Fund it loses its revenue character and becomes a capital receipt. This line of argument is inconsistent with the position where interest money is received, it is held to be of revenue character, and chargeable to tax under the head Profits and Gains of Business or Profession. This amount while lying in the same fund cannot acquire the character of a capital receipt. The interest having been treated as revenue receipt on which taxes are paid, it must continue to retain the character of revenue receipt. If the nature of receipt is treated as capital receipt then consistent with the aforesaid approach, no taxes would have been payable on the amount. The corollary is that all expenses incurred in connection with the business are deductible.30. The legal position, which emerges is that if an assessee carries on business, all that is required to be seen is whether any outlay constitutes an expenditure for the purpose of business as used in Section 37(1) of the IT Act.The disbursement of grants has already been held to be the core business of the appellant-Corporation. Once that requirement is satisfied, the expenditure incurred in the course of business and for the purpose of business, would naturally be an allowable deduction under Section 37(1) of the IT Act. The source of funds from which the expenditure is made is not relevant. It is also not really relevant as to whether the expenditure is incurred out of the corpus funds or from the interest income earned by the appellant-Corporation.31. We are also unable to accept the contention of the respondent that the payouts constitute a mere application of income, which does not tantamount to expenditure. The disbursement of non-refundable grants is an integral part of business of the appellant-Corporation as contemplated under Section 13(1) of the NCDC Act and, thus, is for the purpose of its business. The purpose is direct; merely because the grants benefit a third party, it would not render the disbursement as application of income and not expenditure.32. In support of the aforesaid view, we may rely on the judgment of this Court in CIT Kerala, Ernakulam v. The Travancore Sugar & Chemicals Ltd., (1973) 3 SCC 274 ( more specifically para 23) which gave an occasion to examine the issue whether the discharge of an obligation paid to the Government was application of income or diversion of profits. This Court came to the conclusion that from any point of view, whether as revenue expenditure or as an overriding charge of the profit-making apparatus or laid out and expended wholly and exclusively for the purposes of trade, this was an allowable revenue expenditure.33. The logical conclusion is that every application of income towards business objective of the appellant-Corporation is a business expenditure and nothing else. The endeavour of the Revenue Department to rely on the judgment in the Sitaldas Tirathdas case (supra) is not appreciable since that was a case dealing with the obligation of an individual who was compelled to apply a portion of his income for the maintenance of persons whom he was under a personal and legal obligation to maintain. The IT Act does not permit any deduction from the total income in such circumstances.34. We also find really no force in the submission of the Revenue Department that the direct nexus of monies given as outright grants from the taxable interest income cannot be distinctly identified. This is a question of fact. The plea of the respondents is based on a pure conjecture.In fact, CIT(A) allowed the business expenditure only to a certain amount on the basis of the facts and figures as emerged from the balance sheet. This is a burden which was to be discharged by the appellant-Corporation and the CIT(A) had been satisfied with the nexus of interest income with the disbursement of grants made, as having been established.35. We may also note another principle to test the proposition, i.e., of diversion by overriding title. This principle was originally set out in the Sitaldas Tirathdas case (supra) and the principle has been since followed. If a portion of income arising out of a corpus held by the assessee consumed for the purposes of meeting some recurring expenditure arising out of an obligation imposed on the assessee by a contract or by statute or by own volition or by the law of the land and if the income before it reaches the hands of the assessee is already diverted away by a superior title the portion passed or liable to be passed on is not the income of the assessee. The test, thus, is what amounts to application of income and what is the diversion by overriding title. The principle, in a sense would apply, if the Act or the Rules framed thereunder or other binding directions bind the institution to spend the interest income on disbursal of grants.36. The appellant-Corporation has devised a procedure of sanction/disbursal of its system for institutional development of cooperatives. The appellant-Corporation actually supplements the efforts of the State Governments. Thus, State Governments recommend proposals of individual societies/projects to the appellant-Corporation in a prescribed systematic format and that society may also avail direct funding of projects under various schemes of assistance on fulfillment of stipulated conditions. The formal sanction is thereafter conveyed to the State Government or the Society as the case may be and the release of funds depends on progress of implementation and is on a non- reimbursement basis. Part of the funds are advanced as loans ranging from a period 3 to 8 years with rate of interest varying from time to time, while another part is applied to grants, which are not received back naturally. This modus-operandi has also been set out as a stand of the appellant-Corporation as contained in para 5 of the assessment order.37. The NCDC Act does not specify as to who should be the grantee; what should be amount to be granted. All that is prescribed is that the business of the appellant-Corporation is to provide loans or grants for the avowed object for which it has been set up. The decision with regard to who should get the grant is taken by the appellant-Corporation directly in the course of, and for the purpose of its business. Thus, the amount agreed to be given should be given as a loan or grant, or both is entirely at the business discretion of the appellant-Corporation. No grantee has a superior title to the funds. Hence, this is not a case of diversion of income by overriding title.39. We may also note that even though in the own view of the appellant-Corporation for preceding years in question, it never claimed any such adjustments, but that of course does not preclude the right of the appellant-Corporation as they sought to make out a case of mistake at a subsequent date.The Finance Act of 2003 added a provision in Section 36 of the IT Act as sub-clause (1) (xii)41. The amendment has to be appreciated in the context of the Departmental Circular No.7/2003 dated 5.9.2003, which provides for deduction for expenditure incurred by entities established under any Central, State or Provincial Act. Entities that are created under an Act of Parliament have the basic object and function of carrying on developmental activities in the areas as specified in the said Acts. By the Finance Act, 2001 and the Finance Act, 2002, tax exemption of certain bodies set up through an Act of Parliament was withdrawn. Subsequent to the removal of the tax shield, a doubt has arisen that some of the activities having no profit motive being carried on by such entities cannot be said to be business and therefore, expenditure incurred on such developmental activities may not be allowed as a deduction when computing the income under the head profits and gains of business or profession.42. The Finance Act, 2003, thus, inserted a new clause mentioned aforesaid so as to provide that an expenditure not being capital expenditure incurred by a corporation or body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorised by such Act under which such corporation or body corporate was constituted or established, shall be allowed as a deduction in computing the income under the head profits and gains of business or profession. The amendment had been introduced into the Act with effect from 1.4.2002. (Chaturvedi & Pithisarias Income Tax Law, Volume 3, Sixth Edition (2014), Pg. 3310, published by LexisNexis).In the years prior to the amendment, as we are dealing with AY 1976-77 onwards, the tax jurisprudence has evolved on the basis of ordinary principles of commercial accountancy for determining the taxable income. Thus, prior to insertion of this sub-clause, such expenses would be permissible under the general Section 37(1) of the IT Act, which provides for deduction of permissible expenses on principles of commercial accountancy. Post amendment, such expenses get allowed under the specific section, viz. Section 36(1)(xii) after the amendment by the Finance Act, 2003.44. We would, thus, like to conclude that we are unable to agree with the findings arrived at by the AO, ITAT and the High Court albeit for different reasons and concur with the view taken by the CIT(A) for the reasons set out hereinbefore.4. The Central Government and the State authorities have been repeatedly emphasising that they have evolved a litigation policy. Our experience is that it is observed more in breach. The approach is one of bringing everything to the highest level before this Court, so that there is no responsibility in the decision-making process – an unfortunate situation which creates unnecessary burden on the judicial system. This aspect has also been commented upon in a judgment of this Court in Union of India & Ors. v. Pirthwi Singh & Ors., (2018) 16 SCC 363 albeit between the Government and the private parties, where the question of law had been settled and yet the appeal was filed only to invite a dismissal. The object appears to be that a certificate for dismissal is obtained from the highest court so that a quietus could be put to the matter in the Government Departments. Undoubtedly, this is complete wastage of judicial time and in various orders of this Court it has been categorized as certificate cases, i.e., the purpose of which is only to obtain this certificate of dismissal.5. The 126 th Law Commission of India Report titled Government and Public Sector Undertaking Litigation Policy and Strategies debated the Government versus Government matters which weighed heavily on the time of the Courts as well as the public exchequer. This was as far back as in 1988. It was only in the year 2010 that the National Litigation Policy (for short NLP) was formulated with the aim of reducing litigation and making the Government an efficient and responsible litigant. Five (5) years later it reportedly saw a revision to increase its efficacy, but it has hardly made an impact. In the year 2018, the Central Government gave its approval towards strengthening the resolution of commercial disputes of Central Public Sector Enterprises (for short CPSEs)/ Port Trusts inter se, as well as between CPSEs and other Government Departments/Organisations. The aim was and is to put in place a mechanism within the Government for promoting a speedy resolution of disputes of this kind, however it excluded disputes relating to Railways, Income Tax, Customs and Excise Departments. It has now been made applicable to all disputes other than those related to taxation matters. This was pursuant an order passed in The Commissioner of Income Tax (Exemptions) v. National Interest Exchange of India SLP (C) Diary No. 35567 of 2019 by a bench of which one of us (Sanjay Kishan Kaul, J.) was a part.6. Insofar as non-taxation matters are concerned, the Administrative Mechanism for Resolution of CPSEs Disputes was conceptualised to replace the Permanent Machinery of Arbitration and to promote equity through collective efforts to resolve disputes. It has a two-tiered structure.7. At the first level, commercial disputes will be referred to the Committee comprising Secretaries of the Administrative Ministries/Departments to which the disputing parties belong and the Secretary, Department of Legal Affairs. In case the two disputing parties belong to the same Ministry/Department, the Committee will comprise Secretary of Administrative Ministry/Department concerned; the Secretary, Department of Legal Affairs and the Secretary, Department of Public Enterprises. If a dispute is between a CPSE and a State Government Department/Organisation, the Committee will comprise of the Secretary of the Ministry Department of the Union to which the CPSE belongs, the Secretary, Department of Legal Affairs and the Chief Secretary of the State concerned. Such disputes are ideally to be resolved at the first level itself within a time schedule of three (3) months, and in the eventuality of them remaining unresolved, the same may be referred to the Cabinet Secretary at the second level, whose decision will be final and binding on all concerned.8. We are of the opinion that one of the main impediments to such a resolution, plainly speaking, is that the bureaucrats are reluctant to accept responsibility of taking such decisions, apprehending that at some future date their decision may be called into question and they may face consequences post retirement. In order to make the system function effectively, it may be appropriate to have a Committee of legal experts presided by a retired Judge to give their imprimatur to the settlement so that such apprehensions do not come in the way of arriving at a settlement. It is our pious hope that a serious thought would be given to the aspect of dispute resolution amicably, more so in the post-COVID period.9. In most countries, mediation has proved to be an efficacious remedy and here we are talking about mediation inter se the Government authorities or Government departments. India is now a signatory to the Singapore Convention on Mediation and we understand that a serious thought is being given to bring forth a comprehensive legislation to institutionalise mediation, in furtherance of this function to which India has committed itself.11. In our opinion, a vibrant system of Advance Ruling can go a long way in reducing taxation litigation. This is not only true of these kinds of disputes but even disputes between the taxation department and private persons, who are more than willing to comply with the law of the land but find some ambiguity. Instead of first filing a return and then facing consequences from the Department because of a different perception which the Department may have, an Advance Ruling System can facilitate not only such a resolution, but also avoid the tiers of litigation which such cases go through as in the present case. In fact, before further discussing this Advance Ruling System, we can unhesitatingly say that, at least, for CPSEs and Government authorities, there would be no question of taking this matter further once an Advance Ruling is delivered, and even in case of private persons, the scope of any further challenge is completely narrowed down.s. The scope of the transactions on which an advance ruling can be sought from the AAR has gradually increased to now include both residents and non-residents, who can seek the same for issues having a substantial tax impact. Chapter XIX-B of the IT Act deals with advance rulings and it has been defined in Section 245N(a) of the IT Act. These rulings are binding both on the Income Tax Department and the applicant, and while there is no statutory right to appeal, the Supreme Court has held in Columbia Sportswear Company v. Director of Income Tax Bangalore (2012) 11 SCC 224 that a challenge an advance ruling first lies before the High Court, and subsequently before the Supreme Court. The advance ruling may be reversed in the event a substantial question of general public importance arises or a similar question is already pending before the Supreme Court for adjudication.13. The ground level situation is that this methodology has proved to be illusionary because there is an increasing number of applications pending before the AAR due to its low disposal rate and contrary to the expectation that a ruling would be given in six (6) months (as per Section 245R(6) of the IT Act), the average time taken is stated to be reaching around four (4) years! (See Deloitte Report on Advance Rulings in India: Delivering Greater Tax Certainty (Deloitte Tax Policy Paper 5, 2019)) There is obviously lack of adequate numbers of presiding officers to deal with the volume of cases. Interestingly, the primary reason for this is the large number of vacancies and delayed appointments of Members to the AAR. (ibid.) In view of the time taken, the very purpose of AAR is defeated, resulting in the mechanism being used infrequently as is evident from the ever- increasing tax related litigation.14. We may notice a significant development in Section 245N of the IT Act. It was through Notification No.11456 dated 3.8.2000 that public sector companies were added to the definition of applicant, and in 2014, it was made applicable to a resident who had undertaken one or more transactions of the value of Rs. 100 crore or more.15. Insofar as a resident is concerned, the limit is so high that it cannot provide any solace to any individual, and we do believe that it is time to reconsider and reduce the ceiling limit, more so in terms of the recent announcement stated to be in furtherance of a tax friendly face-less regime!19. The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil the mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale. This mechanism should not become another stage in the litigation process.22. In the end before parting we may refer to the legal legend Mr. Nani A. Palkhivala, who while addressing a letter of congratulations to Mr. Soli J. Sorabjee on attaining his appointment as the Attorney General on 11.12.1989 referred to the greatest glory of Attorney General as not to win cases for the Government but to ensure that justice is done to the people. In this behalf, he refers to the motto of the Department of Justice in the United States carved out into the Rotunda of the Attorney General Office:The United States wins its case whenever justice is done to one of its citizens in the courts.The Indian citizenry is entitled to a hope that the aforesaid is what must be the objective of Government litigation, which should prevail even within the Indian legal system. In the words of Martin Luther King, Jr., We must accept finite disappointment, but never lose infinite hope.16. We may refer to the international scenario where there has been an incremental shift towards mature tax regimes adopting advance ruling mechanisms. The increase in global trade puts the rulings system at the centre-stage of a robust international tax cooperation regime. The Organisation for Economic Cooperation and Development (for short OECD) lists advance rulings as one of the indicators to assess trade facilitation policies, making it an aspirational international best practice standard. For example, Australia and New Zealand have a robust system of advance rulings wherein the decisions (which are public rulings affecting a large number of taxpayers) are given teeth by being made binding on the revenue authorities. New Zealand has gone a step further and innovated status rulings under which a taxpayer can apply to the Commissioner for a ruling on how a change in the law impacts an existing ruling.17. In the United States, there is a mechanism for the Treasury to authorise guidance in the form of revenue rulings, procedures and notices. The mechanism again, has been bolstered by subsequent practice and interpretations of the United States courts, where rulings have indicated that taxpayers may be penalised if they act inconsistently with legal interpretations set out in the revenue rulings, procedures or notices.18. Tax transparency has been a hallmark trait of the Swedish legal system. Swedish law requires public disclosure of ex ante tax administration such as advance rulings. Both the taxpayer as well as the Swedish Tax Agency can request an advance tax ruling, these rulings are published without information identifying the taxpayer that requested them. The Skatterättsnämnden, or the Council for Advance Tax Rulings is the Swedish Government agency which is vested with this power. The advance ruling system has played a crucial role in Swedens position as a country with one of the highest tax compliance rates in the world.19. The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil the mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale. This mechanism should not become another stage in the litigation process.21. We have been persuaded to write two postscripts on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee, and we hope that both the aspects meet consideration at an appropriate level.38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down:6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business...There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income.	1	7,892	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: does not specify as to who should be the grantee; what should be amount to be granted. All that is prescribed is that the business of the appellant-Corporation is to provide loans or grants for the avowed object for which it has been set up. The decision with regard to who should get the grant is taken by the appellant-Corporation directly in the course of, and for the purpose of its business. Thus, the amount agreed to be given should be given as a loan or grant, or both is entirely at the business discretion of the appellant-Corporation. No grantee has a superior title to the funds. Hence, this is not a case of diversion of income by overriding title. 38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down: 6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business... There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income. 39. We may also note that even though in the own view of the appellant-Corporation for preceding years in question, it never claimed any such adjustments, but that of course does not preclude the right of the appellant-Corporation as they sought to make out a case of mistake at a subsequent date. 40. We may also note another statutory development. The Finance Act of 2003 added a provision in Section 36 of the IT Act as sub-clause (1) (xii) in the following terms: 36. Other deductions. – (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 – (i) to (xi) xxxx (xii) any expenditure (not being in the nature of capital expenditure) incurred by a corporation or a body corporate, by whatever name called, if, - (a) It is constituted or established by a Central, State or Provincial Act; (b) Such corporation or body corporate, having regard to the objects and purposes of the Act referred to in sub-clause (a), is notified by the Central Government in the Official Gazette for the purposes of this clause; and (c) The expenditure is incurred for the objects and purposes authorised by the Act under which it is constituted or established; xxx 41. The amendment has to be appreciated in the context of the Departmental Circular No.7/2003 dated 5.9.2003, which provides for deduction for expenditure incurred by entities established under any Central, State or Provincial Act. Entities that are created under an Act of Parliament have the basic object and function of carrying on developmental activities in the areas as specified in the said Acts. By the Finance Act, 2001 and the Finance Act, 2002, tax exemption of certain bodies set up through an Act of Parliament was withdrawn. Subsequent to the removal of the tax shield, a doubt has arisen that some of the activities having no profit motive being carried on by such entities cannot be said to be business and therefore, expenditure incurred on such developmental activities may not be allowed as a deduction when computing the income under the head profits and gains of business or profession. 42. The Finance Act, 2003, thus, inserted a new clause mentioned aforesaid so as to provide that an expenditure not being capital expenditure incurred by a corporation or body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorised by such Act under which such corporation or body corporate was constituted or established, shall be allowed as a deduction in computing the income under the head profits and gains of business or profession. The amendment had been introduced into the Act with effect from 1.4.2002. (Chaturvedi & Pithisarias Income Tax Law, Volume 3, Sixth Edition (2014), Pg. 3310, published by LexisNexis). 43. The question, thus, arises whether prior to this amendment such expenses were not allowable under the prevailing tax regime for such entitles which were not exempt from tax. In the years prior to the amendment, as we are dealing with AY 1976-77 onwards, the tax jurisprudence has evolved on the basis of ordinary principles of commercial accountancy for determining the taxable income. Thus, prior to insertion of this sub-clause, such expenses would be permissible under the general Section 37(1) of the IT Act, which provides for deduction of permissible expenses on principles of commercial accountancy. Post amendment, such expenses get allowed under the specific section, viz. Section 36(1)(xii) after the amendment by the Finance Act, 2003. 44. We would, thus, like to conclude that we are unable to agree with the findings arrived at by the AO, ITAT and the High Court albeit for different reasons and concur with the view taken by the CIT(A) for the reasons set out hereinbefore. ### Response: 1
554	STATE OF RAJASTHAN & ANR Vs. MANGAT LAL SIDANA	also takes in a case where but for his retirement, he would have been reinstated while under suspension. In both these cases, the duty of the competent authority is to pass the order within the contemplation of Rule 54(1)(a) and (b). This means that apart from dealing with pay and allowances, as to whether the period of absence is to be treated as duty must be dealt with. This flows from Rule 54(1)(b). The manner in which the authority is to pass the order is regulated by subsequent provisions in Rule 54. Sub-rule 54(2) contemplates that the competent authority must examine the proceedings, apply its mind, and find whether it is a case where the Government servant at the end of the day has been fully exonerated. In the case of suspension where a person being under suspension is reinstated, the duty lies on the competent authority to consider the question as to whether the suspension was justified or wholly unjustified. If the suspension was wholly unjustified, the Government servant would be entitled to be paid the full pay and dearness allowance which he was entitled to had he not been suspended. The same is the case of the Government servant visited with the penalty of dismissal, removal or compulsory retirement. If it is found that at the end of the day that the penalty was wholly unjustified in that, on merit it is found that the employee stands completely exonerated, he would be entitled to get full pay and dearness allowance. Rule 54(3) is the residuary clause. The provisions of Rule 54(2) and (3) are mutually exclusive. In other words, if an employee is not fully exonerated, he is to be given such proportion of the pay and allowances as the competent authority may prescribe. Sub-rule (4) of Rule 54 is relatable to sub-rule 54(1)(b). In other words, whenever there is re-instatement in the circumstances attracting Rule 54, the authority is to pass a specific order relating to the pay and allowances to be paid and also as to whether the period of such absence is being treated as period spent on duty. Both these aspects must be reflected in the order. 10. In the case where there is full exoneration, the rulemaker had made it clear that the period of absence is to be treated as duty for all purposes. However, the provisions of Rule 54(5) contemplate a situation where the employee is not fully exonerated and therefore is governed by Rule 54(3). Then the period of absence is not to be treated as duty unless the authority specifically directs that it shall be duty for any specified purpose. The proviso to Rule 54(5) contemplates that it is open to the Government to direct that the period of absence shall be converted into leave of any kind due and admissible for Government servant. This would appear to be the scope and purport of Rule 54. 11. We have seen the order passed in the leading case. This is a case where the respondents have not been fully exonerated as such. The proof of the same is to be found in the fact that they have been visited with a penalty as the disciplinary proceedings have admittedly culminated in the penalty being passed which may be a minor penalty. 12. The other aspect of the matter is about the observance of principles of natural justice. The employee must be given an opportunity before any order is passed. The matter is no longer res integra. [See M. Gopalakrishna Naidu v. State of Madhya Pradesh AIR 1968 SC 240 ]. It does not need reiteration that even under Rule 54, the position is the same. Observance of principles of nature justice is of cardinal importance for the employee whose very life will be at stake for he would on the one hand if he is heard get an opportunity to pursuade the competent authority that his case would fall under Rule 54(2) and not under Rule 54(3). Denial of opportunity can have very serious consequences. In this case, the finding is that the principles of natural justice were not complied with. On this ground, the respondents would support the judgment. 13. Dr. Manish Singhvi, learned Additional Advocate General appearing for the appellants would point out that in such circumstances, the course to be adopted would be to remit it back to the competent authority so that the competent authority may ensure that the respondents appear before the authorities and then the case is decided. In fact, we find that the course adopted by this Court finally in M. Gopalakrishna Naidu (supra) was to remit the matter back to the competent authority to pass an order after hearing the employee. But then, learned counsel for the respondent would point out that the respondent is aged 76 and at this stage, remitting back the matter would be highly inequitable. In the leading case, we notice, at the time of admission, this Court had passed an order of stay subject to payment of 50 per cent of the backwages. 14. Having heard the learned counsel for the parties, we are of the view that the following conclusions can be arrived at. The disciplinary proceedings against the respondents in both the cases have not culminated in a situation where it could be said that they have been completely exonerated. This would take their case outside the four walls of Rule 54(2) of the Rules. Their suspension may not fall in the category of unjustified suspension. This inevitably and necessarily would bring their cases within the scope of Rule 54(3). This would necessarily mean that the exact amount of pay and allowances to be paid is to be less than the full pay and allowances. However, this exercise can be done only after notice to the employee. Admittedly, there is a failure by the appellants in this regard. But, at the same time, to remit it back for this purpose in our view would be inequitable.	1[ds]This is a case where the respondents have not been fully exonerated as such. The proof of the same is to be found in the fact that they have been visited with a penalty as the disciplinary proceedings have admittedly culminated in the penalty being passed which may be a minor penalty.12. The other aspect of the matter is about the observance of principles of natural justice. The employee must be given an opportunity before any order is passed. The matter is no longer res integra. [See M. Gopalakrishna Naidu v. State of Madhya Pradesh AIR 1968 SC 240 ]. It does not need reiteration that even under Rule 54, the position is the same. Observance of principles of nature justice is of cardinal importance for the employee whose very life will be at stake for he would on the one hand if he is heard get an opportunity to pursuade the competent authority that his case would fall under Rule 54(2) and not under Rule 54(3). Denial of opportunity can have very serious consequences. In this case, the finding is that the principles of natural justice were not complied with. On this ground, the respondents would support the judgment.In fact, we find that the course adopted by this Court finally in M. Gopalakrishna Naidu (supra) was to remit the matter back to the competent authority to pass an order after hearing the employee. But then, learned counsel for the respondent would point out that the respondent is aged 76 and at this stage, remitting back the matter would be highly inequitable. In the leading case, we notice, at the time of admission, this Court had passed an order of stay subject to payment of 50 per cent of the backwages.14. Having heard the learned counsel for the parties, we are of the view that the following conclusions can be arrived at.The disciplinary proceedings against the respondents in both the cases have not culminated in a situation where it could be said that they have been completely exonerated. This would take their case outside the four walls of Rule 54(2) of the Rules. Their suspension may not fall in the category of unjustified suspension. This inevitably and necessarily would bring their cases within the scope of Rule 54(3). This would necessarily mean that the exact amount of pay and allowances to be paid is to be less than the full pay and allowances. However, this exercise can be done only after notice to the employee. Admittedly, there is a failure by the appellants in this regard. But, at the same time, to remit it back for this purpose in our view would be inequitable.	1	2,871	### 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: also takes in a case where but for his retirement, he would have been reinstated while under suspension. In both these cases, the duty of the competent authority is to pass the order within the contemplation of Rule 54(1)(a) and (b). This means that apart from dealing with pay and allowances, as to whether the period of absence is to be treated as duty must be dealt with. This flows from Rule 54(1)(b). The manner in which the authority is to pass the order is regulated by subsequent provisions in Rule 54. Sub-rule 54(2) contemplates that the competent authority must examine the proceedings, apply its mind, and find whether it is a case where the Government servant at the end of the day has been fully exonerated. In the case of suspension where a person being under suspension is reinstated, the duty lies on the competent authority to consider the question as to whether the suspension was justified or wholly unjustified. If the suspension was wholly unjustified, the Government servant would be entitled to be paid the full pay and dearness allowance which he was entitled to had he not been suspended. The same is the case of the Government servant visited with the penalty of dismissal, removal or compulsory retirement. If it is found that at the end of the day that the penalty was wholly unjustified in that, on merit it is found that the employee stands completely exonerated, he would be entitled to get full pay and dearness allowance. Rule 54(3) is the residuary clause. The provisions of Rule 54(2) and (3) are mutually exclusive. In other words, if an employee is not fully exonerated, he is to be given such proportion of the pay and allowances as the competent authority may prescribe. Sub-rule (4) of Rule 54 is relatable to sub-rule 54(1)(b). In other words, whenever there is re-instatement in the circumstances attracting Rule 54, the authority is to pass a specific order relating to the pay and allowances to be paid and also as to whether the period of such absence is being treated as period spent on duty. Both these aspects must be reflected in the order. 10. In the case where there is full exoneration, the rulemaker had made it clear that the period of absence is to be treated as duty for all purposes. However, the provisions of Rule 54(5) contemplate a situation where the employee is not fully exonerated and therefore is governed by Rule 54(3). Then the period of absence is not to be treated as duty unless the authority specifically directs that it shall be duty for any specified purpose. The proviso to Rule 54(5) contemplates that it is open to the Government to direct that the period of absence shall be converted into leave of any kind due and admissible for Government servant. This would appear to be the scope and purport of Rule 54. 11. We have seen the order passed in the leading case. This is a case where the respondents have not been fully exonerated as such. The proof of the same is to be found in the fact that they have been visited with a penalty as the disciplinary proceedings have admittedly culminated in the penalty being passed which may be a minor penalty. 12. The other aspect of the matter is about the observance of principles of natural justice. The employee must be given an opportunity before any order is passed. The matter is no longer res integra. [See M. Gopalakrishna Naidu v. State of Madhya Pradesh AIR 1968 SC 240 ]. It does not need reiteration that even under Rule 54, the position is the same. Observance of principles of nature justice is of cardinal importance for the employee whose very life will be at stake for he would on the one hand if he is heard get an opportunity to pursuade the competent authority that his case would fall under Rule 54(2) and not under Rule 54(3). Denial of opportunity can have very serious consequences. In this case, the finding is that the principles of natural justice were not complied with. On this ground, the respondents would support the judgment. 13. Dr. Manish Singhvi, learned Additional Advocate General appearing for the appellants would point out that in such circumstances, the course to be adopted would be to remit it back to the competent authority so that the competent authority may ensure that the respondents appear before the authorities and then the case is decided. In fact, we find that the course adopted by this Court finally in M. Gopalakrishna Naidu (supra) was to remit the matter back to the competent authority to pass an order after hearing the employee. But then, learned counsel for the respondent would point out that the respondent is aged 76 and at this stage, remitting back the matter would be highly inequitable. In the leading case, we notice, at the time of admission, this Court had passed an order of stay subject to payment of 50 per cent of the backwages. 14. Having heard the learned counsel for the parties, we are of the view that the following conclusions can be arrived at. The disciplinary proceedings against the respondents in both the cases have not culminated in a situation where it could be said that they have been completely exonerated. This would take their case outside the four walls of Rule 54(2) of the Rules. Their suspension may not fall in the category of unjustified suspension. This inevitably and necessarily would bring their cases within the scope of Rule 54(3). This would necessarily mean that the exact amount of pay and allowances to be paid is to be less than the full pay and allowances. However, this exercise can be done only after notice to the employee. Admittedly, there is a failure by the appellants in this regard. But, at the same time, to remit it back for this purpose in our view would be inequitable. ### Response: 1
555	Tribhuvandas Purshottamdas Thakur Vs. Ratilal Motilal Patel	over the territory now forming part of the State of Gujarat, ceased when a new High Court was set up in the State of Gujarat, but it was held by a Full Bench of the High Court of Gujarat in State of Gujarat v. Gordhandas, 3 Guj LR 269: (AIR 1962 Guj 128 ) (FB) that the decision of the Bombay High Court will be regarded as binding since the Gujarat High Court had inherited the jurisdiction, power and authority in respect of the territory of Gujarat. When pressed with the observations made in the two cases cited at the Bar, Raju, J., found an easy way out. He observed that the judgment of the Full Bench of the Gujarat High Court had "no existence in law", for in the absence of a provision in the Constitution and the Charter Act of 1861, a Judge of a High Court had no power to refer a case to a Full Bench for determination of a question of law arising before him, and a decision given on a reference "had no existence in law". The learned Judge also thought that if a Judge or a Division Bench of a Court makes a reference on a question of law to a Full Bench for decision, it would in effect be assuming the jurisdiction which is vested by the Charter of the Court in the Chief Justice of the High Court. In so observing the learned Judge completely misconceived the nature of a reference made by a Judge or a Bench of Judges to a large Bench.When it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts in India which are strongly persuasive and take a different view from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case. For making such a request to the Chief Justice, no authority of the Constitution or of the Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the Chief Justice. A Single Judge does not by himself refer the matter to the Full Bench: he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the Chief Justice. The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleague, refer to the case; that does not mean, however, that the source of the authority is in the order of reference. Again it would be impossible to hold that a judgment delivered by a Full Bench of a High Court after due consideration of the points before it is liable to be regarded as irrelevant by Judges of that Court on the ground of some alleged irregularity in the constitution of the Full Bench.11. The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhais case, 1962-3 Guj LR 529 and of Macleod, C. J., in Haridass case, 23 Bom LR 802: (AIR 1922 Bom 149 (2)) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of co-ordinate authority or of superior authority. Gajendragadkar, C. J., observed in Bhagwan v. Ram Chand, C. A. No. 764 of 1964, D/- l-3-1965 : (AIR 1965 SC 1767 ):"It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."12. In considering whether a precedent of a Court of co-ordinate authority is binding, reference to S. 165 of the Evidence Act is irrelevant. Undoubtedly, every judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved.But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgment and not by the facts of that case.13. It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will and that he will uphold the Constitution and the laws : but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the binding nature of the precedents which is uniformly followed.	1[ds]We are unable to agree with that view. Obviously, the transactions of mortgage, exchange, gift or lease of any immovable property in Cls. (a) and (b) contemplated to be made by the trustees are voluntary transactions, and in the absence of any clear provision in the Act, the expression "sale" in Cl. (a) would only mean transfer of property by the trustees for a price. Section 36 occurs in Ch. V relating to Accounts and Audit, and is one of the provisions which imposes restrictions on the powers of the trustees. There is nothing to indicate, either in the words of the Section, or in the context in which it occurs, that the sale prohibited without sanction of the Charity Commissioner includes a Court sale in execution of a decree.For the purpose of the present case, we do not deem it necessary to express any opinion on the question whether a sale in exercise of authority derived from the trustees, e. g. a covenant for sale under an English mortgage executed by the trustees or a sale in terms of a consent decree attracts the application of S. 36 of Act. We have no doubt, however, that the Legislature did not intend to put any restriction upon the power of the Civil Court executing a decree for recovery of money due from the trust, by sale of the property of the trust.The Section imposes a fetter upon the power of the trustees: it is not intended hereby to confer upon the Charity Commissioner an overriding authority upon actions of the Civil Court in execution ofour judgment, that view also cannot be sustained.A suit to enforce a mortgage or a proceeding to enforce a mortgage decree against property belonging to a public trust is not a suit or proceeding in which a question affecting a public, religious or charitable purpose is involved.4. The District Court was, in our judgment, right in holding that the requirements of O. 21, R. 89 of theCode of Civil Procedure were not complied with and the Subordinate Judge had no power to set aside the sale held in execution of the decree.Order 21, R. 89 of the Code Of Civil Procedure which in terms applies to sale of immovable property in "execution of a decree" which expression includes execution of a decree for sale of mortgaged property, enables any person either owning, such property or holding an interest therein by virtue of a title to apply to have the sale set aside on his depositing inthe present case, the trustees of the trust had deposited Rs. 250 for payment to the auction purchaser. They also deposited Rs. 63 for payment to the decree-holder, but it is common ground that the claim of the mortgagee was not satisfied by that deposit. The first condition was therefore, fulfilled, but the second condition of O. 21, R. 84 was notin our Judgment is a futile argument.By abandoning the execution proceeding the claim of the creditor is not extinguished: he is entitled to commence fresh proceedings for sale of the property. Rule 89 of O. 21 is intended to confer a right upon the judgment-debtor, even after the property is sold, to satisfy the claim of the decree-holder and to compensate the auction purchaser by paying him 5% of the purchase-money. The provision is not intended to defeat the claim of the auction purchaser, unless the decree is simultaneously satisfied. When the Judgment creditor agrees to extend the time for payment of the amount due for a specified period and in the meanwhile agrees to receive interest accruing due on the amount of the decree, the condition requiring the Judgment debtor to deposit in Court for payment to the decree holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered cannot be deemed to be compliedis unnecessary to venture an opinion whether these cases were correctly decided.It is sufficient to observe that an order setting aside a court sale in execution of a mortgage decree cannot be obtained, under O. 21, R. 89 of theCode of Civil Procedure by merely depositing 5% of the purchase-money for payment to the auction purchaser and persuading the decreeholder to abandon the execution proceeding.In considering whether a precedent of a Court of co-ordinate authority is binding, reference to S. 165 of the Evidence Act is irrelevant. Undoubtedly, every judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved.But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgment and not by the facts of that case.13. It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will and that he will uphold the Constitution and the laws : but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the binding nature of the precedents which is uniformly followed.	1	3,585	### 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: over the territory now forming part of the State of Gujarat, ceased when a new High Court was set up in the State of Gujarat, but it was held by a Full Bench of the High Court of Gujarat in State of Gujarat v. Gordhandas, 3 Guj LR 269: (AIR 1962 Guj 128 ) (FB) that the decision of the Bombay High Court will be regarded as binding since the Gujarat High Court had inherited the jurisdiction, power and authority in respect of the territory of Gujarat. When pressed with the observations made in the two cases cited at the Bar, Raju, J., found an easy way out. He observed that the judgment of the Full Bench of the Gujarat High Court had "no existence in law", for in the absence of a provision in the Constitution and the Charter Act of 1861, a Judge of a High Court had no power to refer a case to a Full Bench for determination of a question of law arising before him, and a decision given on a reference "had no existence in law". The learned Judge also thought that if a Judge or a Division Bench of a Court makes a reference on a question of law to a Full Bench for decision, it would in effect be assuming the jurisdiction which is vested by the Charter of the Court in the Chief Justice of the High Court. In so observing the learned Judge completely misconceived the nature of a reference made by a Judge or a Bench of Judges to a large Bench.When it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts in India which are strongly persuasive and take a different view from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case. For making such a request to the Chief Justice, no authority of the Constitution or of the Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the Chief Justice. A Single Judge does not by himself refer the matter to the Full Bench: he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the Chief Justice. The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleague, refer to the case; that does not mean, however, that the source of the authority is in the order of reference. Again it would be impossible to hold that a judgment delivered by a Full Bench of a High Court after due consideration of the points before it is liable to be regarded as irrelevant by Judges of that Court on the ground of some alleged irregularity in the constitution of the Full Bench.11. The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhais case, 1962-3 Guj LR 529 and of Macleod, C. J., in Haridass case, 23 Bom LR 802: (AIR 1922 Bom 149 (2)) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of co-ordinate authority or of superior authority. Gajendragadkar, C. J., observed in Bhagwan v. Ram Chand, C. A. No. 764 of 1964, D/- l-3-1965 : (AIR 1965 SC 1767 ):"It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."12. In considering whether a precedent of a Court of co-ordinate authority is binding, reference to S. 165 of the Evidence Act is irrelevant. Undoubtedly, every judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved.But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgment and not by the facts of that case.13. It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will and that he will uphold the Constitution and the laws : but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the binding nature of the precedents which is uniformly followed. ### Response: 1
556	Patel Sureshbhai Jashbhai Vs. Patel Satabhai Mathurbhai	unwillingness to purchase the land, and"* * *3. Pursuant to this fresh opportunity afforded by sec. 32PP respondent made an application requesting the Tribunal to determine the purchase price. The Gujarat Revenue Tribunal (Revenue Tribunal for short) held that the sale had become ineffective under sub-sec. (3) of sec. 32G by reason of the tenant failing t o appear before the Revenue Tribunal and therefore in an application under sec. 32PP the status of the applicant being a tenant is no more open to debate or dispute and must be deemed to be concluded between the parties. It is difficult to subscribe to this view. Sec. 32PP confers a right upon a person claiming to be a tenant and the precondition is that he having failed to appear before the Tribunal in a proceeding u/s 32G, can make an application for determining the price. In such a situation, the landlord is a necessary party. The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application u/s 32PP was not a tenant on April 1, 1957. It is difficult to subscribe to t he inter- pretation of sec. 32PP adopted by the Tribunal. Undoubtedly only that person is entitled to make an application u/s 32PP who having failed to appear before the Tribunal in a proceeding u/s 32G, the statutory saie was declared in effective but on that account such person making an application under sec. 32PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the language of sec. 32PP. It is undoubtedly true that an application u/s 32PP can be made where the purchase of the land by the tenant has been declared ineffective u/s 32G(3) by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land. But it should not be overlooked that where a notice was sent by the Tribunal u/s 32G to the person to whom the Tribunal prima facie believed to be a tenant and if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective, the application u/s 32 PP would not preclude the landlord from contesting the petition by showing that the applicant was not a tenant on 1.4.57. In any proceeding u/s 32G and 32PP the most important issue to be determined is whether the person claiming to be a tenant was a tenant on April 1, 1957 and an additional issue will have to be determined in an application u/s 32PP whether to such a person notice had been issued u/s 32G and on his failure to appear the sale became ineffective. The Revenue Tribunal appears to be of the view that unless the landlord challenged the order u/s 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1, 1957 and is failure to appear without anything more would clothe him with the status of a tenant. This approach overlooks the possibility of a person to whom notice is served, not appearing because he had nothing to do with the land.In such a situation an unadjudicated inferential determination of status cannot preclude an inquiry into the status which is a sine qua non for claiming the right i n a subsequent proceeding between the parties. Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general pri nciple of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry. There is only one situation which may preclude the enquiry in that if on receipt of notice th e tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under sec. 32 PP would be estopped from challenging the status of the applicant tenant. Such is not the case. Otherwise on a challenge by the landlord in a proceeding under sec. 32 PP the Tribunal have to determine the jurisdictional facts that (i) the applicant was a tenant on April 1, 1957 and (ii) that the sale was declared ineffective under sec. 35G. Therefore, the view of the Tribunal that in a proceeding u/s 32PP, the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct.4. Mr. Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal. We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years. Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status. The landlord did not take any step under sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord. The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined.This is the only point involved in this appeal. A	0[ds]Mr. Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal. We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years. Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status. The landlord did not take any step under sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord. The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined.This is the only point involved in this appeal.	0	2,454	### 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: unwillingness to purchase the land, and"* * *3. Pursuant to this fresh opportunity afforded by sec. 32PP respondent made an application requesting the Tribunal to determine the purchase price. The Gujarat Revenue Tribunal (Revenue Tribunal for short) held that the sale had become ineffective under sub-sec. (3) of sec. 32G by reason of the tenant failing t o appear before the Revenue Tribunal and therefore in an application under sec. 32PP the status of the applicant being a tenant is no more open to debate or dispute and must be deemed to be concluded between the parties. It is difficult to subscribe to this view. Sec. 32PP confers a right upon a person claiming to be a tenant and the precondition is that he having failed to appear before the Tribunal in a proceeding u/s 32G, can make an application for determining the price. In such a situation, the landlord is a necessary party. The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application u/s 32PP was not a tenant on April 1, 1957. It is difficult to subscribe to t he inter- pretation of sec. 32PP adopted by the Tribunal. Undoubtedly only that person is entitled to make an application u/s 32PP who having failed to appear before the Tribunal in a proceeding u/s 32G, the statutory saie was declared in effective but on that account such person making an application under sec. 32PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the language of sec. 32PP. It is undoubtedly true that an application u/s 32PP can be made where the purchase of the land by the tenant has been declared ineffective u/s 32G(3) by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land. But it should not be overlooked that where a notice was sent by the Tribunal u/s 32G to the person to whom the Tribunal prima facie believed to be a tenant and if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective, the application u/s 32 PP would not preclude the landlord from contesting the petition by showing that the applicant was not a tenant on 1.4.57. In any proceeding u/s 32G and 32PP the most important issue to be determined is whether the person claiming to be a tenant was a tenant on April 1, 1957 and an additional issue will have to be determined in an application u/s 32PP whether to such a person notice had been issued u/s 32G and on his failure to appear the sale became ineffective. The Revenue Tribunal appears to be of the view that unless the landlord challenged the order u/s 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1, 1957 and is failure to appear without anything more would clothe him with the status of a tenant. This approach overlooks the possibility of a person to whom notice is served, not appearing because he had nothing to do with the land.In such a situation an unadjudicated inferential determination of status cannot preclude an inquiry into the status which is a sine qua non for claiming the right i n a subsequent proceeding between the parties. Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general pri nciple of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry. There is only one situation which may preclude the enquiry in that if on receipt of notice th e tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under sec. 32 PP would be estopped from challenging the status of the applicant tenant. Such is not the case. Otherwise on a challenge by the landlord in a proceeding under sec. 32 PP the Tribunal have to determine the jurisdictional facts that (i) the applicant was a tenant on April 1, 1957 and (ii) that the sale was declared ineffective under sec. 35G. Therefore, the view of the Tribunal that in a proceeding u/s 32PP, the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct.4. Mr. Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal. We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years. Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status. The landlord did not take any step under sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord. The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined.This is the only point involved in this appeal. A ### Response: 0
557	Upper Ganges Valley Electricity Supply Company, Limited, Moradabad Vs. Srivastava (G. S.)	is able to show that S. 22 had not been contravened, then the application under S. 23 made by the employee would be incompetent and there would be incompetent and there would be no jurisdiction for the Labour Appellate Tribunal to consider the merits and the propriety of the order of dismissal. That is show the narrow point which has been urged before us by Mr. Andley, for the appellant, is that the Labour Appellate Tribunal was in error in coming to the conclusion that S. 22 has been contravened by the appellant when it dismissed the employee on 12 March 1956.2. Though the point thus raised lies within a very narrow compass, it may be relevant to mention some of the facts leading to the present application. The respondent Srivastava was appointed by the appellant as mains foreman on 20 April, 1950. On 13 November, 1954 he was ordered by the resident engineer of the appellant to complete certain works but he failed to carry out the order. That led to a chargesheet which was served on the employee on 6 December, 1954. He then gave an explanation in writing on 11 December, 1954. It appears that on 8 December, 1954 he was asked by the appellant to report for duty at Hassanpur. He did not comply with this order on the ground that he was ill. The appellant then directed a doctor to examine him but he refused to submit to medical examination. Thereupon another chargesheet was served on him on 13 December, 1954. This followed by some other acts alleged to amount to in-subordination and notices were served on him in respect of those acts. On 13 December, 1954 he was suspended pending an enquiry. On 5 January, 1955 the resident engineer who held the enquiry passed orders holding that both the charges had been proved against the employee. This was followed by other charges which were also found proved. On 10 September, 1955 the appellant made a composite application under S.22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, to the Labour Appellate Tribunal, Lucknow, for permission to dismiss the respondent. On 8 March, 1956, permission was granted to the appellant ex parte, and the appellant accordingly dismissed the respondent on 12 March, 1956. On 25 April, 1956 the employee applied to have that ex parte permission set aside; and the said permission was in fact set aside. It is under these circumstances that on 15 June, 1956 the employee made the present application and the whole argument urged by him before the Labour Appellate Tribunal was that his dismissal on 12 March, 1956 contravened S. 22. The application made by the employee alleged in Para. 21 that certain appeals were pending before the Labour Appellate Tribunal, and in that connexion reference was made to Appeals Nos. 212 of 1953, 216 of 1955 and 416A of 1954. The said paragraph also refers to Appeals Nos. 531 of 1953 and 320 of 1954. The appellant did not contest these allegations before the Labour Appellate Tribunal and merely argued the matter on the merits. It appears that the Appellate Tribunal has found that Appeal No. III-290 of 1954, by reference to which arguments appear to have been urged before it, had been disposed of on 23 January, 1956 so that it is clear that so far as the said appeal is concerned, it was finally disposed of before the order of dismissal was passed, and so it could not be said that S. 22 had been contravened by the appellant by reference to the said appeal.When this appeal was argued before us last, the learned advocates appearing on both sides were unable to assist us, because there was no material on the record to show when the other appeals referred to by the respondent in Para. 21 had been disposed of. Therefore we adjourned the hearing of the case until today and Mr. Andley, for the appellant, has placed before us the relevant material at todays hearing. Now, it appears that Appeal No. 212 of 1953 was disposed of on 30 October, 1953, Appeal No. 416 of 1954 which has been found by the Labour Appellate Tribunal itself has been disposed of before and the employee in question was not concerned with it. Appeal No. 531 of 1953 and Appeal No. 320 of 1954 were disposed on 17 and 23 January, 1956 respectively. It would thus be clear that except for Appeal No. 216 of 1955 all the other appeals had been disposed of before 12 March, 1956. Now, in regard to Appeals No. 216 of 1955 which was disposed of on 30 April 1956 the respondent was not a concerned workman at all because the dispute there referred for adjudication was whether the employers should be required to grant annual increment to M. K. Varshney from 1 December, 1953. It was an individual dispute in respect of one employee and so the present respondent could not be said to be concerned with that dispute.3. Mr. Janardhan Sharma, for the respondent, attempted to suggest that though Appeal No. 212 of 1953 was disposed of in October 1953 a writ petition was taken to the High Court and the proceedings in that sense continued. But these facts have not been averred in the application made by the workman and we cannot allow any new facts to be pleaded at this stage of the hearing of the appeal.4. It appears that the judgment under appeal shows that the main argument urged before the Labour Appellate Tribunal was whether an ex parte order passed validity set aside and validity reviewed but that question appears to us to be academic in view of the fact that on the date when the appellant dismissed the respondent the relevant appeals had been disposed of and S. 22, therefore, ceased to be applicable. Under these circumstances, we do not think that the Labour Appellate Tribunal was justified in going on the merits of the dispute.	0[ds]3. Mr. Janardhan Sharma, for the respondent, attempted to suggest that though Appeal No. 212 of 1953 was disposed of in October 1953 a writ petition was taken to the High Court and the proceedings in that sense continued. But these facts have not been averred in the application made by the workman and we cannot allow any new facts to be pleaded at this stage of the hearing of the appeal.It appears that the judgment under appeal shows that the main argument urged before the Labour Appellate Tribunal was whether an ex parte order passed validity set aside and validity reviewed but that question appears to us to be academic in view of the fact that on the date when the appellant dismissed the respondent the relevant appeals had been disposed of and S. 22, therefore, ceased to be applicable. Under these circumstances, we do not think that the Labour Appellate Tribunal was justified in going on the merits of the dispute.	0	1,309	### 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: is able to show that S. 22 had not been contravened, then the application under S. 23 made by the employee would be incompetent and there would be incompetent and there would be no jurisdiction for the Labour Appellate Tribunal to consider the merits and the propriety of the order of dismissal. That is show the narrow point which has been urged before us by Mr. Andley, for the appellant, is that the Labour Appellate Tribunal was in error in coming to the conclusion that S. 22 has been contravened by the appellant when it dismissed the employee on 12 March 1956.2. Though the point thus raised lies within a very narrow compass, it may be relevant to mention some of the facts leading to the present application. The respondent Srivastava was appointed by the appellant as mains foreman on 20 April, 1950. On 13 November, 1954 he was ordered by the resident engineer of the appellant to complete certain works but he failed to carry out the order. That led to a chargesheet which was served on the employee on 6 December, 1954. He then gave an explanation in writing on 11 December, 1954. It appears that on 8 December, 1954 he was asked by the appellant to report for duty at Hassanpur. He did not comply with this order on the ground that he was ill. The appellant then directed a doctor to examine him but he refused to submit to medical examination. Thereupon another chargesheet was served on him on 13 December, 1954. This followed by some other acts alleged to amount to in-subordination and notices were served on him in respect of those acts. On 13 December, 1954 he was suspended pending an enquiry. On 5 January, 1955 the resident engineer who held the enquiry passed orders holding that both the charges had been proved against the employee. This was followed by other charges which were also found proved. On 10 September, 1955 the appellant made a composite application under S.22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, to the Labour Appellate Tribunal, Lucknow, for permission to dismiss the respondent. On 8 March, 1956, permission was granted to the appellant ex parte, and the appellant accordingly dismissed the respondent on 12 March, 1956. On 25 April, 1956 the employee applied to have that ex parte permission set aside; and the said permission was in fact set aside. It is under these circumstances that on 15 June, 1956 the employee made the present application and the whole argument urged by him before the Labour Appellate Tribunal was that his dismissal on 12 March, 1956 contravened S. 22. The application made by the employee alleged in Para. 21 that certain appeals were pending before the Labour Appellate Tribunal, and in that connexion reference was made to Appeals Nos. 212 of 1953, 216 of 1955 and 416A of 1954. The said paragraph also refers to Appeals Nos. 531 of 1953 and 320 of 1954. The appellant did not contest these allegations before the Labour Appellate Tribunal and merely argued the matter on the merits. It appears that the Appellate Tribunal has found that Appeal No. III-290 of 1954, by reference to which arguments appear to have been urged before it, had been disposed of on 23 January, 1956 so that it is clear that so far as the said appeal is concerned, it was finally disposed of before the order of dismissal was passed, and so it could not be said that S. 22 had been contravened by the appellant by reference to the said appeal.When this appeal was argued before us last, the learned advocates appearing on both sides were unable to assist us, because there was no material on the record to show when the other appeals referred to by the respondent in Para. 21 had been disposed of. Therefore we adjourned the hearing of the case until today and Mr. Andley, for the appellant, has placed before us the relevant material at todays hearing. Now, it appears that Appeal No. 212 of 1953 was disposed of on 30 October, 1953, Appeal No. 416 of 1954 which has been found by the Labour Appellate Tribunal itself has been disposed of before and the employee in question was not concerned with it. Appeal No. 531 of 1953 and Appeal No. 320 of 1954 were disposed on 17 and 23 January, 1956 respectively. It would thus be clear that except for Appeal No. 216 of 1955 all the other appeals had been disposed of before 12 March, 1956. Now, in regard to Appeals No. 216 of 1955 which was disposed of on 30 April 1956 the respondent was not a concerned workman at all because the dispute there referred for adjudication was whether the employers should be required to grant annual increment to M. K. Varshney from 1 December, 1953. It was an individual dispute in respect of one employee and so the present respondent could not be said to be concerned with that dispute.3. Mr. Janardhan Sharma, for the respondent, attempted to suggest that though Appeal No. 212 of 1953 was disposed of in October 1953 a writ petition was taken to the High Court and the proceedings in that sense continued. But these facts have not been averred in the application made by the workman and we cannot allow any new facts to be pleaded at this stage of the hearing of the appeal.4. It appears that the judgment under appeal shows that the main argument urged before the Labour Appellate Tribunal was whether an ex parte order passed validity set aside and validity reviewed but that question appears to us to be academic in view of the fact that on the date when the appellant dismissed the respondent the relevant appeals had been disposed of and S. 22, therefore, ceased to be applicable. Under these circumstances, we do not think that the Labour Appellate Tribunal was justified in going on the merits of the dispute. ### Response: 0
558	Fruit And Vegetable Merchants Union Vs. Delhi Improvement Trust	it is not considering a question of title. No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority ......" 19.That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, S. 56 of the Provincial Insolvency Act (5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that "such property shall thereupon vest in such receiver". The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Ss. 16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by Ss. 16 and 17, the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them. 20. The question of the ownership of the structure built upon Government land by the Trust may be looked at from another point of view.We have already held that the Trust was in the position of a statutory agent of Government and had erected the structure with money belonging to Government but advanced at interest to the Trust. In such a situation the structure also would be the property of Government, though for the time being it may he at the disposal of the Trust for the purpose of managing it efficiently as a statutory body. Simply because the Trust erected the structure in question and later on paid up the amount advanced by Government for the purpose would not necessarily load to the legal inference that the structure was the property of the Trust.In this connection reference may be made to the decision of this Court in Bhatia Co-operative Housing Society Ltd. v. D. C. Patel, 1953 SCR, 185: (AIR 1953 SC 16 ) (G). The case is not on all fours with the facts of the present case. But the following observations of Das J. (as he then was) at P. 195 of the report are pertinent:"It is true that the lessee erected the building at his own cost but he did so for the lessor and on the lessors land on agreed terms. The fact that the lessee incurred expenses in putting up the building is precisely the consideration for the lessor granting him a lease for 999 years not only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor way not have otherwise agreed to do. By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor. The law of fixtures under S. 108 of the Transfer of Property Act way be different from the English law, but S. 108 is subject to any agreement that the parties may choose to make. Here, by the agreement the building became part of the land and the property of the lessor and the lessee took a lease on that footing." 21. In our opinion, therefore, it cannot he said that either under the provisions of the Improvement Act or in accordance with the terms of the agreement (Ex. D-5) or the two taken together, the market became the property of the Trust. We have already noticed the relevant, portions of the correspondence that passed between Government and the Trust to show that though at the initial stages the Trust proposed that the ownership of the market should vest in the Trust the final terms agreed between the parties in accordance with the provisions of S. 54-A left the ownership with Government.We have come to this conclusion without reference to the admission of the plaintiff contained in para. 22 of the indenture (Ex. D-4) quoted above. It is therefore not necessary for us to consider the question raised by the learned Attorney-General that the plaintiff was bound by that admission or whether that admission is vitiated by any pressure of circumstances or duress as pleaded by the plaintiff. Certainly that admission is a piece of evidence which could be considered on its merits oven apart from the question of estoppel which had not been specifically pleaded or formed the subject matter of a separate issue. 22. In view of our finding that the market, as also the land on which it stands, is the property of Government, the conclusion follows that the operative provisions of the Control Act do not apply to the premises in question.	0[ds]It would thus appear that the power to transfer by way of sale, lease or otherwise vested in the Trust is not an unlimited or an unqualified power but a power circumscribed by such conditions as the Government or the Chief Commissioner, as the case may be, thought fit to impose.The imposition of those conditions is not consistent with the title to the property vesting absolutely in the Trust. On the other hand, the imposition of those conditions is more consistent with the proposition contended for by the learned Attorney-General on behalf of the respondent that the Trust was only constituted a statutory agent on behalf of the Government in accordance with the provisions of the Improvement Act and the terms of the indenture, Ex.. It is noteworthy that there are no provisions either in the Improvement Act or in the indenture, Ex. D-5 to the effect that the title to the Nazul Estate vested in the Trust.It must, therefore, be held that no grounds have been made out for holding that title to the land on which the market stands was conveyed by Government to the TrustThe Trust was to assume full liability for all expenditure to be incurred upon works of improvement and to arrange for the completion of those works to the satisfaction of Government. The Trust is also enjoined to maintain in accordance with the statutory rules separate accounts of all revenue realized from and all expenditure incurred upon, the said Nazul Estate and to pay to Government the sum of Rs. 2 lakhs being the equivalent of the net annual revenue in respect thereof subject to certain conditions, not material to this case14. It is clear upon the terms of the agreement shortly set out above that the market was constructed by the Trust on Government land with Government funds advanced by way of loan at interest. On those facts what is the legal position of the Trust vis-_is the government in respect of the ownership of the property? It is important, therefore, to determine the true nature of the initial relationship between the Government and the TrustIt is manifest upon a reading of the entire section that there are no express words of conveyance whereby title is transferred by Government to the Trust either absolutely or upon certain conditions.This argument assumes that the word "vest" necessarily signifies that title to the property resides in the Trust20. The question of the ownership of the structure built upon Government land by the Trust may be looked at from another point of view.We have already held that the Trust was in the position of a statutory agent of Government and had erected the structure with money belonging to Government but advanced at interest to the Trust. In such a situation the structure also would be the property of Government, though for the time being it may he at the disposal of the Trust for the purpose of managing it efficiently as a statutory body. Simply because the Trust erected the structure in question and later on paid up the amount advanced by Government for the purpose would not necessarily load to the legal inference that the structure was the property of the Trust.In this connection reference may be made to the decision of this Court in Bhatia Co-operative Housing Society Ltd. v. D. C. Patel, 1953 SCR, 185: (AIR 1953 SC 16 ) (G). The case is not on all fours with the facts of the present case21. In our opinion, therefore, it cannot he said that either under the provisions of the Improvement Act or in accordance with the terms of the agreement (Ex. D-5) or the two taken together, the market became the property of the Trust. We have already noticed the relevant, portions of the correspondence that passed between Government and the Trust to show that though at the initial stages the Trust proposed that the ownership of the market should vest in the Trust the final terms agreed between the parties in accordance with the provisions of S. 54-A left the ownership with Government.We have come to this conclusion without reference to the admission of the plaintiff contained in para. 22 of the indenture (Ex. D-4) quoted above. It is therefore not necessary for us to consider the question raised by the learned Attorney-General that the plaintiff was bound by that admission or whether that admission is vitiated by any pressure of circumstances or duress as pleaded by the plaintiff. Certainly that admission is a piece of evidence which could be considered on its merits oven apart from the question of estoppel which had not been specifically pleaded or formed the subject matter of a separate issue22. In view of our finding that the market, as also the land on which it stands, is the property of Government, the conclusion follows that the operative provisions of the Control Act do not apply to the premises in questionIt would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.	0	7,325	### 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: it is not considering a question of title. No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority ......" 19.That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, S. 56 of the Provincial Insolvency Act (5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that "such property shall thereupon vest in such receiver". The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Ss. 16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by Ss. 16 and 17, the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them. 20. The question of the ownership of the structure built upon Government land by the Trust may be looked at from another point of view.We have already held that the Trust was in the position of a statutory agent of Government and had erected the structure with money belonging to Government but advanced at interest to the Trust. In such a situation the structure also would be the property of Government, though for the time being it may he at the disposal of the Trust for the purpose of managing it efficiently as a statutory body. Simply because the Trust erected the structure in question and later on paid up the amount advanced by Government for the purpose would not necessarily load to the legal inference that the structure was the property of the Trust.In this connection reference may be made to the decision of this Court in Bhatia Co-operative Housing Society Ltd. v. D. C. Patel, 1953 SCR, 185: (AIR 1953 SC 16 ) (G). The case is not on all fours with the facts of the present case. But the following observations of Das J. (as he then was) at P. 195 of the report are pertinent:"It is true that the lessee erected the building at his own cost but he did so for the lessor and on the lessors land on agreed terms. The fact that the lessee incurred expenses in putting up the building is precisely the consideration for the lessor granting him a lease for 999 years not only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor way not have otherwise agreed to do. By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor. The law of fixtures under S. 108 of the Transfer of Property Act way be different from the English law, but S. 108 is subject to any agreement that the parties may choose to make. Here, by the agreement the building became part of the land and the property of the lessor and the lessee took a lease on that footing." 21. In our opinion, therefore, it cannot he said that either under the provisions of the Improvement Act or in accordance with the terms of the agreement (Ex. D-5) or the two taken together, the market became the property of the Trust. We have already noticed the relevant, portions of the correspondence that passed between Government and the Trust to show that though at the initial stages the Trust proposed that the ownership of the market should vest in the Trust the final terms agreed between the parties in accordance with the provisions of S. 54-A left the ownership with Government.We have come to this conclusion without reference to the admission of the plaintiff contained in para. 22 of the indenture (Ex. D-4) quoted above. It is therefore not necessary for us to consider the question raised by the learned Attorney-General that the plaintiff was bound by that admission or whether that admission is vitiated by any pressure of circumstances or duress as pleaded by the plaintiff. Certainly that admission is a piece of evidence which could be considered on its merits oven apart from the question of estoppel which had not been specifically pleaded or formed the subject matter of a separate issue. 22. In view of our finding that the market, as also the land on which it stands, is the property of Government, the conclusion follows that the operative provisions of the Control Act do not apply to the premises in question. ### Response: 0
559	Dilbagh Singh Vs. State Of Punjab	the Act is comprehended and called for only in the case of search of a person as distinguished from search of any premises etc. having been authoritatively propounded by the two Constitution Bench rulings of this Court in State of Punjab v. Baldev Singh, 1999(3) R.C.R.(Criminal) 533 : (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja v. State of Gujarat, 2010(4) R.C.R.(Criminal) 911 : 2010(6) Recent Apex Judgments (R.A.J.) 326 : (2011) 1 SCC 609 , further dilation in this regard, in the attendant facts and circumstances of the case, is considered inessential. This is more so as the contraband in the case in hand had been recovered from inside the car in which the petitioner and the co-accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence.14. Qua the imputation of non-adherence of the requisites of Section 57 of the Act, suffice it to note that both the Courts below, on an analytical appreciation of the evidence on record have concurrently concluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well. 15. The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein was of the petitioners premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab v. Balbir Singh, 1994(1) R.C.R.(Criminal) 736 : (1994) 3 SCC 299 the provisions of Sections 52 and 57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham v. State of Kerala, 2001(3) R.C.R.(Criminal) 808 : (2001) 6 SCC 692 had exposited that Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Honble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench. 16. In Balbir Singh (supra), a Bench of two Honble Judges of this Court had enunciated, adverting to Sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 and 44 are by themselves not mandatory and if there was non-compliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case. 17. Be that as it may, having regard to the evidence available attesting the compliance of the requisites of Section 57 of the Act in the instant case, we need not be detained by this issue in praesenti.18. Aside the above, an appraisal of the testimony of the prosecution witnesses and in particular of PW-4 ASI/Satnam Singh and PW-5 HC/Darbara Singh, the seizure witnesses, fully substantiate the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to the Forensic Science Laboratory through Malkhana also stands established. The certificate of the Chemical Examiner, FSL to the effect that the seal of the samples was found intact and that the same tallied with the specimen seals also rules out the possibility of any tampering therewith. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof. The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced.19. In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any interference.	0[ds]This is more so as the contraband in the case in hand had been recovered from inside the car in which the petitioner and the co-accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence.14. Qua the imputation of non-adherence of the requisites of Section 57 of the Act, suffice it to note that both the Courts below, on an analytical appreciation of the evidence on record have concurrently concluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well.Be that as it may, having regard to the evidence available attesting the compliance of the requisites of Section 57 of the Act in the instant case, we need not be detained by this issue in praesenti.18. Aside the above, an appraisal of the testimony of the prosecution witnesses and in particular of PW-4 ASI/Satnam Singh and PW-5 HC/Darbara Singh, the seizure witnesses, fully substantiate the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to the Forensic Science Laboratory through Malkhana also stands established. The certificate of the Chemical Examiner, FSL to the effect that the seal of the samples was found intact and that the same tallied with the specimen seals also rules out the possibility of any tampering therewith. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof. The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced.19. In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any	0	2,676	### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: the Act is comprehended and called for only in the case of search of a person as distinguished from search of any premises etc. having been authoritatively propounded by the two Constitution Bench rulings of this Court in State of Punjab v. Baldev Singh, 1999(3) R.C.R.(Criminal) 533 : (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja v. State of Gujarat, 2010(4) R.C.R.(Criminal) 911 : 2010(6) Recent Apex Judgments (R.A.J.) 326 : (2011) 1 SCC 609 , further dilation in this regard, in the attendant facts and circumstances of the case, is considered inessential. This is more so as the contraband in the case in hand had been recovered from inside the car in which the petitioner and the co-accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence.14. Qua the imputation of non-adherence of the requisites of Section 57 of the Act, suffice it to note that both the Courts below, on an analytical appreciation of the evidence on record have concurrently concluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well. 15. The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein was of the petitioners premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab v. Balbir Singh, 1994(1) R.C.R.(Criminal) 736 : (1994) 3 SCC 299 the provisions of Sections 52 and 57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham v. State of Kerala, 2001(3) R.C.R.(Criminal) 808 : (2001) 6 SCC 692 had exposited that Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Honble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench. 16. In Balbir Singh (supra), a Bench of two Honble Judges of this Court had enunciated, adverting to Sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 and 44 are by themselves not mandatory and if there was non-compliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case. 17. Be that as it may, having regard to the evidence available attesting the compliance of the requisites of Section 57 of the Act in the instant case, we need not be detained by this issue in praesenti.18. Aside the above, an appraisal of the testimony of the prosecution witnesses and in particular of PW-4 ASI/Satnam Singh and PW-5 HC/Darbara Singh, the seizure witnesses, fully substantiate the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to the Forensic Science Laboratory through Malkhana also stands established. The certificate of the Chemical Examiner, FSL to the effect that the seal of the samples was found intact and that the same tallied with the specimen seals also rules out the possibility of any tampering therewith. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof. The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced.19. In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any interference. ### Response: 0
560	Lekha Vs. P.Anil Kumar	child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.14. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the Court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and that fact a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.15. A man in his social capacity may be reckless or eccentric in certain respects and other may even develop a considerable distaste for his company with some justification but all that is a farcry from unfitness to have the natural solace of the company of ones own children or for the duty of bringing them up in proper manner. Needless to say the respondent-husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent-husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is of responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the childs welfare and interest. The general view that the Courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the Court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the childs needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the childs over-all development.16. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mothers second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same. The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the childs upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant-mother shall hand over the child to the respondent-father during every mid summer vacation for about a month without adversely affecting the childs education. The appellant should not also prevent the respondent-father from coming to see the child during weekends and the appellant should make necessary arrangements for the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent-father to the child.	1[ds]13. According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.14. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the Court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and that fact a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.15. A man in his social capacity may be reckless or eccentric in certain respects and other may even develop a considerable distaste for his company with some justification but all that is a farcry from unfitness to have the natural solace of the company of ones own children or for the duty of bringing them up in proper manner. Needless to say the respondent-husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent-husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is of responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the childs welfare and interest. The general view that the Courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the Court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the childs needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the childs over-all development.16. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mothers second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same. The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the childs upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant-mother shall hand over the child to the respondent-father during every mid summer vacation for about a month without adversely affecting the childs education. The appellant should not also prevent the respondent-father from coming to see the child during weekends and the appellant should make necessary arrangements for the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent-father to the child.	1	3,618	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.14. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the Court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and that fact a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.15. A man in his social capacity may be reckless or eccentric in certain respects and other may even develop a considerable distaste for his company with some justification but all that is a farcry from unfitness to have the natural solace of the company of ones own children or for the duty of bringing them up in proper manner. Needless to say the respondent-husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent-husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is of responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the childs welfare and interest. The general view that the Courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the Court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the childs needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the childs over-all development.16. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mothers second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same. The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the childs upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant-mother shall hand over the child to the respondent-father during every mid summer vacation for about a month without adversely affecting the childs education. The appellant should not also prevent the respondent-father from coming to see the child during weekends and the appellant should make necessary arrangements for the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent-father to the child. ### Response: 1
561	RAJENDRA SINGH AND OTHERS Vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS	NAVIN SINHA, J. 1. Leave granted. 2. The High Court by the impugned order dismissed two appeals arising from separate orders of the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) deciding two accident compensation claims. The appellants had claimed further enhancement of compensation. 3. The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religious congregation. The horse cart was hit by a bus resulting in their death. The Tribunal assessed the notional income of the first deceased at Rs.36,000/- per annum and after 1/4 th deduction towards personal expenses, with a multiplier of 17 awarded a compensation of Rs.4,59,000/-. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs.1,00,000/- was then added as loss of consortium and Rs.25,000/- towards funeral expenses leading to an award total of Rs.3,54,500/- with interest at the rate of 7.5%. 4. In so far as the minor child is concerned, the notional income was assessed at Rs.36,000/- per annum, applying a 50% deduction towards personal expenses with a multiplier of 15, the compensation was awarded at Rs.2,70,000/- out of which 50% was again deducted towards contributory negligence. A sum of Rs.25,000/- was added towards funeral expenses, leading to an award total of Rs.1,60,000/- with interest at the rate of 7.5%. 5. The appeal for enhancement of compensation was dismissed by the High Court and thus the present appeals. 6. Learned counsel for the appellant submits that the notional income of the first deceased has been wrongly fixed ignoring her income of Rs.5000/- per month from dairy farm business. Nothing has been awarded towards future prospects. With regard to the second deceased it was submitted that she was studying in a school and her notional income should have been assessed at Rs.54,000/- per year. Nothing has been awarded towards loss of estate, loss of consortium and funeral expenses. The common submission in both the appeals was that deduction on ground of contributory negligence was unsustainable and unjustified. Reliance was placed on Kajal vs. Jagdish Chand & Ors., AIR 2020 SC 776 , to contend that the income of the deceased child should have been assessed at Rs.4846/- per month. 7. Learned counsel for the respondents submitted that the present appeals do not merit interference. There is no evidence with regard to the claimed business income of the first deceased. The finding of contributory negligence merits no interference. In absence of any proof of income, the question of future prospects simply does not arise. Similarly, the second deceased was a minor school going child who also had no income and therefore the question for grant of future prospects with regard to her also does not arise. 8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation.	0[ds]8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation.9. The first deceased was a housewife aged about 30 years. In Lata Wadhwa vs. State of Bihar, (2001) 8 SCC 197 , this court had observed that considering the multifarious services rendered by housewives, even on a modest estimation, the income of a housewife between the age group of 34 to 59 years who were active in life should be assessed at Rs 36,000 per annum. A distinction was also drawn with regard to elderly ladies in the age group of 62 to 72 who would be more adept in discharge of housewife duties by age and experience, and the value of services rendered by them has been taken at Rs 20,000 per annum.12. The second deceased was a school going child aged about 12 years. She had a whole future to look forward in life with all normal human aspirations. She died prematurely due to the accident at a very tender age for no fault of hers even before she could start to understand the beauty and joys of life with all its ups and downs. The loss of a human life untimely at childhood can never be measured in terms of loss of earning or monetary loss alone. The emotional attachments involved to the loss of the child can have a devastating effect on the family which needs to be visualised and understood. Grant of non-pecuniary damages for the wrong done by awarding compensation for loss of expectation in life is therefore called for. Undoubtedly the injury inflicted by deprivation of the life of the child is very difficult to quantify. The future also abounds with uncertainties. Therefore, the courts have used the expression just compensation to get over the difficulties in quantifying the figure to ensure consistency and uniformity in awarding compensation. This determination shall not depend upon financial position of the victim or the claimant but rather on the capacity and ability of the deceased to provide happiness in life to the claimants had she remained alive. The compensation is for loss of prospective happiness which the claimant would have enjoyed had the child not died at the tender age. Since the child was studying in a school and opportunities in life would undoubtedly abound for her as the years would have rolled by, compensation must also be granted with regard to future prospects. It can safely be presumed that education would have only led to her better growth and maturity with better prospects and a bright future for which compensation needs to be granted under non-pecuniary damages. (See R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1 ).13. The income of the minor girl child is incapable of precise fixation. We find no reason to interfere with the assessed notional income of the second deceased. In R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1 , considering grant of future prospects for the deceased child aged about 10 years it was observed as follows:32. A forceful submission has been made by the learned counsel appearing for the appellant claimants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the courts below.33. On perusal of the evidence on record, we find merit in such submission that the courts below have overlooked that aspect of the matter while granting compensation. It is well-settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the courts to consider the said aspect while awarding compensation…15. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs.2,95,000/- by granting any further compensation under the separate head of future prospects. It may only be noticed that R.K. Malik (supra) does not consider Satender (supra) on the grant of future prospects as far as children are concerned.16. Kajal (supra) is distinguishable on its own facts. The victim of the accident was a nine month old child, whose disability certificate reflected that she would grow up to be an adult lying on the bed with all the physical and biological attributes of a woman on attaining adulthood, but her mind would remain of a nine month old child because of the accident. The case is completely distinguishable on its own facts and did not arise out of a death claim, leading to award of compensation towards expenses for frequent treatment, hospitalization, transportation, loss of future earnings, attendant charges, pain, suffering, loss of amenities, loss of marriage prospects and future medical treatment etc.	0	696	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: NAVIN SINHA, J. 1. Leave granted. 2. The High Court by the impugned order dismissed two appeals arising from separate orders of the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) deciding two accident compensation claims. The appellants had claimed further enhancement of compensation. 3. The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religious congregation. The horse cart was hit by a bus resulting in their death. The Tribunal assessed the notional income of the first deceased at Rs.36,000/- per annum and after 1/4 th deduction towards personal expenses, with a multiplier of 17 awarded a compensation of Rs.4,59,000/-. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs.1,00,000/- was then added as loss of consortium and Rs.25,000/- towards funeral expenses leading to an award total of Rs.3,54,500/- with interest at the rate of 7.5%. 4. In so far as the minor child is concerned, the notional income was assessed at Rs.36,000/- per annum, applying a 50% deduction towards personal expenses with a multiplier of 15, the compensation was awarded at Rs.2,70,000/- out of which 50% was again deducted towards contributory negligence. A sum of Rs.25,000/- was added towards funeral expenses, leading to an award total of Rs.1,60,000/- with interest at the rate of 7.5%. 5. The appeal for enhancement of compensation was dismissed by the High Court and thus the present appeals. 6. Learned counsel for the appellant submits that the notional income of the first deceased has been wrongly fixed ignoring her income of Rs.5000/- per month from dairy farm business. Nothing has been awarded towards future prospects. With regard to the second deceased it was submitted that she was studying in a school and her notional income should have been assessed at Rs.54,000/- per year. Nothing has been awarded towards loss of estate, loss of consortium and funeral expenses. The common submission in both the appeals was that deduction on ground of contributory negligence was unsustainable and unjustified. Reliance was placed on Kajal vs. Jagdish Chand & Ors., AIR 2020 SC 776 , to contend that the income of the deceased child should have been assessed at Rs.4846/- per month. 7. Learned counsel for the respondents submitted that the present appeals do not merit interference. There is no evidence with regard to the claimed business income of the first deceased. The finding of contributory negligence merits no interference. In absence of any proof of income, the question of future prospects simply does not arise. Similarly, the second deceased was a minor school going child who also had no income and therefore the question for grant of future prospects with regard to her also does not arise. 8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation. ### Response: 0
562	Meenakshi Saxena and Ors Vs. ECGC Ltd. and Ors	date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, being granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff. 27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible. 28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order. 29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order. 30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law.	0[ds]18. The whole purpose of Execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree.We are compelled to observe that an order which is passed in the year 2006 is still subject to litigation till date for the simple reason minimum care is not taken by the forum to clarify the reckoning date for conversion rate of currency.22. In a contractual matter, when the decree is silent with regard to the reckoning date of conversion of foreign currency in to Indian rupees, what would be the methodology to be followed by the executing courtis no more res integra, as this court has an occasion to deal with elaborately in the case of Forasol v. ONGC, 1984 (Supp.) SCC 263, the facts of that case revolved around a contract entered into between ONGC and Forasol for carrying out structural drilling in relation to the exploration of oil in the Jaisalmer area.24. This Court recognized the principle that a determination of relevant date for conversion of currency would first take place in accordance with the contractual provision and thereafter, if such explicit determination is not available, then the court would have to determine the best possible date25. Further this court recognized the discretion of the Court to select the relevant dates and pointed out some of them in the following manner24. In an action to recover an amount payable in a foreign currency, five dates compete for selection by the Court as the proper date for fixing the rate of exchange at which the foreign currency amount has to be converted into the currency of the country in which the action has been commenced and decided(1) the date when the amount became due and payable;(2) the date of the commencement of the action;(3) the date of the decree;(4) the date when the Court orders execution to issue; and(5) the date when the decretal amount is paid or realised25. In a case where a decree has been passed by the Court in terms of an award made in a foreign currency a sixth date also enters, the competition, namely, the date of the award. The case before us is one in which a decree in terms of such an award has been passed by the Court. (emphasis supplied)26. Ultimately this Court on an extensive analysis came to a conclusion in the following manner-70. It would be convenient if we now set out the practice, which according to us, ought to be followed in suits in which a sum of money expressed in a foreign currency can legitimately be claimed by the plaintiff and decreed by the court. It is unnecessary for us to categorize the cases in which such a claim can be made and decreed. They have been sufficiently indicated in the English decisions referred to by us above. Such instances can, however, never, be exhausted because the law cannot afford to be static but must constantly develop and progress as the society to which it applies, changes its complexion and old ideologies and concepts are discarded and replaced by new. Suffice it to say that the case with which we are concerned was one which fell in this category. In such a suit, the plaintiff, who has not received the amount due to him in a foreign currency, and, therefore, desires to seek the assistance of the court to recover that amount, has two courses open to him. He can either claim the amount due to him in Indian currency or in the foreign currency in which it was payable. If he chooses the first alternative, he can only sue for that amount as converted into Indian rupees and his prayer in the plaint can only be for a sum in Indian currency. For this purpose, the plaintiff would have to convert the foreign currency amount due to him into Indian rupees. He can do so either at the rate of exchange prevailing on the date when the amount became payable for he was entitled to receive the amount on that date or, at his option, at the rate of exchange prevailing on the date of the filing of the suit because that is the date on which he is seeking the assistance of the court for recovering the amount due to him. In either event, the valuation of the suit for the purposes of court fees and the pecuniary limit of the jurisdiction of the court will be the amount in Indian currency claimed in the suit. The plaintiff may, however, choose the second course open to him and claim in foreign currency the amount due to him. In such a suit, the proper prayer for the plaintiff to make in his plaint would be for a decree that the defendant do pay to him the foreign currency sum claimed in the plaint subject to the permission of the concerned authorities under thebeing granted and that in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the defendant do pay to the plaintiff the rupee equivalent of the foreign currency sum claimed at the rate of exchange prevailing on the date of the judgment. For the purposes of court fees and jurisdiction the plaintiff should, however, value his claim in the suit by converting the foreign currency sum claimed by him into Indian rupees at the rate of exchange prevailing on the date of the filing of the suit or the date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under thebeing granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff.27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order.29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law.	0	4,934	### 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: date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, being granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff. 27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible. 28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order. 29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order. 30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law. ### Response: 0
563	State Of Andhra Pradesh Vs. S.N. Nizamuddin All Khan	suspended. A charge-sheet was served on the respondent along with the statements of four persons. On the following charges it was proposed to remove the respondent from service namely (1) Communal bias in deciding case, (2) disregarding judicial orders, (3) suggesting names of Muslim lawyers to Muslim parties and (4) inefficiency.7. On 3 August, 1953 the Enquiry Officer Justice Manohar Prasad submitted a report finding the respondent guilty of charges numbered 1 and 3 and he recommended a warning. On 25 August, 1953 the report of the Chief Justice on his own examination of the evidence confirmed the findings of the enquiry officer and h e recommended compulsory retirement. On 5 September, 1953 the Administrative Bench the High Court sent both the reports to the Government. 131 On 14 October, 1953 a show cause notice was issued from the Government for compulsory retirement of the respondent. The Government show cause notice enclosed the report of Justice Manohar Prasad. The respondent answered the findings of the enquiry report and also protested against the report of the Chief Justice saying that the Chief Justice had no authority to add his own remarks and his findings were arrived at without hearing the respondent.On 22 December, 1953 the matter was referred to the Public Service Commission. On 27 February, 1954 the Public Service Commission approved compulsory retirement. On 8 April, 1954 the respondent was compulsorily retired.On 28 June, 1954 the respondent pre ferred an appeal to the Rajpramukh. On 4 November, 1954 the Rajpramukh dismissed the appeal. In 1957 the respondent filed this suit.The City Civil Court found that the respondent did not have a chance to meet some of the allegations referred to by the Chief Justice. The City Civil Court also found that the report of the Chief Justice weighed with the Government. The City Civil Court also found that the respondent had no reasonable opportunity for defending himself against the imposition of penalty of compulsory retirement.The High Court held that the findings of the Chief Justice were based to a considerable extent on material which was not produced before the High Court. The High Court also held that the Government had accepted the report of the Chief Justice both with regard to the guilt and punishment. The High Court held that since the report of the Chief Justice formed an integral part of the enquiry, the respondent was denied reasonable opportunity at both the stages of enquiry and punishment and, therefore, the compulsory retirement was bad .8. On behalf of the appellant it was contended that assuming the report of the Chief Justice was taken into consideration by the Government the findings of the Chief Justice were based on evidence let in before the Enquiry Officer and not any extraneous circumstances. It was also submitted that it was open to the Government to accept or reject the recommendation of the Chief Justice on the question of punishment. The further submission was that the respondent was given a reasonable opportunity at both the stages of the enquiry and punishment, and, therefore, the order of compul- sory retirement, is good.In the alternative it was su bmitted on behalf of the appellant that the Government of its own came to the con- clusion that compulsory retirement was the proper punish- ment, and, therefore, the Government did not act on the recommendation of the Chief Justice.9. The report of the Chief Justice referred to the report of the Enquiring Judge. The Enquiring Judge held that charges relating to the communal bias of the respondent and charges relating t o unbecoming conduct of the respondent in relation to engagement of counsel in pending cases were proved. The Chief Justice in his report said that he was flooded with complaints from lawyers, litigants and from all sides which emanated not only from the members of the Bar but also from responsible officers. The Chief Justice said in his report that on consideration of all the facts he had not the slightest doubt that in this case leniency would be misplaced and in the interest of purity of services such practices, when proved, as they have been proved, must be dealt with firmly. He, therefore, expressed the opinion that the respondent should be compulsorily retired and he concluded with the observation "let the Government be moved accordingly".10. Under the Rules the Government has power under rule 12 to impose, inter alia, the penalty of compulsory retirement after consultation with the Public Service Commission where such consultation is necessary. The Chief Justice recommended compulsory retirement. He took note of complaints received by him from lawyers and other persons. The Chief Justice took note of insubordination which charge was rejected by the Enquiry Officer. Rule 17(e) of the Rules requires that all orders of punishment shall state the grounds on which they are based and shall be communicated to the person against whom they are passed. The report of the Chief Justice was not given to the respondent. The High Court Act did not authorise the Chief Justice to send a supplementary report with his own findings. The respondent had no reasonable opportunity of making any representation against the report of the Chief Justice of the proposed punishment of compulsory retirement. The High Court rightly held that the report of the Chief Justice took into consideration extraneous matters, and he was not authorised to do so under the Rules of the High Court Act. The report submitted by the Chief Justice is not the report of the Administrative Bench. The High Court rightly held that the Government accepted the Chief Justices report and took action on it. The High Court was right in holding that the report of the Chief Justice was based to a large extent on secret information which the respondent had no opportunity of meeting. The respondent was denied the opportunity of being heard at that stage of enquiry. The respondent was denied a reasonable opportunity of making a representation against the penalty proposed by the Government.11.	0[ds]The report of the Chief Justice referred to the report of the Enquiring Judge. The Enquiring Judge held that charges relating to the communal bias of the respondent and charges relating t o unbecoming conduct of the respondent in relation to engagement of counsel in pending cases were proved. The Chief Justice in his report said that he was flooded with complaints from lawyers, litigants and from all sides which emanated not only from the members of the Bar but also from responsible officers. The Chief Justice said in his report that on consideration of all the facts he had not the slightest doubt that in this case leniency would be misplaced and in the interest of purity of services such practices, when proved, as they have been proved, must be dealt with firmly. He, therefore, expressed the opinion that the respondent should be compulsorily retired and he concluded with the observation "let the Government be movedthe Rules the Government has power under rule 12 to impose, inter alia, the penalty of compulsory retirement after consultation with the Public Service Commission where such consultation is necessary. The Chief Justice recommended compulsory retirement. He took note of complaints received by him from lawyers and other persons. The Chief Justice took note of insubordination which charge was rejected by the Enquiry Officer. Rule 17(e) of the Rules requires that all orders of punishment shall state the grounds on which they are based and shall be communicated to the person against whom they are passed. The report of the Chief Justice was not given to the respondent. The High Court Act did not authorise the Chief Justice to send a supplementary report with his own findings. The respondent had no reasonable opportunity of making any representation against the report of the Chief Justice of the proposed punishment of compulsory retirement. The High Court rightly held that the report of the Chief Justice took into consideration extraneous matters, and he was not authorised to do so under the Rules of the High Court Act. The report submitted by the Chief Justice is not the report of the Administrative Bench. The High Court rightly held that the Government accepted the Chief Justices report and took action on it. The High Court was right in holding that the report of the Chief Justice was based to a large extent on secret information which the respondent had no opportunity of meeting. The respondent was denied the opportunity of being heard at that stage of enquiry. The respondent was denied a reasonable opportunity of making a representation against the penalty proposed by the Government.	0	2,241	### 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: suspended. A charge-sheet was served on the respondent along with the statements of four persons. On the following charges it was proposed to remove the respondent from service namely (1) Communal bias in deciding case, (2) disregarding judicial orders, (3) suggesting names of Muslim lawyers to Muslim parties and (4) inefficiency.7. On 3 August, 1953 the Enquiry Officer Justice Manohar Prasad submitted a report finding the respondent guilty of charges numbered 1 and 3 and he recommended a warning. On 25 August, 1953 the report of the Chief Justice on his own examination of the evidence confirmed the findings of the enquiry officer and h e recommended compulsory retirement. On 5 September, 1953 the Administrative Bench the High Court sent both the reports to the Government. 131 On 14 October, 1953 a show cause notice was issued from the Government for compulsory retirement of the respondent. The Government show cause notice enclosed the report of Justice Manohar Prasad. The respondent answered the findings of the enquiry report and also protested against the report of the Chief Justice saying that the Chief Justice had no authority to add his own remarks and his findings were arrived at without hearing the respondent.On 22 December, 1953 the matter was referred to the Public Service Commission. On 27 February, 1954 the Public Service Commission approved compulsory retirement. On 8 April, 1954 the respondent was compulsorily retired.On 28 June, 1954 the respondent pre ferred an appeal to the Rajpramukh. On 4 November, 1954 the Rajpramukh dismissed the appeal. In 1957 the respondent filed this suit.The City Civil Court found that the respondent did not have a chance to meet some of the allegations referred to by the Chief Justice. The City Civil Court also found that the report of the Chief Justice weighed with the Government. The City Civil Court also found that the respondent had no reasonable opportunity for defending himself against the imposition of penalty of compulsory retirement.The High Court held that the findings of the Chief Justice were based to a considerable extent on material which was not produced before the High Court. The High Court also held that the Government had accepted the report of the Chief Justice both with regard to the guilt and punishment. The High Court held that since the report of the Chief Justice formed an integral part of the enquiry, the respondent was denied reasonable opportunity at both the stages of enquiry and punishment and, therefore, the compulsory retirement was bad .8. On behalf of the appellant it was contended that assuming the report of the Chief Justice was taken into consideration by the Government the findings of the Chief Justice were based on evidence let in before the Enquiry Officer and not any extraneous circumstances. It was also submitted that it was open to the Government to accept or reject the recommendation of the Chief Justice on the question of punishment. The further submission was that the respondent was given a reasonable opportunity at both the stages of the enquiry and punishment, and, therefore, the order of compul- sory retirement, is good.In the alternative it was su bmitted on behalf of the appellant that the Government of its own came to the con- clusion that compulsory retirement was the proper punish- ment, and, therefore, the Government did not act on the recommendation of the Chief Justice.9. The report of the Chief Justice referred to the report of the Enquiring Judge. The Enquiring Judge held that charges relating to the communal bias of the respondent and charges relating t o unbecoming conduct of the respondent in relation to engagement of counsel in pending cases were proved. The Chief Justice in his report said that he was flooded with complaints from lawyers, litigants and from all sides which emanated not only from the members of the Bar but also from responsible officers. The Chief Justice said in his report that on consideration of all the facts he had not the slightest doubt that in this case leniency would be misplaced and in the interest of purity of services such practices, when proved, as they have been proved, must be dealt with firmly. He, therefore, expressed the opinion that the respondent should be compulsorily retired and he concluded with the observation "let the Government be moved accordingly".10. Under the Rules the Government has power under rule 12 to impose, inter alia, the penalty of compulsory retirement after consultation with the Public Service Commission where such consultation is necessary. The Chief Justice recommended compulsory retirement. He took note of complaints received by him from lawyers and other persons. The Chief Justice took note of insubordination which charge was rejected by the Enquiry Officer. Rule 17(e) of the Rules requires that all orders of punishment shall state the grounds on which they are based and shall be communicated to the person against whom they are passed. The report of the Chief Justice was not given to the respondent. The High Court Act did not authorise the Chief Justice to send a supplementary report with his own findings. The respondent had no reasonable opportunity of making any representation against the report of the Chief Justice of the proposed punishment of compulsory retirement. The High Court rightly held that the report of the Chief Justice took into consideration extraneous matters, and he was not authorised to do so under the Rules of the High Court Act. The report submitted by the Chief Justice is not the report of the Administrative Bench. The High Court rightly held that the Government accepted the Chief Justices report and took action on it. The High Court was right in holding that the report of the Chief Justice was based to a large extent on secret information which the respondent had no opportunity of meeting. The respondent was denied the opportunity of being heard at that stage of enquiry. The respondent was denied a reasonable opportunity of making a representation against the penalty proposed by the Government.11. ### Response: 0
564	Zippers Karamchari Union Vs. Union of Inida and Others	industry is valid. It is quite clear that YKK was allowed primarily as a result of Ministry of Textiles intervention in emphasizing the need to supply an internationally acceptable brand for the export oriented Ready Made Garment Industry. This objective could be better served if YKK is allowed entry with a 75% export commitment as is normally done in clearing cases of 100% foreign equity where relatively low technology is involved. YKK could supply to domestic readymade garment units against their advance licences on a deemed export basis. In no circumstances should we permit the decimation of thee small scale sector in a low technology/low priority industry. It is therefore, recommended, that permission to YKK be amended to include a 75% export commitment." * (23) Admittedly, YKK was granted permission to set up integrated plant for manufacture by the Government of India on 7th July, 1995. It is thus clear that the note of the Minister of State is dated 5th September, 1995 after the permission was granted to YKK. The question is what is the effect of such a note. Shri Om Prakash, Deputy Secretary to the Government of India. Ministry of Industry, in his affidavit has stated: "........... A copy of a note allegedly signed by the then Minister of State for Industry, dated 5-9-1995 has been filed from which it appears that Shri M.Arunachalam on 5-9-1995 as the then Minister of State for Industry had recommended that the permission granted to MS. YKK Corporation be amended to include a 75% export commitment. In this connection, I submit that the file in which this note is said to have been written by the then Minister of State for Industry is not available in the concerned office, i.e. Office of the Development Commissioner for Small Scale Industries. I am making this submission on the basis of communication No. 9(10)/95-Chem. dated 22-7-1997 from the office of the Development Commissioner for Small Scale Industries." * (24) He further stated that the Industry Minister is a cabinet rank minister and a note made by the Minister of State can only be his viewpoint/recommendation to the Industry Minister who has to take a final decision on such recommendation. The grant of approval to MS YKK Corporation with the approval of the Empowered committee on foreign investment under the Chairmanship of Finance Minister (Dr. Manmohan Singh), preceded the said note of the then Minister of State for Industry. The approval letter was issued on 7th July, 1995 and the note of the Minister of State was made on 5th September, 1995. This note was considered in the department of Industrial Policy and Promotion which is the department dealing with the foreign investment violation as well as matters relating to approval of foreign and domestic investment. The department of Industrial Policy and Promotion expressed the view that the approval granted to MS YKK Corporation is in consenance with the notification dated 25th July, 1991 incorporating the list of items reserved for small scale sector. According to the guidelines for the Foreign Investment Promotion Board issued through press note No. 3(1997 series) dated 17th July, 1997, no conditions specific to the letter of approval issued to a foreign investor would be changed or additional condition be imposed subsequent to the issue of letter of approval. The stand of the central government contained in the affidavit in reply is that it would neither be desirable nor legally permissible to prescribe 75% export obligation on YKK. The industry Minister on 13th March, 1997 having considered all aspects of the matters and the note of the Department of International Policy and Promotion has granted approval to YKK Corporation and did not impose any export obligation on YKK.(25) Mr. Vaidyanathan, Learned Addl. Solicitor General appearing for the Union of India urged that since the said note of the Minister of State dated 5th September, 1995 was after letter of approval issued to the YKK corporation on 7th July, 1995 and that theere is no material on the record to indicate that such a note was approved by the Minister of Industry. He further stated that it would not be possible to impose such a condition after a lapse of such a long period. He, therefore, urged that no relief whatsoever could be granted to the petitioner on the basis of the said note. (26) Mr. Nariman, Learned Senior Counsel urged that noting made by the officer/Minister of State on the government file cannot be used to alter the situation and, therefore, a letter of approval granted to YKK Corporation on 7th July, 1995 cannot be varied. In support of his submission, he drew our attention to the decision of this Court in State of Bihar etc. etc. Vs. Kripalu Shanker etc. etc. In our considered view, it would not be possible to direct the first respondent to impose the condition in tune with the note dated 5th September, 1995 made by the Minister of State. The Minister of the cabinet rank holding the protfolio of Industry has granted the approval to YKK Corporation on 7th July, 1995. It is a matter of government policy and in our opinion no sustainable ground was urged before us to hold that the approval granted to YKK was contrary to the government policy. The Court would not be justified in inter ering in such matters when it is satisfied that a grant of approval to YKK was neither irrational, non for any extraneous consideration. Incidentally, it may also be mentioned that the third and fourth respondent have commenced the production of zippers in their factory at Bawal, Haryana on 21st March, 1997 with the investment of 90 crores. Any change in the terms and conditions of the approval at this stage may lead to several legal complications.(27) For the foregoing conclusions, we are of the considered view that the petitioner has made out no case for grant of any of the reliefs claimed in this petition under Article 32 of the Constitution of India.	0[ds](8) From the preamble of the notification itself, it is quite clear that in view of the recommendations made by the Advisory Committee constituted under sub-section 2-B of Section 29(B) of the Act, the Government of India dereserved the integrated plant manufacturing all components. The concept of integrated plant is well known in the business circle to mean that all components needed for the end product are manufactured under one roof(9) Mr. shanti Bhushan, learned Senior Counsel urged that under Section 29-B (2B) of the Act, the Central Government thought it fit to reserve Zip Fasteners (Metallic and Non-Metallic) industry under Item 38 of Schedule I for small scale industry. Any change in the policy of dereservation by notification would be illegal and ultra vires Section 29-B(2B) of the Act. In our considered view, the rigidity of such a construction to section 29-B(2B) would not promote the object and spirit underlying the said section. The industry engaged in manufacture of zip fasteners (metallic and non-metallic) still continues to be in the province of small scale industry. The Notification dated May 30, 1986 however, dereserved only an integrated plant(10) It is, therefore, quite clear that even today manufacturing of zip fastener (metallic and non-metallic) would continue to be a small scale industry. What has been dereserved in an integrated plant. It is taken out from the purview of small scale industry. This change was made on the basis of the recommendation of the Advisory Committee constituted under sub-section 2(B) of Section 29-B of the Act.(11) A very identical question was raised before the Bombay High Court in Appeal No. 220 of 1988 decided on February 28, 1991 by the Division Bench. The Report of the Advisory committee was also tendered before the said courtIn our considered view, there is no substance in this submission because the integrated plant is a class by itself and totally different from the small scale industry which is engaged in manufacturing zip fasteners metallic and non-metallic. The submission raised on behalf of the petitioner must, therefore, fail(15) There is also another aspect which needs to be considered in the light of the expanding market of readymade garments, leather garments and other articles where zip fasteners metallic and non-metallic are used. Since 1983, the export of these goods gaining a good support in the international market and naturally if India wants to compete with other countries engaged in the said business will have to improve upon the quality of its goods. In 1983, the Directorate General of technical Development, Government of India and appointed a study team and the said team was entrusted with the work of finding out asto (1) whether small scale units manufacturing zip fasteners (metallic and non-metallic) have necessary machinery for the manufacture of zip colla/teeth or they are simply importing zip chain and components and assembling the same into finished zips; and (2) the quality of indigenous zips vis-a-vis the imported ones. The quality of indigenous zip fasteners would be an important factor. The study team during its survey found that zip fasteners were smuggled into India on large scale and they were being used by the manufacturers of readymade garments and leather garments and other allied articles. The Government of India accepted the report of the said study team and with a view to have quality zip fasteners (metallic and non-metallic) and in order to compete with the would market and also to generate employment in the field of readymade garments and leather industry, it thought fit to dereserve an integrated plant manufacturing zip fasteners. The object seems to be that all components of zip fasteners if manufactured in an integrated plant, the same will have a quality control which will compete with the world market in that behalf. It is in these circumstances we are of the considered opinion that the Notification dated May 30, 1986 is neither illegal, irrational nor discriminatory(17) Relying upon this policy statement, Mr. Shanti Bhushan urged that government policy is to promote 51% equity share holding by the foreign companies/nationals that too in a field where it would provide access to high technology and world markets. According to learned counsel, there is nothing on the record to indicate that the government while granting permission to YKK to set up an integrated plant for manufacturing zip fasteners (metallic and non-metallic) had considered that an integrated plant would be such which "would provide access to high technology and world markets". The integrated plant for manufacture of zip fasteners (metallic and non-metallic) does not involve an access to high technology and would markets. If this be so, Counsel urged that the above policy statement on Industrial Policy. He however, conceded that expression and used in Clause V "............. access to high technology and world markets" could be read as or yet the approval granted to YKK to start integrated plant for manufacture of zip fasteners (metallic and non-metallic) would be totally opposed to the Industrial Policy of Government of India. This submission again does not appeal to us. Because it has come on the record that YKK has acquired a world wide reputation in the manufacture of zip fasteners (metallic and non-metallic). Mr. Hiroshi Mitani, Managing Director of 4ht respondent in his affidavit dated July 31, 1997 has highlighted the salient features of YKK corporation in the field of manufacturing zip fasteners all over the world. It is stated "YKK have the would richest variety of items which are required by customers. YKK Zippers are produced by using high technology. The chart prepared with the nucleus technology along with new technology is annexed as Annexure "B"(18) After giving our careful thought to the pleadings of the parties before us, we are of the considered opinion that having regard to the quality and worldwise reputation carried by YKK zip fasteners, it would be reasonable to include that it would provide access to the world market which is indicated in the statement on Industrial Policy in paragraph V sub clause V quoted hereinaboveHaving considered the pleadings of the parties before us we are of the firm opinion that having regard to the quality and worldwide reputation earned by YKK zip fasteners, it would not be out of place to mention that it would provide access to the world market which is indicated in the Statement on Industrial Policy in paragraph 39 Clause V quoted hereinabove. Consequently we hold that approval granted to YKK is neither illegal non contrary to the Industrial Policy, 1991(20) Coming to the other limb of the argument of Mr. Shanti Bhushan Learned Senior Counsel that many workers of the present petitioner association would be rendered jobless has also no force. We are told that as of today, there are as many as 17 Indian companies which have been granted licences and are outside the purview of small scale units. This statement appearing in the affidavit of Shri Hiroshi Metani in paragraph 12 is contested on behalf of the petitioners contending that many of these Indian companies have been rendered non-functional because of variety of reasons. But, however, the fact remains that some of the Indian companies have started integrated plants for manufacture of metallic and non-metallic zip fasteners, Whether they are successful in their attempt Orr not is really not a devisive factor. In this behalf, it is really not a decisive factor. In this behalf, it is also necessary to highlight the ratio between the production and requirement of zip fasteners (metallic and non-metallic) in India. In paragraph 7, Shri Hiroshi Mitani has stated that in 1997, the production of YKK was 2.2 corer pieces. The said figure was calculated on the basis that Indian Market size is about 100 crore pieces. Therefore, YKK production was 2-3% of the Indian Market in the year 1997. In 1998 onwards the production of YKK is going to be 9.2 crore pieces i.e. 9-10% of the local market. There is no effective denial to this statement in the rejoinder filed on behalf of the petitioners and if this fact has any bearing upon the factual state of requirement, it is quite clear that yet a sizeable market is available to the Indian manufacturers and the apprehension entertained by the petitioner appears to us a mere figment of imagination(23) Admittedly, YKK was granted permission to set up integrated plant for manufacture by the Government of India on 7th July, 1995. It is thus clear that the note of the Minister of State is dated 5th September, 1995 after the permission was granted to YKK. The question is what is the effect of such a note. Shri Om Prakash, Deputy Secretary to the Government of IndiaIn our considered view, it would not be possible to direct the first respondent to impose the condition in tune with the note dated 5th September, 1995 made by the Minister of State. The Minister of the cabinet rank holding the protfolio of Industry has granted the approval to YKK Corporation on 7th July, 1995. It is a matter of government policy and in our opinion no sustainable ground was urged before us to hold that the approval granted to YKK was contrary to the government policy. The Court would not be justified in inter ering in such matters when it is satisfied that a grant of approval to YKK was neither irrational, non for any extraneous consideration. Incidentally, it may also be mentioned that the third and fourth respondent have commenced the production of zippers in their factory at Bawal, Haryana on 21st March, 1997 with the investment of 90 crores. Any change in the terms and conditions of the approval at this stage may lead to several legal complications.(27) For the foregoing conclusions, we are of the considered view that the petitioner has made out no case for grant of any of the reliefs claimed in this petition under Article 32 of the Constitution of India.	0	5,534	### 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: industry is valid. It is quite clear that YKK was allowed primarily as a result of Ministry of Textiles intervention in emphasizing the need to supply an internationally acceptable brand for the export oriented Ready Made Garment Industry. This objective could be better served if YKK is allowed entry with a 75% export commitment as is normally done in clearing cases of 100% foreign equity where relatively low technology is involved. YKK could supply to domestic readymade garment units against their advance licences on a deemed export basis. In no circumstances should we permit the decimation of thee small scale sector in a low technology/low priority industry. It is therefore, recommended, that permission to YKK be amended to include a 75% export commitment." * (23) Admittedly, YKK was granted permission to set up integrated plant for manufacture by the Government of India on 7th July, 1995. It is thus clear that the note of the Minister of State is dated 5th September, 1995 after the permission was granted to YKK. The question is what is the effect of such a note. Shri Om Prakash, Deputy Secretary to the Government of India. Ministry of Industry, in his affidavit has stated: "........... A copy of a note allegedly signed by the then Minister of State for Industry, dated 5-9-1995 has been filed from which it appears that Shri M.Arunachalam on 5-9-1995 as the then Minister of State for Industry had recommended that the permission granted to MS. YKK Corporation be amended to include a 75% export commitment. In this connection, I submit that the file in which this note is said to have been written by the then Minister of State for Industry is not available in the concerned office, i.e. Office of the Development Commissioner for Small Scale Industries. I am making this submission on the basis of communication No. 9(10)/95-Chem. dated 22-7-1997 from the office of the Development Commissioner for Small Scale Industries." * (24) He further stated that the Industry Minister is a cabinet rank minister and a note made by the Minister of State can only be his viewpoint/recommendation to the Industry Minister who has to take a final decision on such recommendation. The grant of approval to MS YKK Corporation with the approval of the Empowered committee on foreign investment under the Chairmanship of Finance Minister (Dr. Manmohan Singh), preceded the said note of the then Minister of State for Industry. The approval letter was issued on 7th July, 1995 and the note of the Minister of State was made on 5th September, 1995. This note was considered in the department of Industrial Policy and Promotion which is the department dealing with the foreign investment violation as well as matters relating to approval of foreign and domestic investment. The department of Industrial Policy and Promotion expressed the view that the approval granted to MS YKK Corporation is in consenance with the notification dated 25th July, 1991 incorporating the list of items reserved for small scale sector. According to the guidelines for the Foreign Investment Promotion Board issued through press note No. 3(1997 series) dated 17th July, 1997, no conditions specific to the letter of approval issued to a foreign investor would be changed or additional condition be imposed subsequent to the issue of letter of approval. The stand of the central government contained in the affidavit in reply is that it would neither be desirable nor legally permissible to prescribe 75% export obligation on YKK. The industry Minister on 13th March, 1997 having considered all aspects of the matters and the note of the Department of International Policy and Promotion has granted approval to YKK Corporation and did not impose any export obligation on YKK.(25) Mr. Vaidyanathan, Learned Addl. Solicitor General appearing for the Union of India urged that since the said note of the Minister of State dated 5th September, 1995 was after letter of approval issued to the YKK corporation on 7th July, 1995 and that theere is no material on the record to indicate that such a note was approved by the Minister of Industry. He further stated that it would not be possible to impose such a condition after a lapse of such a long period. He, therefore, urged that no relief whatsoever could be granted to the petitioner on the basis of the said note. (26) Mr. Nariman, Learned Senior Counsel urged that noting made by the officer/Minister of State on the government file cannot be used to alter the situation and, therefore, a letter of approval granted to YKK Corporation on 7th July, 1995 cannot be varied. In support of his submission, he drew our attention to the decision of this Court in State of Bihar etc. etc. Vs. Kripalu Shanker etc. etc. In our considered view, it would not be possible to direct the first respondent to impose the condition in tune with the note dated 5th September, 1995 made by the Minister of State. The Minister of the cabinet rank holding the protfolio of Industry has granted the approval to YKK Corporation on 7th July, 1995. It is a matter of government policy and in our opinion no sustainable ground was urged before us to hold that the approval granted to YKK was contrary to the government policy. The Court would not be justified in inter ering in such matters when it is satisfied that a grant of approval to YKK was neither irrational, non for any extraneous consideration. Incidentally, it may also be mentioned that the third and fourth respondent have commenced the production of zippers in their factory at Bawal, Haryana on 21st March, 1997 with the investment of 90 crores. Any change in the terms and conditions of the approval at this stage may lead to several legal complications.(27) For the foregoing conclusions, we are of the considered view that the petitioner has made out no case for grant of any of the reliefs claimed in this petition under Article 32 of the Constitution of India. ### Response: 0
565	Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum And Ors	be deemed not to have been complied with. These latter assumptions in regard to the issuance of the notice under s. 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by s. 18A(9)(b). In our case, it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952] AC 109 at p. 132. He said:" If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 8. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimants share. Explanation 1 to s. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener shall be deemed to be " the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit ones imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partitionThe interpretation which we are placing upon the provisions of s. 6, its proviso and Expln. 1 thereto, will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929, conferred heirship rights on the sons daughter, daughters daughter and sister in all areas where the Mitakshara law prevailed. Section 3 of the Hindu Womens Right to Property Act, 1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family. The Hindu Succession Act, 1956, provides by s. 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the fiction created by Expln. 1 in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of property. Even assuming that two interpretations of Expln. 1 are reasonably possible, we must prefer that interpretation which will further the intention of the Legislature and remedy the injustice from which the Hindu women have suffered over the years. 9. We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai v. Laxman Lalji Patil, AIR 1966 Bom 169 , in which Patel J., very fairly, pronounced his own earlier judgment to the contrary in Shiramabai v. Kalgonda Bhimgonda, AIR 1964 Bom 263 , as incorrect. Recently, a Fall Bench of that High Court in Sushilabai Ramchandra Kulkarni v. Narayanrao Gopalrao Deshpande, AIR 1975 Bom 257 [FB], the Gujarat High Court in Vidyaben v. Jagdishchandra N. Bhatt, AIR 1974 Guj 23 and the High Court of Orissa in Ananda Naik v. Haribandhu Naik, AIR 1967 Orissa 194, have taken the same view. The Full Bench of the Bombay High Court in Sushilabai, AIR 1975 Bom 257 , has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C.J., who has spoken for the Bench. 10.	0[ds]Two things are thus clear: One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4 th share and two, that the share of the plaintiff in the 1/4 th share is, 1/6 th share, that is to say, 1/24th. So far, there is no difficulty. The question which poses a some what difficult problem is whether the plaintiffs share in the coparcenary property is only 1/24th or whether it is 1/4th plus 1/24th, that is to say, 7/24ths. The learned trial, judge, relying upon the decision in Shiramabai, AIR 1964 Bom 263 , which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferredWe see no justification for limiting the plaintiffs share to 1/24th by ignoring the 1/4th share which she would have obtained had there been partition during her husbands lifetime between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits ones imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiffs husband and his sons. Whether a partition had actually taken place between the plaintiffs husband and his sons is beside the point for the purposes of Expln. 1. That Explanation compels the assumption of a fiction that in fact " a partition of the property had taken place " the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a shareThe fiction created by Expln. 1 has to be given its due and full effect as the fiction created by s. 18A(9)(b) of the Indian I.T. Act, 1922, was given by this court in CIT v. S. Teja Singh [1959] 35 ITR 408 ; AIR 1959 SC 352 ; (1959] Suppl. (1) SCR 394 . It was held in that case that the fiction that the failure to send an estimate of tax on income under s. 18A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee under s. 22 and that he had failed to comply with it. In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singhs case, a missing step had to be supplied which was not provided for by s. 18A(9)(b), namely, the issuance of a notice under s. 22 and the failure to comply with that notice. Section 18A(9)(b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income under s. 18A(3) he shall be deemed to have failed to furnish a return of his income. The section did not provide further that in the circumstances therein stated, a notice under s. 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with. These latter assumptions in regard to the issuance of the notice under s. 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by s. 18A(9)(b). In our case, it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage inEast End Dwellings Co. Ltd. v. Finsbury Borough Council (1952] AC 109 at p.. He" If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimants share. Explanation 1 to s. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener shall be deemed to be " the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit ones imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partitionThe interpretation which we are placing upon the provisions of s. 6, its proviso and Expln. 1 thereto, will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929, conferred heirship rights on the sons daughter, daughters daughter and sister in all areas where the Mitakshara law prevailed. Section 3 of the Hindu Womens Right to Property Act, 1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family.The Hindu Succession Act, 1956, provides by s. 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the fiction created by Expln. 1 in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of property. Even assuming that two interpretations of Expln. 1 are reasonably possible, we must prefer that interpretation which will further the intention of the Legislature and remedy the injustice from which the Hindu women have suffered over the yearsWe are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai v. Laxman Lalji Patil, AIR 1966 Bom 169 , in which Patel J., very fairly, pronounced his own earlier judgment to the contrary in Shiramabai v. Kalgonda Bhimgonda, AIR 1964 Bom 263 , as incorrect. Recently, a Fall Bench of that High Court in Sushilabai Ramchandra Kulkarni v. Narayanrao Gopalrao Deshpande, AIR 1975 Bom 257 [FB], the Gujarat High Court in Vidyaben v. Jagdishchandra N. Bhatt, AIR 1974 Guj 23 and the High Court of Orissa in Ananda Naik v. Haribandhu Naik, AIR 1967 Orissa 194, have taken the same view. The Full Bench of the Bombay High Court in Sushilabai, AIR 1975 Bom 257 , has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C.J., who has spoken for the BenchAnother Division Bench of the Bombay High Court in Rangubai v. Laxman Lalji Patil, AIR 1966 Bom 169 , had already reconsidered and dissented from the earlier Division Bench judgment in Shiramabai v. Kalgonda Bhimgonda, AIR 1964 Bom 263 . In these two cases, the judgment of the Bench was delivered by the same learned judge, Patel J. On further consideration the learned judge felt that Shiramabai was not fully argued and was incorrectly decided and that on a true view of the law, the widows share must be ascertained by adding the share to which she is entitled at notional partition during her husbands lifetime and the share which she would get in her husbands interest upon his death. In the judgment under appeal, the High Court has based itself on the judgment in Rangubai. AIR 1966 Bom 169 , endorsing indirectly the view that Shiramabai was incorrectly decidedSince the view of the High Court that the suit properties belonged to the joint family and that there was no prior partition is well founded and is not seriously disputed, the decision of this appeal rests on the interpretation of Expln. 1 to s. 6 of the Hindu Succession Act (30 of 1956)The Hindu Succession Act came into force on June 17, 1956. Kandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, thes of s. 6 are satisfied and that section is squarely attracted. By the application of the normal rule prescribed by that section, Khandappas interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter are amongst the female relatives specified in class 1 of the Schedule to the, Act and Khandappa died leaving behind widow and daughters, the proviso to s. 6, comes into play and the normal rule is excluded. Khandappas interest in, the coparcenary property would, therefore, devolve, according to the proviso, by intestate succession under the Act and not by survivorship. Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the Explanation to s. 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary dispositionThere is thus no dispute that the normal rule provided for by s. 6 does not apply, that the proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be given to Expln. of s. 6. The interpretation of that Explanation is ther of acute controversy between the partiesBefore considering the implications of Expln. 1. it is necessary to remember that what s. 6 deals with is devolution of the interest which male Hindu has in a Mitakshara coparcenary property at the time of his death. Since Expln. 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to ther which the section itself deals with. In the instant case, the plaintiffs suit, based as it is on the provisions of s. 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the plaintiff : One, her share in her husbands share and two, her husbands own share in the coparcenary property. The proviso to s. 6 contains the formula for fixing the share of the claimant while Expln. 1 contains a formula for deducing the share of the deceased. The plaintiffs share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in ss.8, 9 and 10 of the Hindu Succession Act. The deceased, Khandappa, died leaving behind him two sons, three daughters and a widow. The son, daughter and widow are mentioned as heirs in class 1 of the Schedule and, therefore, by reason of the provisions of s. 8(a) read with the 1st clause of s. 9, they take simultaneously and to the exclusion of other heirs. As between them the two sons, the three daughters, and the widow will take equally, each having one share in the deceaseds property under s. 10 read with rr. 1 and 2 of that section. Thus, whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiffs share therein will be 1/6thThe next step, equally important, though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because, after all, the plaintiff has a 1/6th interest in that share. Explanation I which contains the formula for determining the share of the deceased creates a fiction by, providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must, therefore, imagine a state of affairs in which a little prior to Khandappas death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (See Mullas Hindu Low, 14th Edn., page 403, para. 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappas wife, the plaintiff. Khandappa would have, therefore, got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and his sons	0	3,678	### 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: be deemed not to have been complied with. These latter assumptions in regard to the issuance of the notice under s. 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by s. 18A(9)(b). In our case, it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952] AC 109 at p. 132. He said:" If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 8. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimants share. Explanation 1 to s. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener shall be deemed to be " the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit ones imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partitionThe interpretation which we are placing upon the provisions of s. 6, its proviso and Expln. 1 thereto, will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929, conferred heirship rights on the sons daughter, daughters daughter and sister in all areas where the Mitakshara law prevailed. Section 3 of the Hindu Womens Right to Property Act, 1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family. The Hindu Succession Act, 1956, provides by s. 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the fiction created by Expln. 1 in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of property. Even assuming that two interpretations of Expln. 1 are reasonably possible, we must prefer that interpretation which will further the intention of the Legislature and remedy the injustice from which the Hindu women have suffered over the years. 9. We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai v. Laxman Lalji Patil, AIR 1966 Bom 169 , in which Patel J., very fairly, pronounced his own earlier judgment to the contrary in Shiramabai v. Kalgonda Bhimgonda, AIR 1964 Bom 263 , as incorrect. Recently, a Fall Bench of that High Court in Sushilabai Ramchandra Kulkarni v. Narayanrao Gopalrao Deshpande, AIR 1975 Bom 257 [FB], the Gujarat High Court in Vidyaben v. Jagdishchandra N. Bhatt, AIR 1974 Guj 23 and the High Court of Orissa in Ananda Naik v. Haribandhu Naik, AIR 1967 Orissa 194, have taken the same view. The Full Bench of the Bombay High Court in Sushilabai, AIR 1975 Bom 257 , has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C.J., who has spoken for the Bench. 10. ### Response: 0
566	Jagdev Singh Vs. State of Jammu & Kashmir	) to which we have already referred. Our learned brother held that where the original order of detention, as in these cases, was a good order for the first period of six months, it would not be open to the State Government to pass a fresh order of detention on the same facts after cancelling the order on the expiry of six months, for that would be going round the provisions of Rule 30A, and that the only way in which detention could be continued after the first period of six months, where a good order was originally passed was to make a review in a proper manner as indicated in the case of Lakhanpal, W. P. No. 258/66, D/-7-3-67(AIR l967 SC 1507). Our learned brother also seems to have held that if a review was not made in a proper manner as indicated in Lakhanpals case, W. P. No. 258/66, D/ - 7-3-67 = (AIR 1987 SC 1507 ) the Government would be completely powerless and could not detain the persons concerned by a fresh order. In effect therefore our learned brother held that if a mistake is made by Government in the matter of review it could not correct it and the detenu must go free.9. Now there is no doubt that if the Government resorts to the device of a series of fresh orders after every six months and thus continues the detention of a detenu, circumventing the provisions of Rule 30-A for review, which, as interpreted by this Court in Lakhanpals W. P. No. 258/66 , D/-7-3-67 = (AIR 1967 SC l507) give come protection to the citizens of this country, it would certainly be acting mala fide. Such a fresh order would be liable to be struck down not on the ground that the Government has no power to pass it but on the ground that it is mala fide exercise of the power. But if the Govermnent has power to pass a fresh order of detention on the same facts in case where the earlier order or its continuance fails for any defect we cannot see why the Government cannot pass such fresh order curing that defect. In such a case it cannot be said that the fresh order is a mala fide order passed to circumvent Rule 30-A.Take the present case itself. The Government passed the original order of detention in March, 1965. That order was good for six months and thereafter it could only continue under Rule 30-A on orders passed under Rule 30-A (9). The Government did pass orders under Rule 30-A (9) and we cannot say in view of the judgment in Sadhu Singhs case, l966-1 SCR = (AIR 1966 SC 91 ) that the Government went wrong in the procedure for review. It was only after the judgement of this Court in Lakhanpals case, W. P. No 258/66, D/- 7-3-67 = (AIR 1967 SC 1507 ) that the manner of review became open to objection with the result that the continuance of the order in these two cases failed and the detention became illegal if in these circumstances the Government passes a fresh order under Rule 90, it cannot be said that it is doing so mala fide in order to circumvent Rule 30-A (9). In actual fact the Government had complied with the provisions of Rule .30-A (9) and what it did was in accordance with the judgment of this Court in Sadhu Singhs case, 1966-1 SCR 243 = (AIR 1966 SC 91 ).10. It is true that after Lakhanpals case, W .P. No. 258/66, D/7-3-1967 = (AIR l967 SC 1507) the manner in which the review was made became defective and therefore the continuance of detention became illegal. Even so, if the Government decides to pass a fresh order in order to cure the defect which has now appeared in view of the judgment of this Court in Lakhanpals case, W. P. No. 258/ 66, D/- 7-3-67= (AIR 1967 SC 1507 ) it would in our view be not right to say that the Government cannot do so because that would be circumventing Rule 30-A. We do not think that we should deprive the Government of this power of correcting a defect particularly in the context of emergency legislation like the Act and the Rules. The Courts have always the power to strike down an order passed in mala fide exercise of power, and we agree with Bhargava, J. to this extent that if the Government, instead of following the procedure under Rule 30-A as now laid down in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) wants to circumvent that provision by passing fresh orders of detention on the same facts every six months, it will be acting mala fide and the court will have the power to strike down such mala fide exercise of power. But in cases, like the present, where the continuance became defective after the judgment of this Court in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) we can see no reason to deny power to Government to rectify the defect by passing a fresh order of detention. Such an order in such circumstances cannot be called mala fide, and if the Government has the power to pass it-which it undoubtedly has, for there is bar to a fresh order under the Act or the Rules -there is no reason why such a power should be denied to Government so that it can never correct a mistake or defect in the order once passed or in the continuation order once made. We are therefore of opinion that the view taken in Avtar Singhs case W. Ps. Nos. 68, 70, 79, 89 and 92 of 67, D/- 9-6-67 = (AIR 1967 SC 1797 ) in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under Rule 30-A (9) is not correct.11.	1[ds]In these circumstances the principle laid down in Gopalans case, (1966) 2 SCR 427 = (AIR 1966 SC.816 ) cannot apply to the facts of the present cases, for we cannot ignore, that between September, 1965 and April, l967 there was no proper review as required by Rule 30A (9) and the detention for all that period was illegal and could not be saved by the original order of March, 1965 which must be deemed to have come to an end after six months, in the absence of a proper review under Rule 30A (9). So there was no order which could be continued on April 1967, and therefore the petitioners would be entitled to release on thatis true that after Lakhanpals case, W .P. No. 258/66, D/7-3-1967 = (AIR l967 SC 1507) the manner in which the review was made became defective and therefore the continuance of detention became illegal. Even so, if the Government decides to pass a fresh order in order to cure the defect which has now appeared in view of the judgment of this Court in Lakhanpals case, W. P. No. 258/ 66, D/- 7-3-67= (AIR 1967 SC 1507 ) it would in our view be not right to say that the Government cannot do so because that would be circumventing Rule 30-A. We do not think that we should deprive the Government of this power of correcting a defect particularly in the context of emergency legislation like the Act and the Rules. The Courts have always the power to strike down an order passed in mala fide exercise of power, and we agree with Bhargava, J. to this extent that if the Government, instead of following the procedure under Rule 30-A as now laid down in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) wants to circumvent that provision by passing fresh orders of detention on the same facts every six months, it will be acting mala fide and the court will have the power to strike down such mala fide exercise of power. But in cases, like the present, where the continuance became defective after the judgment of this Court in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) we can see no reason to deny power to Government to rectify the defect by passing a fresh order of detention. Such an order in such circumstances cannot be called mala fide, and if the Government has the power to pass it-which it undoubtedly has, for there is bar to a fresh order under the Act or the Rules -there is no reason why such a power should be denied to Government so that it can never correct a mistake or defect in the order once passed or in the continuation order once made. We are therefore of opinion that the view taken in Avtar Singhs case W. Ps. Nos. 68, 70, 79, 89 and 92 of 67, D/- 9-6-67 = (AIR 1967 SC 1797 ) in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under Rule 30-A (9) is not correct.	1	3,532	### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: ) to which we have already referred. Our learned brother held that where the original order of detention, as in these cases, was a good order for the first period of six months, it would not be open to the State Government to pass a fresh order of detention on the same facts after cancelling the order on the expiry of six months, for that would be going round the provisions of Rule 30A, and that the only way in which detention could be continued after the first period of six months, where a good order was originally passed was to make a review in a proper manner as indicated in the case of Lakhanpal, W. P. No. 258/66, D/-7-3-67(AIR l967 SC 1507). Our learned brother also seems to have held that if a review was not made in a proper manner as indicated in Lakhanpals case, W. P. No. 258/66, D/ - 7-3-67 = (AIR 1987 SC 1507 ) the Government would be completely powerless and could not detain the persons concerned by a fresh order. In effect therefore our learned brother held that if a mistake is made by Government in the matter of review it could not correct it and the detenu must go free.9. Now there is no doubt that if the Government resorts to the device of a series of fresh orders after every six months and thus continues the detention of a detenu, circumventing the provisions of Rule 30-A for review, which, as interpreted by this Court in Lakhanpals W. P. No. 258/66 , D/-7-3-67 = (AIR 1967 SC l507) give come protection to the citizens of this country, it would certainly be acting mala fide. Such a fresh order would be liable to be struck down not on the ground that the Government has no power to pass it but on the ground that it is mala fide exercise of the power. But if the Govermnent has power to pass a fresh order of detention on the same facts in case where the earlier order or its continuance fails for any defect we cannot see why the Government cannot pass such fresh order curing that defect. In such a case it cannot be said that the fresh order is a mala fide order passed to circumvent Rule 30-A.Take the present case itself. The Government passed the original order of detention in March, 1965. That order was good for six months and thereafter it could only continue under Rule 30-A on orders passed under Rule 30-A (9). The Government did pass orders under Rule 30-A (9) and we cannot say in view of the judgment in Sadhu Singhs case, l966-1 SCR = (AIR 1966 SC 91 ) that the Government went wrong in the procedure for review. It was only after the judgement of this Court in Lakhanpals case, W. P. No 258/66, D/- 7-3-67 = (AIR 1967 SC 1507 ) that the manner of review became open to objection with the result that the continuance of the order in these two cases failed and the detention became illegal if in these circumstances the Government passes a fresh order under Rule 90, it cannot be said that it is doing so mala fide in order to circumvent Rule 30-A (9). In actual fact the Government had complied with the provisions of Rule .30-A (9) and what it did was in accordance with the judgment of this Court in Sadhu Singhs case, 1966-1 SCR 243 = (AIR 1966 SC 91 ).10. It is true that after Lakhanpals case, W .P. No. 258/66, D/7-3-1967 = (AIR l967 SC 1507) the manner in which the review was made became defective and therefore the continuance of detention became illegal. Even so, if the Government decides to pass a fresh order in order to cure the defect which has now appeared in view of the judgment of this Court in Lakhanpals case, W. P. No. 258/ 66, D/- 7-3-67= (AIR 1967 SC 1507 ) it would in our view be not right to say that the Government cannot do so because that would be circumventing Rule 30-A. We do not think that we should deprive the Government of this power of correcting a defect particularly in the context of emergency legislation like the Act and the Rules. The Courts have always the power to strike down an order passed in mala fide exercise of power, and we agree with Bhargava, J. to this extent that if the Government, instead of following the procedure under Rule 30-A as now laid down in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) wants to circumvent that provision by passing fresh orders of detention on the same facts every six months, it will be acting mala fide and the court will have the power to strike down such mala fide exercise of power. But in cases, like the present, where the continuance became defective after the judgment of this Court in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) we can see no reason to deny power to Government to rectify the defect by passing a fresh order of detention. Such an order in such circumstances cannot be called mala fide, and if the Government has the power to pass it-which it undoubtedly has, for there is bar to a fresh order under the Act or the Rules -there is no reason why such a power should be denied to Government so that it can never correct a mistake or defect in the order once passed or in the continuation order once made. We are therefore of opinion that the view taken in Avtar Singhs case W. Ps. Nos. 68, 70, 79, 89 and 92 of 67, D/- 9-6-67 = (AIR 1967 SC 1797 ) in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under Rule 30-A (9) is not correct.11. ### Response: 1
567	Entertainment Network (India) Ltd. and Ors Vs. Super Cassette Industries Ltd. and Ors.	not Clause (b). 101. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and Ors. v. Union of India and Ors. 1992(3)SCALE126 wherein it has been held that: 9. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. It could thus be held that the legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of their publication in the Gazette of India. Its policy is explicit and unambiguous. Rule 3(3)(ii) intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruited/promoted earlier than the officer promoted later to that date. The proviso carved out an exception to ward off injustice to the officers that became members of I.A.S. earlier to those dates. 102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof. PRINCIPLES OF VALUATION 103. We have, moreover, been called upon to lay down the principles of evaluation. We decline to do so. We have been taken through various judgments of different jurisdictions. We have noticed hereinbefore that the scheme therein is different. The Tribunal exercises a limited jurisdiction in India. Different cases are required to be considered on its own merits. What would be reasonable for one may not be held to be reasonable for the other. The principles can be determined in a given situation. The Bombay High Court has remitted the matter back to the Board for the said purpose. We endorse the views of the Bombay High Court. DISCRETIONARY JURISDICTION 104. The other question which arises is as to whether the discretionary jurisdiction should have been exercised in favour of the appellant. It was urged that keeping in view the fact that ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. v. Maitra (1998) Fleet Street Reports 749 at 770- 773. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India. Therein, the defendant did not take part in the proceedings. It was, inter alia, from that angle, held that the court could still exercise discretion. The court of appeal held: Use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence that that ever occurs. Where unauthorized use of PPLs copyright is taking place, we do not believe it is an abuse to refuse to licence that copyright without an appropriate payment for past use and an agreement for future use. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued; as indicated hereinbefore, the question before the Board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty. CONCLUSION 105. As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. 106. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses.	1[ds]39. There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. A copyright, however, unlike a trade mark is a right created under the Act as is evident from Section 16 thereof. When an author of a copyright and other claims a copyright, it is subjected to the provisions of the Act. The rights and obligations of the author ought to be found out within the four corners of the Act. It is not necessary to dilate more upon these aspects of the matter as the object behind enacting the Act is absolutely clear and explicit. It creates a monopoly in favour of the author. Copyright also creates a monopoly in favour of the copyright society. What requires protection is unlawful reproduction of the authors work by others. It is the long period which encourages the authors to create works of literature, music and art.The definitions of the term `broadcast as also `sound recording must be given a wide meaning. Clause (a) of Section 13 protects original work whereas Clauses (b) and (c) protect derivative works. It provides for commercial manifestation of original work and the fields specified therein. Clause (a) of Sub-section (1) of Section 14 deals with original work. It is extremely broad. In contrast thereto, the copyright on films or sound recording work operates in restrictive field; they provide for a restrictive right as would appear from the provisions contained in Section 14(1)(e) of the Act.43. For a proper construction of the provisions, will it be necessary to keep in mind the difference between the right of the original work and right of sound recording? Should we also bear in mind that there are various forms of intellectual property rights. Section 16 provides that a right, inter alia, in respect of any work must be claimed only under and in accordance with the provisions of the Act unlike Trade Mark and passing off rights can be enforced even though they are not registered. It must also be noticed that whereas the term of a copyright in original literary, dramatic, musical and artistic works not only remains protected in the entire life time of the author but also until 60 years from the beginning of the calendar year next following the year in which the author dies, the term of copyright in sound recording subsists only for 60 years, but as indicated hereinbefore, the same would not mean that the right of an owner of sound recording is in any way inferior to that of right of an owner of copyright on original literary work etc.The statutory licences are required to be granted having regard to the various factors stated therein. Section 33 is a special provision which provides for registration of a copyright society.. It may, however, be necessary to consider that unlike other countries the broadcasting rights by themselves were introduced in India for the first time by inserting Section 37 in the year 1994. It is true that the rights of free-to-air broadcasters have not been dealt with in a specific legislation unlike some other jurisdiction. It may, however, be of some importance to note that Chapter VII deals with Copyright society, the concept whereof was incorporated in the Act so as to enable an author to commercially exploit his intellectual property by a widespread dispersal in a regulated manner. It for all intent and purport steps into the shoes of the author. The society grants license on behalf of the author, it files litigation on his behalf, both for the purpose of enforcement as also protection of the enforcement of his right. It not only pays royalty to the author but is entitled to distribute the amount collected by it amongst its members. Section 34 providing for administration of rights of owners by a copyright society for all intent and purport creates a virtual agency so as to enable the society to act on behalf of the owner. The civil remedies for infringement of copyright as envisaged under Section 55 of the Act can also be enforced by the society. The Scheme of the statute governing the field in other countries is vast and wide. The jurisdiction of the Tribunal is indisputably very wide. No such legislative changes have been made in India presumably because until recent times, the Copyright in musical work was owned by a cooperative society, namely, IPRS and PPL. The third party granting license on a prescribed fee of a musical work was contemplated under the Act. As a general rule for administering such copyrights, there are about 300 radio stations now. Monopoly in respect of sound recording is, as it appears from the tariff supplied to us by the respondent embrace within its field, Pop/Music Quizzes, Mobile DJ, Jukeboxes, Dance Teachers, Dance Centre/Studio, Exercise, Amateur Operatic & Dramatic Societies, Theatrical Productions, Temporary Camps/Shacks, Banquet Halls, Background Music- Guest Houses & Lodges, Hotels, Background Music- Public Houses & Cafes & Non AC Restaurants, Bankground Music - AC Restaurants, BARS, Background Music - Shops & Stores Premises, Background Music - Hairdressing Salons & Beauty Parlors, Background Music - Clinics, Background Music - Nursing Homes & Hospitals, Background Music - Factories & Offices/Banks, Background Music - Waiting Rooms/Reception Areas, Background Music- Telephone Music on hold, Puppet/Magic Shows, Background Music- Theatres, Background Music - Cinemas, Background Music- Museums & Art Galleries, Background Music- Ten Pin Bowling Centres/Bowling Alleys, Background Music- Amusement & Pleasure Parks, Background Music - Amusement Arcades, Background Music - Casinos, Background Music - Gymnasiums, Background Music - Swimming Pools.45. The right of the author of a copyright vis-à-vis the Society, thus, may be exercised in almost all walks of life from the `Radio Stations to a small `Hairdressing Salon.46. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? The answer to the said question must be rendered in affirmative. Interpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the Act. What is essential therefore is to see that the expanding area in which the copyright will have a role to play is covered. While India is a signatory to the International Covenants, the law should have been amended in terms thereof. Only because laws have not been amended, the same would not by itself mean that the purport and object of the Act would be allowed to be defeated. If the ground realities changed, the interpretation should also change. Ground realities would not only depend upon the new situations and changes in the societal conditions vis-à-vis the use of sound recording extensively by a large public, but also keeping in view of the fact that the Government with its eyes wide open have become a signatory to International Conventions.52. However, applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof. Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible.53. This kind of stance is reflected from the decisions in PUCL v. Union of India AIR1997SC1203 , John Vallamattom v. Union of India AIR2003SC2902 , Madhu Kishwar v. State of Bihar AIR1996SC1864 , Kubic Darusz v. Union of India 1990CriLJ796 , Chameli Singh v. State of U.P. AIR1996SC1051 , C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil [1996]1SCR1068 , Apparel Export Promotion Council v. A.K. Chopra (1999)ILLJ962SC , Kapila Hingorani v. State of Bihar (2003)IIILLJ31SC , State of Punjab and Anr. v. Devans Modern Breweries and Anr. (2004)11SCC26 and Liverpool & London S.P. & I Asson. Ltd. v. M.V. Sea Success I (2004)9SCC512 .54. Furthermore, as regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions.64. The underlying philosophy of the Copyright Act is that the owner of the copyright is free to enter into voluntary agreement or licenses on terms mutually acceptable to him and the licensee. The Act confers on the copyright owner the exclusive right to do the various acts enumerated in Section 14. An infringement of copyright occurs if one of those acts is done without the owners license. A license passes no interest, but merely makes lawful that which would otherwise be unlawful. The Act also expressly recognizes the notion of an exclusive license which is defined in Section 2(j). But, that does not mean, as would be noticed from the discussions made hereinafter, that it would apply in all situations irrespective of the nature of right as also the rights of others. It means a license which confers on the licensee, to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. An exclusive licensee has specific rights under the Act such as the right to have recourse to civil remedies under Section 55 of the Act. This Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right, to repeat, is not absolute. It is subject to right of others to obtain compulsory licence as also the terms on which such licence can be granted.CONSTRUCTION OF SECTION 31 OF THE ACT72. The broad requirements of Section 31 are as under:(a) The subject work must be an Indian work whose term of copyright is subsisting;(b) The Indian work must be one that has been published or performed in public;(c) The owner of the copyright in the work must have(i) refused to republish or allow republication of the work or have refused to allow the performance of the work and by reason of such refusal the work is withheld from the public; or(ii) refused to allow communication to the public by broadcast, of such work or in the case of a sound recording the work recorded in such sound recording, on terms which the complainant considers reasonable; and(d) The Copyright Board is satisfied that the grounds for refusal are not reasonable.73. Significantly, in between the Clauses (a) and (b), the word `or has been used. It must be read disjunctively and not conjunctively. Even otherwise, reading the said provision, conjunctively is not possible. Clause (a) refers to republication or allowing republication of the work, etc. Clause (b) refers to refusal to allow communication to the public in the case of a broadcast or in the case of the sound recording. What is the meaning of the word `refusal.The meaning of a word must be attributed to the context in which it is used. For giving a contextual meaning, the text of the statute must be kept in mind. An act of refusal depends upon the fact of each case. Only because an offer is made for negotiation or an offer is made for grant of license, the same per se may not be sufficient to arrive at a conclusion that the owner of the copyright has not withheld its work from public. When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary, it may amount to a refusal on the part of the owner of a copyright.74. When the owner of a copyright or the copyright society exercises monopoly in it, then the bargaining power of an owner of a copyright and the proposed licensee may not be same. When an offer is made by an owner of a copyright for grant of license, the same may not have anything to do with any term or condition which is wholly alien or foreign therefore. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer. Although the term `work has been used both in Clauses (a) and (b) of Sub-section (1) of Section 31, the same has been used for different purpose. The said term `work has been defined in Section 2(y) in different contexts. It enumerates the works which are: (a) a literary, dramatic, musical or artistic work; (b) a cinematograph film; (iii) a sound recording. Thus, a literary work ex facie may not have anything to do with sound recording.75. There are indications in the Act particularly having regard to Sections 14(1)(a) and 14(1)(e) thereof that they are meant to operate in different fields. They in fact do not appear to be operating in the same field. Clause (a) refers to publication or republication of the work. It may be in print media or other medias. Clause (b), however, refers to broadcast alone. Sound recording is a part of it. Sub-clauses (i) to (vii) of Sub-clauses (a) of Sub-section (1) of Section 14 and Sub-clauses (i) to (iii) of Sub-clause (e) conferred different meanings of the word copyright. Whereas Clause (a) refers to work in general, Clause (b) refers to work recorded in such sound recording, which in turn means the recording of sounds from which such sounds may be reproduced regardless of the medium on which such recording is made or the method by which the sounds are produced. Clause (b) ex facie does not fit in the scheme of Clause (a).76. Interpretation of clause must be given effect to having regard to the limitations contained therein, namely, unless context otherwise requires.77. Communication to the public is possible by way of diffusion. Explanation appended to Section 2(ff) clearly shows the extensive meaning of the said term. Publication and republication of a work in general may be different from communication of a work recording in sound recording. The use of words `such work also assumes significance. The said words must be understood having regard to the fact that the sound recording is also a work. If it is accepted that voluntary licenses have been entered into by the owners with All India Radio and some other Radio Broadcasters, then it is sufficient for closing the doors on another person to approach the Copyright Board. One may as well say that if it is provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act.F.M. radios are played for every city. The word `work in the context of broadcast must be understood having regard to the fact that there are 150 F.M. licenses out of which about 93 are working. There are 300 broadcasters working in almost all the big cities in India. The word `public must be read to mean public of all parts of India and not only a particular part thereof. If any other meaning is assigned, the terms `on terms which the complaints considers reasonable would lose all significance. The very fact that refusal to allow communication on terms which the complainant considers reasonable have been used by the Parliament indicate that unreasonable terms would amount to refusal. It is in that sense the expression `has refused cannot be given a meaning of outright rejection or denial by the copyright owner.79. PPL and SCIL might have been called upon the broadcasters to enter into licenses and were willing to license their repertoire. But their contention was that if such terms are unreasonable, it amounted to refusal which would attract Section 31 of the Act. The word `communicate the work to the public by broadcast is of significance. It provides for a mode of communication. Thus, only because a Registrar of a Copyright would be directed to grant a licence to communicate the work to the public by broadcast would not mean that only a single licence shall be granted. The Board acting as a statutory authority can exercise its power from time to time. It is therefore not correct to contend that having regard to the provisions of Sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. We would deal with this provision at some details a little later. In response to a query as to whether when an application for compulsory licence is filed any publication thereof is made or not; we are informed that no such rule or practice exists. Apart from the fact that application for grant of compulsory licence in the matter of sound recording may be by different persons; the wide range of it has been noticed by us hereinbefore. It may for different parts of the country nay different cities. If a compulsory licence is granted only once covering every single part of the country, the same cannot be lead to a conclusion that no other person can approach the Board.80. Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. The right is to approach the Board when it considers that the terms of offer for grant of license are unreasonable. It, no doubt, provides for a mechanism but the mechanism is for the purpose of determination of his right. When a claim is made in terms of the provisions of a statute, the same has to be determined. All cases may not involve narrow commercial interest. For the purpose of interpretation of a statute, the court must take into consideration all situations including the interest of the person who intends to have a licence for replay of the sound recording in respect whereof another person has a copyright. It, however, would not mean that all and sundry can file applications. The mechanism to be adopted by the Board for determining the right of a complainant has been provided under the Act.Explanation appended to Section 31 also plays an important role as it seeks to make a distinction between an artistic work on the one hand and a cinematographic films or sound recording on the other. We are not concerned therewith at this stage.81. Admittedly in terms thereof the principles of natural justice are required to be complied with and an enquiry has to be held. The extent of such enquiry will depend upon the facts and circumstances of the case. A finding has to be arrived at that the grounds of refusal by an owner of a copyright holder is not reasonable. Only upon arriving at the said finding, the Registrar of copyright would be directed to grant a license for the said purpose. The amount of compensation payable to the owner of the copyright must also be determined. The Board would also be entitled to determine such other terms and conditions as the Board may think fit and proper. Registration is granted only on payment of such fees and subject to compliance of the other directions.82. An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-à-vis individuals are also incorporated within the `multiversity of human rights. As, for example, any claim of adverse possession has to be read in consonance with human rights.85. But the right of property is no longer a fundamental right. It will be subject to reasonable restrictions. In terms of Article 300A of the Constitution, it may be subject to the conditions laid down therein, namely, it may be wholly or in part acquired in public interest and on payment of reasonable compensation.87. The right to property, therefore, is not dealt with its subject to restrict when a right to property creates a monopoly to which public must have access. withholding the same from public may amount to unfair trade practice.88. In our constitutional Scheme of statute monopoly is not encouraged. Knowledge must be allowed to be disseminated. An artistic work if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large.91. The legislature therefore for all intent and purport equates `compensation with `royalty. In the context of the Act, royalty is a genus and compensation is a species. Where a licence has to be granted, it has to be for a period. A `compensation may be paid by way of annuity. A `compensation may be held to be payable on a periodical basis, as apart from the compensation, other terms and conditions can also be imposed. The compensation must be directed to be paid with certain other terms and conditions which may be imposed.MARGINAL NOTE92. It was urged that for proper construction of Section 31 of the Act, reference to marginal note is permissible. Strong reliance has been placed by Mr. Divan on K.P. Varghese v. Income-tax Officer, Ernakulam [1981]131ITR597(SC) to contend that the marginal note to a section can be relied upon for indicating the drift of the section or to show what the section is dealing with. It is however, also well settled that where the statute is clear, marginal note may not have any role to play. See Bhinka and Ors. v. Charan Singh 1959CriLJ1223 .PARLIAMENTARY INTENT93. The intention of the Parliament, it is trite, must be ascertained from the plain reading of the Section. The intention is to treat works, which have been withheld from the public differently from the right to broadcast. The right to broadcast is a ephemeral right. It requires special treatment as it confers upon every person, who wishes to broadcast a work or the work recorded in a sound recording, the right to do so is either by entering into a voluntary agreement to obtain a licence on such terms which appear to be reasonable to him or when the term appears to be unreasonable to approach the Board. We wish the statute would have been clear and explicit. But only because it is not, the courts cannot fold its hands and express its helplessness.94. When such a complaint is made, it confers the jurisdiction upon the Board. It may ultimately allow or reject the complaint but it cannot be said that the complaint itself is not maintainable.95. This takes us to the interpretation of Section 31(2). It is attracted in a case where there are more than one applicants. The question of considering the respective claim of the parties would arise if they tread the same ground. The same, however, would not mean that only one person is entitled to have a licence for all time to come or for an indefinite term even in perpetuity. A licence may be granted for a limited period; if that be so another person can make such an application. Sub-section (2) of Section 31 would lead to an anomalous position if it is read literally. It would defeat the purport and object of the Act. It has, therefore, to be read down. P purposive construction therefore may be resorted to.99. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution of India. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [See Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. AIR2007SC1971 ]100. Furthermore, the court while interpreting a statute will put itself in the armchair of the reasonable legislature, all statutes must be presumed to be reasonable. It is now a trite law that literal interpretation should be avoided when it leads to absurdity. If it is to be held that once the compulsory licence is granted in respect of a sound recording, the Board loses its jurisdiction for all time to come, it will lead to an absurdity. The statute does not contemplate such a position. The statute on the one hand not only in terms of General Clauses Act but also having regard to the individual complaints which a person may have as regards the unreasonableness of the terms impose upon him by the owner of the copyright must be held to be entitled to approach the Board as and when any cause of action arises therefore. It therefore must be held that Sub-section (2) of Section 31 is relatively directed to Clause (a) and not Clause (b).102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.101. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and Ors. v. Union of India and Ors. 1992(3)SCALE126 wherein it has been held that:9. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. It could thus be held that the legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of their publication in the Gazette of India. Its policy is explicit and unambiguous. Rule 3(3)(ii) intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruited/promoted earlier than the officer promoted later to that date. The proviso carved out an exception to ward off injustice to the officers that became members of I.A.S. earlier to those dates.102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.103. We have, moreover, been called upon to lay down the principles of evaluation. We decline to do so. We have been taken through various judgments of different jurisdictions. We have noticed hereinbefore that the scheme therein is different. The Tribunal exercises a limited jurisdiction in India. Different cases are required to be considered on its own merits. What would be reasonable for one may not be held to be reasonable for the other. The principles can be determined in a given situation. The Bombay High Court has remitted the matter back to the Board for the said purpose. We endorse the views of the Bombay High Court.It was urged that keeping in view the fact that ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. v. Maitra (1998) Fleet Street Reports 749 at 770- 773. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India. Therein, the defendant did not take part in the proceedings. It was, inter alia, from that angle, held that the court could still exercise discretion.The court of appeal held:Use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence that that ever occurs. Where unauthorized use of PPLs copyright is taking place, we do not believe it is an abuse to refuse to licence that copyright without an appropriate payment for past use and an agreement for future use. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued; as indicated hereinbefore, the question before the Board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty.105. As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts.106. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses.	1	19,726	### 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: not Clause (b). 101. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and Ors. v. Union of India and Ors. 1992(3)SCALE126 wherein it has been held that: 9. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. It could thus be held that the legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of their publication in the Gazette of India. Its policy is explicit and unambiguous. Rule 3(3)(ii) intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruited/promoted earlier than the officer promoted later to that date. The proviso carved out an exception to ward off injustice to the officers that became members of I.A.S. earlier to those dates. 102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof. PRINCIPLES OF VALUATION 103. We have, moreover, been called upon to lay down the principles of evaluation. We decline to do so. We have been taken through various judgments of different jurisdictions. We have noticed hereinbefore that the scheme therein is different. The Tribunal exercises a limited jurisdiction in India. Different cases are required to be considered on its own merits. What would be reasonable for one may not be held to be reasonable for the other. The principles can be determined in a given situation. The Bombay High Court has remitted the matter back to the Board for the said purpose. We endorse the views of the Bombay High Court. DISCRETIONARY JURISDICTION 104. The other question which arises is as to whether the discretionary jurisdiction should have been exercised in favour of the appellant. It was urged that keeping in view the fact that ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. v. Maitra (1998) Fleet Street Reports 749 at 770- 773. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India. Therein, the defendant did not take part in the proceedings. It was, inter alia, from that angle, held that the court could still exercise discretion. The court of appeal held: Use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence that that ever occurs. Where unauthorized use of PPLs copyright is taking place, we do not believe it is an abuse to refuse to licence that copyright without an appropriate payment for past use and an agreement for future use. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued; as indicated hereinbefore, the question before the Board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty. CONCLUSION 105. As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. 106. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses. ### Response: 1
568	Indian Oil Corporation Limited and Another Vs. Union of India and Others	3 SCR 797 , Balabhagas Hulaschand v. State of Orissa [1976] 2 SCR 939 and Union of India and Anr. v. K. G. Khosla &Co. (P) Ltd. &Ors. [1979] 3 SCR 453. In our opinion the terms of the agreement dated February 9, 1970 summarized above make it quite clear that the sales of naphtha to the 5th respondent were inter-state sales. Under clause 4 of the agreement seller is "to make the supply of naphtha to the buyer from its refinery at Barauni". The source of supply is thus the sellers refinery at Barauni in Bihar and the destination is the buyers factory at Kanpur. This one clause alone is sufficient to prove that the sales in question were interstate sales. 7. However, on behalf of the petitioners and the State of U.P. it is contended that the sales were not inter-state sales and were local sales within the State of Uttar Pradesh. It is pointed out from clause 3(iii) that supplies of naphtha are made on the buyers indents in writing addressed to the seller at their Kanpur installation and not at their refinery at Barauni which, it is contended, shows that the supplies are made from IOCs storage at Kanpur to the 5th respondents factory also at Kanpur. It is also contended that the supply of naphtha to the buyers factory at Kanpur involves two movements, one from Barauni to Kanpur for storage at the sellers depot, and the other from the depot to the buyers factory. This contention is based on clause 7(i) of the agreement which states that naphtha shall be supplied at the fence of the buyers factory through a pipeline between the buyers and the sellers fences constructed at the buyers expense. It is argued that this stipulation shows that the movement of naphtha from Barauni is arrested at the sellers Kanpur depot and is followed by another movement from there to the buyers factory which proves that the sales are local sales and not inter-state because in an inter-state sale the movement of goods is the immediate and direct result of the contract of sale. 8. Clause 3(iii) of the agreement which says that the naphtha shall be supplied against indents in writing addressed to the seller at their installation at Kanpur cannot be read in isolation. Sub-clause (iv) of clause 3 sets out the details of the buyers requirement for the first four years and thereafter. Under clause 8 IOC are bound not only to bring the contractual quantity of naphtha from Barauni to the sellers Kanpur installation but also to provide at their own cost storage facilities at Kanpur of a capacity equivalent to not less than 30 days requirement of the buyer. The indents are therefore not outside the agreement but are relatable to the buyers requirements under the agreement. It is obvious that the sales under the agreement are not possible without interstate movement of naphtha. Clause 3 read with clause 8 also proves that really thare are no two movements but only one movement from Barauni to Kanpur pursuant to the contract of sale and the agreement regarding storage facilities provided in clause 8 is only for operational convenience, it is only a mechanism devised to facilitate the transfer of naphtha through the sellers pipeline to their depot at Kanpur and from there to the Buyers factory at Kanpur through the pipeline constructed at the buyers cost. It is relevant in this connection to note that under clause 7(ii) the cost of transferring naphtha from Barauni to the buyers fence is to be borne by the buyer. 9. Each case turns on its own facts and the question is whether applying the settled principle which we have mentioned above to the facts of the present case the sales can be said to be inter-state sales. An attempt to show that some of the factors present in the instant case are present or absent in some case or other in which this Court held the sale to be a local sale or inter-state sale hardly serves any useful purpose. On the facts of the present case the sales are clearly inter-state sales and the State of U.P. had therefore no jurisdiction to assess the petitioners to sales tax under the State Act. As the movement of naphtha commences from Barauni in Bihar, the sales tax payable on the sales of naphtha under the agreement dated February 9, 1970 can be assessed and collected only by the authorities in the State of Bihar on behalf of the Government of India in view of section 9 of the Central Sales Tax Act. 10. On behalf of the State of Bihar a point was taken that the present petition under Article 32 of the Constitution of India complaining of violation of the fundamental right guaranteed by Article 31 of the Constitution was not maintainable after the repeal of Article 31 by the Forty-Fourth Amendment of the Constitution with effect from June 20, 1979. The petition however complains also of infringement of Article 19 and therefore does not cease to be maintainable. Counsel for the 5th respondent sought to raise a question regarding the justification of treating freight as part of the sale price, but that is not a matter that arises for consideration on the present writ petition filed by IOC. 11. In the result the alternative prayer made in the writ petition succeeds, the assessment orders for the assessment years 1970-71, 1973-74 and 1974-75 passed by the Sales Tax Officer, U.P. and the revision proceedings initiated by the Commissioner of Sales Tax, U.P. for the assessment years 1971-72 and 1972-73 are quashed and respondent No. 4, the State of Uttar Pradesh, is directed to refund to IOC the sales tax collected from them on the sales of naphtha to the 5th respondent under the agreement dated February 9, 1970 and, further, not to levy sales tax on the sales under the said agreement under the U.P. Sales Tax Act. 12.	1[ds]In our opinion the terms of the agreement dated February 9, 1970 summarized above make it quite clear that the sales of naphtha to the 5th respondent were inter-statesales.Under clause 4 of the agreement seller is "to make the supply of naphtha to the buyer from its refinery at Barauni". The source of supply is thus the sellers refinery at Barauni in Biharandthe destination is the buyers factory at Kanpur. This one clause alone is sufficient to prove that the sales in question wereThe indents are therefore not outside the agreement but are relatable to the buyers requirements under the agreement. It is obvious that the sales under the agreement are not possible withoutinterstatemovement of naphtha. Clause 3 read with clause 8 also proves that really thare are no two movements but only one movement from Barauni to Kanpur pursuant to the contract of saleandthe agreement regarding storage facilities provided in clause 8 is only for operational convenience, it is only a mechanism devised to facilitate the transfer of naphtha through the sellers pipeline to their depot at Kanpurandfrom there to the Buyers factory at Kanpur through the pipeline constructed at the buyers cost. It is relevant in this connection to note that under clause 7(ii) the cost of transferring naphtha from Barauni to the buyers fence is to be borne by the buyerEach case turns on its own factsandthe question is whether applying the settled principle which we have mentioned above to the facts of the present case the sales can be said to be inter-statesales.An attempt to show that some of the factors present in the instant case are present or absent in some case or other in which this Court held the sale to be a local sale or inter-state sale hardly serves any useful purpose. On the facts of the present case the sales are clearly inter-state salesandthe State of U.P.hadtherefore no jurisdiction to assess the petitioners to sales tax under the State Act. As the movement of naphtha commences from Barauni in Bihar, the sales tax payable on the sales of naphtha under the agreement dated February 9, 1970 can be assessedandcollected only by the authorities in the State of Bihar on behalf of the Government of India in view of section 9 of the Central Sales Taxn behalf of the State of Bihar a point was taken that the present petition under Article 32 of the Constitution of India complaining of violation of the fundamental right guaranteed by Article 31 of the Constitution was not maintainable after the repeal of Article 31 by theh Amendment of the Constitution with effect from June 20, 1979.The petition however complains also of infringement of Article 19andtherefore does not cease to be maintainable.Counsel for the 5th respondent sought to raise a question regarding the justification of treating freight as part of the sale price, but that is not a matter that arises for consideration on the present writ petition filed by IOCIn the result the alternative prayer made in the writ petition succeeds, the assessment orders for the assessment years, 1973-74and1974-75 passed by the Sales Tax Officer, U.P.andthe revision proceedings initiated by the Commissioner of Sales Tax, U.P. for the assessment years 1971-72and1972-73 are quashedandrespondent No. 4, the State of Uttar Pradesh, is directed to refund to IOC the sales tax collected from them on the sales of naphtha to the 5th respondent under the agreement dated February 9, 1970, further, not to levy sales tax on the sales under the said agreement underthe U.P. Sales Tax ActThe petition however complains also of infringement of Article 19andtherefore does not cease to be maintainable.	1	3,123	### 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: 3 SCR 797 , Balabhagas Hulaschand v. State of Orissa [1976] 2 SCR 939 and Union of India and Anr. v. K. G. Khosla &Co. (P) Ltd. &Ors. [1979] 3 SCR 453. In our opinion the terms of the agreement dated February 9, 1970 summarized above make it quite clear that the sales of naphtha to the 5th respondent were inter-state sales. Under clause 4 of the agreement seller is "to make the supply of naphtha to the buyer from its refinery at Barauni". The source of supply is thus the sellers refinery at Barauni in Bihar and the destination is the buyers factory at Kanpur. This one clause alone is sufficient to prove that the sales in question were interstate sales. 7. However, on behalf of the petitioners and the State of U.P. it is contended that the sales were not inter-state sales and were local sales within the State of Uttar Pradesh. It is pointed out from clause 3(iii) that supplies of naphtha are made on the buyers indents in writing addressed to the seller at their Kanpur installation and not at their refinery at Barauni which, it is contended, shows that the supplies are made from IOCs storage at Kanpur to the 5th respondents factory also at Kanpur. It is also contended that the supply of naphtha to the buyers factory at Kanpur involves two movements, one from Barauni to Kanpur for storage at the sellers depot, and the other from the depot to the buyers factory. This contention is based on clause 7(i) of the agreement which states that naphtha shall be supplied at the fence of the buyers factory through a pipeline between the buyers and the sellers fences constructed at the buyers expense. It is argued that this stipulation shows that the movement of naphtha from Barauni is arrested at the sellers Kanpur depot and is followed by another movement from there to the buyers factory which proves that the sales are local sales and not inter-state because in an inter-state sale the movement of goods is the immediate and direct result of the contract of sale. 8. Clause 3(iii) of the agreement which says that the naphtha shall be supplied against indents in writing addressed to the seller at their installation at Kanpur cannot be read in isolation. Sub-clause (iv) of clause 3 sets out the details of the buyers requirement for the first four years and thereafter. Under clause 8 IOC are bound not only to bring the contractual quantity of naphtha from Barauni to the sellers Kanpur installation but also to provide at their own cost storage facilities at Kanpur of a capacity equivalent to not less than 30 days requirement of the buyer. The indents are therefore not outside the agreement but are relatable to the buyers requirements under the agreement. It is obvious that the sales under the agreement are not possible without interstate movement of naphtha. Clause 3 read with clause 8 also proves that really thare are no two movements but only one movement from Barauni to Kanpur pursuant to the contract of sale and the agreement regarding storage facilities provided in clause 8 is only for operational convenience, it is only a mechanism devised to facilitate the transfer of naphtha through the sellers pipeline to their depot at Kanpur and from there to the Buyers factory at Kanpur through the pipeline constructed at the buyers cost. It is relevant in this connection to note that under clause 7(ii) the cost of transferring naphtha from Barauni to the buyers fence is to be borne by the buyer. 9. Each case turns on its own facts and the question is whether applying the settled principle which we have mentioned above to the facts of the present case the sales can be said to be inter-state sales. An attempt to show that some of the factors present in the instant case are present or absent in some case or other in which this Court held the sale to be a local sale or inter-state sale hardly serves any useful purpose. On the facts of the present case the sales are clearly inter-state sales and the State of U.P. had therefore no jurisdiction to assess the petitioners to sales tax under the State Act. As the movement of naphtha commences from Barauni in Bihar, the sales tax payable on the sales of naphtha under the agreement dated February 9, 1970 can be assessed and collected only by the authorities in the State of Bihar on behalf of the Government of India in view of section 9 of the Central Sales Tax Act. 10. On behalf of the State of Bihar a point was taken that the present petition under Article 32 of the Constitution of India complaining of violation of the fundamental right guaranteed by Article 31 of the Constitution was not maintainable after the repeal of Article 31 by the Forty-Fourth Amendment of the Constitution with effect from June 20, 1979. The petition however complains also of infringement of Article 19 and therefore does not cease to be maintainable. Counsel for the 5th respondent sought to raise a question regarding the justification of treating freight as part of the sale price, but that is not a matter that arises for consideration on the present writ petition filed by IOC. 11. In the result the alternative prayer made in the writ petition succeeds, the assessment orders for the assessment years 1970-71, 1973-74 and 1974-75 passed by the Sales Tax Officer, U.P. and the revision proceedings initiated by the Commissioner of Sales Tax, U.P. for the assessment years 1971-72 and 1972-73 are quashed and respondent No. 4, the State of Uttar Pradesh, is directed to refund to IOC the sales tax collected from them on the sales of naphtha to the 5th respondent under the agreement dated February 9, 1970 and, further, not to levy sales tax on the sales under the said agreement under the U.P. Sales Tax Act. 12. ### Response: 1
569	Assam Railways and Trading Company Limited Vs. Collector of Lakhimpur and Another	Court and the Additional District Judge have both found in this case that the price of land in the locality did not exceed Rs.1000/- per bigha. This finding was reached mainly on the sale statement, Exhibit, C, filed by the Sub-Deputy Collector, and his report, Exhibit J. Exhibit C is described as a "statement showing result of examination of cases of sales of land in village Khalihamari, Mouza Dibrugarh, Lakhimpur District". This statement notes six transactions of sale between September, 1949 and November 1950, the price varying from Rs.32/- to Rupees 945/- per bigha. The material part of the report, Exhibit J. prepared by the Sub-Deputy Collector reads :"1. The greatest drawback of the land in question is that it has no. approach from any direction. On the north it is bounded by Railway lands and on other sides by private persons lands. Moreover one has got to cross the Railway line to go to the land in question. So nobody would like to purchase the land.2. I have examined as many as six bona fide sales of similar lands in the vicinity from the records of the Registration Department and the sale prices have been recorded in Form No. 6. These sales took place in the year 1949 and 1950 in which years the prices of lands had gone up considerably and the average purchase value of land in the neighbourhood per bigha from the sale cases shown in Form No. 6 is less than Rs.600. I have also visited the locality and those who are willing to purchase the land in question offer Rs.250 to Rs.500 per bigha. There is great demand for paddy land in the locality but no. demand for high land.3. The net annual letting value of the land in question cannot exceed Rs.3 per bigha.Considering all the above facts the rate of the land cannot be more than Rs.1, 000 per bigha. So my estimate is very fair and reasonable".L.A.2 of 1957Ext. JSd.- IllegibleAddl. D. J.7-5-60699122-12-57The Sub-Deputy Collector who was examined by the respondents as their witness admitted on cross-examination that "as regards the sales of plots of land appearing in Exhibit C, I did not visit the sites, but prepared the statement from my office records and from the records of Registration Office. Besides the details given in Exhibit C, I am not aware of any circumstances or conditions under which those sales took place." No. one was examined in support of the statements made in the report and repeated by the Sub-Deputy Collector in his deposition, and there is no. material on record to indicate the comparative advantages and disadvantages of the plots of land figuring in the sale statement. One is not sure if they are at all comparable units. Besides, there is no. explanation accounting for the remarkable disparity in price of the different plots disclosed by the sale statement. The High Court does not appear to have considered these aspects.5. Two sale deeds, Exhibits 13 and 19, were produced on behalf of the company. Exhibit 13 shows that the appellant purchased 2 bighas 1 katha 8 lechas of land in 1950 for Rs.4560/- which works out to Rupees 2000/- per bigha. The High Court rejected this document on the ground that the land of that transaction was situated in the "heart of the Dibrugarh Town and can be no. criterion of the price of land outside the municipal area." From the evidence of the Personal Assistant to the General Manager of the Company witness No. 1 for the claimant, it appears that the land of Exhibit 13 is at a distance of only 1 1/2 or 2 miles from the land acquired. Witness No. 3 for the claimant, a pleaders clerk who lived at Khalihamari, purchased a plot of land measuring 1 bigha 1 khata 1 lecha, covered by Exhibit 19, for Rs.5000/-. The High Court found that "this land is just inside the Municipal area and the acquired land is just outside the same", but rejected this evidence on the ground that the "price paid for this land prima facie was abnormal". No. question was, however, put to this witness to find out what made him pay this "abnormal" price. We have already referred to the wide disparity in price of the different plots of land mentioned inn Exhibit C; if the High Court was not prepared to rely on the side deeds produced by the company, we do not see how it was possible to depend on the transaction noted in Exhibit C. It is not that on the evidence we are taking a different view from the High Court; all we wish to point out is that the High Court treated Exhibit C as conclusive without noticing its infirmities and without considering whether it was adequate to provide a basis for ascertaining the value of the land. The High Court also failed to advert to several relevant and important aspects of the evidence on record which we have discussed above.6. It is difficult for us to say that the High Court should have determined the market value on the basis of any particular piece of evidence adduced in the case. This is a very old matter, and a remand to the court of the District Judge for reconsideration of the case on new and additional material means prolonging its life by several more years. From the judgment of the High Court it appears that the High Court found no. objection to the method of capitalizing the rental value of the land for twenty years to determine its market value. In fact the High Court found that "the Railway took the land on lease at Rs.105/- per bigha per annum" but, as the other terms of the lease were not known, the High Court did not find it possible to hold that the aforesaid sum represented "the actual rental value of the land". It is also not known whether the lease spoken of was a written lease.	1[ds]We have already referred to the wide disparity in price of the different plots of land mentioned inn Exhibit C; if the High Court was not prepared to rely on the side deeds produced by the company, we do not see how it was possible to depend on the transaction noted in Exhibit C. It is not that on the evidence we are taking a different view from the High Court; all we wish to point out is that the High Court treated Exhibit C as conclusive without noticing its infirmities and without considering whether it was adequate to provide a basis for ascertaining the value of the land. The High Court also failed to advert to several relevant and important aspects of the evidence on record which we have discussed above.6. It is difficult for us to say that the High Court should have determined the market value on the basis of any particular piece of evidence adduced in the case. This is a very old matter, and a remand to the court of the District Judge for reconsideration of the case on new and additional material means prolonging its life by several more years. From the judgment of the High Court it appears that the High Court found no. objection to the method of capitalizing the rental value of the land for twenty years to determine its market value. In fact the High Court found that "the Railway took the land on lease at Rs.105/per bigha per annum" but, as the other terms of the lease were not known, the High Court did not find it possible to hold that the aforesaid sum represented "the actual rental value of the land". It is also not known whether the lease spoken of was a written lease.It is difficult for us to say that the High Court should have determined the market value on the basis of any particular piece of evidence adduced in the case. This is a very old matter, and a remand to the court of the District Judge for reconsideration of the case on new and additional material means prolonging its life by several more years. From the judgment of the High Court it appears that the High Court found no. objection to the method of capitalizing the rental value of the land for twenty years to determine its market value. In fact the High Court found that "the Railway took the land on lease at Rs.105/per bigha per annum" but, as the other terms of the lease were not known, the High Court did not find it possible to hold that the aforesaid sum represented "the actual rental value of the land". It is also not known whether the lease spoken of was a written lease.In these circumstances, we think that the best course would be to send the case back to the High Court for determination of the market value of the land on the aforesaid method upon affidavits. The High Court will come to its own conclusion as to the market value on a consideration of the mateials disclosed in these affidavits. As the case is an old one, we expect that the High Court will try to dispose of the matter expeditiously, if possible within a period of four months from the date the record of the case is received back in that court.	1	2,179	### 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: Court and the Additional District Judge have both found in this case that the price of land in the locality did not exceed Rs.1000/- per bigha. This finding was reached mainly on the sale statement, Exhibit, C, filed by the Sub-Deputy Collector, and his report, Exhibit J. Exhibit C is described as a "statement showing result of examination of cases of sales of land in village Khalihamari, Mouza Dibrugarh, Lakhimpur District". This statement notes six transactions of sale between September, 1949 and November 1950, the price varying from Rs.32/- to Rupees 945/- per bigha. The material part of the report, Exhibit J. prepared by the Sub-Deputy Collector reads :"1. The greatest drawback of the land in question is that it has no. approach from any direction. On the north it is bounded by Railway lands and on other sides by private persons lands. Moreover one has got to cross the Railway line to go to the land in question. So nobody would like to purchase the land.2. I have examined as many as six bona fide sales of similar lands in the vicinity from the records of the Registration Department and the sale prices have been recorded in Form No. 6. These sales took place in the year 1949 and 1950 in which years the prices of lands had gone up considerably and the average purchase value of land in the neighbourhood per bigha from the sale cases shown in Form No. 6 is less than Rs.600. I have also visited the locality and those who are willing to purchase the land in question offer Rs.250 to Rs.500 per bigha. There is great demand for paddy land in the locality but no. demand for high land.3. The net annual letting value of the land in question cannot exceed Rs.3 per bigha.Considering all the above facts the rate of the land cannot be more than Rs.1, 000 per bigha. So my estimate is very fair and reasonable".L.A.2 of 1957Ext. JSd.- IllegibleAddl. D. J.7-5-60699122-12-57The Sub-Deputy Collector who was examined by the respondents as their witness admitted on cross-examination that "as regards the sales of plots of land appearing in Exhibit C, I did not visit the sites, but prepared the statement from my office records and from the records of Registration Office. Besides the details given in Exhibit C, I am not aware of any circumstances or conditions under which those sales took place." No. one was examined in support of the statements made in the report and repeated by the Sub-Deputy Collector in his deposition, and there is no. material on record to indicate the comparative advantages and disadvantages of the plots of land figuring in the sale statement. One is not sure if they are at all comparable units. Besides, there is no. explanation accounting for the remarkable disparity in price of the different plots disclosed by the sale statement. The High Court does not appear to have considered these aspects.5. Two sale deeds, Exhibits 13 and 19, were produced on behalf of the company. Exhibit 13 shows that the appellant purchased 2 bighas 1 katha 8 lechas of land in 1950 for Rs.4560/- which works out to Rupees 2000/- per bigha. The High Court rejected this document on the ground that the land of that transaction was situated in the "heart of the Dibrugarh Town and can be no. criterion of the price of land outside the municipal area." From the evidence of the Personal Assistant to the General Manager of the Company witness No. 1 for the claimant, it appears that the land of Exhibit 13 is at a distance of only 1 1/2 or 2 miles from the land acquired. Witness No. 3 for the claimant, a pleaders clerk who lived at Khalihamari, purchased a plot of land measuring 1 bigha 1 khata 1 lecha, covered by Exhibit 19, for Rs.5000/-. The High Court found that "this land is just inside the Municipal area and the acquired land is just outside the same", but rejected this evidence on the ground that the "price paid for this land prima facie was abnormal". No. question was, however, put to this witness to find out what made him pay this "abnormal" price. We have already referred to the wide disparity in price of the different plots of land mentioned inn Exhibit C; if the High Court was not prepared to rely on the side deeds produced by the company, we do not see how it was possible to depend on the transaction noted in Exhibit C. It is not that on the evidence we are taking a different view from the High Court; all we wish to point out is that the High Court treated Exhibit C as conclusive without noticing its infirmities and without considering whether it was adequate to provide a basis for ascertaining the value of the land. The High Court also failed to advert to several relevant and important aspects of the evidence on record which we have discussed above.6. It is difficult for us to say that the High Court should have determined the market value on the basis of any particular piece of evidence adduced in the case. This is a very old matter, and a remand to the court of the District Judge for reconsideration of the case on new and additional material means prolonging its life by several more years. From the judgment of the High Court it appears that the High Court found no. objection to the method of capitalizing the rental value of the land for twenty years to determine its market value. In fact the High Court found that "the Railway took the land on lease at Rs.105/- per bigha per annum" but, as the other terms of the lease were not known, the High Court did not find it possible to hold that the aforesaid sum represented "the actual rental value of the land". It is also not known whether the lease spoken of was a written lease. ### Response: 1
570	A.D. Shastri Vs. S.D. Patil and Another	(individual) to appear in person, that it did not include the case of a corporation party which is incapable of appearing in person because it has no visible personality and must, therefore, of necessity appear through some agency and that it was open to the tribunal to determine by way of procedure under S. 11 of the Act how a corporation should appear before it. He also observed that in exercise of that power the Tribunal and adopted the practice of allowing a corporation to be represented by a director or an officer being one of the modes in which a corporation could be represented. Then the learned Judge proceeded to consider whether the Tribunal should not allow a party to appear if the effect of allowing it to appear would be to defeat the provisions of S. 36 (4). The learned Judge observed that there were two extreme views of sub-ss. (1) and (4) regarding the right of representation and stated (p. 921): . . . . . Neither of these two views appears to be wholly right. . . it appears to me that if an officer of any trade union who is referred to in sub-s. 36 (1) as qualified to represent a workman or an officer of an association of employers who is qualified to represent an employer under sub-s. (2)or an officer or director of a corporation through whom a corporation is entitled to be represented by the procedure governing the Tribunal happens to be a legal practitioner, that fact by itself cannot disqualify him from appearing before the Tribunal. But this presupposes that such an officer is a regular officer either of the trade union or the association or in the case of an officer of a corporation, a regular officer of the Corporation, and in the case of a director that he is a bona fide director not elected a director merely for the purpose of enabling him to appear in a pending proceeding before a Tribunal. In other words, if a legal practitioner is transformed into an officer of a registered trade union or of an association of employers or of a corporation or is appointed a director of a corporation, in order to get over the disability imposed on a legal practitioner representing a party, then such a person shall not be allowed to appear and represent a party. But short of an intention to circumvent the provisions of S. 36 (4), if a legal practitioner is ordinarily a regular officer either of a trade union or an association of employers referred to in ss. 36 (1) and (2) or of a corporation or if he is a director bona fide appointed as a director, I see nothing in sub-s. (4) to prevent his appearing on behalf of the party merely by reason of the fact that he happens to be a legal practitioner. We are, with respect, unable to agree with the above view of the learned Judge. In that case Mr. Hathi was appearing as a director of the company and the question arose whether the companys right to be represented by such an agent, which was not covered by sub-s. (2) and was, therefore, outside S. 36, was subject to the provisions of S. 36 (4), though the said agent did not appear as a legal practitioner. It is clear from the passage above quoted that the learned Judge treated the right of a company to be represented by its officer or director at par with its right to be represented by the class of officers named in sub-s. (2). The learned Judge was with respect, right in treating them alike so far as their to represent the company was concerned. But in considering whether such right of companys representative was absolute or subject to any reservation under sub-s. (4), in case such a representative happened to be a legal practitioner, the learned Judge, with respect, does not seem to have attached sufficient importance to the distinction drawn in S. 36 regarding the capacity in which a person was seeking to appear on behalf of a party and to the language of S. 36 (1) and (2) which create an absolute right in the parties to be represented by the class of persons enumerated therein. (9) FURTHER, since such a right is absolute, in our opinion, the question of exercising such a right bona fide is not relevant. There is no duty owed by the party, i. e. , either workmen or employers, to anyone else in exercising its choice of its agent to represent it in any proceeding before a labour Court or Tribunal. There is no warrant either in the language of sub-ss. (1) and (2) or the context of S. 36 for spelling out such a duty or obligation on the part of a party. (10) IN the above view we are fortified by the decisions of the High Courts of Calcutta, Assam and Rajasthan. They have taken the view that sub-s. (1) or sub-s. (2) is not subject to the provisions of sub-s. (4) land a person qualified to represent a party under sub-s. (1) or sub-s. (2)is entitled to appear on its behalf before the Tribunal, irrespective of the fact that he happens to be a lawyer. See Hall and Anderson Ltd. v. S. K. Neogi, [1954-I L. L. J. 629]; Sarbeswar Bardoloi v. Industrial Tribunal, A. I. R. 1955 Assam 148 and Duduwala and Co. v. Industrial Tribunal, [1959-I L. L. J. 75]. (11) FROM the foregoing discussion, it follows that Mr. Shastry and Miss Indira Jaising in their capacity as the office-bearers of their trade unions were entitled to appear before the Labour court and the Tribunal and the fact that they were practising lawyers did not disqualify them from so appearing without the consent of the company and the question whether employees would secure an unfair advantage by their so appearing was irrelevant to their right to represent the workmen.	1[ds](7) SECTION 36, as the marginal note says provides for representation of parties.n (1)confers upon employees the right to be represented by any person holding any of the capacities mentioned in cls. (a), (b) or (c) thereof and in view of the words shall be entitled therein such a right, apart from the provisions of. (4), is absolute as there are no qualifying words to restrict the same.n (2) similarly confers right upon an employer to be represented by persons holding any of the capacities mentioned in cls. (a), (b) or (c) thereof.. (4) restricts, a party from being represented by a legal practitioner in the proceeding therein mentioned. Now, an officer holding any of the capacities mentioned in. (1) may also be a practising lawyer. Similarly, a person seeking to represent employers as holding any capacity specified in cls. (a), (b) and (c) of. (2) may happen to be a legal practitioner. The question, therefore, arises whether an employees right to be represented by any officer holding any capacity mentioned in. (1) is qualified or restricted by. (4) merely on the ground that such an officer is a legal practitioner, In order to answer this question it is necessary to bear in mind that such an officer appears before the industrial forum for workmen in his capacity as such designated officer under. (a), (b) or (c) and not at all as a legal practitioner. It is, no doubt, true that if such designated officer appearing as a representative of workman happens to be a practising lawyer, he does not part with his knowledge and experience acquired by him as such lawyer. Still such a distinction between an agent appearing in his capacity as anr of workers trade union and his appearing in his capacity as a lawyer on behalf of such workers is crucial for our present purpose. Sod this appears to be plain grammatical meaning of the words represented bythere does not appear any inconsistency between the provisions of. (4). Further the legislative history and the object underlying S. 36 also support the above construction of. (1) and (4) thereof.n (3) of S. 36 as it originally stood permitted lawyers to appear either for party; it was substituted by present. (4) by S. 34 of the Industrial Disputes (Appellate Tribunal) Act (No. 48 of 1950). By the said amendment of 1950 the right of a party to be represented by a lawyer is made subject to the consent of the other party to the proceeding and to the leave of the Labour Court or tribunal. However, the right of persons designated in. (1) and (2) to represent workers or employers respectively was not made subject to such restriction in case such a person happened to be a practising lawyer. If the Legislature had intended so to restrict the right of parties to be represented by the officers named in. (1) and (2), it could have done it easily by adding after the persons specified therein the words provided he is not a legal practitioner.Thus the right of workmen and employers to be represented by persons designated in cls. (a), (b) and (c)of. (1) and (2) remained unimpaired even after the said amendment of 1950. Further the view that the right of workers and employer to be so represented is absolute, derives support from the following observations of Mr. Justice Chandrachud in a Division Bench case of this court in K. K. Khadilkar v. Hume Pipe Co. Ltd. ,I L. L. J. 139], (1966) 69 Bom. L. R. 273. Though the actual point before us did not arise in that case (p. 277) :. . . . . The reason why the three categories are specifically mentioned in. (2) is that the legislature wanted to confer an unqualified right on an employer to be represented by the class of persons mentioned in the three clauses of. (2). Under S. 11 of the Act. The Tribunal can follow such procedure as it thinks fit, which includes the right to determine the mode of representation which a party before it may adopt. The employer, however, is entitled to tell the tribunal that the wants to be represented by any of the persons mentioned in cls. (a) (b) and (c)of. (2) and the Tribunal would have no right to say that it will not recognise that form of representation. Thus, the object of. (2) is to create a right in an employer to be represented by a class of persons and not to restrict the right of representation to the classes enumerated. Since the words used in S. 36 (1), (2) are clear and unambiguous the meaning of the words used therein relating to parties right to be represented is not to be gathered by any notions of what is just and expedient. (See Maxwell on Interpretation of Statutes, 1969, 12th edn. , page 29). It is also material to notice that so far as the right of a party to be represented by certain class of agents is concerned,. (2) deal equally with employees and employers. We, therefore, hold as a matter of construction that. (1) is not subject to the provisions so. (1) creates an absolute right in the persons mentioned in its three clauses to represent the workmen and the fact that such a person representing workmen happens to be a legal practitioner is irrelevant and does not attract S. 36 (4)(8) THEREFORE, there was no scope in the present case for the Tribunal to consider whether unfair advantage was being secured by the employees by being represented by Mr. Shastry and Miss. Indira Jaising as thes of their union because both of them also happened to be legal practitioners. The Tribunal, however, has referred to and sought support from the ruling of this court in Alembic Chemical Works Ltd. v. Vyas,I L. L. J. 148]; (1953) 56 Bom. L. R. 917. In that case a couple of days before an industrial dispute between the Alembic Chemical Works ltd. (therein referred to as the company) and its workmen was to be heard by Industrial tribunal Mr. P. C. Hathi who was practising lawyer was appointed a director of the company. He appeared before the Tribunal on behalf of the company in his capacity as its director. An objection was raised on behalf of workmen to Mr. Hathis appearance on the ground that he was a legal practitioner, and, therefore, he could not represent the company without the consent of workmen having regard to the provisions of S. 36 (4). The Tribunal held that as Mr. Hathi was a legal Practitioner, the device of making him a director with a view to circumvent the provisions of S. 36 (4) should not be allowed to succeed, and therefore, disallowed his appearance. Both the company Mr. Hathi filed a writ petition for setting aside the said order. Mr. Justice Tendolkar held that S. 36 was an enabling section and did not exhaust all cases of representation other than the right of a party (individual) to appear in person, that it did not include the case of a corporation party which is incapable of appearing in person because it has no visible personality and must, therefore, of necessity appear through some agency and that it was open to the tribunal to determine by way of procedure under S. 11 of the Act how a corporation should appear before it. He also observed that in exercise of that power the Tribunal and adopted the practice of allowing a corporation to be represented by a director or an officer being one of the modes in which a corporation could be represented. Then the learned Judge proceeded to consider whether the Tribunal should not allow a party to appear if the effect of allowing it to appear would be to defeat the provisions of S. 36 (4). The learned Judge observed that there were two extreme views of. (1) and (4) regarding the right of representation and stated (p. 921):. . . . . Neither of these two views appears to be wholly right. . . it appears to me that if an officer of any trade union who is referred to in. 36 (1) as qualified to represent a workman or an officer of an association of employers who is qualified to represent an employer under. (2)or an officer or director of a corporation through whom a corporation is entitled to be represented by the procedure governing the Tribunal happens to be a legal practitioner, that fact by itself cannot disqualify him from appearing before the Tribunal. But this presupposes that such an officer is a regular officer either of the trade union or the association or in the case of an officer of a corporation, a regular officer of the Corporation, and in the case of a director that he is a bona fide director not elected a director merely for the purpose of enabling him to appear in a pending proceeding before a Tribunal. In other words, if a legal practitioner is transformed into an officer of a registered trade union or of an association of employers or of a corporation or is appointed a director of a corporation, in order to get over the disability imposed on a legal practitioner representing a party, then such a person shall not be allowed to appear and represent a party. But short of an intention to circumvent the provisions of S. 36 (4), if a legal practitioner is ordinarily a regular officer either of a trade union or an association of employers referred to in ss. 36 (1) and (2) or of a corporation or if he is a director bona fide appointed as a director, I see nothing in. (4) to prevent his appearing on behalf of the party merely by reason of the fact that he happens to be a legal practitioner.We are, with respect, unable to agree with the above view of the learned Judge. In that case Mr. Hathi was appearing as a director of the company and the question arose whether the companys right to be represented by such an agent, which was not covered by. (2) and was, therefore, outside S. 36, was subject to the provisions of S. 36 (4), though the said agent did not appear as a legal practitioner. It is clear from the passage above quoted that the learned Judge treated the right of a company to be represented by its officer or director at par with its right to be represented by the class of officers named in. (2). The learned Judge was with respect, right in treating them alike so far as their to represent the company was concerned. But in considering whether such right of companys representative was absolute or subject to any reservation under(9) FURTHER, since such a right is absolute, in our opinion, the question of exercising such a right bona fide is not relevant. There is no duty owed by the party, i. e. , either workmen or employers, to anyone else in exercising its choice of its agent to represent it in any proceeding before a labour Court or Tribunal. There is no warrant either in the language of. (1) and (2) or the context of S. 36 for spelling out such a duty or obligation on the part of a party(10) IN the above view we are fortified by the decisions of the High Courts of Calcutta, Assam and Rajasthan. They have taken the view that. (2) is not subject to the provisions of. (4) land a person qualified to represent a party under. (2)is entitled to appear on its behalf before the Tribunal, irrespective of the fact that he happens to be a lawyer. See Hall and Anderson Ltd. v. S. K. Neogi,I L. L. J. 629]; Sarbeswar Bardoloi v. Industrial Tribunal, A. I. R. 1955 Assam 148 and Duduwala and Co. v. Industrial Tribunal,I L. L. J. 75](11) FROM the foregoing discussion, it follows that Mr. Shastry and Miss Indira Jaising in their capacity as thes of their trade unions were entitled to appear before the Labour court and the Tribunal and the fact that they were practising lawyers did not disqualify them from so appearing without the consent of the company and the question whether employees would secure an unfair advantage by their so appearing was irrelevant to their right to represent the workmen.	1	3,465	### 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: (individual) to appear in person, that it did not include the case of a corporation party which is incapable of appearing in person because it has no visible personality and must, therefore, of necessity appear through some agency and that it was open to the tribunal to determine by way of procedure under S. 11 of the Act how a corporation should appear before it. He also observed that in exercise of that power the Tribunal and adopted the practice of allowing a corporation to be represented by a director or an officer being one of the modes in which a corporation could be represented. Then the learned Judge proceeded to consider whether the Tribunal should not allow a party to appear if the effect of allowing it to appear would be to defeat the provisions of S. 36 (4). The learned Judge observed that there were two extreme views of sub-ss. (1) and (4) regarding the right of representation and stated (p. 921): . . . . . Neither of these two views appears to be wholly right. . . it appears to me that if an officer of any trade union who is referred to in sub-s. 36 (1) as qualified to represent a workman or an officer of an association of employers who is qualified to represent an employer under sub-s. (2)or an officer or director of a corporation through whom a corporation is entitled to be represented by the procedure governing the Tribunal happens to be a legal practitioner, that fact by itself cannot disqualify him from appearing before the Tribunal. But this presupposes that such an officer is a regular officer either of the trade union or the association or in the case of an officer of a corporation, a regular officer of the Corporation, and in the case of a director that he is a bona fide director not elected a director merely for the purpose of enabling him to appear in a pending proceeding before a Tribunal. In other words, if a legal practitioner is transformed into an officer of a registered trade union or of an association of employers or of a corporation or is appointed a director of a corporation, in order to get over the disability imposed on a legal practitioner representing a party, then such a person shall not be allowed to appear and represent a party. But short of an intention to circumvent the provisions of S. 36 (4), if a legal practitioner is ordinarily a regular officer either of a trade union or an association of employers referred to in ss. 36 (1) and (2) or of a corporation or if he is a director bona fide appointed as a director, I see nothing in sub-s. (4) to prevent his appearing on behalf of the party merely by reason of the fact that he happens to be a legal practitioner. We are, with respect, unable to agree with the above view of the learned Judge. In that case Mr. Hathi was appearing as a director of the company and the question arose whether the companys right to be represented by such an agent, which was not covered by sub-s. (2) and was, therefore, outside S. 36, was subject to the provisions of S. 36 (4), though the said agent did not appear as a legal practitioner. It is clear from the passage above quoted that the learned Judge treated the right of a company to be represented by its officer or director at par with its right to be represented by the class of officers named in sub-s. (2). The learned Judge was with respect, right in treating them alike so far as their to represent the company was concerned. But in considering whether such right of companys representative was absolute or subject to any reservation under sub-s. (4), in case such a representative happened to be a legal practitioner, the learned Judge, with respect, does not seem to have attached sufficient importance to the distinction drawn in S. 36 regarding the capacity in which a person was seeking to appear on behalf of a party and to the language of S. 36 (1) and (2) which create an absolute right in the parties to be represented by the class of persons enumerated therein. (9) FURTHER, since such a right is absolute, in our opinion, the question of exercising such a right bona fide is not relevant. There is no duty owed by the party, i. e. , either workmen or employers, to anyone else in exercising its choice of its agent to represent it in any proceeding before a labour Court or Tribunal. There is no warrant either in the language of sub-ss. (1) and (2) or the context of S. 36 for spelling out such a duty or obligation on the part of a party. (10) IN the above view we are fortified by the decisions of the High Courts of Calcutta, Assam and Rajasthan. They have taken the view that sub-s. (1) or sub-s. (2) is not subject to the provisions of sub-s. (4) land a person qualified to represent a party under sub-s. (1) or sub-s. (2)is entitled to appear on its behalf before the Tribunal, irrespective of the fact that he happens to be a lawyer. See Hall and Anderson Ltd. v. S. K. Neogi, [1954-I L. L. J. 629]; Sarbeswar Bardoloi v. Industrial Tribunal, A. I. R. 1955 Assam 148 and Duduwala and Co. v. Industrial Tribunal, [1959-I L. L. J. 75]. (11) FROM the foregoing discussion, it follows that Mr. Shastry and Miss Indira Jaising in their capacity as the office-bearers of their trade unions were entitled to appear before the Labour court and the Tribunal and the fact that they were practising lawyers did not disqualify them from so appearing without the consent of the company and the question whether employees would secure an unfair advantage by their so appearing was irrelevant to their right to represent the workmen. ### Response: 1
571	Babulal Badriprasad Varma Vs. Surat Municipal Corpn.	said:"Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after doubtless much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts."The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows:"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." [Emphasis supplied] Applying the above principles to the present case, it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved, he has waived the same. 34. Significantly, a similar conclusion was reached in the case of Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229] , though the principle was stated far more precisely, in the following terms: "9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.10. 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." [Emphasis supplied] [See also Bank of India v. O.P. Swarnakar (2003) 2 SCC 721 ] 35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631 ], this Court observed: "The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term Waiver has been described in the following words: "Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsburys Laws (4th edn) para 1471] " In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellants inaction. 36. Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible.37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State.	0[ds]20. Appellant was a tenant in respect of plot No. 17/8. Plot No. 17/7 was not a plot contiguous thereto. They were separated not only by a road but also by various other plots.21. It is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. The draft scheme was approved. 867 sq. m. of land had been acquired for public purpose out of the said plot No. 17/8. While the proceedings relating to allotment of final plot were in progress, he even did not file any objection thereto. If he intended to claim any interest in a portion of plot No. 17/8 either for the purpose of obtaining compensation for acquisition of a part of the land or to continue to have possession over 200 sq. m. of land in plot No. 17/8, it was obligatory on his part to take part in the proceedings. Whether irrespective of Rule 26 of the Rules which prescribes for issuance of a general public notice, any special notice upon the appellant was required to be served by the State or by the authority, in our opinion, cannot be gone into by us in these proceedings for the first time. Validity of Rule 26 of the Rules had never been questioned. It had also not been contended that the said Rule is ultra vires Section 52 of the Act.A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation.We have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the Bombay Rules and the Rules.27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain.We are, however, not oblivious that in a given situation, a question may also arise as to whether the restrictions imposed by a statute are reasonable or not.31. It is not a case where the State by its acts of omissions and commissions was unjustly enriching itself. It was a dispute between two private parties as regards the right to obtain final allotment; the principles underlying the same are not in dispute. What is in dispute is the distribution of quantum thereof between two competing claimants, viz., landlord and tenant. We do not mean to say that under no circumstances the appellant was entitled to allotment of a portion of the property or mandatory compensation in lieu thereof from the landlord. But, we intend to emphasise that he has lost his right to enforce the same in a public law forum. He has no enforceable claim against the State at this juncture. He may pursue his claim only against the respondent No. 4 in an appropriate proceedings wherein for certain purposes the State or the authorities may also be impleaded as a party. Even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter.32. It is not in dispute that:(a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it.(b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act.In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/ participate during the proceedings for re-allotment.33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same.Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible.37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the	0	7,425	### 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: said:"Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after doubtless much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts."The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows:"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." [Emphasis supplied] Applying the above principles to the present case, it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved, he has waived the same. 34. Significantly, a similar conclusion was reached in the case of Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229] , though the principle was stated far more precisely, in the following terms: "9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.10. 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." [Emphasis supplied] [See also Bank of India v. O.P. Swarnakar (2003) 2 SCC 721 ] 35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631 ], this Court observed: "The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term Waiver has been described in the following words: "Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsburys Laws (4th edn) para 1471] " In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellants inaction. 36. Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible.37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State. ### Response: 0
572	M/s. Filmistan Private Limited Vs. Balkrishna Bhiwa & Another	as asked for by the management, especially when there was no error apparent on the record; (2) that though the workman raised the plea of violation of S. 33(2)(b) in his written statement, that contention was not pursued before the Industrial Tribunal and therefore the High Court was not justified in entertaining that plea, specially when there was no averment by the workman in the writ petition that though the point was raised and argued, was not decided and adjudicated upon by the Industrial Tribunal; and (3) in any event the dates adverted to clearly show that the order of dismissal, the tender of wages and the application for approval have all been taken by the management simultaneously as a part of the same transaction and there has been no delay as wrongly assumed by the High Court We may deal with all the contentions together. The scope of S. 33(2)(b) proviso has been dealt with very elaborately by this Court in Straw board Manufacturing Co. v. Gobind, (1962) Suppl. 3 S.C.R. 618. The principle laid down in that case is as follows :"As we read the proviso, we are of opinion that it contemplates the three things mentioned therein namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under S. 33(2)(b) by dismissing or discharging an employee, should immediately pay him of offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. When, however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under proviso namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application are part of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case."12. From the above extract it is clear that two principles emerge : (i) the employers conduct should show that the three things contemplated under the proviso to S. 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R. H.) v. Air France, Calcutta, [1963 - I L.L.J. 679].13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of S. 33(2)(b) proviso has not controverted the truth of the averment made by the, management. Over and above that he has not pursued this point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under S. 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) suppl. 3 S.C.R. 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of S. 33(2)(b) proviso thought it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation into facts be offered by the management if there has been any delay15. The limits of the jurisdiction exercised by the High Court under Art. 227 have been, laid down by this Court in several cases. Some of the decisions bearing on the matter have been referred to by this Court in Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi and anothers, (1967) 3 S.C.R. 774. There was no such error on the record in the case before us which justified interference by the High Court. We have already pointed out by reference to the decision of this Court, that the question whether the application for approval under S. 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not raise the contention based upon S. 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstance there was absolutely no justification for the High Court Art. 227 to consider the plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view the High Court was not justified in setting aside the order of the Industrial Tribunal.	1[ds]9. It is significant to note that there is no averment in the writ petition that the Industrial Tribunal did not consider the plea of contravention of S. 33(2)(b) though it was raised and argued before it. It is also significant that the same lawyer who represented the workman before the Industrial Tribunal appeared for him. The appellant contended that the Industrial Tribunal, after a consideration of the material on record, was satisfied that a prima facie case has been made out for the grant of approval and that it is on that basis that the order of the Industrial Tribunal came to be passed. It was further pleaded that the Industrial Tribunals findings being on facts there was no scope for interfering under Art. 277.From the above extract it is clear that two principles emerge : (i) the employers conduct should show that the three things contemplated under the proviso to S. 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R. H.) v. Air France, Calcutta, [1963I L.L.J. 679].13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of S. 33(2)(b) proviso has not controverted the truth of the averment made by the, management. Over and above that he has not pursued this point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under S. 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) suppl. 3 S.C.R. 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of S. 33(2)(b) proviso thought it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation into facts be offered by the management if there has been anywas no such error on the record in the case before us which justified interference by the High Court. We have already pointed out by reference to the decision of this Court, that the question whether the application for approval under S. 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not raise the contention based upon S. 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstance there was absolutely no justification for the High Court Art. 227 to consider the plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view the High Court was not justified in setting aside the order of the Industrial Tribunal.	1	2,700	### 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: as asked for by the management, especially when there was no error apparent on the record; (2) that though the workman raised the plea of violation of S. 33(2)(b) in his written statement, that contention was not pursued before the Industrial Tribunal and therefore the High Court was not justified in entertaining that plea, specially when there was no averment by the workman in the writ petition that though the point was raised and argued, was not decided and adjudicated upon by the Industrial Tribunal; and (3) in any event the dates adverted to clearly show that the order of dismissal, the tender of wages and the application for approval have all been taken by the management simultaneously as a part of the same transaction and there has been no delay as wrongly assumed by the High Court We may deal with all the contentions together. The scope of S. 33(2)(b) proviso has been dealt with very elaborately by this Court in Straw board Manufacturing Co. v. Gobind, (1962) Suppl. 3 S.C.R. 618. The principle laid down in that case is as follows :"As we read the proviso, we are of opinion that it contemplates the three things mentioned therein namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under S. 33(2)(b) by dismissing or discharging an employee, should immediately pay him of offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. When, however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under proviso namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application are part of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case."12. From the above extract it is clear that two principles emerge : (i) the employers conduct should show that the three things contemplated under the proviso to S. 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R. H.) v. Air France, Calcutta, [1963 - I L.L.J. 679].13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of S. 33(2)(b) proviso has not controverted the truth of the averment made by the, management. Over and above that he has not pursued this point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under S. 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) suppl. 3 S.C.R. 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of S. 33(2)(b) proviso thought it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation into facts be offered by the management if there has been any delay15. The limits of the jurisdiction exercised by the High Court under Art. 227 have been, laid down by this Court in several cases. Some of the decisions bearing on the matter have been referred to by this Court in Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi and anothers, (1967) 3 S.C.R. 774. There was no such error on the record in the case before us which justified interference by the High Court. We have already pointed out by reference to the decision of this Court, that the question whether the application for approval under S. 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not raise the contention based upon S. 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstance there was absolutely no justification for the High Court Art. 227 to consider the plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view the High Court was not justified in setting aside the order of the Industrial Tribunal. ### Response: 1
573	Kalawati (D) Through LRs. & Others Vs. Rakesh Kumar & Others	quite apposite to the facts of the case before us.19. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 ) this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in paragraph 2 of the Report:“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised…... The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.”20. In I.S. Sikandar (Dead) by Lrs. v. K. Subramani &Ors. (2013) 15 SCC 27 )this Court noted that the plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract. In this case, looking the attendant facts and circumstances, the Court upheld the view of the Trial Judge that the plaintiff had no money to pay the balance sale consideration and was apparently not capable of making necessary arrangements for payment of the balance consideration. It was held in paragraph 45 and paragraph 47 of the Report:“45.……..Further, the plaintiff is required to prove the fact that right from the date of execution of the agreement of sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement……”“47. Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them. But, on the other hand the trial court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration…….”21. In so far as the present appeal is concerned, the material on record clearly indicates that Rakesh Kumar did not have the necessary funds available with him to pay the balance consideration. His low income and low bank balance indicated his incapacity to make the balance payment. As far as his capacity to arrange for funds is concerned, it has come on record that Rakesh Kumar did take a loan from his cousin but that was only for his business and not for paying the balance consideration for the land in dispute. There is nothing on record to indicate that Rakesh Kumar could have not only repaid the loan taken from his cousin, but additionally, could have arranged sufficient funds to pay the balance consideration. It is very doubtful, and it is easy and reasonable to infer this, that Rakesh Kumar was incapable of meeting both liabilities.22. On the facts placed before us, we are satisfied that the Trial Judge was right in coming to the conclusion that Rakesh Kumar was not in a position to pay the balance consideration to Kalawati and the other vendors, and by necessary implication, it must be held that he was neither ready nor willing to perform his part of the agreement.23. It was submitted that Kalawati and the other vendors did not perform their part of the agreement despite Rakesh Kumar requesting them to do so. The contention of Rakesh Kumar was that the vendors did not obtain a “no objection certificate” from the authorities concerned. We have gone through the agreement to sell dated 29th May, 1986 and the relevant clause of the contract is remarkably vague and reads as follows:“That the vendors will obtain the no objection certificate from the authorities concerned and will inform the vendee by registered post after getting the income tax clearance certificate.”24. There is nothing to indicate the nature of the “no objection certificate” that the vendors were required to obtain and who were the authorities from whom the “no objection certificate” was required, nor is there any indication of the purpose for which the “no objection certificate” was required. Similarly, there is no indication about the nature of the income tax clearance certificate required and for what purpose. This clause appears to have been inserted in the agreement to sell without any application of mind and it is quite possible, as alleged by the vendors that the agreement to sell was ante-dated after the introduction of Section 260-UC in the Income Tax Act, 1961. However, we need not go into this possibility in view of the vague nature of the clause.25. On an overall consideration of the facts and in the circumstances of the case, in our opinion, the High Court was in error in setting aside the judgment and decree of the Trial Judge.	1[ds]15. The High Court noted that even though Rakesh Kumar did not deposit the balance consideration for the grant of injunction in his favour, that was of no consequence and could not be held against him.We agree with the High Court only to this limited extent.Having heard learned counsel for the parties, we are not in favour of the view expressed by the High Court but subscribe to the view of the Trial Judge.In so far as the present appeal is concerned, the material on record clearly indicates that Rakesh Kumar did not have the necessary funds available with him to pay the balance consideration. His low income and low bank balance indicated his incapacity to make the balance payment. As far as his capacity to arrange for funds is concerned, it has come on record that Rakesh Kumar did take a loan from his cousin but that was only for his business and not for paying the balance consideration for the land in dispute. There is nothing on record to indicate that Rakesh Kumar could have not only repaid the loan taken from his cousin, but additionally, could have arranged sufficient funds to pay the balance consideration. It is very doubtful, and it is easy and reasonable to infer this, that Rakesh Kumar was incapable of meeting both liabilities.22. On the facts placed before us, we are satisfied that the Trial Judge was right in coming to the conclusion that Rakesh Kumar was not in a position to pay the balance consideration to Kalawati and the other vendors, and by necessary implication, it must be held that he was neither ready nor willing to perform his part of the agreement.23. It was submitted that Kalawati and the other vendors did not perform their part of the agreement despite Rakesh Kumar requesting them to do so. The contention of Rakesh Kumar was that the vendors did not obtain afrom the authorities concerned. We have gone through the agreement to sell dated 29th May, 1986 and the relevant clause of the contract is remarkably vague and reads asthe vendors will obtain the no objection certificate from the authorities concerned and will inform the vendee by registered post after getting the income tax clearance certificate.There is nothing to indicate the nature of thethat the vendors were required to obtain and who were the authorities from whom thewas required, nor is there any indication of the purpose for which thewas required. Similarly, there is no indication about the nature of the income tax clearance certificate required and for what purpose. This clause appears to have been inserted in the agreement to sell without any application of mind and it is quite possible, as alleged by the vendors that the agreement to sell wasafter the introduction of Sectionin the Income Tax Act, 1961. However, we need not go into this possibility in view of the vague nature of the clause.25. On an overall consideration of the facts and in the circumstances of the case, in our opinion, the High Court was in error in setting aside the judgment and decree of the Trial Judge.	1	2,728	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: quite apposite to the facts of the case before us.19. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 ) this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in paragraph 2 of the Report:“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised…... The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.”20. In I.S. Sikandar (Dead) by Lrs. v. K. Subramani &Ors. (2013) 15 SCC 27 )this Court noted that the plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract. In this case, looking the attendant facts and circumstances, the Court upheld the view of the Trial Judge that the plaintiff had no money to pay the balance sale consideration and was apparently not capable of making necessary arrangements for payment of the balance consideration. It was held in paragraph 45 and paragraph 47 of the Report:“45.……..Further, the plaintiff is required to prove the fact that right from the date of execution of the agreement of sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement……”“47. Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them. But, on the other hand the trial court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration…….”21. In so far as the present appeal is concerned, the material on record clearly indicates that Rakesh Kumar did not have the necessary funds available with him to pay the balance consideration. His low income and low bank balance indicated his incapacity to make the balance payment. As far as his capacity to arrange for funds is concerned, it has come on record that Rakesh Kumar did take a loan from his cousin but that was only for his business and not for paying the balance consideration for the land in dispute. There is nothing on record to indicate that Rakesh Kumar could have not only repaid the loan taken from his cousin, but additionally, could have arranged sufficient funds to pay the balance consideration. It is very doubtful, and it is easy and reasonable to infer this, that Rakesh Kumar was incapable of meeting both liabilities.22. On the facts placed before us, we are satisfied that the Trial Judge was right in coming to the conclusion that Rakesh Kumar was not in a position to pay the balance consideration to Kalawati and the other vendors, and by necessary implication, it must be held that he was neither ready nor willing to perform his part of the agreement.23. It was submitted that Kalawati and the other vendors did not perform their part of the agreement despite Rakesh Kumar requesting them to do so. The contention of Rakesh Kumar was that the vendors did not obtain a “no objection certificate” from the authorities concerned. We have gone through the agreement to sell dated 29th May, 1986 and the relevant clause of the contract is remarkably vague and reads as follows:“That the vendors will obtain the no objection certificate from the authorities concerned and will inform the vendee by registered post after getting the income tax clearance certificate.”24. There is nothing to indicate the nature of the “no objection certificate” that the vendors were required to obtain and who were the authorities from whom the “no objection certificate” was required, nor is there any indication of the purpose for which the “no objection certificate” was required. Similarly, there is no indication about the nature of the income tax clearance certificate required and for what purpose. This clause appears to have been inserted in the agreement to sell without any application of mind and it is quite possible, as alleged by the vendors that the agreement to sell was ante-dated after the introduction of Section 260-UC in the Income Tax Act, 1961. However, we need not go into this possibility in view of the vague nature of the clause.25. On an overall consideration of the facts and in the circumstances of the case, in our opinion, the High Court was in error in setting aside the judgment and decree of the Trial Judge. ### Response: 1
574	UNIVERSITY OF DELHI Vs. SMT. SHASHI KIRAN & ORS. ETC	between CPF and GPF was always in existence and as held by the Constitution Bench of this Court in Krishena Kumar vs. Union of India and others (1990) 4 SCC 207, the rules governing the Provident Fund and its contribution would be entirely different from the rules governing the Pension Scheme. b) Under the notification dated 01.05.1987, the choice was completely left to the employees and it was purely optional. An optional scheme involving financial decisions could not be converted into a compulsory scheme. c) Comparison with employees of IITs, Department of Atomic Energy and Insurance Companies was impermissible as the employees of the University and these organizations did not form a homogeneous class. Their terms and conditions of service, financing pattern and financing departments were completely different. 11. Number of learned senior counsel and other learned counsel appeared on behalf the respondents-employees and submitted: - a) Though, notification dated 01.05.1987 was to the knowledge of everyone, the subsequent extensions and chances to switchover granted by the University were not brought to the knowledge of all the employees and the respondents were thus prejudiced. b) If the mandate under the notification dated 01.05.1987 was to be followed scrupulously, the University could not have granted subsequent option of switchover. But 2469 employees were allowed to come over to GPF after the cut-off date. Going by various communications placed before the Court, such employees were allowed full benefits under GPF. The case of the present respondents-employees was not, in any way, different from such 2469 employees. c) The University being a Central University, its employees would rank on similar footing as that of the organisations like IITs and AIIMS. If extensions were granted to employees of the IITs, the employees of the University were also entitled to similar benefit. d) The Division Bench was, therefore, justified in setting aside the view taken by the learned Single Judge of the High Court in Shashi Kiran batch of cases but affirming the view in other two batches. 12. The common thread which ran through the decisions of the learned Single Judge pertaining to three batches of cases, was that the text of the notification dated 01.05.1987 was clear that if no option was exercised by the concerned employees before the cut-off date, they would be deemed to have come over to GPF. It was only a positive option exercised by the employees to continue to be under CPF which could have departed from such deeming provision. Once exercised, the option was final and as such, there could be no switchover from those who had consciously opted to be under CPF. Further, relying on the decision in S.L. Verma (2006) 12 SCC 53, it was observed that any exercise of option after the deadline or the cut-off would be inconsequential. It was on this premise that the cases in R.N. Virmani batch of cases and N.K. Bakshi batch of cases were allowed by the learned Single Judge. As regards Shashi Kiran batch of cases, the learned Single Judge observed, that once the conscious decision was taken and option was exercised to continue to be under CPF, there was no room for any come back situation. The cases in the third batch were therefore, rejected. 13. However, the learned Single Judge observed that 2469 employees who were given facility of such switchover after the cut-off date, though they had also consciously opted to be under CPF, were not before the Court, and as such, their cases had to be left untouched. It is a matter of record and which aspect is clear from the communications referred to in paragraph 8 hereinabove that most of those 2469 employees, at the time of retirement, were given all the benefits that were available to those who had opted to be under GPF. Thus, those 2649 employees were certainly allowed to avail the benefit of switchover which was not granted in favour of the employees in the third batch of cases. 14. Affirming the view taken by the learned Single Judge in the first two batches of cases, the Division Bench set aside the view of the learned Single Judge only in the third batch of cases i.e. in Shashi Kiran batch of cases. As the observations made by the Division Bench indicate, the matter was placed on the ground of discrimination and principles of equality. 15. According to the notification dated 01.05.1987 two situations were contemplated. First, the deeming provision in terms of which the concerned employee was taken to have come over to GPF. The second situation being where a conscious option was exercised before the cut-off date to continue to be under CPF. R.N. Virmani batch of cases was therefore rightly allowed by the learned Single Judge and the Division Bench of the High Court, as no conscious option was exercised by the cut-off date. Consequently, the concerned employees must be deemed to have come over to GPF. Logically, it would be immaterial whether the concerned employee continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the concerned authorities. The benefit was therefore rightly granted in favour of the employees and the entire contribution was directed to be refunded. The University has chosen not to appeal against that decision and thus the matter has attained finality. Theoretically, extension of the same principle would be that if no option was exercised before the cut-off date, but an option was exercised after the cut-off date was extended; and if no switchover could be allowed after the cut- off date, the decisions rendered by the learned Single Judge and the Division Bench in the N.C. Bakshi batch of cases were also quite correct. Consequently, irrespective of the fact that the concerned employees had exercised the option to continue to be under CPF, such exercise of option would be non est in the eyes of law. That in fact is the ratio of the decision in S.L. Vermas (2006) 12 SCC 53 case.	0[ds]15. According to the notification dated 01.05.1987 two situations were contemplated. First, the deeming provision in terms of which the concerned employee was taken to have come over to GPF. The second situation being where a conscious option was exercised before the cut-off date to continue to be under CPF. R.N. Virmani batch of cases was therefore rightly allowed by the learned Single Judge and the Division Bench of the High Court, as no conscious option was exercised by the cut-off date. Consequently, the concerned employees must be deemed to have come over to GPF. Logically, it would be immaterial whether the concerned employee continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the concerned authorities. The benefit was therefore rightly granted in favour of the employees and the entire contribution was directed to be refunded. The University has chosen not to appeal against that decision and thus the matter has attained finality.Theoretically, extension of the same principle would be that if no option was exercised before the cut-off date, but an option was exercised after the cut-off date was extended; and if no switchover could be allowed after the cut- off date, the decisions rendered by the learned Single Judge and the Division Bench in the N.C. Bakshi batch of cases were also quite correct. Consequently, irrespective of the fact that the concerned employees had exercised the option to continue to be under CPF, such exercise of option would be non est in the eyes of law. That in fact is the ratio of the decision in S.L. Vermas (2006) 12 SCC 53 case.17. As indicated by the University in its affidavit filed after the Order dated 02.03.2020 was passed by this Court, 2611 employees had opted to be under CPF Scheme by the cut-off date, i.e. by 30.09.1987. Additionally, 626 employees exercised the option to be under CPF after the original cut-off, but within initial two extensions granted by the University. Thus, as against the entire body of employees of the University, 3237 (2611+626) employees had exercised the option to be under CPF. Out of these 3237 employees, by virtue of further extensions granted by the University, about 2469 employees exercised the reverse option and opted to come over to GPF, leaving only 768 (3237-2469) employees to be under CPF. The answers to queries d and e given by the University in its affidavit indicate that the number of employees in CPF Scheme was 86 while the petitioners in Shashi Kiran batch were 75. We are, thus, concerned with 75 original petitioners in Shashi Kiran batch of cases.18. In Krishena Kumar (1990) 4 SCC 207, the distinction between the Provident Fund Scheme and the Pension Scheme was considered by the Constitution Bench of this Court. In that case, the employees who had joined the service on or after 01.04.1957 were to get covered automatically by the Pension Scheme and insofar as employees who were already in service on 01.04.1957, they were given an option either to retain the Provident Fund benefits or to switchover to the pensionary benefits. About 12 extensions were thereafter granted so that the options could be exercised by the employees within the extended time. Those who had chosen not to exercise such option, were before this Court. The basic nature of the Scheme was discussed in paragraph 7 of the decision as under:-7. We may now examine these options. The Railway Boards letter No. F(E) 50-RTI/6 dated November 16, 1957 introduced the pension scheme for railway servants. It said that the President had been pleased to decide that the pension rules, as liberalised vide Railway Boards Memo No. E-48 OPC-208 dated July 8, 1950 as amended or clarified from time to time should apply (a) to all Railway servants who entered service on or after issue of that letter and (b) to all non-pensionable railway servants who were in service on April 1, 1957 or have joined railway service between that date and the date of issue of the order. The Railway servants referred to in para (b) were required to exercise an unconditional and unambiguous option on the prescribed form on or before March 31, 1958 electing for the pensionary benefits or retaining their existing retirement benefits under the State Railway Provident Fund Rules. It further said that any such employee from whom an option form prescribed for the employees option was not received within the above time limit or whose option was incomplete or conditional or ambiguous shall be deemed to have opted for the pensionary benefits and if any such employee had died by that date or on or after April 1, 1957 without exercising option for the pensionary scheme, his dues would be paid on the provident fund system. The period of validity of this option was first extended up to June 30, 1958, December 31, 1958, March 31, 1959 and lastly up to September 30, 1959. There could, therefore, be no doubt that those who did not opt for the pension scheme had ample opportunity to choose between the two.Reliance was placed by the petitioners before this Court on the decision in D.S. Nakara vs. Union of India (1983) 1 SCC 305. Paragraphs 16, 29 and 30 of the decision in Krishena Kumar (1990) 4 SCC 207 dealt with the issue as under:-16. As the basis or justification for striking or reading down paragraph 3.1 on Nakara (1983) 1 SCC 305 ratio, it is urged that all the Railway employees numbering about 22 lakhs comprising 16,22,000 in service and about 6 lakhs pensioners constitute one family and must be treated as one class as the governments obligation to look after the retired Railway employees both under the pension scheme and the provident fund scheme being the same, they could not be treated differently. Any differential treatment will be discriminatory and violative of Article 14 of the Constitution of India. In Nakara cas (1983) 1 SCC 305 the date arbitrarily chosen was struck down and as a result the revised formula for computing pension was made applicable to all the retired pensioners. The same principle, it is urged, has to be extended to the Provident Fund retirees also otherwise there would be discrimination. It is stated that though at the time of choosing between Provident Fund and Pension Scheme both the alternatives appeared to be more or less equal and the retired provident funders took their lump sum yet subsequently stage by stage the pensioners benefits were increased in such ways and to such extent that it became more and more discriminatory against the provident funders old and new. It was because of this discrimination that successive options were given by the Railway Board for the provident funders to become pensioners. Hence the submission that this limitation must go, and all the provident funders must be deemed to have become pensioners subject to the condition that the government contribution received by them along with interest thereon is refunded or adjusted. Obviously this gives no importance to the condition in the notifications that option once exercised shall be final and binding and to the fact that in each option a cut-off date was there related to the purpose of giving that option.* * ***29. The court in Nakara (1983) 1 SCC 305 was not satisfied with the explanation that the legislation had defined the class with clarity and precision and it would not be the function of this Court to enlarge the class. The court held in paragraph 65 of the report : (SCC pp. 344-45, para 65)With the expanding horizons of socio-economic justice, the Socialist Republic and Welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion : being in service and retiring subsequent to the specified date for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of being in service on the specified date and retiring subsequent to that date in impugned memoranda, Exs. P-1 and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under : In other words, Ex. P- 1, the words : that in respect of the government servants who were in service on March 31, 1979 and retiring from service on or after that date; and in Ex. P-2, the words : the new rates of pension are effective from April 1, 1979 and will be applicable to all service officers who became/become non- effective on or after that date are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible.30. Thus the court treated the pension retirees only as a homogeneous class. The PF retirees were not in mind. The court also clearly observed that while so reading down it was not dealing with any fund and there was no question of the same cake being divided amongst larger number of the pensioners than would have been under the notification with respect to the specified date. All the pensioners governed by the 1972 Rules were treated as a class because payment of pension was a continuing obligation on the part of the State till the death of each of the pensioners and, unlike the case of Contributory Provident Fund, there was no question of a fund in liberalising pension.The distinction between two Schemes was dealt with in Paragraph 32 of the decision as under:-32. In Nakara (1983) 1 SCC 305 it was never held that both the pension retirees and the PF retirees formed a homogeneous class and that any further classification among them would be violative of Article 14. On the other hand the court clearly observed that it was not dealing with the problem of a fund. The Railway Contributory Provident Fund is by definition a fund. Besides, the governments obligation towards an employee under CPF Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained a moral obligation is a different matter. On the other hand under the Pension Scheme the governments obligation does not begin until the employee retires when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee governments legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to PF retirees. This being the legal position the rights of each individual PF retiree finally crystallized on his retirement whereafter no continuing obligation remained while, on the other hand, as regard Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the PF retirees they would not be so adversely affected ipso facto. It cannot, therefore, be said that it was the ratio decidendi in Nakara (1983) 1 SCC 305 that the States obligation towards its PF retirees must be the same as that towards the pension retirees. An imaginary definition of obligation to include all the government retirees in a class was not decided and could not form the basis for any classification for the purpose of this case. Nakara (1983) 1 SCC 305 cannot, therefore, be an authority for this case.Having observed that the Pension Scheme and the Provident Fund Scheme were structurally different, it was then concluded that the retirees in both categories did not belong to the same class and that there was no discrimination. The challenge was, therefore, rejected.20. Krishena Kumar (1990) 4 SCC 207 was a case where the retirees from two categories namely Pension Fund and Provident Fund, were taken to be distinct and different and as such the plea on the ground of discrimination was rejected. As the Judgment of the Division Bench discloses, the matter was considered by it from the standpoint of discrimination between the same category of persons, that is to say, those who had opted to be under CPF. The different groups in the same category were:-a) Those who had not exercised any option but continued to make payment of contribution towards CPF (R.K. Virmani batch of cases).b) Those who exercised the option to be under CPF but the option was exercised after the cut-off. Since the option was exercised after the cut-off, they were deemed to have come over to GPF and were granted benefit (N.C. Bakshi batch of cases).c) Those who consciously exercised the option to be under CPF; but taking advantage of further options granted through 11 extensions to switchover, had been allowed to come over to GPF (2469 employees).21. It was against these three sub categories coming from the same category of employees that the argument of discrimination was considered by the Division Bench. Such was not the case in Krishena Kumar (1990) 4 SCC 207 or Rajasthan Rajya Vidyut Vitran (2015) 12 SCC 51 .The matter was further considered by the Division Bench in the context of the employees of educational institutions such as IITs, who are directly under the Central Government, just as the employees of the University, which is a Central University. If the option was allowed to be exercised by granting extension to the employees of the other educational institutions, the Division Bench did not find any reason why similar choice/option could not be given to the employees in Shashi Kiran batch of cases.Additionally, the feature that has been presented through the documents which have subsequently come on record is that even with respect to the employees of Insurance Corporations similar options and extensions were granted.22. The differential treatment afforded to those 2469 employees as against the employees in Shashi Kiran batch of cases, was not founded on any rationale. No justifiable reason was coming forth. If those 2469 employees could be afforded chance to exercise an option of switchover to GPF, even though they had consciously opted to be under CPF, on principle of parity or equality, the case was certainly made out.23. We may now consider the matter from the perspective of financial impact if the decision of the Division Bench is affirmed.24. According to the notification dated 01.05.1987, the employees joining the service after 01.01.1986 would always be under GPF. With respect to those who were in service on 01.01.1986, said employees would be deemed to have come over to GPF unless an option to continue to be under CPF was consciously exercised before the cut-off date. Thus, when the Scheme was framed and was sought to be implemented, the concerned authorities must have taken into account the entire magnitude such as, the number of employees and the likelihood of impact on the management of the fund, so that reasonable returns can be effected by way of pension upon retirement of such persons. Going by the intent of the notification, those who were to opt for CPF, were an exception and the general rule was that everybody after 01.01.1986 would normally be covered by GPF. It is in this context that the number of original petitioners in Shashi Kiran batch of cases has to be seen. We are concerned with only 75 persons. On the other hand, the bulk of people namely 2469 employees were granted the choice of reverse switchover and they were allowed all the benefits under GPF. It can reasonably be said that when the notification dated 01.05.1987 was issued, the authorities were conscious of the possibility that all the employees may come over to GPF. With that possibility in mind, the fund was constituted and the affairs were arranged. The shift of those 75 employees would not in any way affect the strength and the character of the fund if a direction that the entire contribution made by the authorities be returned with reasonable rate of interest is issued. These 75 petitioners had approached the Court in the year 2010. At this length of time, it is not as if any floodgates are going to open and there will be drain on the resources of the State. A direction can, therefore, be issued, as was done by the learned Single Judge in paragraph 20 of his Judgment in R.N. Virmani batch of cases and which aspect was mentioned in the letter dated 23.01.2017 referred to in paragraph 8 hereinabove, for recouping the contribution under CPF with 8% simple interest per annum.	0	12,419	### 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: between CPF and GPF was always in existence and as held by the Constitution Bench of this Court in Krishena Kumar vs. Union of India and others (1990) 4 SCC 207, the rules governing the Provident Fund and its contribution would be entirely different from the rules governing the Pension Scheme. b) Under the notification dated 01.05.1987, the choice was completely left to the employees and it was purely optional. An optional scheme involving financial decisions could not be converted into a compulsory scheme. c) Comparison with employees of IITs, Department of Atomic Energy and Insurance Companies was impermissible as the employees of the University and these organizations did not form a homogeneous class. Their terms and conditions of service, financing pattern and financing departments were completely different. 11. Number of learned senior counsel and other learned counsel appeared on behalf the respondents-employees and submitted: - a) Though, notification dated 01.05.1987 was to the knowledge of everyone, the subsequent extensions and chances to switchover granted by the University were not brought to the knowledge of all the employees and the respondents were thus prejudiced. b) If the mandate under the notification dated 01.05.1987 was to be followed scrupulously, the University could not have granted subsequent option of switchover. But 2469 employees were allowed to come over to GPF after the cut-off date. Going by various communications placed before the Court, such employees were allowed full benefits under GPF. The case of the present respondents-employees was not, in any way, different from such 2469 employees. c) The University being a Central University, its employees would rank on similar footing as that of the organisations like IITs and AIIMS. If extensions were granted to employees of the IITs, the employees of the University were also entitled to similar benefit. d) The Division Bench was, therefore, justified in setting aside the view taken by the learned Single Judge of the High Court in Shashi Kiran batch of cases but affirming the view in other two batches. 12. The common thread which ran through the decisions of the learned Single Judge pertaining to three batches of cases, was that the text of the notification dated 01.05.1987 was clear that if no option was exercised by the concerned employees before the cut-off date, they would be deemed to have come over to GPF. It was only a positive option exercised by the employees to continue to be under CPF which could have departed from such deeming provision. Once exercised, the option was final and as such, there could be no switchover from those who had consciously opted to be under CPF. Further, relying on the decision in S.L. Verma (2006) 12 SCC 53, it was observed that any exercise of option after the deadline or the cut-off would be inconsequential. It was on this premise that the cases in R.N. Virmani batch of cases and N.K. Bakshi batch of cases were allowed by the learned Single Judge. As regards Shashi Kiran batch of cases, the learned Single Judge observed, that once the conscious decision was taken and option was exercised to continue to be under CPF, there was no room for any come back situation. The cases in the third batch were therefore, rejected. 13. However, the learned Single Judge observed that 2469 employees who were given facility of such switchover after the cut-off date, though they had also consciously opted to be under CPF, were not before the Court, and as such, their cases had to be left untouched. It is a matter of record and which aspect is clear from the communications referred to in paragraph 8 hereinabove that most of those 2469 employees, at the time of retirement, were given all the benefits that were available to those who had opted to be under GPF. Thus, those 2649 employees were certainly allowed to avail the benefit of switchover which was not granted in favour of the employees in the third batch of cases. 14. Affirming the view taken by the learned Single Judge in the first two batches of cases, the Division Bench set aside the view of the learned Single Judge only in the third batch of cases i.e. in Shashi Kiran batch of cases. As the observations made by the Division Bench indicate, the matter was placed on the ground of discrimination and principles of equality. 15. According to the notification dated 01.05.1987 two situations were contemplated. First, the deeming provision in terms of which the concerned employee was taken to have come over to GPF. The second situation being where a conscious option was exercised before the cut-off date to continue to be under CPF. R.N. Virmani batch of cases was therefore rightly allowed by the learned Single Judge and the Division Bench of the High Court, as no conscious option was exercised by the cut-off date. Consequently, the concerned employees must be deemed to have come over to GPF. Logically, it would be immaterial whether the concerned employee continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the concerned authorities. The benefit was therefore rightly granted in favour of the employees and the entire contribution was directed to be refunded. The University has chosen not to appeal against that decision and thus the matter has attained finality. Theoretically, extension of the same principle would be that if no option was exercised before the cut-off date, but an option was exercised after the cut-off date was extended; and if no switchover could be allowed after the cut- off date, the decisions rendered by the learned Single Judge and the Division Bench in the N.C. Bakshi batch of cases were also quite correct. Consequently, irrespective of the fact that the concerned employees had exercised the option to continue to be under CPF, such exercise of option would be non est in the eyes of law. That in fact is the ratio of the decision in S.L. Vermas (2006) 12 SCC 53 case. ### Response: 0
575	Commissioner of Central Excise, New Delhi Vs. Hero Honda Motors Ltd	1. This appeal is against the judgment of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi dated 6th October, 1998. 2. The question which arises for determination is: whether receipt of advance and the income accruing thereon has gone towards depreciation of the sale price. 3. A conspectus of decisions show that inclusion of notional interest in the assessable value or wholesale price will depend on the facts of each case. In the present case, according to the adjudicating authority, the evidence indicated that the main object behind receiving advance from the customers was not security but collection of capital. In this connection, reliance was placed on financial accounts, MIS reports, pricing and costing. The said material was put to the officers of the company. The adjudicating authority found on evidence that the advances were invested and income therefrom by way of interest, dividends etc. constituted additional flowback (consideration) from the customer to the assessee. In this connection, the adjudicating authority found that interest at 9% was actually paid by the assessee to each of the customers; that the interest was shown as cost of production; that it was charged to cost of production; that the said expense was incurred under the head Sales which implicated sales income with other income. On examination of the balance sheet, profit & loss account and costing data, the adjudicating authority found that but for other income, assessee was required to increase the prices to recover the cost of manufacture. The adjudicating authority further found that this other income accrued to the assessee in the course of sale. The said authority found that the said other income formed part of the prices. That, the difference in the interest paid to the customers and the interest earned on the advances received from the customers constituted additional consideration which flowed back from the customer to the assessee. The adjudicating authority further found difference between the current assets and current liabilities in the final statements indicating utilization of advances to meet the working capital requirement. The adjudicating authority further found that the payment of interest to the customer was shown in the books as cost of production whereas the income received on deployment of funds (advances) has been shown as income from sales and other income. The adjudicating authority found understatement of assessable value on account of failure on the part of the assessee to take into account the additional consideration arising on account of difference in the rates of interest. 4. At the outset, we may point out that in this case the Annual Reports of the assessee show the opening and closing balance of the funds received under the caption Customers Advances. They show deployment of funds so received. The income accruing to the assessee was reflected in profit & loss accounts. For the year ending 31.3.1986 the outstanding balance under the above head was Rs. 33.40 crore out of which Rs. 28.90 crore was invested in various securities / deposits leaving a balance of Rs. 4.42 crore (see Schedule 4). The said schedule further indicates utilization of capital gains and interest income to reduce the liability under the said head. That, the said schedule 4 indicated not only liquidation of liabilities under the head customers advances by utilization of income on investments from such advances, they also indicated flowback of the benefits from the customers to the assessee. Moreover, the income from such investments was shown under the head Sales & Other Income. The said other income included interest on deposits, profit on sale of units and income from units (schedule 10). Even the Report of the Directors under the head Financial Reports show that the profits of the company have been based on implication of Sales with Other Incomes. For example, for the year 1985-86, Sales & Other Incomes were of Rs. 49.20 crores (rounded to O out of which Income from Sales was Rs. 45.02 crore (rounded to O) whereas Rs. 4.06 crore was on account of Other Income. Therefore, according to the adjudicating authority, the total income (Sales & Other Income) contributed to the profits which had a direct impact on pricing. According to the adjudicating authority, the said Other Income had contributed to the pricing. That, but for the said Other Income, it was not possible for the company to sell the motorcycles at a price lower than the unit cost of production. Lastly, the adjudicating authority found on facts that since interest paid at 9% to the customers was indicated as an expense, the income on the investments from the advances was includible in the assessable value. This aspect has also not been considered by the tribunal.	1[ds]4. At the outset, we may point out that in this case the Annual Reports of the assessee show the opening and closing balance of the funds received under the caption Customers Advances. They show deployment of funds so received. The income accruing to the assessee was reflected in profit & loss accounts. For the year ending 31.3.1986 the outstanding balance under the above head was Rs. 33.40 crore out of which Rs. 28.90 crore was invested in various securities / deposits leaving a balance of Rs. 4.42 crore (see Schedule 4). The said schedule further indicates utilization of capital gains and interest income to reduce the liability under the said head. That, the said schedule 4 indicated not only liquidation of liabilities under the head customers advances by utilization of income on investments from such advances, they also indicated flowback of the benefits from the customers to the assessee. Moreover, the income from such investments was shown under the head Sales & Other Income. The said other income included interest on deposits, profit on sale of units and income from units (schedule 10). Even the Report of the Directors under the head Financial Reports show that the profits of the company have been based on implication of Sales with Other Incomes. For example, for the year 1985-86, Sales & Other Incomes were of Rs. 49.20 crores (rounded to O out of which Income from Sales was Rs. 45.02 crore (rounded to O) whereas Rs. 4.06 crore was on account of Other Income. Therefore, according to the adjudicating authority, the total income (Sales & Other Income) contributed to the profits which had a direct impact on pricing. According to the adjudicating authority, the said Other Income had contributed to the pricing. That, but for the said Other Income, it was not possible for the company to sell the motorcycles at a price lower than the unit cost of production. Lastly, the adjudicating authority found on facts that since interest paid at 9% to the customers was indicated as an expense, the income on the investments from the advances was includible in the assessable value. This aspect has also not been considered by the tribunal.	1	870	### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: 1. This appeal is against the judgment of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi dated 6th October, 1998. 2. The question which arises for determination is: whether receipt of advance and the income accruing thereon has gone towards depreciation of the sale price. 3. A conspectus of decisions show that inclusion of notional interest in the assessable value or wholesale price will depend on the facts of each case. In the present case, according to the adjudicating authority, the evidence indicated that the main object behind receiving advance from the customers was not security but collection of capital. In this connection, reliance was placed on financial accounts, MIS reports, pricing and costing. The said material was put to the officers of the company. The adjudicating authority found on evidence that the advances were invested and income therefrom by way of interest, dividends etc. constituted additional flowback (consideration) from the customer to the assessee. In this connection, the adjudicating authority found that interest at 9% was actually paid by the assessee to each of the customers; that the interest was shown as cost of production; that it was charged to cost of production; that the said expense was incurred under the head Sales which implicated sales income with other income. On examination of the balance sheet, profit & loss account and costing data, the adjudicating authority found that but for other income, assessee was required to increase the prices to recover the cost of manufacture. The adjudicating authority further found that this other income accrued to the assessee in the course of sale. The said authority found that the said other income formed part of the prices. That, the difference in the interest paid to the customers and the interest earned on the advances received from the customers constituted additional consideration which flowed back from the customer to the assessee. The adjudicating authority further found difference between the current assets and current liabilities in the final statements indicating utilization of advances to meet the working capital requirement. The adjudicating authority further found that the payment of interest to the customer was shown in the books as cost of production whereas the income received on deployment of funds (advances) has been shown as income from sales and other income. The adjudicating authority found understatement of assessable value on account of failure on the part of the assessee to take into account the additional consideration arising on account of difference in the rates of interest. 4. At the outset, we may point out that in this case the Annual Reports of the assessee show the opening and closing balance of the funds received under the caption Customers Advances. They show deployment of funds so received. The income accruing to the assessee was reflected in profit & loss accounts. For the year ending 31.3.1986 the outstanding balance under the above head was Rs. 33.40 crore out of which Rs. 28.90 crore was invested in various securities / deposits leaving a balance of Rs. 4.42 crore (see Schedule 4). The said schedule further indicates utilization of capital gains and interest income to reduce the liability under the said head. That, the said schedule 4 indicated not only liquidation of liabilities under the head customers advances by utilization of income on investments from such advances, they also indicated flowback of the benefits from the customers to the assessee. Moreover, the income from such investments was shown under the head Sales & Other Income. The said other income included interest on deposits, profit on sale of units and income from units (schedule 10). Even the Report of the Directors under the head Financial Reports show that the profits of the company have been based on implication of Sales with Other Incomes. For example, for the year 1985-86, Sales & Other Incomes were of Rs. 49.20 crores (rounded to O out of which Income from Sales was Rs. 45.02 crore (rounded to O) whereas Rs. 4.06 crore was on account of Other Income. Therefore, according to the adjudicating authority, the total income (Sales & Other Income) contributed to the profits which had a direct impact on pricing. According to the adjudicating authority, the said Other Income had contributed to the pricing. That, but for the said Other Income, it was not possible for the company to sell the motorcycles at a price lower than the unit cost of production. Lastly, the adjudicating authority found on facts that since interest paid at 9% to the customers was indicated as an expense, the income on the investments from the advances was includible in the assessable value. This aspect has also not been considered by the tribunal. ### Response: 1
576	The Management Of Chandramalaiestate, Ernakulam Vs. Its Workmen And Another	case that the workmen were charged only the cost price of rice has rightly been rejected by the Tribunal. The fact that workmen were not compelled to purchase rice from the management is hardly material; the management had opened the shop to help the workmen and if it is found that it charged excess rates, in fairness, the workmen must be reimbursed. The award in so far as it directed refund of the excess amount collected on the basis of the figures found by the Tribunal cannot therefor be successfully challenged. 6. On the question of the cumbly allowance it is important to note that the only defence raised was that the demand had been made too late. The admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmens case that payment of a proper cumbly allowance had become a part of their conditions of service.We do not think that the mere fact that the workmen did not raise any dispute on the managements refusal to implements this condition of service till August 9, 1955, would be a sufficient reason to refuse them such payment. The management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954. They cannot now be heard to say that they should not be asked to pay it merely because the years have already gone by. It is reasonable to think that even though the management did not pay the allowance the workmen had to provide blankets for themselves at their own expense.The Tribunal has acted justly in directing payment of the allowances to the workmen for the years 1949 to 1953. The correctness of the rates awarded by the Tribunal is not challenged before us. The Tribunals award on this issue also is therefore maintained. 7. This brings us to the question whether the tribunal was right in awarding 50 per cent of emoluments to the workmen for the strike period. It is clear that on November 30, 1955, the Union knew that conciliation attempts had failed. The next step would be a report by the Conciliation Officer, of such failure to the Government and it would have been proper and reasonable for the Union to address the Government at the same time and request that a reference should be made to the Industrial Tribunal. The Union however did not choose to wait and after giving notice on December 1, 1955, to the management that it had decided to strike from December 9, 1955, actually started the strike from that day. It has been urged on behalf of the appellant that there was nothing in the nature of the demands to justify such hasty action and in fairness the Union should have taken the normal and reasonable course provided by law by asking the Government to make a reference under the Industrial Disputes Act before is decided to strike. The main demands of the Union were about the cumbly allowance and the price of rice. As regards the cumbly allowance they had said nothing since 1949 when it was first stopped till the Union raised it on August 9, 1955. The grievance for collection of excess price of rice was more recent but even so it was not of such an urgent nature that the interests of labour would have suffered irreparably if the procedure prescribed by law for settlement of such disputes through industrial tribunals was resorted to. After all it is not the employer only who suffers if production is stopped by strikes. While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objets. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases, strike even before such a request has been made may well be justified. The present is not however one of such cases. In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make the reference. They did not wait at all. The conciliation efforts failed on November 30, 1955, and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December, 1955, and on the 9th December, 1955, the workmen actually struck work. The Government appear to have acted quickly and referred the dispute on January 3, 1956. It was after this that the strike was called off. We are unable to see how the strike in such circumstances could be held to be justified. 8. The Tribunal itself appears to have been in two minds on the question. Its conclusion appears to be that the strike though not fully justified, was half justified and half unjustified; we find it difficult to appreciate this curious concept of half justification. In any case, the circumstances of the present case do not support the conclusion that the strike was justified at all.We are bound to hold in view of the circumstances mentioned above that the Tribunal erred in holding that the strike was at least partially justified. The error is so serious that we are bound in the interests of justice to set aside the decision. There is, in our view, no escape from the conclusion that the strike was unjustified and so the workmen are not entitled to any wages for the strike period.	1[ds]We are unable to see anything that would justify us in interfering with these conclusions of facts. Indeed the documents on which the Tribunal has based its conclusion were not even made part of the Paper-Book so that even if we had wanted to consider this question ourselves it would be impossible for us to do so. We are satisfied that the Tribunal was right in its conclusions as regards the cost price of rice to the management and the price actually realised by the management from workmen. The managements case that the workmen were charged only the cost price of rice has rightly been rejected by the Tribunal. The fact that workmen were not compelled to purchase rice from the management is hardly material; the management had opened the shop to help the workmen and if it is found that it charged excess rates, in fairness, the workmen must be reimbursed. The award in so far as it directed refund of the excess amount collected on the basis of the figures found by the Tribunal cannot therefor be successfully challenged6. On the question of the cumbly allowance it is important to note that the only defence raised was that the demand had been made too late. The admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmens case that payment of a proper cumbly allowance had become a part of their conditions of service.We do not think that the mere fact that the workmen did not raise any dispute on the managements refusal to implements this condition of service till August 9, 1955, would be a sufficient reason to refuse them such payment. The management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954. They cannot now be heard to say that they should not be asked to pay it merely because the years have already gone by. It is reasonable to think that even though the management did not pay the allowance the workmen had to provide blankets for themselves at their own expense.The Tribunal has acted justly in directing payment of the allowances to the workmen for the years 1949 to 1953. The correctness of the rates awarded by the Tribunal is not challenged before us. The Tribunals award on this issue also is therefore maintainedThe present is not however one of such cases. In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make the reference. They did not wait at all. The conciliation efforts failed on November 30, 1955, and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December, 1955, and on the 9th December, 1955, the workmen actually struck work. The Government appear to have acted quickly and referred the dispute on January 3, 1956. It was after this that the strike was called off. We are unable to see how the strike in such circumstances could be held to be justified8. The Tribunal itself appears to have been in two minds on the question. Its conclusion appears to be that the strike though not fully justified, was half justified and half unjustified; we find it difficult to appreciate this curious concept of half justification. In any case, the circumstances of the present case do not support the conclusion that the strike was justified at all.We are bound to hold in view of the circumstances mentioned above that the Tribunal erred in holding that the strike was at least partially justified. The error is so serious that we are bound in the interests of justice to set aside the decision. There is, in our view, no escape from the conclusion that the strike was unjustified and so the workmen are not entitled to any wages for the strike period.	1	2,056	### 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: case that the workmen were charged only the cost price of rice has rightly been rejected by the Tribunal. The fact that workmen were not compelled to purchase rice from the management is hardly material; the management had opened the shop to help the workmen and if it is found that it charged excess rates, in fairness, the workmen must be reimbursed. The award in so far as it directed refund of the excess amount collected on the basis of the figures found by the Tribunal cannot therefor be successfully challenged. 6. On the question of the cumbly allowance it is important to note that the only defence raised was that the demand had been made too late. The admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmens case that payment of a proper cumbly allowance had become a part of their conditions of service.We do not think that the mere fact that the workmen did not raise any dispute on the managements refusal to implements this condition of service till August 9, 1955, would be a sufficient reason to refuse them such payment. The management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954. They cannot now be heard to say that they should not be asked to pay it merely because the years have already gone by. It is reasonable to think that even though the management did not pay the allowance the workmen had to provide blankets for themselves at their own expense.The Tribunal has acted justly in directing payment of the allowances to the workmen for the years 1949 to 1953. The correctness of the rates awarded by the Tribunal is not challenged before us. The Tribunals award on this issue also is therefore maintained. 7. This brings us to the question whether the tribunal was right in awarding 50 per cent of emoluments to the workmen for the strike period. It is clear that on November 30, 1955, the Union knew that conciliation attempts had failed. The next step would be a report by the Conciliation Officer, of such failure to the Government and it would have been proper and reasonable for the Union to address the Government at the same time and request that a reference should be made to the Industrial Tribunal. The Union however did not choose to wait and after giving notice on December 1, 1955, to the management that it had decided to strike from December 9, 1955, actually started the strike from that day. It has been urged on behalf of the appellant that there was nothing in the nature of the demands to justify such hasty action and in fairness the Union should have taken the normal and reasonable course provided by law by asking the Government to make a reference under the Industrial Disputes Act before is decided to strike. The main demands of the Union were about the cumbly allowance and the price of rice. As regards the cumbly allowance they had said nothing since 1949 when it was first stopped till the Union raised it on August 9, 1955. The grievance for collection of excess price of rice was more recent but even so it was not of such an urgent nature that the interests of labour would have suffered irreparably if the procedure prescribed by law for settlement of such disputes through industrial tribunals was resorted to. After all it is not the employer only who suffers if production is stopped by strikes. While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objets. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases, strike even before such a request has been made may well be justified. The present is not however one of such cases. In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make the reference. They did not wait at all. The conciliation efforts failed on November 30, 1955, and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December, 1955, and on the 9th December, 1955, the workmen actually struck work. The Government appear to have acted quickly and referred the dispute on January 3, 1956. It was after this that the strike was called off. We are unable to see how the strike in such circumstances could be held to be justified. 8. The Tribunal itself appears to have been in two minds on the question. Its conclusion appears to be that the strike though not fully justified, was half justified and half unjustified; we find it difficult to appreciate this curious concept of half justification. In any case, the circumstances of the present case do not support the conclusion that the strike was justified at all.We are bound to hold in view of the circumstances mentioned above that the Tribunal erred in holding that the strike was at least partially justified. The error is so serious that we are bound in the interests of justice to set aside the decision. There is, in our view, no escape from the conclusion that the strike was unjustified and so the workmen are not entitled to any wages for the strike period. ### Response: 1
577	Jai Mahal Hotels Pvt. Ltd Vs. Rajkumar Devraj	the exercise of jurisdiction by the High Court is beyond the scope of Section 111 of the Companies Act. 15. We are of the opinion that there is no real dispute between the parties as held by the High Court. DR Group has furnished the succession certificate as well as the transfer deed executed by GD in their favour. The same had to be acted upon. Moreover, the civil court in interim application moved by the UD Group held that the UD Group had no prima facie case. The said order was required to be acted upon subject to any further order that may be passed in any pending proceedings between the parties. There is no conflicting order of any court or authority. There is thus, no complicated question of title. Moreover, there is no bar to adjudication for purposes of transfer of shares unless the court finds otherwise. The stay order obtained by GD herself could not debar her from making a statement to settle the matter. The judgments relied upon by the appellants have no application to such a fact situation. 16. In Ammonia (supra), the scope of jurisdiction of the Company Court to deal with an issue of rectification in the Register of Members maintained by the Company was considered. Following Public Passenger Service Ltd. vs. M.A. Khadar (AIR 1966 SC 489 ), it was held that jurisdiction under Section 155 was summary in nature. If for reasons of complexity or otherwise, the matter could be more conveniently decided in a suit, the Court may relegate the parties to such remedy. Subject to the said limitation, jurisdiction to deal with such matter is exclusively with the Company Court. It was observed : “31. ……..It cannot be doubted that in spite of exclusiveness to decide all matters pertaining to the rectification it has to act within the said four corners and adjudication of such matters cannot be doubted to be summary in nature. So, whenever a question is raised the court has to adjudicate on the facts and circumstances of each case. If it truly is rectification, all matters raised in that connection should be decided by the court under Section 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by a civil court. Unless jurisdiction is expressly or implicitly barred under a statute, for violation or redress of any such right the civil court would have jurisdiction. ……..” 17. Thus, there is a thin line in appreciating the scope of jurisdiction of the Company Court/Company Law Board. The jurisdiction is exclusive if the matter truly relates to rectification but if the issue is alien to rectification, such matter may not be within the exclusive jurisdiction of the Company Court/Company Law Board. 18. In Standard Chartered Bank (supra), scope of Section 111(7) was considered. It was observed that jurisdiction being summary in nature, a seriously disputed question of title could be left to be decided by the civil court. It was observed : “29 ……The nature of proceedings under Section 111 are slightly different from a title suit, although, sub-section (7) of Section 111 gives to the Tribunal the jurisdiction to decide any question relating to the title of any person who is a party to the application, to have his name entered in or omitted from the register and also the general jurisdiction to decide any question which it is necessary or expedient to decide in connection with such an application. It has been held in Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd. that the jurisdiction exercised by the Company Court under Section 155 of the Companies Act, 1956 (corresponding to Section 111 of the present Act, before its amendment by Act 31 of 1988) was somewhat summary in nature and that if a seriously disputed question of title arose, the Company Court should relegate the parties to a suit, which was the more appropriate remedy for investigation and adjudication of such seriously disputed question of title.” 19. In Luxmi Tea Company Limited and Bajaj Auto Ltd. (supra), it was observed that a company did not have any discretion in rectifying its register except to require the procedure being followed.20. In the present case, as already observed, there is no real dispute between the parties. The DR Group followed the due procedure. It had the succession certificate in its favour apart from the transfer deed from GD, who admittedly inherited rights from LMJS. Will in favour of GD is beyond any dispute. Thus, the DR Group derived rights from the GD by documents executed by her in her lifetime and conveyed to the Company. Even if the Will of GD is not taken into account, for purposes of issue of rectification, the documents executed by GD clearly entitled the DR Group to have the rectification made.21. The decisions in Mulraj, Manohar Lal, Ajudh Raj and Chiranjilal Shrilal Goenka (supra) are of no relevance to a situation where the beneficiary of the interim order itself opts to proceed with the matter in respect of which stay is granted by higher Court. In the present case, GD having settled the matter and having herself sought rectification, the interim order granted at her instance could be no bar against the DR Group. The decisions sought are thus, of no relevance to such a situation.22. We sum up our conclusions as follows : (i) LMJS executed will in favour of his mother – GD which is not in dispute;(ii) GD and DR jointly obtained succession certificate;(iii) GD signed the transfer deeds and communicated the same to the Board of Directors; and(iv) The civil court vide order dated 28th July, 1991 declined to grant temporary injunction finding no prima facie case against the succession certificate. 23. In above circumstances, even in summary jurisdiction, the CLB had no justification to reject the claim of the DR Group. The High Court rightly reversed the said order.	0[ds]15. We are of the opinion that there is no real dispute between the parties as held by the High Court. DR Group has furnished the succession certificate as well as the transfer deed executed by GD in their favour. The same had to be acted upon. Moreover, the civil court in interim application moved by the UD Group held that the UD Group had no prima facie case. The said order was required to be acted upon subject to any further order that may be passed in any pending proceedings between the parties. There is no conflicting order of any court or authority. There is thus, no complicated question of title. Moreover, there is no bar to adjudication for purposes of transfer of shares unless the court finds otherwise. The stay order obtained by GD herself could not debar her from making a statement to settle the matter. The judgments relied upon by the appellants have no application to such a fact situation.Thus, there is a thin line in appreciating the scope of jurisdiction of the Company Court/Company Law Board. The jurisdiction is exclusive if the matter truly relates to rectification but if the issue is alien to rectification, such matter may not be within the exclusive jurisdiction of the Company Court/Company Law Board.In Luxmi Tea Company Limited and Bajaj Auto Ltd. (supra), it was observed that a company did not have any discretion in rectifying its register except to require the procedure being followed.20. In the present case, as already observed, there is no real dispute between the parties. The DR Group followed the due procedure. It had the succession certificate in its favour apart from the transfer deed from GD, who admittedly inherited rights from LMJS. Will in favour of GD is beyond any dispute. Thus, the DR Group derived rights from the GD by documents executed by her in her lifetime and conveyed to the Company. Even if the Will of GD is not taken into account, for purposes of issue of rectification, the documents executed by GD clearly entitled the DR Group to have the rectification made.21. The decisions in Mulraj, Manohar Lal, Ajudh Raj and Chiranjilal Shrilal Goenka (supra) are of no relevance to a situation where the beneficiary of the interim order itself opts to proceed with the matter in respect of which stay is granted by higher Court. In the present case, GD having settled the matter and having herself sought rectification, the interim order granted at her instance could be no bar against the DR Group. The decisions sought are thus, of no relevance to such a situation.22. We sum up our conclusions as followsLMJS executed will in favour of his mother – GD which is not in dispute;(ii) GD and DR jointly obtained succession certificate;(iii) GD signed the transfer deeds and communicated the same to the Board of Directors; and(iv) The civil court vide order dated 28th July, 1991 declined to grant temporary injunction finding no prima facie case against the succession certificate.In above circumstances, even in summary jurisdiction, the CLB had no justification to reject the claim of the DR Group. The High Court rightly reversed the said order.	0	4,184	### 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: the exercise of jurisdiction by the High Court is beyond the scope of Section 111 of the Companies Act. 15. We are of the opinion that there is no real dispute between the parties as held by the High Court. DR Group has furnished the succession certificate as well as the transfer deed executed by GD in their favour. The same had to be acted upon. Moreover, the civil court in interim application moved by the UD Group held that the UD Group had no prima facie case. The said order was required to be acted upon subject to any further order that may be passed in any pending proceedings between the parties. There is no conflicting order of any court or authority. There is thus, no complicated question of title. Moreover, there is no bar to adjudication for purposes of transfer of shares unless the court finds otherwise. The stay order obtained by GD herself could not debar her from making a statement to settle the matter. The judgments relied upon by the appellants have no application to such a fact situation. 16. In Ammonia (supra), the scope of jurisdiction of the Company Court to deal with an issue of rectification in the Register of Members maintained by the Company was considered. Following Public Passenger Service Ltd. vs. M.A. Khadar (AIR 1966 SC 489 ), it was held that jurisdiction under Section 155 was summary in nature. If for reasons of complexity or otherwise, the matter could be more conveniently decided in a suit, the Court may relegate the parties to such remedy. Subject to the said limitation, jurisdiction to deal with such matter is exclusively with the Company Court. It was observed : “31. ……..It cannot be doubted that in spite of exclusiveness to decide all matters pertaining to the rectification it has to act within the said four corners and adjudication of such matters cannot be doubted to be summary in nature. So, whenever a question is raised the court has to adjudicate on the facts and circumstances of each case. If it truly is rectification, all matters raised in that connection should be decided by the court under Section 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by a civil court. Unless jurisdiction is expressly or implicitly barred under a statute, for violation or redress of any such right the civil court would have jurisdiction. ……..” 17. Thus, there is a thin line in appreciating the scope of jurisdiction of the Company Court/Company Law Board. The jurisdiction is exclusive if the matter truly relates to rectification but if the issue is alien to rectification, such matter may not be within the exclusive jurisdiction of the Company Court/Company Law Board. 18. In Standard Chartered Bank (supra), scope of Section 111(7) was considered. It was observed that jurisdiction being summary in nature, a seriously disputed question of title could be left to be decided by the civil court. It was observed : “29 ……The nature of proceedings under Section 111 are slightly different from a title suit, although, sub-section (7) of Section 111 gives to the Tribunal the jurisdiction to decide any question relating to the title of any person who is a party to the application, to have his name entered in or omitted from the register and also the general jurisdiction to decide any question which it is necessary or expedient to decide in connection with such an application. It has been held in Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd. that the jurisdiction exercised by the Company Court under Section 155 of the Companies Act, 1956 (corresponding to Section 111 of the present Act, before its amendment by Act 31 of 1988) was somewhat summary in nature and that if a seriously disputed question of title arose, the Company Court should relegate the parties to a suit, which was the more appropriate remedy for investigation and adjudication of such seriously disputed question of title.” 19. In Luxmi Tea Company Limited and Bajaj Auto Ltd. (supra), it was observed that a company did not have any discretion in rectifying its register except to require the procedure being followed.20. In the present case, as already observed, there is no real dispute between the parties. The DR Group followed the due procedure. It had the succession certificate in its favour apart from the transfer deed from GD, who admittedly inherited rights from LMJS. Will in favour of GD is beyond any dispute. Thus, the DR Group derived rights from the GD by documents executed by her in her lifetime and conveyed to the Company. Even if the Will of GD is not taken into account, for purposes of issue of rectification, the documents executed by GD clearly entitled the DR Group to have the rectification made.21. The decisions in Mulraj, Manohar Lal, Ajudh Raj and Chiranjilal Shrilal Goenka (supra) are of no relevance to a situation where the beneficiary of the interim order itself opts to proceed with the matter in respect of which stay is granted by higher Court. In the present case, GD having settled the matter and having herself sought rectification, the interim order granted at her instance could be no bar against the DR Group. The decisions sought are thus, of no relevance to such a situation.22. We sum up our conclusions as follows : (i) LMJS executed will in favour of his mother – GD which is not in dispute;(ii) GD and DR jointly obtained succession certificate;(iii) GD signed the transfer deeds and communicated the same to the Board of Directors; and(iv) The civil court vide order dated 28th July, 1991 declined to grant temporary injunction finding no prima facie case against the succession certificate. 23. In above circumstances, even in summary jurisdiction, the CLB had no justification to reject the claim of the DR Group. The High Court rightly reversed the said order. ### Response: 0
578	Bengal Nagpur Cotton Mills Vs. Board Of Revenue, Madhya Pradesh & Ors	ratio of the case was that one sovereign could not bind another sovereign.No doubt, the decision was also rested on this aspect of the case but it was quite clearly laid down in the case that an agreement cannot rank as a law enacted by the Ruler. The consensual aspect of the document there considered was pointed out in Umaid Mills case, C. A. No. 214 of 1956 and 399 of 1960 D/- 27-11-1962: (AIR 1963 SC 953 ). It is plain that an agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law must follow the customary forms of law-making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form. It is not every indication of the will of the Ruler, however expressed which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion results in a law but not an agreement to which there are two parties, one of which is the Ruler.7. Judged from this angle, it is quite obvious that the document of 1943, was merely in tended to bind consensually and not by a dictate of the Ruler. The Ruler bound himself in consideration of certain advantages promised to him by the mill. The document is not worded as a law is ordinarily expected to be. It records a contract and part III where the concessions occur is also worded as a contract and uses language familiar in agreements between two parties dealing with each other at arms length. It is not necessary to refer in detail to part III, but the words."And the Darbar in consideration of the relief given to it by the Company by reason of the modification in the Principal Agreement as stated above hereby declares that the Darbar will at all times hereafter as hitherto use its power and authority in maintaining and protecting the company under its special favour and hereby confirms the privileges and rights heretofore enjoyed by the Company and in particular the Darbar with the intent to bind the Chief for the time being thereof hereby covenants with the company as follows" etc.,indicate that the Darbar was binding itself in consideration of certain acts done by the appellant-company in the past, and others, which the appellant-company undertook to perform in the future.This document, therefore, is of the same character as the one which was considered in Umaid Mills case C. A. Nos. 214 of 1956 and 399 of 1960 D/- 27-11-1962 : (AIR 1963 SC 953 ) where the sovereign expressed himself not in a rule of law but in an agreement. The present document stands distinguished from the Kalambandis which not only ordered that the pensions were to be paid but also laid down the rules of succession to the privileges and the kind of tenure which the holders for the time being were to enjoy.We are, therefore, satisfied that in the present case, the agreements culminating in the agreement of 1943, cannot be regarded as law but must be regarded only as agreements which might have bound the sovereign as a contracting party but not the Municipal Committee."8. The Municipal Committee had already imposed octroi in the State but the ruler ordered the Municipal Committee not to collect the dues from the appellant-company because of the agreement. No doubt, the Dewan who entered into the agreement of 1943, was also the local government and the Chief Officer of the Municipality, but the capacity of the Dewan in entering the agreement was different from his capacity as the head of the Municipality or as the local government of Nandgaon State. His action as the Dewan in foregoing the collection of octroi was not anything he did on behalf of the Municipality but on behalf of the sovereign. The resulting position, thus, was that the sovereign did not collect octroi from the appellant company because of the agreement, and the Municipal Committees rules and bye-laws, though they applied to the appellant company, remained in suspense because of the Rulers desire. After the State merged with the State of Madhya Pradesh and the Municipal Committee was not controlled in any ways by Ruler or by his agreement, the imposition of octroi upon the appellant company which was in suspense, began to take effect from such date as the Municipal Committee chose to determine. The Municipal Committee ceased to be subject to the wish of the Ruler after the merger, and for a time it did not collect octroi from the appellant company because the succeeding Government was accepting the royalty. In 1952, the Municipal Committee resolved to recover octroi from the appellant-company in accordance with the original imposition of the tax in the State and there was nothing which stood in the way of the Committee. The resolution was neither a fresh imposition of octroi because it had already been imposed nor the cancellation of an exemption because the Municipal Committee had not granted an exemption to the appellant-company. The resolution only indicated that on and from a particular date, the Municipal Committee would recover octroi which it had already imposed a long time ago upon all and sundry and to which the appellant-company was also subject and which was no longer affected by the will of the quondam sovereign. The agreement of the Ruler bound the Municipal Committee only indirectly, because the Ruler to whom the amount recovered would have gone, had agreed to forgo it, but the Rulers desire that octroi should not be collected ceased to operate from the moment he ceased to be the Ruler.9. The Resolution of the Municipal Committee was thus in order and the demand was rightly made. The point about limitation was properly abandoned because it has no substance.	0[ds]8. The Municipal Committee had already imposed octroi in the State but the ruler ordered the Municipal Committee not to collect the dues from the appellant-company because of the agreement. No doubt, the Dewan who entered into the agreement of 1943, was also the local government and the Chief Officer of the Municipality, but the capacity of the Dewan in entering the agreement was different from his capacity as the head of the Municipality or as the local government of Nandgaon State. His action as the Dewan in foregoing the collection of octroi was not anything he did on behalf of the Municipality but on behalf of the sovereign. The resulting position, thus, was that the sovereign did not collect octroi from the appellant company because of the agreement, and the Municipal Committees rules and bye-laws, though they applied to the appellant company, remained in suspense because of the Rulers desire. After the State merged with the State of Madhya Pradesh and the Municipal Committee was not controlled in any ways by Ruler or by his agreement, the imposition of octroi upon the appellant company which was in suspense, began to take effect from such date as the Municipal Committee chose to determine. The Municipal Committee ceased to be subject to the wish of the Ruler after the merger, and for a time it did not collect octroi from the appellant company because the succeeding Government was accepting the royalty. In 1952, the Municipal Committee resolved to recover octroi from the appellant-company in accordance with the original imposition of the tax in the State and there was nothing which stood in the way of the Committee. The resolution was neither a fresh imposition of octroi because it had already been imposed nor the cancellation of an exemption because the Municipal Committee had not granted an exemption to the appellant-company. The resolution only indicated that on and from a particular date, the Municipal Committee would recover octroi which it had already imposed a long time ago upon all and sundry and to which the appellant-company was also subject and which was no longer affected by the will of the quondam sovereign. The agreement of the Ruler bound the Municipal Committee only indirectly, because the Ruler to whom the amount recovered would have gone, had agreed to forgo it, but the Rulers desire that octroi should not be collected ceased to operate from the moment he ceased to be the Ruler.9. The Resolution of the Municipal Committee was thus in order and the demand was rightly made. The point about limitation was properly abandoned because it has no substance.	0	3,144	### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: ratio of the case was that one sovereign could not bind another sovereign.No doubt, the decision was also rested on this aspect of the case but it was quite clearly laid down in the case that an agreement cannot rank as a law enacted by the Ruler. The consensual aspect of the document there considered was pointed out in Umaid Mills case, C. A. No. 214 of 1956 and 399 of 1960 D/- 27-11-1962: (AIR 1963 SC 953 ). It is plain that an agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law must follow the customary forms of law-making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form. It is not every indication of the will of the Ruler, however expressed which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion results in a law but not an agreement to which there are two parties, one of which is the Ruler.7. Judged from this angle, it is quite obvious that the document of 1943, was merely in tended to bind consensually and not by a dictate of the Ruler. The Ruler bound himself in consideration of certain advantages promised to him by the mill. The document is not worded as a law is ordinarily expected to be. It records a contract and part III where the concessions occur is also worded as a contract and uses language familiar in agreements between two parties dealing with each other at arms length. It is not necessary to refer in detail to part III, but the words."And the Darbar in consideration of the relief given to it by the Company by reason of the modification in the Principal Agreement as stated above hereby declares that the Darbar will at all times hereafter as hitherto use its power and authority in maintaining and protecting the company under its special favour and hereby confirms the privileges and rights heretofore enjoyed by the Company and in particular the Darbar with the intent to bind the Chief for the time being thereof hereby covenants with the company as follows" etc.,indicate that the Darbar was binding itself in consideration of certain acts done by the appellant-company in the past, and others, which the appellant-company undertook to perform in the future.This document, therefore, is of the same character as the one which was considered in Umaid Mills case C. A. Nos. 214 of 1956 and 399 of 1960 D/- 27-11-1962 : (AIR 1963 SC 953 ) where the sovereign expressed himself not in a rule of law but in an agreement. The present document stands distinguished from the Kalambandis which not only ordered that the pensions were to be paid but also laid down the rules of succession to the privileges and the kind of tenure which the holders for the time being were to enjoy.We are, therefore, satisfied that in the present case, the agreements culminating in the agreement of 1943, cannot be regarded as law but must be regarded only as agreements which might have bound the sovereign as a contracting party but not the Municipal Committee."8. The Municipal Committee had already imposed octroi in the State but the ruler ordered the Municipal Committee not to collect the dues from the appellant-company because of the agreement. No doubt, the Dewan who entered into the agreement of 1943, was also the local government and the Chief Officer of the Municipality, but the capacity of the Dewan in entering the agreement was different from his capacity as the head of the Municipality or as the local government of Nandgaon State. His action as the Dewan in foregoing the collection of octroi was not anything he did on behalf of the Municipality but on behalf of the sovereign. The resulting position, thus, was that the sovereign did not collect octroi from the appellant company because of the agreement, and the Municipal Committees rules and bye-laws, though they applied to the appellant company, remained in suspense because of the Rulers desire. After the State merged with the State of Madhya Pradesh and the Municipal Committee was not controlled in any ways by Ruler or by his agreement, the imposition of octroi upon the appellant company which was in suspense, began to take effect from such date as the Municipal Committee chose to determine. The Municipal Committee ceased to be subject to the wish of the Ruler after the merger, and for a time it did not collect octroi from the appellant company because the succeeding Government was accepting the royalty. In 1952, the Municipal Committee resolved to recover octroi from the appellant-company in accordance with the original imposition of the tax in the State and there was nothing which stood in the way of the Committee. The resolution was neither a fresh imposition of octroi because it had already been imposed nor the cancellation of an exemption because the Municipal Committee had not granted an exemption to the appellant-company. The resolution only indicated that on and from a particular date, the Municipal Committee would recover octroi which it had already imposed a long time ago upon all and sundry and to which the appellant-company was also subject and which was no longer affected by the will of the quondam sovereign. The agreement of the Ruler bound the Municipal Committee only indirectly, because the Ruler to whom the amount recovered would have gone, had agreed to forgo it, but the Rulers desire that octroi should not be collected ceased to operate from the moment he ceased to be the Ruler.9. The Resolution of the Municipal Committee was thus in order and the demand was rightly made. The point about limitation was properly abandoned because it has no substance. ### Response: 0
579	Elson Machines (P) Ltd Vs. Collector Of Central Excise	appellant and imposed the demand. On appeal the Collector of Central Excise (Appeals) set aside the demand for the period April 1, 1980 to November 30, 1980, but the upheld the demand for the period April 1, 1981 to September 30, 1981. In the further appeal before the Customs, Excise and Gold Control Appellate Tribunal the entire question was whether the appellant had exceeded the limit of Rs. 15 lakhs when effecting clearance during the financial year 1980-81 and was, therefore, not entitled to exemption for the period April 1, 1981 to September 30, 1981. 5. For the financial year April 1, 1980 to March 31, 1981 the appellant had disclosed a clearance value of Rs. 13, 43, 443.55 on account of electric motors for home consumption and a clearance value of Rs. 6, 51, 138.50 on account of electric motors "for captive consumption" in the manufacture of monoblock pumps. It was contended by the appellant that the electric motors used for making monoblock pumps could not be taken into consideration when calculating the clearances eligible under the notification. According to the appellant the captive consumption did not amount to clearance. The claim was disputed by the department, which relied on Explanation 5 to the aforesaid notification dated June 19, 1980. The Explanation declared- Explanation 5. - Where any specified goods (hereinafter referred to as inputs) are used for further manufacture of specified goods (hereinafter referred to as finished goods) within the factory of production of inputs and where such inputs and finished goods fall under the same item of the said First Schedule to the said Act, the clearances of such inputs for such use shall not be taken into account for the purposes of calculating the aggregate value of clearances under this notification. 6. The Appellate Tribunal observed that in terms of the Explanation the clearances of inputs could not be taken into account for calculating the aggregate value of clearances only when the inputs and finished products fall under the same item of the First Schedule to the Act. It pointed out that while electric motors were mentioned under tariff item 30, power driven pumps were specified under tariff item 30-A. It said that consequently the electric motors captively consumed as inputs in the manufacture of power driven pumps could not be excluded when determining the appellants clearances. The appellant urged that the appellant had mistakenly stated that electric motors had been used for monoblock pumps whereas only rotors and stators which were integral components of monoblock pumps had been used, and that, therefore, the same tariff item was attracted, thus entitling the appellants to the concession. The submission was rejected by the Appellate Tribunal. Accordingly, it found that the appellant had exceeded the limit stipulated by Notification No. 80/80-C. E. dated June 19, 1980, and was, therefore, disentitled to the concession. 7. It is contended before us that the Appellate Tribunal erred in rejecting the submission of the appellant that the goods manufactured by the appellant did not entitle it to the benefit of Explanation 5 of the notification. It is urged that the goods in question were rotors and stators, that they were integral components of monoblock motors and could not be considered as components of general purpose motors and therefore fell within the same tariff item as monoblock pumps. The question has been considered by the Appellate Tribunal. It is a question of fact and we do not propose to entertain it at this stage. 8. It is then urged that stators and rotors should be considered under tariff item 68, which is a residuary item. The Appellate Tribunal has proceeded on the basis that what was manufactured by the appellant were electric motors. It is only in the alternative that it considered the submission of the appellant that the goods should be regarded as rotors and stators. In the circumstances recourse cannot be had to tariff item 68 by the appellant. 9. The next contention is that the goods in question cannot be said to have been cleared from the factory and therefore could not be included within the value of the clearances from the factory. The submission is that the goods were employed in the manufacture of monoblock pumps within the factory itself. We are not impressed by this contention. As soon as the manufacture of the goods was completed they must be regarded as goods available for clearance from the factory, and there is nothing to show that when fitted into monoblock pumps they were not removed to another part of the factory for that purpose. The process of manufacture of those goods is distinct, separate and complete in itself and at the end of the manufacturing process, the goods in question represent a completed product. 10. The next submission on behalf of the appellant is that the classification lists had been approved earlier and the excise authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected. 11. Finally it is pointed out by counsel for the appellant that no recovery has been made by the appellant from its constituents and therefore, it is said, the demand should be set aside. Reference is made to Collector of Customs and Central Excise v. Oriental Timber Industries. We have perused the facts of that case and we find that the order made by the court there, so far as this aspect is concerned, was made on a concession of counsel for the Union of India and on the footing that the Union of India was not concerned with the collection of additional duty for earlier years but was merely concerned with the question of law involved in the case. We are also not satisfied that the facts upon which relief was granted in that case arise before us in this case.	0[ds]The submission is that the goods were employed in the manufacture of monoblock pumps within the factory itself. We are not impressed by this contention. As soon as the manufacture of the goods was completed they must be regarded as goods available for clearance from the factory, and there is nothing to show that when fitted into monoblock pumps they were not removed to another part of the factory for that purpose. The process of manufacture of those goods is distinct, separate and complete in itself and at the end of the manufacturing process, the goods in question represent a completedThe next submission on behalf of the appellant is that the classification lists had been approved earlier and the excise authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must beFinally it is pointed out by counsel for the appellant that no recovery has been made by the appellant from its constituents and therefore, it is said, the demand should be set aside. Reference is made to Collector of Customs and Central Excise v. Oriental Timber Industries. We have perused the facts of that case and we find that the order made by the court there, so far as this aspect is concerned, was made on a concession of counsel for the Union of India and on the footing that the Union of India was not concerned with the collection of additional duty for earlier years but was merely concerned with the question of law involved in the case. We are also not satisfied that the facts upon which relief was granted in that case arise before us in this	0	1,502	### 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: appellant and imposed the demand. On appeal the Collector of Central Excise (Appeals) set aside the demand for the period April 1, 1980 to November 30, 1980, but the upheld the demand for the period April 1, 1981 to September 30, 1981. In the further appeal before the Customs, Excise and Gold Control Appellate Tribunal the entire question was whether the appellant had exceeded the limit of Rs. 15 lakhs when effecting clearance during the financial year 1980-81 and was, therefore, not entitled to exemption for the period April 1, 1981 to September 30, 1981. 5. For the financial year April 1, 1980 to March 31, 1981 the appellant had disclosed a clearance value of Rs. 13, 43, 443.55 on account of electric motors for home consumption and a clearance value of Rs. 6, 51, 138.50 on account of electric motors "for captive consumption" in the manufacture of monoblock pumps. It was contended by the appellant that the electric motors used for making monoblock pumps could not be taken into consideration when calculating the clearances eligible under the notification. According to the appellant the captive consumption did not amount to clearance. The claim was disputed by the department, which relied on Explanation 5 to the aforesaid notification dated June 19, 1980. The Explanation declared- Explanation 5. - Where any specified goods (hereinafter referred to as inputs) are used for further manufacture of specified goods (hereinafter referred to as finished goods) within the factory of production of inputs and where such inputs and finished goods fall under the same item of the said First Schedule to the said Act, the clearances of such inputs for such use shall not be taken into account for the purposes of calculating the aggregate value of clearances under this notification. 6. The Appellate Tribunal observed that in terms of the Explanation the clearances of inputs could not be taken into account for calculating the aggregate value of clearances only when the inputs and finished products fall under the same item of the First Schedule to the Act. It pointed out that while electric motors were mentioned under tariff item 30, power driven pumps were specified under tariff item 30-A. It said that consequently the electric motors captively consumed as inputs in the manufacture of power driven pumps could not be excluded when determining the appellants clearances. The appellant urged that the appellant had mistakenly stated that electric motors had been used for monoblock pumps whereas only rotors and stators which were integral components of monoblock pumps had been used, and that, therefore, the same tariff item was attracted, thus entitling the appellants to the concession. The submission was rejected by the Appellate Tribunal. Accordingly, it found that the appellant had exceeded the limit stipulated by Notification No. 80/80-C. E. dated June 19, 1980, and was, therefore, disentitled to the concession. 7. It is contended before us that the Appellate Tribunal erred in rejecting the submission of the appellant that the goods manufactured by the appellant did not entitle it to the benefit of Explanation 5 of the notification. It is urged that the goods in question were rotors and stators, that they were integral components of monoblock motors and could not be considered as components of general purpose motors and therefore fell within the same tariff item as monoblock pumps. The question has been considered by the Appellate Tribunal. It is a question of fact and we do not propose to entertain it at this stage. 8. It is then urged that stators and rotors should be considered under tariff item 68, which is a residuary item. The Appellate Tribunal has proceeded on the basis that what was manufactured by the appellant were electric motors. It is only in the alternative that it considered the submission of the appellant that the goods should be regarded as rotors and stators. In the circumstances recourse cannot be had to tariff item 68 by the appellant. 9. The next contention is that the goods in question cannot be said to have been cleared from the factory and therefore could not be included within the value of the clearances from the factory. The submission is that the goods were employed in the manufacture of monoblock pumps within the factory itself. We are not impressed by this contention. As soon as the manufacture of the goods was completed they must be regarded as goods available for clearance from the factory, and there is nothing to show that when fitted into monoblock pumps they were not removed to another part of the factory for that purpose. The process of manufacture of those goods is distinct, separate and complete in itself and at the end of the manufacturing process, the goods in question represent a completed product. 10. The next submission on behalf of the appellant is that the classification lists had been approved earlier and the excise authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected. 11. Finally it is pointed out by counsel for the appellant that no recovery has been made by the appellant from its constituents and therefore, it is said, the demand should be set aside. Reference is made to Collector of Customs and Central Excise v. Oriental Timber Industries. We have perused the facts of that case and we find that the order made by the court there, so far as this aspect is concerned, was made on a concession of counsel for the Union of India and on the footing that the Union of India was not concerned with the collection of additional duty for earlier years but was merely concerned with the question of law involved in the case. We are also not satisfied that the facts upon which relief was granted in that case arise before us in this case. ### Response: 0
580	Ram Swarup Vs. Hari Ram and Others	PATHAK, J.1. The appellant was elected to the Nagal constituency of U. P. Legislative Assembly and was declared elected on June 1, 1980. The respondent Hari Ram filed an election petition against the election of the appellant and the High Court, by its judgment and order dated March 3, 1982 declared the election void. The High Court found that the appellant had continued to hold the office of District Extension Educator (Family Planning), an office of profit under the State Government, up to the date fixed for scrutiny of the nomination papers and, therefore, he was disqualified from being elected as a member of the Legislative Assembly. Holding that the acceptance of his nomination paper amounted to non-compliance with the provision of the Constitution it set aside the election under Section 100 (1) (d) (iv) of the Representation of the People Act, 1951.2. In this appeal, the appellant contends that the High Court erred in holding that he was disqualified. In our opinion, the appellant is right. Article 191 (1) (a) of the Constitution declares that a person shall be disqualified for being chosen as, and for being, a member of Legislative Assembly if he holds any office of profit under the Government of a State other than an office declared by the legislature of the State by law not to disqualify its holder. It is not disputed that the post of District Extension Educator (Family Planning) is an office of profit under the Government of Uttar Pradesh, the holding of which would disqualify the incumbent from election to the Legislative Assembly. Section 36 (2) (a) of the Representation of the People Act, 1951 indicates that the candidate should not be holding an office of profit on the date fixed for scrutiny of nominations. The question is whether the appellant was holding an office of profit and was disqualified from election by reason of Section 36 (2) (a).3. On April 20, 1980 the appellant wrote to the Additional Director and State Family Welfare, Officer, Uttar Pradesh, Lucknow stating that he was unable to continue in government service and requesting that his resignation be accepted with effect from April 30, 1980 and that he should be relieved with effect from that date. The letter of resignation was forwarded to the Additional Director-cum-state Family Welfare Officer with the recommendation of the Medical Officer, Saharanpur for acceptance of the resignation. On May 2, 1980 the Additional Director-cum-State Family Welfare Officer wrote back to the Chief Medical Officer, Saharanpur stating that the resignation of the appellant was accepted with effect from April 30, 1980 with the stipulation that the appellant must pay one months salary in lieu of notice.4. It appears that on May 3, 1980 the sum of Rs 500 representing a months salary was deposited by the appellant and on the same date he handed over charge of his office. The appellant had already filed his nomination paper on May 2, 1980 and on May 3, 1980, the date fixed for the scrutiny of the nominations, the appellant produced a receipt in proof of his having deposited a months salary. We may assume that notwithstanding that the letter of the Additional Director-cum-State Family Welfare Officer stated that on the appellant paying one months salary in lieu of notice his resignation would be regarded as accepted with effect from April 30, 1980, in point of law the resignation should be deemed effective only from the time when he made payment of one months salary. The payment was made, it is apparent, on May 3, 1980 but well before the time when the Returning Officer commenced the examination of the nomination papers. Section 36 (2) (a) of the Representation of the People Act, 1951 provides that the Returning Officer may reject any nomination on the ground :(a) that on the date fixed for the scrutiny of nominations of candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :Articles 84, 102, 173 and 191.* * *To our mind, according to the scheme for the conduct of elections the candidate should not be not qualified or disqualified when the scrutiny of nominations is taken up by the Returning Officer for the purpose of finalising the list of nominated candidates. This, in our opinion, is the proper construction to put on the words "the date fixed for the scrutiny of nominations". A broad and liberal interpretation must be given to Section 36 (2) (a) in order to give full effect to the Parliamentary intent. Accordingly, we hold that as the resignation of the appellant must be treated as having taken effect before the scrutiny of the nominations was commenced, the appellant cannot be regarded as holding an office of profit at the relevant time.	1[ds]In our opinion, the appellant is right. Article 191 (1) (a) of the Constitution declares that a person shall be disqualified for being chosen as, and for being, a member of Legislative Assembly if he holds any office of profit under the Government of a State other than an office declared by the legislature of the State by law not to disqualify its holder. It is not disputed that the post of District Extension Educator (Family Planning) is an office of profit under the Government of Uttar Pradesh, the holding of which would disqualify the incumbent from election to the Legislative Assembly. Section 36 (2) (a) of the Representation of the People Act, 1951 indicates that the candidate should not be holding an office of profit on the date fixed for scrutiny of nominations.It appears that on May 3, 1980 the sum of Rs 500 representing a months salary was deposited by the appellant and on the same date he handed over charge of his office. The appellant had already filed his nomination paper on May 2, 1980 and on May 3, 1980, the date fixed for the scrutiny of the nominations, the appellant produced a receipt in proof of his having deposited a monthspayment was made, it is apparent, on May 3, 1980 but well before the time when the Returning Officer commenced the examination of the nomination papers. Section 36 (2) (a) of the Representation of the People Act, 1951 provides that the Returning Officer may reject any nomination on the ground :(a) that on the date fixed for the scrutiny of nominations of candidate either is not qualified or is disqualified for being chosen to fill thein our opinion, is the proper construction to put on the words "the date fixed for the scrutiny of nominations". A broad and liberal interpretation must be given to Section 36 (2) (a) in order to give full effect to the Parliamentary intent. Accordingly, we hold that as the resignation of the appellant must be treated as having taken effect before the scrutiny of the nominations was commenced, the appellant cannot be regarded as holding an office of profit at the relevant time.	1	910	### 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: PATHAK, J.1. The appellant was elected to the Nagal constituency of U. P. Legislative Assembly and was declared elected on June 1, 1980. The respondent Hari Ram filed an election petition against the election of the appellant and the High Court, by its judgment and order dated March 3, 1982 declared the election void. The High Court found that the appellant had continued to hold the office of District Extension Educator (Family Planning), an office of profit under the State Government, up to the date fixed for scrutiny of the nomination papers and, therefore, he was disqualified from being elected as a member of the Legislative Assembly. Holding that the acceptance of his nomination paper amounted to non-compliance with the provision of the Constitution it set aside the election under Section 100 (1) (d) (iv) of the Representation of the People Act, 1951.2. In this appeal, the appellant contends that the High Court erred in holding that he was disqualified. In our opinion, the appellant is right. Article 191 (1) (a) of the Constitution declares that a person shall be disqualified for being chosen as, and for being, a member of Legislative Assembly if he holds any office of profit under the Government of a State other than an office declared by the legislature of the State by law not to disqualify its holder. It is not disputed that the post of District Extension Educator (Family Planning) is an office of profit under the Government of Uttar Pradesh, the holding of which would disqualify the incumbent from election to the Legislative Assembly. Section 36 (2) (a) of the Representation of the People Act, 1951 indicates that the candidate should not be holding an office of profit on the date fixed for scrutiny of nominations. The question is whether the appellant was holding an office of profit and was disqualified from election by reason of Section 36 (2) (a).3. On April 20, 1980 the appellant wrote to the Additional Director and State Family Welfare, Officer, Uttar Pradesh, Lucknow stating that he was unable to continue in government service and requesting that his resignation be accepted with effect from April 30, 1980 and that he should be relieved with effect from that date. The letter of resignation was forwarded to the Additional Director-cum-state Family Welfare Officer with the recommendation of the Medical Officer, Saharanpur for acceptance of the resignation. On May 2, 1980 the Additional Director-cum-State Family Welfare Officer wrote back to the Chief Medical Officer, Saharanpur stating that the resignation of the appellant was accepted with effect from April 30, 1980 with the stipulation that the appellant must pay one months salary in lieu of notice.4. It appears that on May 3, 1980 the sum of Rs 500 representing a months salary was deposited by the appellant and on the same date he handed over charge of his office. The appellant had already filed his nomination paper on May 2, 1980 and on May 3, 1980, the date fixed for the scrutiny of the nominations, the appellant produced a receipt in proof of his having deposited a months salary. We may assume that notwithstanding that the letter of the Additional Director-cum-State Family Welfare Officer stated that on the appellant paying one months salary in lieu of notice his resignation would be regarded as accepted with effect from April 30, 1980, in point of law the resignation should be deemed effective only from the time when he made payment of one months salary. The payment was made, it is apparent, on May 3, 1980 but well before the time when the Returning Officer commenced the examination of the nomination papers. Section 36 (2) (a) of the Representation of the People Act, 1951 provides that the Returning Officer may reject any nomination on the ground :(a) that on the date fixed for the scrutiny of nominations of candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :Articles 84, 102, 173 and 191.* * *To our mind, according to the scheme for the conduct of elections the candidate should not be not qualified or disqualified when the scrutiny of nominations is taken up by the Returning Officer for the purpose of finalising the list of nominated candidates. This, in our opinion, is the proper construction to put on the words "the date fixed for the scrutiny of nominations". A broad and liberal interpretation must be given to Section 36 (2) (a) in order to give full effect to the Parliamentary intent. Accordingly, we hold that as the resignation of the appellant must be treated as having taken effect before the scrutiny of the nominations was commenced, the appellant cannot be regarded as holding an office of profit at the relevant time. ### Response: 1
581	Tata Iron & Steel Company Limited Bombay & Another Vs. Adil K. Patel	decide the point."18. The aforesaid observations made by the Apex Court in Hindustan Lever Ltd. cannot be applied in the facts and circumstances of the present case. Similarly, the judgment of Allahabad High Court in Raghavendra Mathur also does not help the employer-company at all. In para 7 of Raghavendra Mathur, the Division Bench of Allahabad High Court held thus :"7. Sub-section (1) of S.18 of the Industrial Disputes Act which was introduced by the Amending Act of 1956 was enacted to remedy a defect in the existing law. Prior to the amendment, there was no provision to make such settlements binding even on the parties thereto, with the result that the workmen notwithstanding such a settlement could raise an industrial dispute on the identical matter agreed upon by their union. By the same amending Act, the definition of "settlement" was also amended, as the original definition contemplated only a settlement arrived at in the course of conciliation proceedings. This sub-section provides that a settlement arrived at by the agreement between the employer and the workmen "otherwise than in the course of conciliation" proceedings, as is apparent from the language of this provision, shall be binding only "on the parties to the agreement". Normally, it is the union or the representative of the employees who enter into agreement with the employer. All the employees do not, as a matter of fact, become parties to the agreement. But the settlement signed by such representatives binds all those whom they represent. Therefore, the terms of the settlement become a part of the contract of employment of each individual workman represented by such representative. In the instant case none of the parties have disputed or challenged the settlement. Hence even if the said settlement is not in accordance with the prescribed form as contemplated under Rule 58 of the Industrial Disputes (Central) Rules, 1957, it does not suffer from any defect. In Workmen of Hindustan Lever Ltd. vs. Hindustan Lever Ltd. (1984 LLJ 388), Honble Desai, J. ruled "the court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely, to eschew industrial strife, confrontation and consequent wastage." 19. It would be seen from the aforesaid observations made by Allahabad High Court that at no point of time the parties to the agreement disputed or challenged it on any ground. The Allahabad High Court further observed that even otherwise, the settlement did not suffer from any defect. Thus, the judgment of Allahabad High Court in Raghavendra Mathur is of no help to the employer- company. 20. Even if we assume that the agreement dated 7.2.1986 is a legally binding agreement under S.2(p) and S.18 of the Industrial Disputes Act, it is apparent from the said agreement dated 7th February, 1986 that the said agreement was entered into with the recognised union only for the purposes of 14 employees which did not include the complainant who were working in the Central Share Department. The complainant was not included in the 14 employees referred to in the agreement dated 7th February, 1986 would be clear from the subsequent letter dated 19th February, 1986 wherein it was informed to the complainant thus:"2. As already conveyed to you by our letter No. C/461 dated 30.1.1986, the Tata Central Share Department where you have been working has been closed down and the work of handing the share registry has now been taken over by another company called Tata Share Registry Private Limited. Like yourself, there were 16 other employees working in the erstwhile Tata Central Share Department who consequent to the said closure were rendered surplus and therefore, the question of their deployment arose. We, therefore, took up the issue with the Tata Share Registry Private Limited and persuaded them to employ all employees including yourself in their company. In the meantime, two of the employees opted for retirement. Letters offering employment as agreed were, therefore, issued by the Tata Share Registry to all the remaining 14 employees specifying therein the terms and conditions of such employment which are self-explanatory. By one of such terms they have also agreed to treat the past service of all the employees concerned as continuous in their company for all purposes. In addition, they have also offered certain amount by way of each compensation to each employee in consideration of loss of certain benefits. It may be mentioned here that this matter was discussed with the employees together with their representative before the offer as above was made. The offer of employment as above made by the Tata Share Registry Pvt. Ltd. has been accepted by all other concerned employees. However, you are the only employee who has not yet accepted the said offer, but we are assure that you will do so without any further delay."21. No doubt is left from the aforesaid communication that the 14 employees referred to in the agreement dated 7.2.1986 were other than the present complainant and therefore, even otherwise the complainant could not have been made bound by the agreement dated 7.2.1986 said to have been entered into between the recognised union and employer-company. 22. All in all, we find ourselves in the agreement with the view taken by learned Single Judge and we do not find it a fit case for interference in our Letters Patent Jurisdiction. 23. Before we conclude, we observe that the only issue in the Letters Patent Appeal was with regard to the balance of 50% of backwages as the complainant was already reinstated and paid 50% of backwages for the reasons already indicated by us in the beginning of this judgment but as the learned counsel for employer-company submitted that for consideration of the issue whether complainant is entitled to the balance of 50% of backwages, we are required to examine the contentions raised, we dealt with the aforesaid contentions, though it was hardly necessary.	0[ds]Having passed through the interviews, he was appointed as Accounts Assistant vide appointment order dated 5.7.1979 by the employer. The complainant submitted that under the appointment order he was not liable to be transferred to any company subsequently set up by Tatas. The complainant worked as Assistant Accountant in the Accounts Department from the year 1979 to 1982. In the year 1982, the complainant was transferred to P.F. Section of the company and then in the year 1984 he was transferred to the Share Department. It is complainants case that somewhere in the year 1985 he came to know from some reports that his services were likely to be transferred to other company viz., Tata Share Registry Private Limited alongwith other members of the staff working in the Central Share Department and on the basis of the said report he made a representation to the Director of Finance on 31st December, 1985 expressing his disinclination to join the newreading the complaint carefully and meaningfully, that is how pleadings should be construed and not formally, we find it difficult to appreciate the first contention of Mr. Naik that the complaint was not maintainable as complainant had set up specific case of his dismissal for misconduct on an illusory andground and was visited with shockingly disproportionate punishment and, therefore complainant cannot challenge his termination on the ground of retrenchment. Many of the grounds set up by the complainant overlap; some of which are obviously in alternative. We do not find any legal bar in the complainant challenging his termination by way of discharge which includes retrenchment and in the alternative also without specifically saying so on the ground of dismissal under various clauses of item 1 of Schedule IV of MRTU and PULP Act. There is no principle much less legal sound principle in ousting the complainant who had filed the complaint in relation to unfair labour practice under MRTUPULP Act on various grounds for his relief some of which may overlap and few of which may be different from each other. It isprinciple that pleadings must be read meaningfully and construed liberally and not in formal or technical manner to find faults. Merely because in the averments made in the complaint, the expression "alternatively" has not been used while setting up grounds of unfair labour practice, no inference can be drawn that if one ground has been set up by the complainant, other grounds stand excluded and cannot be taken into consideration. The principle which is sought to be canvassed by the learned counsel for thethat in the complaint where the complainant has set up case of dismissal on illusory andground: such complainant cannot be permitted to raise the plea of unlawful retrenchment, if accepted, would really be travesty of justice as that may amount to throwing out the meritorious case on technical ground by reading the pleadings in the complaint in formal ande law isthat no amount of evidence can be looked upon a plea which was never butthe question of retrenchment did not figure in the said record, it would be unfair to the Additional Labour Court that its award should be quashed on a ground which had not been raised before it. Secondly the learned counsel for the petitioners before us prays that the termination should not only be quashed but the petitioners should also be reinstated with entitlement to receive back wages from the date of the termination. They thus want to be paid their wages for more than four years though during that period they did not work for the employer. Their position in this respect is similar to those petitioners who approach this Court under Article 226 too late without justification forthe petitioner was notin the cadre of Accounts Assistant in the employercompany. If at all on closure of Central Share Department the complainant was rendered surplus, by applying the principle of "last come first go", thefrom amongst Accounts Assistant ought to have been retrenched. That was not done and complainant was retrenched. The retrenchment of the complainant who is notis sought to be justified by the learned counsel for employer on two grounds viz. (1) that the complainant was at the time of his retrenchment was working in the Central Share Department of the Company and the said Department having been closed, though all other employees agreed to accept the job in new company but the complainant refused to do so, and, therefore, services of the complainant being sole employee in that department were validly terminated; and (ii) upon closure of the Central Share Department where the complainant was working, he was rendered surplus and somebody had to be retrenched but as the complainant was working in the Central Share Department itself, it was thought fit to terminate the services of theis true that departure from the rule "last come, first go" under S.25G is permissible on valid and justifiable grounds but the grounds, however, suggested by the employercompany can hardly be held to be valid and justifiable ground for such departure. The permissible grounds for departure from "last come, first go" rule have to be something pertaining to junior employee being highly efficient and because of his efficiency does not deserve to be retrenched, though junior, or there was recorded history of the senior workman indicating his insufficiency, unreliability or habitual irregularity or some other ground akin toaccordingly, have no hesitation in holding that there was no valid and justifiable ground for thefor departure from "last come, first go" rule in the present case and the finding recorded by the learned Single Judge that employer committed unfair labour practice under Item 1(d) of Schedule IV of MRTUPULP Act cannot be said to suffer from any infirmity. 14.In so far as the last contention raised by learned counsel forthat there was valid agreement (settlement) entered into between the recognised union and theand the complainant being member of the recognised union was bound by the said settlement and having not accepted the said settlement and despite the complainant having been offered employment in the other company, the termination of complainants services cannot be faulted is concerned, we do not find any merit in this contention as well. Mr. Naik submitted that agreement dated 7th February, 1986 having been acted upon by the Union and theeven if it was not in proper proforma and the procedure as per rules was not followed, was still binding upon the complainant. According to Mr. Naik, the learned Single Judge was not justified in holding that the agreement was not as per the mandatory requirement of law and therefore, not binding.16.There is no dispute before us that theagreement is not in the form XVI nor is signed by both the parties nor its copies have been sent to the authorities mentioned in Rule 62 of Industrial Disputes (Bombay) Rules, 1957. Apparently the requirement contained in clause 2(p) of the Industrial Disputes Act and Rule 62 of aforesaid Rules have not been complied with.No doubt is left from the aforesaid communication that the 14 employees referred to in the agreement dated 7.2.1986 were other than the present complainant and therefore, even otherwise the complainant could not have been made bound by the agreement dated 7.2.1986 said to have been entered into between the recognised union and22. All in all, we find ourselves in the agreement with the view taken by learned Single Judge and we do not find it a fit case for interference in our Letters Patent Jurisdiction.Before we conclude, we observe that the only issue in the Letters Patent Appeal was with regard to the balance of 50% of backwages as the complainant was already reinstated and paid 50% of backwages for the reasons already indicated by us in the beginning of this judgment but as the learned counsel forsubmitted that for consideration of the issue whether complainant is entitled to the balance of 50% of backwages, we are required to examine the contentions raised, we dealt with the aforesaid contentions, though it was hardly necessary.	0	6,678	### 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: decide the point."18. The aforesaid observations made by the Apex Court in Hindustan Lever Ltd. cannot be applied in the facts and circumstances of the present case. Similarly, the judgment of Allahabad High Court in Raghavendra Mathur also does not help the employer-company at all. In para 7 of Raghavendra Mathur, the Division Bench of Allahabad High Court held thus :"7. Sub-section (1) of S.18 of the Industrial Disputes Act which was introduced by the Amending Act of 1956 was enacted to remedy a defect in the existing law. Prior to the amendment, there was no provision to make such settlements binding even on the parties thereto, with the result that the workmen notwithstanding such a settlement could raise an industrial dispute on the identical matter agreed upon by their union. By the same amending Act, the definition of "settlement" was also amended, as the original definition contemplated only a settlement arrived at in the course of conciliation proceedings. This sub-section provides that a settlement arrived at by the agreement between the employer and the workmen "otherwise than in the course of conciliation" proceedings, as is apparent from the language of this provision, shall be binding only "on the parties to the agreement". Normally, it is the union or the representative of the employees who enter into agreement with the employer. All the employees do not, as a matter of fact, become parties to the agreement. But the settlement signed by such representatives binds all those whom they represent. Therefore, the terms of the settlement become a part of the contract of employment of each individual workman represented by such representative. In the instant case none of the parties have disputed or challenged the settlement. Hence even if the said settlement is not in accordance with the prescribed form as contemplated under Rule 58 of the Industrial Disputes (Central) Rules, 1957, it does not suffer from any defect. In Workmen of Hindustan Lever Ltd. vs. Hindustan Lever Ltd. (1984 LLJ 388), Honble Desai, J. ruled "the court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely, to eschew industrial strife, confrontation and consequent wastage." 19. It would be seen from the aforesaid observations made by Allahabad High Court that at no point of time the parties to the agreement disputed or challenged it on any ground. The Allahabad High Court further observed that even otherwise, the settlement did not suffer from any defect. Thus, the judgment of Allahabad High Court in Raghavendra Mathur is of no help to the employer- company. 20. Even if we assume that the agreement dated 7.2.1986 is a legally binding agreement under S.2(p) and S.18 of the Industrial Disputes Act, it is apparent from the said agreement dated 7th February, 1986 that the said agreement was entered into with the recognised union only for the purposes of 14 employees which did not include the complainant who were working in the Central Share Department. The complainant was not included in the 14 employees referred to in the agreement dated 7th February, 1986 would be clear from the subsequent letter dated 19th February, 1986 wherein it was informed to the complainant thus:"2. As already conveyed to you by our letter No. C/461 dated 30.1.1986, the Tata Central Share Department where you have been working has been closed down and the work of handing the share registry has now been taken over by another company called Tata Share Registry Private Limited. Like yourself, there were 16 other employees working in the erstwhile Tata Central Share Department who consequent to the said closure were rendered surplus and therefore, the question of their deployment arose. We, therefore, took up the issue with the Tata Share Registry Private Limited and persuaded them to employ all employees including yourself in their company. In the meantime, two of the employees opted for retirement. Letters offering employment as agreed were, therefore, issued by the Tata Share Registry to all the remaining 14 employees specifying therein the terms and conditions of such employment which are self-explanatory. By one of such terms they have also agreed to treat the past service of all the employees concerned as continuous in their company for all purposes. In addition, they have also offered certain amount by way of each compensation to each employee in consideration of loss of certain benefits. It may be mentioned here that this matter was discussed with the employees together with their representative before the offer as above was made. The offer of employment as above made by the Tata Share Registry Pvt. Ltd. has been accepted by all other concerned employees. However, you are the only employee who has not yet accepted the said offer, but we are assure that you will do so without any further delay."21. No doubt is left from the aforesaid communication that the 14 employees referred to in the agreement dated 7.2.1986 were other than the present complainant and therefore, even otherwise the complainant could not have been made bound by the agreement dated 7.2.1986 said to have been entered into between the recognised union and employer-company. 22. All in all, we find ourselves in the agreement with the view taken by learned Single Judge and we do not find it a fit case for interference in our Letters Patent Jurisdiction. 23. Before we conclude, we observe that the only issue in the Letters Patent Appeal was with regard to the balance of 50% of backwages as the complainant was already reinstated and paid 50% of backwages for the reasons already indicated by us in the beginning of this judgment but as the learned counsel for employer-company submitted that for consideration of the issue whether complainant is entitled to the balance of 50% of backwages, we are required to examine the contentions raised, we dealt with the aforesaid contentions, though it was hardly necessary. ### Response: 0
582	Arvind Mohan Johari Vs. State Of U.P.	as the realization/liquidation of the collateral Securities/guarantees would take some time to receive the payment, the Exchange fulfilled the above obligations of the Century Consultants Ltd. initially from the funds of the Exchange. Thereafter the collateral securities/guarantees provided by the Century Consultants Ltd. were liquidated in accordance with the Rules, Bye-laws and regulations of the Exchange and recouped the same. Accordingly, the Exchange fulfill the Pay-in obligations of the Century Consultant Ltd., in the aforesaid Settlements amounting to Rs.21,06,72,837.00 including the value of short delivery of shares by the Century Consultants Ltd., in the above Settlements out of the collateral securities/guarantees provided by the Century Consultants Ltd. As such, there are no assets of the Century Consultant Ltd., lying with the Applicant Exchange by way of bank guarantee, security margin money etc. amounting to Rs.17 crores as alleged before this Honble Court. The Exchange respectfully says and submits that on the other hand Century Consultant Ltd., are required to pay to the Exchange an amount of approximately Rs.18.14 crores towards their liabilities on account of non-payment of arbitration awards obtained by other members/clients, arbitration fees, debit balance with Clearing House, Transaction Guarantee Fun (TGF) etc. as per Rules, Bye-laws and Regulations of the Exchange. The Exchange has also from time to time apprised SEBI about default of Century Consultants Ltd. in making Pay-in obligations in the aforesaid settlements and completion of settlements as stated herein above." 5. It is urged that the Appellants herein were aware of the said proceedings as in relation thereto show cause notices had been served upon M/s Century Consultants Ltd. Mr. Dave would further contend that in the said suit even no written statement was filed by the Bombay Stock Exchange, as alleged by the Appellants.6. Mr. J.L. Gupta, learned Senior Counsel appearing on behalf of the National Stock Exchange, would submit that although written statement had been filed by the National Stock Exchange in the aforementioned suit but it had categorically been contended therein: "The Defendant No.1 traded on the Defendant No.3 and had cleared all its settlement dues up to Settlement No. W 2001045 (pay in date March 13, 2001). It is submitted that the Defendant No.1 did not pay subsequent settlement and other obligations to Defendant No.3 and National Securities Clearing Corporation of India Ltd. (NSCCL), a subsidiary company of Defendant No.3 amounting Rs.18,94,80,836.52. Out of the said sum, an amount of Rs.10,80,74,719.54 was adjusted against from the security deposits, bank guarantee invocation amounts, sale of securities and release of margins and other amounts lying to the credit of Defendant No.1 still leaving a balance liability of Rs.8,14,06,116.98 due from Defendant No.1 to Defendant No.3 and NSCCL. Therefore, it is clear from the above that the claim of the Plaintiff in para 8 of the plaint that the Defendant No.1 paid Rs.30 crores towards purchase of shares and that Rs.30 crores is lying with the Defendant No.3 is completely false. Thus, the very basis of the claim of the Plaintiff is false and there is no cause of action in favour of the Plaintiff." 7. In the counter affidavit filed by the Appellants to the said applications, the said contentions raised in the said applications were denied and disputed, Mr. Swaraj Kaushal and Mr. D.K. Gupta, learned counsel appearing on behalf of the Appellants would contend that the question as to whether the respective Stock Exchanges were entitled to debit the amounts of Rs.21 Crores and 17 Crores respectively towards their purported claim should be directed to be scrutinized by us by a Chartered Accountant. According to the learned counsel, the Bombay Stock Exchange and National Stock Exchange have raised frivolous pleas in support of the applications and in that view of the matter, it would be proper to determine the dispute between the parties. 8. It is not in dispute that this Court passed the aforementioned order dated 3.11.2004 granting bail to the Appellants herein relying on or on the basis of the representation made by them that all endeavours would be made to disburse to the claimants realise as much amount as possible from the personal and other assets of the Appellants by putting them on sale or otherwise. It was with that end in view, this Court directed: "The National Stock Exchange and the Bombay Stock Exchange are directed to deposit the money lying in the credit of the Company/Appellants as early as possible subject to the determination of the pending enquiry by SEBI. If any enquiry is pending, SEBI shall dispose of the same as expeditiously as possible." 9. This Court directed release of the Appellants herein on bail on the conditions mentioned therein and issued several directives in exercise of its jurisdiction under Article 142 of the Constitution of India to do complete justice to all the parties. While considering application for grant of bail in a criminal case, this Court ordinarily cannot determine a dispute between the parties wherefor forums have been created under the statutes.10. It appears that the recoveries have been directed to be made by the Stock Exchanges in exercise of their power conferred upon them under the bye-laws governing the parties. Furthermore, several arbitration awards are said to have been passed in favour of the clients/investors and the members of the Stock Exchanges. The parties, therefore, must get their disputes determined in an appropriate forum. 11. The fact, however, remains that no amount as such is admittedly payable by the applicants Stock Exchanges. In their respective applications, as indicated hereinbefore, the Applicants had stated that they, in fact, would be entitled to realize a huge amount from the Appellants. In that view of the matter, we are of the opinion that the Appellants misled this Court in passing the said order dated 3.11.2004 by raising contention to the effect that a sum of Rs.17 Crores and 13 Crores are admittedly lying with the Bombay Stock Exchange and National Stock Exchange in the shape of bank guarantee money and securities margin money etc.	1[ds]8. It is not in dispute that this Court passed the aforementioned order dated 3.11.2004 granting bail to the Appellants herein relying on or on the basis of the representation made by them that all endeavours would be made to disburse to the claimants realise as much amount as possible from the personal and other assets of the Appellants by putting them on sale or otherwise. It was with that end in view, this CourtNational Stock Exchange and the Bombay Stock Exchange are directed to deposit the money lying in the credit of the Company/Appellants as early as possible subject to the determination of the pending enquiry by SEBI. If any enquiry is pending, SEBI shall dispose of the same as expeditiously as possible.This Court directed release of the Appellants herein on bail on the conditions mentioned therein and issued several directives in exercise of its jurisdiction under Article 142 of the Constitution of India to do complete justice to all the parties. While considering application for grant of bail in a criminal case, this Court ordinarily cannot determine a dispute between the parties wherefor forums have been created under the statutes.10. It appears that the recoveries have been directed to be made by the Stock Exchanges in exercise of their power conferred upon them under the bye-laws governing the parties. Furthermore, several arbitration awards are said to have been passed in favour of the clients/investors and the members of the Stock Exchanges. The parties, therefore, must get their disputes determined in an appropriate forum.The fact, however, remains that no amount as such is admittedly payable by the applicants Stock Exchanges. In their respective applications, as indicated hereinbefore, the Applicants had stated that they, in fact, would be entitled to realize a huge amount from the Appellants. In that view of the matter, we are of the opinion that the Appellants misled this Court in passing the said order dated 3.11.2004 by raising contention to the effect that a sum of Rs.17 Crores and 13 Crores are admittedly lying with the Bombay Stock Exchange and National Stock Exchange in the shape of bank guarantee money and securities margin money etc.	1	1,678	### 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: as the realization/liquidation of the collateral Securities/guarantees would take some time to receive the payment, the Exchange fulfilled the above obligations of the Century Consultants Ltd. initially from the funds of the Exchange. Thereafter the collateral securities/guarantees provided by the Century Consultants Ltd. were liquidated in accordance with the Rules, Bye-laws and regulations of the Exchange and recouped the same. Accordingly, the Exchange fulfill the Pay-in obligations of the Century Consultant Ltd., in the aforesaid Settlements amounting to Rs.21,06,72,837.00 including the value of short delivery of shares by the Century Consultants Ltd., in the above Settlements out of the collateral securities/guarantees provided by the Century Consultants Ltd. As such, there are no assets of the Century Consultant Ltd., lying with the Applicant Exchange by way of bank guarantee, security margin money etc. amounting to Rs.17 crores as alleged before this Honble Court. The Exchange respectfully says and submits that on the other hand Century Consultant Ltd., are required to pay to the Exchange an amount of approximately Rs.18.14 crores towards their liabilities on account of non-payment of arbitration awards obtained by other members/clients, arbitration fees, debit balance with Clearing House, Transaction Guarantee Fun (TGF) etc. as per Rules, Bye-laws and Regulations of the Exchange. The Exchange has also from time to time apprised SEBI about default of Century Consultants Ltd. in making Pay-in obligations in the aforesaid settlements and completion of settlements as stated herein above." 5. It is urged that the Appellants herein were aware of the said proceedings as in relation thereto show cause notices had been served upon M/s Century Consultants Ltd. Mr. Dave would further contend that in the said suit even no written statement was filed by the Bombay Stock Exchange, as alleged by the Appellants.6. Mr. J.L. Gupta, learned Senior Counsel appearing on behalf of the National Stock Exchange, would submit that although written statement had been filed by the National Stock Exchange in the aforementioned suit but it had categorically been contended therein: "The Defendant No.1 traded on the Defendant No.3 and had cleared all its settlement dues up to Settlement No. W 2001045 (pay in date March 13, 2001). It is submitted that the Defendant No.1 did not pay subsequent settlement and other obligations to Defendant No.3 and National Securities Clearing Corporation of India Ltd. (NSCCL), a subsidiary company of Defendant No.3 amounting Rs.18,94,80,836.52. Out of the said sum, an amount of Rs.10,80,74,719.54 was adjusted against from the security deposits, bank guarantee invocation amounts, sale of securities and release of margins and other amounts lying to the credit of Defendant No.1 still leaving a balance liability of Rs.8,14,06,116.98 due from Defendant No.1 to Defendant No.3 and NSCCL. Therefore, it is clear from the above that the claim of the Plaintiff in para 8 of the plaint that the Defendant No.1 paid Rs.30 crores towards purchase of shares and that Rs.30 crores is lying with the Defendant No.3 is completely false. Thus, the very basis of the claim of the Plaintiff is false and there is no cause of action in favour of the Plaintiff." 7. In the counter affidavit filed by the Appellants to the said applications, the said contentions raised in the said applications were denied and disputed, Mr. Swaraj Kaushal and Mr. D.K. Gupta, learned counsel appearing on behalf of the Appellants would contend that the question as to whether the respective Stock Exchanges were entitled to debit the amounts of Rs.21 Crores and 17 Crores respectively towards their purported claim should be directed to be scrutinized by us by a Chartered Accountant. According to the learned counsel, the Bombay Stock Exchange and National Stock Exchange have raised frivolous pleas in support of the applications and in that view of the matter, it would be proper to determine the dispute between the parties. 8. It is not in dispute that this Court passed the aforementioned order dated 3.11.2004 granting bail to the Appellants herein relying on or on the basis of the representation made by them that all endeavours would be made to disburse to the claimants realise as much amount as possible from the personal and other assets of the Appellants by putting them on sale or otherwise. It was with that end in view, this Court directed: "The National Stock Exchange and the Bombay Stock Exchange are directed to deposit the money lying in the credit of the Company/Appellants as early as possible subject to the determination of the pending enquiry by SEBI. If any enquiry is pending, SEBI shall dispose of the same as expeditiously as possible." 9. This Court directed release of the Appellants herein on bail on the conditions mentioned therein and issued several directives in exercise of its jurisdiction under Article 142 of the Constitution of India to do complete justice to all the parties. While considering application for grant of bail in a criminal case, this Court ordinarily cannot determine a dispute between the parties wherefor forums have been created under the statutes.10. It appears that the recoveries have been directed to be made by the Stock Exchanges in exercise of their power conferred upon them under the bye-laws governing the parties. Furthermore, several arbitration awards are said to have been passed in favour of the clients/investors and the members of the Stock Exchanges. The parties, therefore, must get their disputes determined in an appropriate forum. 11. The fact, however, remains that no amount as such is admittedly payable by the applicants Stock Exchanges. In their respective applications, as indicated hereinbefore, the Applicants had stated that they, in fact, would be entitled to realize a huge amount from the Appellants. In that view of the matter, we are of the opinion that the Appellants misled this Court in passing the said order dated 3.11.2004 by raising contention to the effect that a sum of Rs.17 Crores and 13 Crores are admittedly lying with the Bombay Stock Exchange and National Stock Exchange in the shape of bank guarantee money and securities margin money etc. ### Response: 1
583	STATE OF MAHARASHTRA Vs. AHMAD SHAH KHAN @ SALIM DURANI AND ANOTHER	contained one AK-56 assault rifle of folding type butt, in rusted condition but had been greased and two magazines of AK-56 assault rifle with no identification marks and numbers and it was in rusted condition and greased. 15. The Designated Court after appreciating the evidence on record came to the conclusion as under: A-20 having not explained the reason of his knowledge of such a contraband articles being kept in a said factory of which he was partner the same will lead only to the inference of himself having kept the same. The same is obvious as A-20 could have knowledge about the same in three contingencies i.e. a) he had kept the contrabands himself b) having seen somebody keeping the same there c) somebody had told him that the same being kept at the said place or having seen himself of such articles being kept at that place. In view of failure of A-20 to give any explanation regarding his knowledge being due to the reasons as stated in the aforesaid clauses b) and c) the same will lead to the conclusion as stated aforesaid. With regard to matter stated in clause c) aforesaid it can be additionally added that since the accused was also partner of the said shop allowing the remaining of such articles at the said place would also attract the liability for the same....] The same is the case regarding the submission advanced on the basis of A-20 at the time of recovery not having the key of the relevant gala. In light of the aforesaid discussion it is difficult to accept the submission canvassed that the evidence only establish the knowledge of A-20 of the contraband material lying at the said place and the same does not amount to himself being in conscious possession of the same. Needless to add that the inferences flowing from the statement made by A-20 consciously are not of a nature of denoting himself not being in conscious possession of contraband articles within the notified area.... 16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery. There is sufficient material to show that the recovery had been made at the behest of the Appellant (A-20) from the factory owned by a partnership to which he was the partner alongwith one Surjit Singh. In such a fact-situation, he ought to have explained the reason/source of his knowledge of such contraband articles being kept in his factory. 17. In the instant case, as he has not mentioned that he had seen someone keeping the articles there, or somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that place. Being a partner of the firm if he was having the knowledge that some contraband were lying in his premises, he ought to have informed the police if he had no guilty mind. 18. So far as the explanation that at the time of recovery he did not have the key, would not be enough to tilt the balance in his favour. The fact that he did not have the key becomes totally redundant, as no conclusion can be drawn that the Appellant (A-20) was not in possession of the said premises, and in such a fact-situation, it cannot be held that the Appellant (A-20) was not in conscious possession of the contraband material. 19. We do not find any force in the submissions made by Shri Sunil Kumar, learned senior counsel appearing for the Appellant (A-20), that the panch witness was the resident of Sitaram building, which was opposite to the office of the Commissioner of Police, or in a very close proximity of the same, and was working on the footpath nearby the said building, and he had acted earlier as a panch witness in test identification parade. 20. The police when searching for a panch witness, need not go to far off place of the police station as the panchnama is required to be recorded in a close proximity of time, when the accused apprehending his disclosure statement. Therefore, on such material suspicion about the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. Had it been picked up from a far off place, criticism could have been otherwise as to why the panch witness could not be called from neighbourhood. 21. The panch witness Mohamed Ayub Mohamed Umar (PW-72) could not be held to be a tutored witness or acting at the behest of the prosecution only on the ground that he had also been the witness in another case. It does not give a reason to draw inference that he was a stock panch witness unless it is shown that he had acted in such capacity in a very large number of cases. 22. More so, it cannot be held that Mohamed Ayub Mohamed Umar (PW-72) was not an independent witness, or acting under the pressure of the police as he was carrying the business illegally without any license. More so, the Appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he was deposing falsely. 23. We do not see any reason as to why his evidence should not be relied upon. Minor omissions/contradictions regarding labeling and sealing are not really the contradictions which go to the root of the matter. Non-examination of the watchman of Ghanshyam Industrial Estate, or omission of factor regarding electricity being not mentioned in the panchnama, or non-collection of broken lock, are the omissions of trivial nature, and do not warrant any undue importance for doubting the evidence of recovery. 24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy.	0[ds]Confessional statement of the Appellant (A-20):8. The confessional statement made by the Appellant has not been relied upon by learned Special Judge. Therefore, we are not making any reference to it and it has to be ignored. More so, we do not find any force in the submission made by Shri Sunil Kumar that there had been two FIRs in respect of the same incident as a large number of remand applications had been filed and it is evident from the application that at initial stage it was shown as L.A.C. 23/93, but a correction had been made though without initials by the person who made the correction, but in his subsequent application it had been shown as L.A.C. 22/93. More so, the FIR number connecting this case is the same. Only one FIR had been exhibited in the court as Exhibit 1284-A dated 18.4.1993 and it contains case No. L.A.C. 23/93. Therefore, we do not think that the submission requires further consideration.Confessional statement of Murad Ibrahim Khan (A-130):9. He had disclosed that he was fully acquainted with Yakub Yeda and the Appellant (A-20). Thus, he was having acquaintance with hardened criminals.Deposition of Mohamed Ayub Mohamed Umar (PW-72)10. He is a panch witness and a hawker, selling fruits on the footpath near Crawford Market. He deposed that on 17.4.1993 at about 12.45 hours, he was called to the police station by a Hawaldar and there Constable, Shivaji Sawant, P.I. asked him whether he would like to act as a panch witness in a case related to the Bombay Blast. He consented for the same and one more panch witness was also present in the said room. In his presence, accused (A-20) disclosed his name as Salim Khan and he said in Hindi that he was in possession of one AK-56 rifle and two magazines in his workshop the recovery of which he would get effected. The witness further corroborated the entire version of the recovery.The witness further deposed that the police party alongwith the accused (A-20) and the panch witnesses proceeded in the police vehicle and towards the place disclosed by the Appellant (A-20) and entered the building pointed out by the Appellant (A-20). The said workshop had a loft and one staircase. One police officer went on the loft. Thereafter, all other persons followed him. On the directions of the Appellant, cartons, scrap material and gunny bag were found. The said gunny bag was turned out for emptying the same. One AK-56 rifle and two magazines were taken out of the said gunny bag. The AK-56 rifle and magazines were separately wrapped in brown paper and three packets were prepared and sealed separately. The packets were signed by him, co-panchas and Shri Sawant.In cross-examination, the witness (PW. 2) said that label put up on the recovered goods had his signature and the goods had been seized.He further denied the suggestion made by the defence that he was the regular panch witness for the police. However, he had admitted that occasionally, he had worked as such and he had been a panch witness in other cases.Deposition of Shivaji Shankar Sawant, P.I. (PW-524)11. He deposed that on 17.4.1993, he was interrogating the Appellant (A-20) who was arrested in C.R. No. 71/93 alongwith some other police officials. During the said interrogation, the Appellant (A-20) consented to make the voluntary statement and in the presence of the panch witnesses and other police officials, the Appellant (A-20) made a disclosure statement in Hindi. He recorded the same in the panchanama. The panchnama was read over to the Appellant (A-20) and the panch witnesses. It was signed by the panch witnesses and countersigned by him (A-20). He disclosed that the Appellant (A-20) had consented to show the place and take out AK-56 rifle and two empty magazines kept by the Appellant (A-20).He further deposed that panchnama of the recovery from the workshop of the Appellant (A-20) was correct. The same bears his signature and the signatures of panch witnesses and it was completed on 18.4.1993.He was a Police Inspector and working as a Dy. S.P. for Protection of Civil Rights, Unit Bombay. He clarified the correction regarding L.A.C. Nos. 22/93 and 23/93 and explained that there was a correction on the L.A.C. numbers. However, he had admitted that he had made that correction while registering the said case though it did not bear his initials and he was not in a position to give any reason for not putting his initials and correction was necessary as there had been some typographical error. He further stated that he arrested the accused formally in L.A.C. No. 23/93 at 1.25 a.m. on 18.4.1993.In paras 65 and 66, he deposed that he did not register any L.A.C. No. 22/93 and also did not know the name of officer who had registered L.A.C. 22/93.Deposition of Sahadev (PW-181):12. He deposed that on 14.5.1993, he received requisition from Worli Police station for recording the confessional statement of the Appellant A-20 and he had proved the said confessional statement.Deposition of Nagesh Shivdas Lohar (PW-356)13. He has deposed that on 17.4.1993, he alongwith Shivaji Sawant and one Head Constable interrogating the Appellant (A-20) in case No. C.R. 71/93. He corroborated that Shri Sawant had asked the Appellant (A-20) whether he wanted to make the voluntary statement. Thereafter, Appellant made the statement in Hindi. He recorded the statement of the Appellant in Hindi in the panchnama which was marked as Exh. 378 and is the same panchanama recorded by him about the statement of Appellant (A-20) between 17th and 18th April, 1993.14. The recovery of the AK-56 rifle and two magazines had been made on 17th/18th April, 1993 and in respect of the same panchanama Exh. 383 makes it clear that Farid Alam Rais Alam Qureshi and Mohamad Ayub Mohamad Umar had been the panch witnesses and in their presence the Appellant (A-20) voluntarily made a disclosure statement that the AK-56 rifle was kept in his workshop. This panchnama was concluded at 23.10 hours on 17.4.1993. The panchnama has been signed by both the witnesses as well as by the Inspector of Police, Shri S.S. Sawant. However, it does not bear the signature of the Appellant (A-20). It further shows that in continuation of the same, the search was conducted and it reveals that after making the disclosure statement, the police had taken the accused alongwith the panch witnesses to a closed workshop named as Bona Parte industry belonging to him. The said workshop was having its shutter down and locked and in absence of the key the police forced open the lock and opened the same. The panchas alongwith the accused (A-20) and the police party entered the workshop and found that there was no electricity however, they found that the loft measured approximately 16 x 40 had a loft with a staircase. The Appellant (A-20) led all of them to the loft by staircase. On reaching there the Appellant (A-20) took out a box and scrap was removed. One AK-56 rifle and empty magazines were found wrapped in gunny sack. The police examined the said material and prepared the recovery memo. The recovery memo contained one AK-56 assault rifle of folding type butt, in rusted condition but had been greased and two magazines of AK-56 assault rifle with no identification marks and numbers and it was in rusted condition and greased.In light of the aforesaid discussion it is difficult to accept the submission canvassed that the evidence only establish the knowledge of A-20 of the contraband material lying at the said place and the same does not amount to himself being in conscious possession of the same. Needless to add that the inferences flowing from the statement made by A-20 consciously are not of a nature of denoting himself not being in conscious possession of contraband articles within the notified area....16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery.There is sufficient material to show that the recovery had been made at the behest of the Appellant (A-20) from the factory owned by a partnership to which he was the partner alongwith one Surjit Singh. In such a fact-situation, he ought to have explained the reason/source of his knowledge of such contraband articles being kept in his factory.17. In the instant case, as he has not mentioned that he had seen someone keeping the articles there, or somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that place. Being a partner of the firm if he was having the knowledge that some contraband were lying in his premises, he ought to have informed the police if he had no guilty mind.18. So far as the explanation that at the time of recovery he did not have the key, would not be enough to tilt the balance in his favour. The fact that he did not have the key becomes totally redundant, as no conclusion can be drawn that the Appellant (A-20) was not in possession of the said premises, and in such a fact-situation, it cannot be held that the Appellant (A-20) was not in conscious possession of the contraband material.19. We do not find any force in the submissions made by Shri Sunil Kumar, learned senior counsel appearing for the Appellant (A-20), that the panch witness was the resident of Sitaram building, which was opposite to the office of the Commissioner of Police, or in a very close proximity of the same, and was working on the footpath nearby the said building, and he had acted earlier as a panch witness in test identification parade.20. The police when searching for a panch witness, need not go to far off place of the police station as the panchnama is required to be recorded in a close proximity of time, when the accused apprehending his disclosure statement. Therefore, on such material suspicion about the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. Had it been picked up from a far off place, criticism could have been otherwise as to why the panch witness could not be called from neighbourhood.21. The panch witness Mohamed Ayub Mohamed Umar (PW-72) could not be held to be a tutored witness or acting at the behest of the prosecution only on the ground that he had also been the witness in another case. It does not give a reason to draw inference that he was a stock panch witness unless it is shown that he had acted in such capacity in a very large number of cases.22. More so, it cannot be held that Mohamed Ayub Mohamed Umar (PW-72) was not an independent witness, or acting under the pressure of the police as he was carrying the business illegally without any license. More so, the Appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he was deposing falsely.23. We do not see any reason as to why his evidence should not be relied upon. Minor omissions/contradictions regarding labeling and sealing are not really the contradictions which go to the root of the matter. Non-examination of the watchman of Ghanshyam Industrial Estate, or omission of factor regarding electricity being not mentioned in the panchnama, or non-collection of broken lock, are the omissions of trivial nature, and do not warrant any undue importance for doubting the evidence of recovery.24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy.Confessional Statement of Appellant (A-21):32. His (A-21) confessional statement had been recorded, however, the same had been discarded by the Designated Court, thus it cannot be considered. The evidence against the Appellant (A-21) remains the recovery of the aforesaid arms and ammunition. In fact, an FIR had been registered on 5.4.1993 at 6.10 p.m. that the Appellant (A-21) was found in possession of a Carbine of 30 Caliber of U.S. make, three magazines and 28 cartridges without holding a fire arms license. It was further revealed that on that day, the police got information that the Appellant (A-21) who was a resident of Pydhonie, Mumbai was scheduled to come near a mosque opposite Pydhonie Police Station to acquire arms and ammunition of foreign make. On that information the trap was arranged near the Pydhonie Police Station. At about 1.30 p.m. the trap party received the pre-decided signal, on which the Appellant (A-21) was searched, however he was not carrying any arms and ammunition with him. He was brought to the DCB, CID office and during interrogation he expressed his willingness to make a voluntary statement. Therefore, two panchas were called from the nearby area and in their presence, the Appellant (A-21) disclosed that he had acquired two Carbines of foreign make and some arms and ammunition from one Mujahidan and one of the said Carbine had been concealed at Naryalwadi, Mazgaon. The Appellant (A-21) led the police party and Panchas to Naryalwadi Muslim Cemetery (Kabaristan), Mazgaon and from the said graveyard he took out one gunny bag duly tied with a rope. It had been concealed in thickly grown trees and shrubs. On being examined, one single barrel Carbine, 28 cartridges and 3 magazines were found. Panchnamas have made for his disclosure statement as well as for recovery of the said articles.Deposition of Bhaskar Babu Rao Jadhav (PW-57):33. He is a panch witness. He supported the case of the prosecution and proved the disclosure statement of the Appellant (A-21) as well as the recovery made at his behest. He gave a full description of how the Appellant (A-21) made the disclosure statement and how the recoveries were made. It corroborates the version given in the FIR. However, in his cross-examination, he (PW-57) stated that he (PW-57) had prepared the notes for deposing in the court. He had given full details of the incident of 5.4.1993. In cross-examination he had admitted that he had also acted as a panch witness in 3 more cases.Deposition of Dayandeo Sonaji Geete (PW-320):34. His deposition revealed that he had accompanied the Appellant (A-21) at the time of recovery alongwith others. He admitted in his cross-examination that he himself had not made any entry in the Station Diary regarding the information received by Senior P.I. Shri Kumbhar about the Appellant (A-21). He has further deposed that he could not remember the manner in which the panch witness arrived in the office. The said panch was brought by the police havaldar. The Appellant (A-21) had been detained in the office of DCB, CID under suspicion due to the receipt of information that he was to be at Pydhonie for acquiring arms. He also deposed that the office of the Bombay Municipal Corporation was inside the Naryalwadi Kabristan from where the recovery had been made at the instance of the Appellant (A-21). He further proved the recovery and denied the suggestions that the Appellant (A-21) did not make any disclosure statement nor any recovery had been made at his behest. He has also identified Appellant (A-21) in the court.35. The deposition of Dayandeo Sonaji Geete (PW-320) has been fully corroborated by another police official Vijay Meru (PW-561) in all respects. However, he has admitted that he had not made any entry in the Station Diary regarding the information received by Senior P.I. Shri Kumbhar, nor he was aware how the panch witness arrived and who was the police havaldar who brought the panch witnesses. However, he (PW-561) deposed that he had detained the Appellant (A-21) on information that he was to be at Pydhonie for acquiring arms. Appellant (A-21) came there at about 1.30 p.m. and on getting the signal, the police party pounced upon him and apprehended him. Appellant (A-21) was searched but he was not carrying any weapon, however, one Ceiko watch, his driving licence, labour card bearing his photograph of Arab Emirates and some Dirhams and a silver ring were found with him. The inventory of the said articles was prepared and they were seized. The currency in Dirhams was of the value of Rs. 13 to 14 thousand Indian rupees. He was interrogated by A.C.P. Shri Babar (PW-683) and Senior P.I. Shri Kumbhar. It was during his interrogation that Appellant (A-21) expressed his desire to make the voluntary statement regarding fire arms. Thus, two panches were called. The suspect was introduced to the panches. The memorandum panchnama was prepared in respect of his disclosure statement. It was signed by panch witnesses and, thus, he supported the recovery of the articles as narrated by the other witnesses. He had proved the complaint as well as the proforma FIR on the basis of the said complaint. PW. 561 registered the said offence as LAC No. 18 of 1993 against the Appellant (A-21) for the offences punishable Under Sections 3 and 7 read with Section 25 of the Arms Act. Though he was competent to answer as to whether the panch witnesses had been stock witnesses or whether there was any discrepancy in drawing the memorandum panchnama but defence did not ask any question during his cross-examination. He (PW-561) identified the Appellant (A-21) on 24.4.1998 in the court and he has denied the suggestion made by the defence that the Appellant (A-21) had not made any disclosure statement, nor the recovery of arms had been made on his disclosure statement.Deposition of Shivajirao Kondiram Babar, ACP (PW-683):36. In his deposition, he revealed that he had received the information about Appellant (A-21) that he would get the weapons near a mosque opposite police station Pydhonie. He had received the information from a secret source on telephone, he recorded the same and passed on the same to the senior officers. He deposed that on 5.4.1993 while he was in his office at Crawford Market, he had received the information from his source on telephone to the effect that Appellant (A-21) involved in Bombay blast case was in possession of fire arms and would be available at Pydhonie. Immediately thereafter, he formed a team of police officers and staff and went to the Pydhonie and arrested the Appellant (A-21), brought him to the office of DCB, CID at Crawford Market and he (A-21) was interrogated. This witness further supported the prosecution case that he made a desire to make confession voluntarily etc.37. The recovered material was sent for FSL, and the report Ext. 1940-A was received. According to which US Carbine gun and 28 cartridges sent for FSL were examined. The carbine gun was found in working condition, and it was capable of chambering and firing the cartridges recovered in that offence. So, the report was positive.38. The Appellant (A-21) made a complaint before the Designated Court, and the court directed his medical examination. He was examined and again sent on police remand.39. After appreciating the entire evidence, the learned Designated Court came to the conclusion as under:Since criminal conspiracies are hatched in secrecy and it is extremely difficult to collect the direct evidence about the same the established principles of law indicate that the standard of a proof requiring such type of cases is loosened, unnecessary hard standards regarding the identity of a particular person cant be expected.. ...Thus, considering in proper perspective all the said evidence, no other conclusion will emerge of A-21 having committed all the offences for which he is charged with on the account of commission of overt acts, but the same will lead any prudent man to the legitimate conclusion of A-21 having committed the aforesaid acts for the purposes of furthering the object of conspiracy.45. We have considered rival submissions made by the counsel for the parties and perused the records.46. The confessional statements of Ahmad Shah Khan @ Salim Durani (A-20), Shaikh Aziz Ahmed (A-21), Moiddin Abdul Kadar Cheruvattam (A-48) and Ismail Abbas Patel (A-80) had been relied upon by the prosecution. The same stood discarded completely by the learned Special Judge on the ground that all the confessional statements had been recorded by the Police officer in utter disregard to the mandatory provisions of Section 15 TADA and Rule 15 of TADA Rules, 1987. The police officer failed to inform the said accused persons while recording their respective statements that they were not bound to make confessional statement and further failed to warn that, in case, they made statements, the same would be used as evidence against them. More so, the required certificate was not attached to the said statements.47. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.Confessional statement of Nasir Abdul Kader Kewal (A-64):54. In his confessional statement, he (A-64) has revealed that he had been associated in smuggling activities and had been participating in landing and transportation alongwith co-accused. He had earlier worked in Saudi Arabia and after coming back settled in Bombay. His father-in-law Gulam Dastgir used to run the business of Matka at Bandra and thus, he (A-64) also joined the said business. Subsequently, he came in association of the smugglers and started helping them in landing and transportation. He participated in landing and transportation from Shekhadi on 7.2.1993 and said that the associates of Tiger Memon (AA) were present including Appellant (A-31). At the instance of Tiger Memon, the bags of arms and explosives brought from the trawler were loaded in a tempo driven by Appellant (A-31).Confessional statement of Shahnawaz Khan (A-128):55. Confessional statement of Shahnawaz Khan (A-128) revealed that he participated in landing on 7.2.1993. He (A-128) alongwith co-accused brought the smuggled goods at Seashore and they found that two tempos were already parked there. One tempo was being driven by Appellant (A-31). The smuggled goods were being loaded in both the tempos. Tiger Memon (AA), Javed Chikna (AA) and Yeda Yakoob (AA) opened the sacks. The accused (A-128) saw that it contained rifles, hand-grenades and bags containing black coloured powder in it. Bullets were also there. Subsequently, those tempos were unloaded at a building with a tower. The goods were reloaded in the cavity of Commander jeeps. The said vehicles (Jeeps) left for Bombay. One tempo though empty followed the jeep.56. Usman Jan Khan (PW-2) identified the Appellant (A-31) in the court. Usman Jan Khan (PW-2) deposed that Appellant (A-31) participated in transportation of smuggled articles. He deposed that on the relevant date they came out of the hotel after having the meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA), were standing near the white coloured tempo which was being driven by Appellant (A-31). Tiger Memon (AA) told Usman Jan Khan (PW-2) to take a seat in the said tempo with the Appellant (A-31). He (PW-2) sat in the tempo and they followed Tiger Memon (AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods had already arrived at the Coast. The same were wrapped in gunny bags. On the instruction of Tiger Memon (AA), the goods were loaded in the two tempos, one of them was being driven by Appellant (A-31). The goods were brought by the said tempo to Wangni Tower and were unloaded there. It was at Wangni Tower that the goods were opened and the witness could see AK-56 rifles, its rounds, handgrenades, pistols, magazines and RDX. They were reloaded in the cavity of the jeeps parked there.57. Padmakar Krishna Bhonsle (PW-62) is the panch witness of the recovery of the vehicle and identified the vehicle recovered by Police Inspector, Anil Prabhakar Mahabole (PW-506). It was recovered at the disclosure statement of the Appellant (A-31).58. Ajit Shivram Surve (PW-604), the Police Officer attached with DCB, CID who had been sent to get the samples prepared on 30.11.1993 by P.I. Shri Pharande, and he corroborated the incident of collection of samples as described by Asit Binod Ghorai (PW-602). He also named 3 persons who collected the samples as Kulkarni, Malve and Surve. He (PW-604) further deposed that he prepared the panchnama which was duly signed by the panch witnesses.59. One application u/s 457 of Code of Criminal Procedure, 1973 was filed by the Appellant (A-31) before the Designated Court for release of the tempo and the same was allowed. However, the court passed the order that the vehicle should be thoroughly examined by experts as to whether it contained any traces of the RDX. It was in view thereof, 3 experts took samples on 30.11.1993 and the report dated 12.1.1994 detected traces of RDX. This was corroborated by panch witness, Asit Binod Ghorai (PW-602).60. After conclusion of the trial, the learned Special Judge came to the conclusion that considering the confessions of the co-accused, Nasir (A-64) and Shahnawaz (A-128), as well as the statement made by Usman (PW-2) there can be no conclusion other than the fact that the Appellant (A-31) was involved in the Shekhadi landing and the transportation operation.66. We have considered the rival submissions made by the learned Counsel for the parties and perused the evidence on record.67. The learned Special Judge dealt with the issue and came to the conclusion that in spite of the fact that the Respondent (A-31) transported the contraband in his tempo and took the same to a far distance but there was nothing on record to show that he had knowledge of the kinds of goods transported in his tempo.68. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.69. From the evidence on record, it becomes clear that Yusuf Khan Kasam (A-31) had participated in landing operation of contraband goods at Shekhadi as he was one of the persons who accompanied Tiger Memon and Ors. and he had also been to Wangni Tower alongwith other associates and contraband material were loaded in tempo. The tempo was taken by him alongwith absconding accused to Mumbra as instructed by Tiger Memon (AA). This version is duly supported/corroborated by Shah Nawaz Khan (A-128) (Ex. 1569-A) and by the evidence of Usman (PW-2). However, there is nothing on record to show that he was aware as of what kinds of contraband were being transported in his tempo.79. The evidence against the Appellant (A-30) is his own confession made on 12th/15th of July, 1993. He has stated throughout that he was a landing agent and involved in smuggling. However, he had no knowledge that arms were being smuggled and he participated in the same, taking it to be smuggling of silver only. The confessional statements of co-accused do not speak of the knowledge of the Appellant (A-30) regarding the smuggling of arms and they too, have only deposed about smuggling of silver.In view of the discussion in Criminal Appeal No. 1728 of 2007, the date of the recording of the confession has no bearing so long as the accused are being tried for the same crime in the same trial. After the amendment, confessional statement of co-accused Jamir Sayyed Ismail Kadri (A-133), Salim Kutta (A-134) and Mechanic Chacha (A-136) had been recorded. Jamir Kadri (A-133) stated in his confession on the basis of hearsay that his brother Shabbir had told him that arms would be smuggled into the city, and that the same was also within the knowledge of the Appellant (A-30).His confessional statement was recorded by A.K. Chandgude, Deputy S.P. (PW-670) wherein the Appellant (A-30) has stated that he was well acquainted with other smugglers like Mohd. Dossa (AA) and Mechanic Chacha (A-136), and he had been acting as a landing agent in smuggling activities for these smugglers, for a long time. He (A-30) had also participated alongwith the other co-accused like Salim Kutta (A-134) and Mechanic Chacha (A-136) in the smuggling of contraband and in providing landing and transportation facilities on 3.12.1992.On 4.12.1992, he was contacted by Assistant Collector (Customs) R.K. Singh (A-102) through a Customs Sepoy. On reaching there at 8:00 p.m., R.K. Singh, Assistant Collector, Custom (A-102) called him in the cabin and asked about the landing that had been made on the previous day upon replying he was told to wait with Custom Inspector Gurav (A-82). He (A-30) went to Mohd. Dossa on 5.12.1992 and explained to him, and to Mechanic Chacha (A-136), the entire incident. Mechanic Chacha (A-136) gave him (A-30), some money to be paid to the Mhasla Custom Staff, the Shrivardhan Custom Staff, the Murud Custom Staff and also to R.K. Singh (A-102). On the same day he (A-30) handed over the money to some of them.Subsequently, it was revealed that the rates that were to be paid to the police officers as well as the customs officers per landing were fixed, and were also revised from time to time, and the Appellant (A-30) had been very much involved in making the payment.Therefore, it is clear that he (A-30) enjoyed a higher status in the hierarchy of the gang of smugglers, and that he had been assigned an important role of negotiating with customs officers and police officers, to remove any hindrance in the said smuggling. It is also clear that payments were made through him (A-30).The Appellant (A-30) confessed, that on 9.1.1993 he, alongwith co-accused Salim Kutta (A-134) and Mechanic Chacha (A-136) had participated in the landing of smuggled goods and when they were coming to Dighi Jetty, on the way he had also met Gurav (A-82), who was driving his jeep. Thereafter, their vehicles were intercepted by Patil (A-116) an Inspector, near Gondghar Phata. In order to negotiate a safe passage for the smuggled goods, Mechanic Chacha (A-136) offered him a sum of Rs. 10 lakhs, and when they were asked about the contents of the wooden boxes, Mechanic Chacha (A-136) stated that the same contained watches. On the said day, they had no cash and, therefore, Mechanic Chacha (A-136) took out five silver bricks from the first truck and gave them to Shri Patil, SI of Shrivardhan. The Appellant (A-30) drove Guravs jeep (A-82) and came to Kanghar. There they shifted 170 bricks in the cavities of two trucks from Bombay. After loading the smuggled goods in the truck, the Appellant went to Shabbirs residence alongwith Salim Kutta (A-134), Feroz and the driver. They removed 80 bricks from the cavity of the first truck from Bombay, and placed them in this truck. The Appellant (A-30) left a message at the residence of Patil (A-116), stating that he would come with money on the night of the 10th of the month. Thus, he (A-30) subsequently met the said S.I. and it was decided that he would pay a sum of Rs. 5 lakhs to the Havaldars and Rs. 2 lakhs to the SI separately, and the said amount was paid by the Appellant (A-30).Further, in his confessional statement he has revealed that the truck bearing No. MH-06-5533 which was used on 9.1.1993 did not belong to him. One Dilip Hegiste was the registered owner of the said vehicle.Thus, it is clear that in his confessional statement, the Appellant (A-30) does not say anything to the effect that he had no knowledge with respect to the smuggled arms.Confessional statement of Janardhan Pandurang Gambas (A-81):80. In his confessional statement he has revealed the presence of the Appellant (A-30) and also has deposed about his (A-30) participation in the landing and transportation of the smuggled goods. However, the goods were silver and gold, and it was the Appellant (A-30) who had taken the said witness for the landing. He has stated that in addition to the silver and gold and rods kept in the gunny bags, there were 30 black military coloured boxes which were unloaded from the trawler and Mechanic Chacha (A-136) cautioned the labourer to handle the same with care, as the goods were made of glass.Confessional statement of Jaywant Keshav Gurav (A-82):81. He was working in the Customs Department at Mahad, and it was his job to prevent illegal smuggling along the sea coast and to nab the smugglers by gathering secret information against them, and further, to register cases against the smugglers. He (A-82) has stated that he had been helping smugglers by taking bribes and facilitating their landing and also the transportation of the smuggled goods. He had a settlement with Rahim Laundriwala that he would be paid Rs. 1,60,000/- for silver landing and that the witness would be informed of such landings in advance. The Appellant (A-30) had met him in June 1992 and told the witness that he was a landing agent working at Dighi Jetty and that he had informed him (A-82) that there would be landing at Dighi Jetty of silver, by Mohd. Dossa. The smuggled goods would come from Dubai and he (A-82) would be paid Rs. 65,000/- for the said landing and Appellant (A-30) had paid him this money after passing the said smuggled goods. This witness has corroborated the confessional statement of the Appellant (A-30).In respect of the incident dated 3.12.1992, i.e. his meeting with R.K. Singh, Assistant Collector, Customs (A-102) where he had bargained for a higher amount, as R.K. Singh (A-102) had told him (A-82) that he must go to the Appellant (A-30) and bring back a sum of Rs. 2.5 lakhs. After discussing the same with the Appellant, he (A-82) went to Bombay and here he was paid Rs. 2.5 lakhs which was to be paid to R.K. Singh (A-102) and Rs. 1.5 lakhs was to be paid to the Superintendent. He collected this money and paid the same to the said officers.In respect of the incident dated 9.1.1993 the witness revealed that he had been informed by R.K. Singh (A-102) that on the said day, Mohd. Dossa would smuggle the goods and that the landing would take place at Dighi Jetty and that he (A-82) must assist him. On that day, the Appellant met this witness and informed him regarding the landing that would take place at the night at Dighi Jetty and has thus corroborated the confessional statement of the Appellant (A-30) to the extent that they had in fact met in the said manner and that it was the Appellant (A-30) who had negotiated with Patil (A-116). It has further been revealed that the Appellant (A-30) had driven the car of A-82.Confessional Statement of Mohd. Sultan Sayyed (A-90):82. He is S.P. Raigad. In his confessional statement he has corroborated the version of events provided by the Appellant, regarding the association of the smugglers with R.K. Singh, Assistant Collector (A-102) and making regular payments of illegal gratification. He has also stated that it was the Appellant (A-30) who had been negotiating with the customs and police officers to revise the rates per landing. He (A-90) had accepted a bribe from the Appellant (A-30) of Rs. 1 lakh out of the total amount of Rs. 3.5 lakhs that was paid by the Appellant to R.K. Singh (A-102).Confessional Statement of SS Talwadekar (A-113):83. He has also corroborated the confessional statement of the Appellant regarding silver at Shekhadi sea-coast, in collusion with the customs and police officers including J.K. Gurav (A-82). He has revealed that he had been facilitating the smugglers in their landings and transportation, and he has also accepted that he had received Rs. 1.6 lakhs as was decided earlier for the first landing, for the second and also third landing. He has also admitted to accepting the said amount.So far as theincident dated 9.1.1993 is concerned, he has named the Appellant (A-30) who met him (A-113) and paid him a sum of Rs. 40,000/- out of the settled amount of Rs. 1.25 lakhs.Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136):84. His statement corroborates the statement of Salim Kutta (A-134) to the extent that Uttam Potdar (A-30) was the landing agent, and that the accused had (A-136) met Uttam Potdar (A-30) at Mhasla. He (A-136) further corroborated the version of events which included the interception of contraband by the Shrivardhan police; the negotiation of the bribe by Uttam Potdar (A-30); and further the giving of five silver bricks to the police as security.Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):85. He has stated that he is the elder brother of Shabbir. He knew the Appellant (A-30) who was at that time, working for Mohd. Dossa. During a marriage in his family on 10.1.1993 when a large number of his relatives were visiting, Salim Kutta (A-134) and his friends Feroz and his brother Shabbir had come to his house on a Yamaha Motor Cycle alongwith the Appellant (A-30). The Appellant (A-30) left after having a discussion with his brother, Shabbir. Shabbir told him (A-133) that silver and weapons would arrive at Dighi Jetty on that day, and this landing was to be supervised by the Appellant (A-30). After some time, Shabbir and the other co-accused Salim (A-134), Feroz and the Appellant (A-30) started talking about the unloading of the goods to be brought, and after discussing the same for a while, the Appellant (A-30) went out to make arrangements for the unloading of the concerned goods. It was on that day that he learnt that the goods were being sent by Mohd. Dossa.On 9.1.1993 at 7.00 p.m. Shabbir, Salim (A-134) and Feroz left for Dighi Jetty to unload the smuggled goods. He (A-133) stayed at home. They returned at 5 a.m. with three wooden boxes, which were kept by them in the hall of the house, and he then slept there. From their conversation, the witness learnt that there were 300 ingots of silver in total, each of them weighing 30 Kgs. and 19 ingots which could not be loaded in the truck, and the same were then hidden in the open land of one Subedar who was at the said time, living in Nairobi.On 10.1.1993, the Appellant (A-30) came to his house during the night and spoke to Salim (A-134) and Shabbir and went away. From their discussion he (A-133) understood that silver and weapons had been smuggled at Dighi Jetty on the previous night.He (A-133), alongwith others, brought 19 silver ingots and 15/20 green coloured bags containing tin boxes in a bullock cart, and kept them in their house and then fell asleep. After about two days, Afzal Gadbad, who works in the office of Mohd. Dossa in Bombay, came there and took away the said silver ingots in a jeep. However, the tin boxes remained there. After about a month, upon being asked by Shabbir, the said tin boxes and bags were taken to the first floor of the house of Ali Mian Faki, which was in close proximity to their house. Janardhan Pandurang Gambas (A-81) who is a resident of that area, and a fisherman who had participated in the smuggling with Shabbir, the Appellant (A-30) and Abdulla Surati told the witness that the smuggled goods also contained weapons alongwith silver ingots.Confessional Statement of Salim Kutta (A-134):86. He has corroborated the confessional statement of the Appellant (A-30). However, he (A-134) did not say anything to show that the Appellant (A-30) had knowledge regarding the contents of the boxes, particularly as regards the weapons. He stated that the Appellant (A-30) was present during the landing at Dighi Jetty and had made arrangements for labour and a boat. After the loading of the landed goods on vehicles, the Appellant (A-30) had also participated in negotiations with the police upon being interception by them.Confessional Statement of Faki Ali Faki Ahmed (A-74):87. He (A-74) corroborated the fact that the Appellant (A-30) was a landing agent and a resident of Mhasla, and that the Appellant (A-30) was well acquainted with Shabbir and Jamir (A-133) who were involved in smuggling activities.88. Deposition of Dilip Pansare (PW. 97) - In his deposition, he reveals that he was a childhood friend of the Appellant (A-30) and had been working in a government department. However, he had driven the truck containing smuggled goods. He has also deposed that upon interception by Inspector Patil (A-116), a discussion ensued for half an hour, amongst the Appellant (A-30), Gurav (A-82), Shabbir Kadri and Inspector Patil (A-116). He identified the truck, though the owner and the driver of the truck were neither made accused, nor witnesses in this case.89. Deposition of Vyankatesh Hirba (PW. 588) - He was the officer who had effected the seizure of the Tempo bearing number MH-06-5533 on 12.4.93. The Appellant (A-30) in his confession has stated that the said tempo was used to transport contraband items which were landed at Dighi Jetty.90. Deposition of Dinesh Nakti (PW. 95) speaks of silver ingots and wooden boxes. He identified the Appellant in court.91. A conjoint reading of the confessional statement and deposition of witnesses reveal that Appellant (A-30) had been an associate of Mohd. Dossa (AA) and was aware of the fact that Mohd. Dossa (AA) was involved in criminal activities. A-30 was also associate of co-accused Mechanic Chacha, Shabbir, Salim, Feroz and Jamir Sayyed Kadri. A-30 has been working as a landing agent for Mohd. Dossa and Ors. by arranging boats and coolies. A-30 was called to Mhasla on 4.12.1992 wherein he disclosed about the previous day landing to R.K. Singh (A-102), Custom Officer. Subsequent to the said meeting, A-30 received Rs. 6.25 lacs from A-136 and paid Rs. 1 lac to Mhasla Custom staff, Rs. 1.5 lacs to Shrivardhan Custom staff, Rs. 1.25 lac to R.K. Singh, Custom Officer. A-30 made arrangements for boats and coolies for another landing scheduled for 9.2.1993 and went to Dighi Jetty on his motorcycle on 9.2.1993. He met Custom Inspector Gurav (A-82) and started driving jeep of Gurav. When the trucks carrying contraband smuggled goods were intercepted by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that the money for earlier landing had been paid to Mali Havaldar who was also member of that police team. It was in his presence that Mechanic Chacha (A-136) offered Rs. 10 lacs to PSI Patil and as they did not have money, they gave him 5 silver bricks as a security. A-30 alongwith others shifted 170 bricks in the cavity of two trucks of Bombay and 80 silver bricks were transferred from one truck to another at the residence of Shabbir (AA). He also went to the residence of Shabbir. A-30 left the message at Shrivardhan Police Station that he would come with money on the night of 10.2.1993. In his presence Rs. 2 lacs were paid to Patil, PSI at Shrivardhan Naka and Rs. 5 lacs were paid to Havaldars. A-30 received Rs. 3 lacs from Feroz on the same night to hand it over to Custom Officer of Alibagh and he handed it over to R.K. Singh and Sayyed.92. After appreciating the evidence on record, the learned Designated Court reached the following conclusions:...However considering further events which had occurred at Ghonghar Patta i.e. interception of goods by police, allowing the same to be further proceeded after negotiations with smugglers, presence of A-30 who was one of the main person, or effecting landing, his role in the said episode, it is difficult to perceive that at the said juncture A-30 would not have gathered the knowledge of contraband material. Needless to add that in cases of conspiracy it is difficult to except to have direct evidence and the inference about certain aspects is required to be drawn from established facts & circumstances.Thus having regard to all the aforesaid facets it is difficult to accept that at least at the said place A-30 would not have gathered the nature of contraband goods also sent along with smugglers. It is true that the said further acts committed by A-30 being in the nature of continuing job for which he had agreed i.e. effecting the silver landing the same may not make him liable for being party to the conspiracy to commit the terrorist act or the larger conspiracy for which the charge at head 1stly is framed. Such a conclusion is obvious as hardly there exists any other material denoting that alter completion of job of landing & transportation, A-30 having committed any act furthering object of ally conspiracy. However, still now the further act being committed by A-30 being with an expressed knowledge that the contraband material was containing arms & ammunitions he will be squarely liable for commission of offence u/s 3(3) of TADA. Similarly the quantity of the said arms & ammunition and the further acts actually committed by A-30 would also make him liable for commission of offence u/s 6 TADA.... Thus considering the said aspect it will be extremely difficult to accept that policemen would not have been aware about the nature of said goods in trucks which were in the said trucks i.e. silver and arms & ammunitions as established by evidence. Such an inference is inevitable as such evidence pertaining to landing clearly denotes of the material being of two different categories i.e. boxes and bachkies i.e. bundles. Having regard to the same it is difficult to perceive that during inspection of trucks at least parcels from each category would not have been inspected by policemen.	0	3,659	### 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: contained one AK-56 assault rifle of folding type butt, in rusted condition but had been greased and two magazines of AK-56 assault rifle with no identification marks and numbers and it was in rusted condition and greased. 15. The Designated Court after appreciating the evidence on record came to the conclusion as under: A-20 having not explained the reason of his knowledge of such a contraband articles being kept in a said factory of which he was partner the same will lead only to the inference of himself having kept the same. The same is obvious as A-20 could have knowledge about the same in three contingencies i.e. a) he had kept the contrabands himself b) having seen somebody keeping the same there c) somebody had told him that the same being kept at the said place or having seen himself of such articles being kept at that place. In view of failure of A-20 to give any explanation regarding his knowledge being due to the reasons as stated in the aforesaid clauses b) and c) the same will lead to the conclusion as stated aforesaid. With regard to matter stated in clause c) aforesaid it can be additionally added that since the accused was also partner of the said shop allowing the remaining of such articles at the said place would also attract the liability for the same....] The same is the case regarding the submission advanced on the basis of A-20 at the time of recovery not having the key of the relevant gala. In light of the aforesaid discussion it is difficult to accept the submission canvassed that the evidence only establish the knowledge of A-20 of the contraband material lying at the said place and the same does not amount to himself being in conscious possession of the same. Needless to add that the inferences flowing from the statement made by A-20 consciously are not of a nature of denoting himself not being in conscious possession of contraband articles within the notified area.... 16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery. There is sufficient material to show that the recovery had been made at the behest of the Appellant (A-20) from the factory owned by a partnership to which he was the partner alongwith one Surjit Singh. In such a fact-situation, he ought to have explained the reason/source of his knowledge of such contraband articles being kept in his factory. 17. In the instant case, as he has not mentioned that he had seen someone keeping the articles there, or somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that place. Being a partner of the firm if he was having the knowledge that some contraband were lying in his premises, he ought to have informed the police if he had no guilty mind. 18. So far as the explanation that at the time of recovery he did not have the key, would not be enough to tilt the balance in his favour. The fact that he did not have the key becomes totally redundant, as no conclusion can be drawn that the Appellant (A-20) was not in possession of the said premises, and in such a fact-situation, it cannot be held that the Appellant (A-20) was not in conscious possession of the contraband material. 19. We do not find any force in the submissions made by Shri Sunil Kumar, learned senior counsel appearing for the Appellant (A-20), that the panch witness was the resident of Sitaram building, which was opposite to the office of the Commissioner of Police, or in a very close proximity of the same, and was working on the footpath nearby the said building, and he had acted earlier as a panch witness in test identification parade. 20. The police when searching for a panch witness, need not go to far off place of the police station as the panchnama is required to be recorded in a close proximity of time, when the accused apprehending his disclosure statement. Therefore, on such material suspicion about the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. Had it been picked up from a far off place, criticism could have been otherwise as to why the panch witness could not be called from neighbourhood. 21. The panch witness Mohamed Ayub Mohamed Umar (PW-72) could not be held to be a tutored witness or acting at the behest of the prosecution only on the ground that he had also been the witness in another case. It does not give a reason to draw inference that he was a stock panch witness unless it is shown that he had acted in such capacity in a very large number of cases. 22. More so, it cannot be held that Mohamed Ayub Mohamed Umar (PW-72) was not an independent witness, or acting under the pressure of the police as he was carrying the business illegally without any license. More so, the Appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he was deposing falsely. 23. We do not see any reason as to why his evidence should not be relied upon. Minor omissions/contradictions regarding labeling and sealing are not really the contradictions which go to the root of the matter. Non-examination of the watchman of Ghanshyam Industrial Estate, or omission of factor regarding electricity being not mentioned in the panchnama, or non-collection of broken lock, are the omissions of trivial nature, and do not warrant any undue importance for doubting the evidence of recovery. 24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy. ### Response: 0
584	Samir Vidyasagar Bhardwaj Vs. Nandita Samir Bhardwaj	(West) Mumbai by way of Agreement for Sale dated 22.11.2010. The said flat was purchased in the joint names of the appellant and the respondent herein where they have been residing with their two daughters till date.4. After more than two decades of marital life, on 09.07.2015 respondent-wife filed a petition under Section 27(1)(d) of the Special Marriage Act for divorce against the appellant being Petition No. A-1873 of 2015 in the Family Court at Bandra, Mumbai. The respondent has sought various other reliefs including a direction to be given to the appellant to move out of the matrimonial home and handover vacant and peaceful possession of the same to the respondent and to pay a maintenance of Rs. 1,00,000/- and other consequential reliefs apart from seeking dissolution of marriage. An application being I.A. No.162 of 2015 was filed by the respondent-wife under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (for short `the Domestic Violence Act) praying for issuance of mandatory injunction against the appellant-husband to move out of the matrimonial house and handing over the vacant and peaceful possession of the house. In addition to the above, she had also sought for alimony/maintenance and the expenses of marriage of her daughters.5. When the application was taken up by the Family Court, the respondent-wife did not press for other reliefs and she pressed only for the relief of mandatory injunction to direct the appellant-husband to move out of the matrimonial house. The application was resisted by the appellant herein denying all the allegations stating therein that identical relief with regard to injunction having been sought in the Divorce Petition, the same cannot be granted at an interim stage. The appellant had also contended before the Family Court that he being the owner of the flat, cannot be deprived from using his house. It is also the case of the appellant-husband that the allegations made by the respondent-wife are not supported by way of anything on record and that the wife owns a flat jointly with her mother at Tardeo and another one on pagadi basis.6. The Divorce Petition has been filed on the ground of cruelty and the respondent-wife had alleged in the application seeking interim relief that she had been subjected to mental and physical cruelty due to which living under one roof with the appellant-husband has become impossible. Even the daughters who have filed their respective affidavits have supported the stand taken by their mother namely the respondent. The counsel further stated that the husband was owing a flat jointly with his mother and is just five minutes walking distance from the matrimonial home and that no inconvenience would be caused to him.7. The Family Court passed the interim order on 13.12.2016 directing the appellant-husband to remove himself out of the matrimonial house and not to visit the same till the decision of the divorce petition. Aggrieved by the interim order passed by the Family Court, the appellant-husband approached the High Court by way of a writ petition stating therein that final relief sought in the main petition could not have been granted at interim stage; he being a co-owner of the premises, he cannot be evicted from that premises which amounted to his virtual dispossession of the premises of which he was a co-owner. It was urged that there is no independent/corroborative evidence to support the claim of domestic violence and impugned order is harsher than temporary injunction.8. Heard learned counsel for the parties.9. The only issue to be addressed in this case is whether the order directing appellant-husband to remove himself from the matrimonial home of which he is a co-owner warrants interference.10. It is an undisputed fact that the property is a shared household of the parties. The appellant-husband is working with the Taj Group of Hotels and the respondent-wife is working as an airhostess with the British Airways. As is seen from the organisations in which they are working, both the appellant and the respondent are independent and having their own source of income. We have gone through the allegations of domestic violence made not only by the respondent-wife but also in the affidavits filed by their grown up daughters wherein they have expressed their feelings in view of the dispute between their parents and also their feelings as to the conduct of their father at home. We do not propose to go into those averments in the affidavit sworn in by the daughters, lest it would prejudice either parties while contesting the main matter.11. Section 19(1)(b) of the Protection of Women Domestic Violence Act provides that the Court may direct the appellant-husband to remove himself from the shared household. The order passed under Section 19 of the Act seeks to maintain continued and undisturbed residence of the aggrieved party within the shared household and in pursuance of same it directs the respondent to execute a bond with or without surety or secure an alternate accommodation for the aggrieved party and pay the rent for the same and restrains the respondent from or renouncing property rights or valuable security of the aggrieved party.12. The Family Court arrived at a finding that prima facie material was available on record to accept the allegation of the respondent-wife on domestic violence wherein the concerned Judge had exercised his discretion under Section 19(1)(b) of the Domestic Violence Act which provides that the Magistrate on being satisfied that domestic violence has taken place can remove the spouse from the shared household which in our opinion he has rightly done. Exercise of discretion by Family Court cannot be said to be perverse warranting interference. The High Court while declining to interfere with the order has also considered the factual and legal position.13. Having gone through the orders of the High Court and the Family Court and considering the fact that the daughters are grown up, we are not inclined to exercise our discretion under Article 136 of the Constitution of India at the interlocutory stage.	0[ds]10. It is an undisputed fact that the property is a shared household of the parties. Theis working with the Taj Group of Hotels and theis working as an airhostess with the British Airways. As is seen from the organisations in which they are working, both the appellant and the respondent are independent and having their own source of income. We have gone through the allegations of domestic violence made not only by thebut also in the affidavits filed by their grown up daughters wherein they have expressed their feelings in view of the dispute between their parents and also their feelings as to the conduct of their father at home. We do not propose to go into those averments in the affidavit sworn in by the daughters, lest it would prejudice either parties while contesting the main matter.The Family Court arrived at a finding that prima facie material was available on record to accept the allegation of theon domestic violence wherein the concerned Judge had exercised his discretion under Section 19(1)(b) of the Domestic Violence Act which provides that the Magistrate on being satisfied that domestic violence has taken place can remove the spouse from the shared household which in our opinion he has rightly done. Exercise of discretion by Family Court cannot be said to be perverse warranting interference. The High Court while declining to interfere with the order has also considered the factual and legal position.13. Having gone through the orders of the High Court and the Family Court and considering the fact that the daughters are grown up, we are not inclined to exercise our discretion under Article 136 of the Constitution of India at the interlocutory stage.	0	1,260	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: (West) Mumbai by way of Agreement for Sale dated 22.11.2010. The said flat was purchased in the joint names of the appellant and the respondent herein where they have been residing with their two daughters till date.4. After more than two decades of marital life, on 09.07.2015 respondent-wife filed a petition under Section 27(1)(d) of the Special Marriage Act for divorce against the appellant being Petition No. A-1873 of 2015 in the Family Court at Bandra, Mumbai. The respondent has sought various other reliefs including a direction to be given to the appellant to move out of the matrimonial home and handover vacant and peaceful possession of the same to the respondent and to pay a maintenance of Rs. 1,00,000/- and other consequential reliefs apart from seeking dissolution of marriage. An application being I.A. No.162 of 2015 was filed by the respondent-wife under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (for short `the Domestic Violence Act) praying for issuance of mandatory injunction against the appellant-husband to move out of the matrimonial house and handing over the vacant and peaceful possession of the house. In addition to the above, she had also sought for alimony/maintenance and the expenses of marriage of her daughters.5. When the application was taken up by the Family Court, the respondent-wife did not press for other reliefs and she pressed only for the relief of mandatory injunction to direct the appellant-husband to move out of the matrimonial house. The application was resisted by the appellant herein denying all the allegations stating therein that identical relief with regard to injunction having been sought in the Divorce Petition, the same cannot be granted at an interim stage. The appellant had also contended before the Family Court that he being the owner of the flat, cannot be deprived from using his house. It is also the case of the appellant-husband that the allegations made by the respondent-wife are not supported by way of anything on record and that the wife owns a flat jointly with her mother at Tardeo and another one on pagadi basis.6. The Divorce Petition has been filed on the ground of cruelty and the respondent-wife had alleged in the application seeking interim relief that she had been subjected to mental and physical cruelty due to which living under one roof with the appellant-husband has become impossible. Even the daughters who have filed their respective affidavits have supported the stand taken by their mother namely the respondent. The counsel further stated that the husband was owing a flat jointly with his mother and is just five minutes walking distance from the matrimonial home and that no inconvenience would be caused to him.7. The Family Court passed the interim order on 13.12.2016 directing the appellant-husband to remove himself out of the matrimonial house and not to visit the same till the decision of the divorce petition. Aggrieved by the interim order passed by the Family Court, the appellant-husband approached the High Court by way of a writ petition stating therein that final relief sought in the main petition could not have been granted at interim stage; he being a co-owner of the premises, he cannot be evicted from that premises which amounted to his virtual dispossession of the premises of which he was a co-owner. It was urged that there is no independent/corroborative evidence to support the claim of domestic violence and impugned order is harsher than temporary injunction.8. Heard learned counsel for the parties.9. The only issue to be addressed in this case is whether the order directing appellant-husband to remove himself from the matrimonial home of which he is a co-owner warrants interference.10. It is an undisputed fact that the property is a shared household of the parties. The appellant-husband is working with the Taj Group of Hotels and the respondent-wife is working as an airhostess with the British Airways. As is seen from the organisations in which they are working, both the appellant and the respondent are independent and having their own source of income. We have gone through the allegations of domestic violence made not only by the respondent-wife but also in the affidavits filed by their grown up daughters wherein they have expressed their feelings in view of the dispute between their parents and also their feelings as to the conduct of their father at home. We do not propose to go into those averments in the affidavit sworn in by the daughters, lest it would prejudice either parties while contesting the main matter.11. Section 19(1)(b) of the Protection of Women Domestic Violence Act provides that the Court may direct the appellant-husband to remove himself from the shared household. The order passed under Section 19 of the Act seeks to maintain continued and undisturbed residence of the aggrieved party within the shared household and in pursuance of same it directs the respondent to execute a bond with or without surety or secure an alternate accommodation for the aggrieved party and pay the rent for the same and restrains the respondent from or renouncing property rights or valuable security of the aggrieved party.12. The Family Court arrived at a finding that prima facie material was available on record to accept the allegation of the respondent-wife on domestic violence wherein the concerned Judge had exercised his discretion under Section 19(1)(b) of the Domestic Violence Act which provides that the Magistrate on being satisfied that domestic violence has taken place can remove the spouse from the shared household which in our opinion he has rightly done. Exercise of discretion by Family Court cannot be said to be perverse warranting interference. The High Court while declining to interfere with the order has also considered the factual and legal position.13. Having gone through the orders of the High Court and the Family Court and considering the fact that the daughters are grown up, we are not inclined to exercise our discretion under Article 136 of the Constitution of India at the interlocutory stage. ### Response: 0
585	Janta Machine Tools Vs. State Of U.P. & Ors	incurred by our company by purchasing raw material for its own expenses under the agreement dated May 15, 1981 entered into. M/s. Janta Machine Tools was assured by the company to supply very soon all the remaining machines and installing them and making its trial production at its own expenses." The Division Level Committee, while rejecting the application dated February 9, 1987, essentially gave only one reason for the rejection. It was stated that the date of the alleged trial production was really the date of commencement of production and this fell prior to October 1, 1982. As stated earlier the assessee preferred a review application pointing out that the trial production could not be treated as commencement of actual production. This review application was disposed of on October 27, 1987. In its order the Committee observed : "On joint inquiry into the reality of your unit being conducted by the General Manager and Sales Tax Officer of Deoband Industries Department they have reported that Shri Suresh Datt Sharma, the proprietor of M/s. Janta Machine Tools, is partner of one-third share in M/s. Krishna Trading Company also. No purchase of raw material was declared by M/s. Krishna Trading Company in the year 1981-82, and therefore, the certificate of trial production issued by M/s. Krishna Trading Company on December 4, 1981 is baseless and untrue. In joint inquiry report it is also clear that your unit has purchased from M/s. Krishna Trading Company, kupla, etc., of Rs. 69, 000 on May 21, 1981, whereas M/s. Krishna Trading Company have declared sale of Rs. 13, 035 only in 1981-82 as per file of the Sales Tax Department. In the joint inquiry report it is also mentioned that your unit got electricity on November 21, 1982 and on inquiry the unit informed that the trial production was done with the help of a generator. Your unit could not give any certificate for purchasing or hiring a generator and now it has declared to have hired the generator for 4-5 hours from M/s. Mitra Industries, Deoband. In the inquiry report it is also made clear that a unit cannot use a generator of other unit without prior permission of the Electricity Department ......On the above discussion it is concluded that the unit in question wants to (get) illegal benefit of exemption from sales tax by producing wrong facts. The trial production done by M/s. Krishna Trading Company on December 4, 1981 is proved to have been done by the unit in question itself and not by them. Thus, the unit was established before October 1, 1982. The unit established before October 1, 1982 is, therefore, not entitled to exemption from sales tax." 4. In our opinion, the rejection of the assessees application proceeds on a total misconception of the facts. The conclusion of the Division Level Committee is that production was commenced by the appellant on December 4, 1981 but this conclusion is based on no evidence. It is true that the appellant produced a certificate showing that some production was done on December 4, 1981 but the appellants case was that this was merely a trial production. It is not quite clear whether the Division Level Committee completely doubts any trial production having taken place at all, or whether its conclusion is that there was a trial production, on December 4, 1981. If its conclusion is the former one, it does not affect the appellants claim. Assuming that the Committee has come to the conclusion that the production on December 4, 1981 was conducted not by M/s. Krishna Trading Company but by the appellant itself, the fact still remains that what had happened on that date was only trial production. The mere fact that a certificate by M/s. Krishna Trading Company is disbelieved cannot lead to the conclusion that the assessee had produced goods on December 4, 1981. If one is to go by the definition contained in the explanation to section 4-A for determining when the production started, one has to concentrate on the date of purchase of raw materials or on the date on which the electricity was brought into use for commercial production. The appellants claim that it had manufactured goods by September 30, 1984 is not denied. Production had, therefore, commenced before March 31, 1985. There is no suggestion by the Department or the Committee, and there is no material to show that the appellant had purchased raw materials sufficient to carry out normal commercial production at any time prior to October 1, 1982. It is an admitted fact that the assessee was able to obtain electricity for use for commercial production only in November, 1982. This lends support to the appellants contention that the production could not have been effected by the assessee prior to that date. In fact, this is a point on which emphasis is laid in the order dated October 27, 1987. That being so, there is no iota of evidence or material on the basis of which the appellants claim that it had started production in December, 1982 could have been rejected. On the other hand, the recommendation and endorsement of the General Manager, District Industries Centre, which has been extracted earlier, also supports the appellants contention that it had started production on December 4, 1982 and this report was given after verifying the actual position on the spot.For the reasons above-mentioned we are of the opinion that the denial of the exemption to the appellant under the notification dated September 30, 1982 was not justified. The rejection of the appellants application in this regard is quashed and the appellant is declared entitled to the exemption in terms of the notification. We should not be understood, however, to have expressed any opinion as to the amount of exemption available to the appellant under the notification. That will be a matter for consideration of the authorities in respect of each of the years concerned in respect of which the claim is made for exemption. 5.	1[ds]In our opinion, the rejection of the assessees application proceeds on a total misconception of the facts. The conclusion of the Division Level Committee is that production was commenced by the appellant on December 4, 1981 but this conclusion is based on no evidence. It is true that the appellant produced a certificate showing that some production was done on December 4, 1981 but the appellants case was that this was merely a trial production. It is not quite clear whether the Division Level Committee completely doubts any trial production having taken place at all, or whether its conclusion is that there was a trial production, on December 4, 1981. If its conclusion is the former one, it does not affect the appellants claim. Assuming that the Committee has come to the conclusion that the production on December 4, 1981 was conducted not by M/s. Krishna Trading Company but by the appellant itself, the fact still remains that what had happened on that date was only trial production. The mere fact that a certificate by M/s. Krishna Trading Company is disbelieved cannot lead to the conclusion that the assessee had produced goods on December 4, 1981. If one is to go by the definition contained in the explanation to section 4-A for determining when the production started, one has to concentrate on the date of purchase of raw materials or on the date on which the electricity was brought into use for commercial production. The appellants claim that it had manufactured goods by September 30, 1984 is not denied. Production had, therefore, commenced before March 31, 1985. There is no suggestion by the Department or the Committee, and there is no material to show that the appellant had purchased raw materials sufficient to carry out normal commercial production at any time prior to October 1, 1982. It is an admitted fact that the assessee was able to obtain electricity for use for commercial production only in November, 1982. This lends support to the appellants contention that the production could not have been effected by the assessee prior to that date. In fact, this is a point on which emphasis is laid in the order dated October 27, 1987. That being so, there is no iota of evidence or material on the basis of which the appellants claim that it had started production in December, 1982 could have been rejected. On the other hand, the recommendation and endorsement of the General Manager, District Industries Centre, which has been extracted earlier, also supports the appellants contention that it had started production on December 4, 1982 and this report was given after verifying the actual position on the spot.For the reasons above-mentioned we are of the opinion that the denial of the exemption to the appellant under the notification dated September 30, 1982 was not justified. The rejection of the appellants application in this regard is quashed and the appellant is declared entitled to the exemption in terms of the notification. We should not be understood, however, to have expressed any opinion as to the amount of exemption available to the appellant under the notification. That will be a matter for consideration of the authorities in respect of each of the years concerned in respect of which the claim is made for exemption.	1	2,201	### 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: incurred by our company by purchasing raw material for its own expenses under the agreement dated May 15, 1981 entered into. M/s. Janta Machine Tools was assured by the company to supply very soon all the remaining machines and installing them and making its trial production at its own expenses." The Division Level Committee, while rejecting the application dated February 9, 1987, essentially gave only one reason for the rejection. It was stated that the date of the alleged trial production was really the date of commencement of production and this fell prior to October 1, 1982. As stated earlier the assessee preferred a review application pointing out that the trial production could not be treated as commencement of actual production. This review application was disposed of on October 27, 1987. In its order the Committee observed : "On joint inquiry into the reality of your unit being conducted by the General Manager and Sales Tax Officer of Deoband Industries Department they have reported that Shri Suresh Datt Sharma, the proprietor of M/s. Janta Machine Tools, is partner of one-third share in M/s. Krishna Trading Company also. No purchase of raw material was declared by M/s. Krishna Trading Company in the year 1981-82, and therefore, the certificate of trial production issued by M/s. Krishna Trading Company on December 4, 1981 is baseless and untrue. In joint inquiry report it is also clear that your unit has purchased from M/s. Krishna Trading Company, kupla, etc., of Rs. 69, 000 on May 21, 1981, whereas M/s. Krishna Trading Company have declared sale of Rs. 13, 035 only in 1981-82 as per file of the Sales Tax Department. In the joint inquiry report it is also mentioned that your unit got electricity on November 21, 1982 and on inquiry the unit informed that the trial production was done with the help of a generator. Your unit could not give any certificate for purchasing or hiring a generator and now it has declared to have hired the generator for 4-5 hours from M/s. Mitra Industries, Deoband. In the inquiry report it is also made clear that a unit cannot use a generator of other unit without prior permission of the Electricity Department ......On the above discussion it is concluded that the unit in question wants to (get) illegal benefit of exemption from sales tax by producing wrong facts. The trial production done by M/s. Krishna Trading Company on December 4, 1981 is proved to have been done by the unit in question itself and not by them. Thus, the unit was established before October 1, 1982. The unit established before October 1, 1982 is, therefore, not entitled to exemption from sales tax." 4. In our opinion, the rejection of the assessees application proceeds on a total misconception of the facts. The conclusion of the Division Level Committee is that production was commenced by the appellant on December 4, 1981 but this conclusion is based on no evidence. It is true that the appellant produced a certificate showing that some production was done on December 4, 1981 but the appellants case was that this was merely a trial production. It is not quite clear whether the Division Level Committee completely doubts any trial production having taken place at all, or whether its conclusion is that there was a trial production, on December 4, 1981. If its conclusion is the former one, it does not affect the appellants claim. Assuming that the Committee has come to the conclusion that the production on December 4, 1981 was conducted not by M/s. Krishna Trading Company but by the appellant itself, the fact still remains that what had happened on that date was only trial production. The mere fact that a certificate by M/s. Krishna Trading Company is disbelieved cannot lead to the conclusion that the assessee had produced goods on December 4, 1981. If one is to go by the definition contained in the explanation to section 4-A for determining when the production started, one has to concentrate on the date of purchase of raw materials or on the date on which the electricity was brought into use for commercial production. The appellants claim that it had manufactured goods by September 30, 1984 is not denied. Production had, therefore, commenced before March 31, 1985. There is no suggestion by the Department or the Committee, and there is no material to show that the appellant had purchased raw materials sufficient to carry out normal commercial production at any time prior to October 1, 1982. It is an admitted fact that the assessee was able to obtain electricity for use for commercial production only in November, 1982. This lends support to the appellants contention that the production could not have been effected by the assessee prior to that date. In fact, this is a point on which emphasis is laid in the order dated October 27, 1987. That being so, there is no iota of evidence or material on the basis of which the appellants claim that it had started production in December, 1982 could have been rejected. On the other hand, the recommendation and endorsement of the General Manager, District Industries Centre, which has been extracted earlier, also supports the appellants contention that it had started production on December 4, 1982 and this report was given after verifying the actual position on the spot.For the reasons above-mentioned we are of the opinion that the denial of the exemption to the appellant under the notification dated September 30, 1982 was not justified. The rejection of the appellants application in this regard is quashed and the appellant is declared entitled to the exemption in terms of the notification. We should not be understood, however, to have expressed any opinion as to the amount of exemption available to the appellant under the notification. That will be a matter for consideration of the authorities in respect of each of the years concerned in respect of which the claim is made for exemption. 5. ### Response: 1
586	Air India Ltd Vs. Cochin International Airport Ltd	Cambatta had protested against giving of an opportunity to Air India to make a presentation by its letters dated 12.11.1998 and 23.11.1998 on the ground that what was being done by CIAL was improper and in violation of global competitive bidding norms. In spite of the protest of Cambatta the Board of Directors of CIAL permitted Air India to make a presentation for outlining in detail its ground handling capabilities, packages of services which it wished to offer and other relevant advantages including financial. Air India by its letter dated 1.12.1998 recapitulated the details of the offer which it had already made, and the subsequent presentation and discussion on 27.11.1998. The said letter discloses that some changes were made by Air India in its original offer to make it more acceptable to CIAL. In that letter it was also indicated that it would try to enhance Air India and other Airlines domestic and international operations through CIAL and pointed out that only through maximisation of operations this new venture can be a profitable one at an early date. Cambatta again by its letter dated 7.12.1998 reiterated that its offer was the highest (most favourable to CIAL) and that it would be unfair to accept the revised bid of Air India. In spite of the protests of Cambatta, CIAL, by its letter dated 12.`12.1998, informed Air India that the Board of Directors had decided to accept the revised offer of Air India.11. This narration of facts makes it clear that all along, after the High Level Committee had recommended Cambatta for awarding the contract, what Cambatta was contending was that CIAL having accepted the limited global competitive bidding norms and having decided 28.7.1998 as the last date for inviting final offer, it was not open to it thereafter to negotiate with Air India behind the back of Cambatta and permit Air India to revise its offer. Even though Cambatta had written protest letters, it had not requested CIAL to give it any opportunity to negotiate or to improve upon its offer. The decision of the High Level Committee was obviously not the final decision and certainly it was not binding on the Board of Directors who were the final authority to take the decision. The Board of Directors, at the meeting held on 7.11.1998, considered the proposals of Air India and Cambatta and appears to have taken a tentative decision to award the contract to Air India and, therefore, called it for negotiations with a view to have better terms and take the final decision. The Board of Directors did take the final decision on 27.11.1998 as Air India agreed to make its offer more beneficial to CIAL. That becomes apparent from Air Indias letter dated 1.12.1998. The Board of Directors having taken tentative decision on 7.1.1998 there was no point in calling Cambatta thereafter for any negotiation. It may be recalled that Cambatta was recommended over Air India by the High Level Committee only because Cambattas financial rating was found higher. What is significant to note is that even the High Level Committee had in its minutes noted that financial rating cannot be the sole criterion for taking the final decision. Moreover, in a commercial transaction of such a complex nature a lot of balancing work has to be done while weighing all the relevant factors and the final decision has to be taken after taking an overall view of the transaction. It is true that even though Cambatta had called upon CIAL to produce the minutes of the meeting of the Board of Directors held on 27.11.1998 the same was not made available to Cambatta. But that did not entitle the High Court to draw any adverse inference. The High Court had not called upon CIAL to produce those minutes.12. As regards the merits of Cambattas proposal, it was contended by Mr. Andhyarujina that all the three offers of Cambatta were superior in terms of parameters laid down by CIAL than Air Indias offer. He submitted that even after CIAL unilaterally raised the license fee of Air India from 17 per cent to 20 per cent in the 10th year to match Cambattas offer and imposed a condition that Air India would not sub-contract, it did not become comparable with the offer of Cambatta as Air India did not offer to pay 2 per cent bonus in license fee. It was also submitted that Air Indias representation that it would be able to bring more traffic was illusory and for that reason also Air Indias proposal cannot be regarded as superior or even comparable with the proposal of Cambatta. We do not think that CIAL did any wrong in taking into consideration the fact that Air India is an airline and being a national carrier would be in a position to bring more traffic of Air India and other domestic lines if it was awarded the contract. As regards the merits of the rival offers, we do not think it proper to look at only the financial aspect and hold that CIAL did not accept Cambattas offer, even though it was better, because it wanted to favour Air India or that it had acted under the influence of Air India and the Ministry of Civil Aviation. In a commercial transaction of a complex nature what may appear to be better, on the face of it, may not be considered so when an overall view is taken. In such matters the Court cannot substitute its decision for the decision of the party awarding the contract. On the basis of the material placed on record we find that CIAL bona fide believed that involving a public sector undertaking and a national carrier would, in the long run, prove to be more beneficial to CIAL. For all these reasons it is not possible to agree with the finding of the High Court that CIAL had acted arbitrarily and unreasonably and was also influenced by extraneous considerations during its decision making process. 13.	1[ds]s necessary toaccept the highestgood reasoner tenders likety ofty ofcan bes. Allss andan opportunity toer tois nod at the time ofes havecannot beon the basis ofcannot beThe only point that really falls for consideration is whether CIAL had acted fairly after it had invited fresh offers by its letter dated 13.7.1998.It was forcefully submitted by Mr. Andhyarujina that after the High Level Committee had evaluated the proposals and recommended Air India for the job it was unfair on the part of CIAL to have permitted Air India to make a fresh presentation and revise its terms. Even while conceding that CIAL had a right to enter into negotiations even at that stage, it was submitted that Cambatta also should have been invited for negotiations and informed about the revised terms of Air India. It was submitted that like Air India, Cambatta should have been givenan opportunity tomatch the offer made by Air India. From the letter written by CIAL to Cambatta on 13.7.1998 and similar letters written to others also, it appears that the Board of Directors had, in its meeting held on 29.6.1998, taken certain decisions and felt that in fairness all eligible agencies should be requested to give their best offers. Air India had submitted its offer on 20.7.1998 and stated therein that its offer was open for negotiations. Cambatta had submitted its offer on 28.7.1998. It was madeon the basis ofcertain assumptions. CIAL had in all received five offers. The High Level Committee constituted for evaluation of offers did not consider the offer of M/s P.S.M. Aviation Pvt. Ltd. as it had not submitted the required bank guarantee. The other four agencies, namely, Cambatta, DNATA, Air India and Ogden, were found on par as far as technical competence, organisational capacity and past experience was concerned. It, however, short listed Cambatta and Air India on the ground that they are Indian organisations, operate mainly in India and have better proven adaptability for operating in Indian conditions. It then recommended Cambatta for undertaking the ground handling services without giving any reason for its preference for Cambatta. While making the decision the Committee observed that it would be for the Board of Directors to consider whether any negotiation should be held with qualified agencies. The Board of Directors had then met on 7.11.1998 and after taking note of the minutes of the high level committee and taking note of the fact that Air India is a public sector undertaking and a national carrier, decided to have a detailed discussion with Air India before taking a final decision. It, therefore, invited the Managing Director of Air India for giving a presentation before the Board on 27.11.1998. It was also felt necessary to take a final decision in its next meeting to be held on 27.11.1998 as the matter was pending since long and itlve the financial crunch of CIAL. Cambatta had protested against giving ofan opportunity toAir India to make a presentation by its letters dated 12.11.1998 and 23.11.1998 on the ground that what was being done by CIAL was improper and in violation of global competitive bidding norms. In spite of the protest of Cambatta the Board of Directors of CIAL permitted Air India to make a presentation for outlining in detail its ground handling capabilities, packages of services which it wished to offer and other relevant advantages including financial. Air India by its letter dated 1.12.1998 recapitulated the details of the offer which it had already made, and the subsequent presentation and discussion on 27.11.1998. The said letter discloses that some changes were made by Air India in its originalto make itmore acceptable to CIAL. In that letter it was also indicated that it would try to enhance Air India and other Airlines domestic and international operations through CIAL and pointed out that only through maximisation of operations this new venturea profitable one at an early date. Cambatta again by its letter dated 7.12.1998 reiterated that its offer was the highest (most favourable to CIAL) and that it would be unfair to accept the revised bid of Air India. In spite of the protests of Cambatta, CIAL, by its letter dated 12.`12.1998, informed Air India that the Board of Directors had decided to accept the revised offer of Air India.11. This narration of facts makes it clear that all along, after the High Level Committee had recommended Cambatta for awarding the contract, what Cambatta was contending was that CIAL having accepted the limited global competitive bidding norms and having decided 28.7.1998 as the last date for inviting final offer, it was not open to itte with Air India behind the back of Cambatta and permit Air India to revise its offer. Even though Cambatta had written protest letters, it had not requested CIAL to give it any opportunity to negotiate or to improve upon its offer. The decision of the High Level Committee was obviously not the final decision and certainly it was not binding on the Board of Directors who were the final authority to take the decision. The Board of Directors, at the meeting held on 7.11.1998, considered the proposals of Air India and Cambatta and appears to have taken a tentative decision to award the contract to Air India and, therefore, called it for negotiations with a view to have better terms and take the final decision. The Board of Directors did take the final decision on 27.11.1998 as Air India agreeds offer more beneficial to CIAL. That becomes apparent from Air Indias letter dated 1.12.1998. The Board of Directors having taken tentative decision on 7.1.1998 there was no point in calling Cambatta thereafter for any negotiation. It may be recalled that Cambatta was recommended over Air India by the High Level Committee only because Cambattas financial rating was found higher. What is significant to note is that even the High Level Committee had in its minutes noted that financial ratingbe the sole criterion fortaking the final decision. Moreover, in a commercial transaction of such a complex nature a lot of balancing work has to be done while weighing all the relevant factors and the final decision has to be taken after taking an overall view of the transaction. It is true that even though Cambatta had called upon CIAL to produce the minutes of the meeting of the Board of Directors held on 27.11.1998 the same was not made available to Cambatta. But that did not entitle the High Court to draw any adverse inference. The High Court had not called upon CIAL to produce those minutes.12. As regards the merits of Cambattas proposal, it was contended by Mr. Andhyarujina that all the three offers of Cambatta were superior in terms of parameters laid down by CIAL than Air Indias offer. He submitted that even after CIAL unilaterally raised the license fee of Air India from 17 per cent to 20 per cent in the 10th year to match Cambattas offer and imposed a condition that Air India would notit did not become comparable with the offer of Cambatta as Air India did notay 2 per cent bonus in license fee. It was also submitted that Air Indias representation that it would be able to bring more traffic was illusory and for that reason also Air Indias proposaled as superior or even comparable with the proposal of Cambatta. We do not think that CIAL did any wrong in taking into consideration the fact that Air India is an airline and being a national carrier would be in a position to bring more traffic of Air India and other domestic lines if it was awarded the contract. As regards the merits of the rival offers, we do not think itok at only the financial aspect and hold that CIAL did not accept Cambattas offer, even though it was better, because it wanted to favour Air India or that it had acted under the influence of Air India and the Ministry of Civil Aviation. In a commercial transaction of a complex nature what may appear to be better, on the face of it, may not be considered so when an overall view is taken. In such matters the Court cannot substitute its decision for the decision of the party awarding the contract. On the basis of the material placed on record we find that CIAL bona fide believed that involving a public sector undertaking and a national carrier would, in the long run, prove to be more beneficial to CIAL. For all these reasons itt possible to agree with the finding of the High Court that CIAL had acted arbitrarily and unreasonably and was also influenced by extraneous considerations during its decision making process.	1	4,530	### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: Cambatta had protested against giving of an opportunity to Air India to make a presentation by its letters dated 12.11.1998 and 23.11.1998 on the ground that what was being done by CIAL was improper and in violation of global competitive bidding norms. In spite of the protest of Cambatta the Board of Directors of CIAL permitted Air India to make a presentation for outlining in detail its ground handling capabilities, packages of services which it wished to offer and other relevant advantages including financial. Air India by its letter dated 1.12.1998 recapitulated the details of the offer which it had already made, and the subsequent presentation and discussion on 27.11.1998. The said letter discloses that some changes were made by Air India in its original offer to make it more acceptable to CIAL. In that letter it was also indicated that it would try to enhance Air India and other Airlines domestic and international operations through CIAL and pointed out that only through maximisation of operations this new venture can be a profitable one at an early date. Cambatta again by its letter dated 7.12.1998 reiterated that its offer was the highest (most favourable to CIAL) and that it would be unfair to accept the revised bid of Air India. In spite of the protests of Cambatta, CIAL, by its letter dated 12.`12.1998, informed Air India that the Board of Directors had decided to accept the revised offer of Air India.11. This narration of facts makes it clear that all along, after the High Level Committee had recommended Cambatta for awarding the contract, what Cambatta was contending was that CIAL having accepted the limited global competitive bidding norms and having decided 28.7.1998 as the last date for inviting final offer, it was not open to it thereafter to negotiate with Air India behind the back of Cambatta and permit Air India to revise its offer. Even though Cambatta had written protest letters, it had not requested CIAL to give it any opportunity to negotiate or to improve upon its offer. The decision of the High Level Committee was obviously not the final decision and certainly it was not binding on the Board of Directors who were the final authority to take the decision. The Board of Directors, at the meeting held on 7.11.1998, considered the proposals of Air India and Cambatta and appears to have taken a tentative decision to award the contract to Air India and, therefore, called it for negotiations with a view to have better terms and take the final decision. The Board of Directors did take the final decision on 27.11.1998 as Air India agreed to make its offer more beneficial to CIAL. That becomes apparent from Air Indias letter dated 1.12.1998. The Board of Directors having taken tentative decision on 7.1.1998 there was no point in calling Cambatta thereafter for any negotiation. It may be recalled that Cambatta was recommended over Air India by the High Level Committee only because Cambattas financial rating was found higher. What is significant to note is that even the High Level Committee had in its minutes noted that financial rating cannot be the sole criterion for taking the final decision. Moreover, in a commercial transaction of such a complex nature a lot of balancing work has to be done while weighing all the relevant factors and the final decision has to be taken after taking an overall view of the transaction. It is true that even though Cambatta had called upon CIAL to produce the minutes of the meeting of the Board of Directors held on 27.11.1998 the same was not made available to Cambatta. But that did not entitle the High Court to draw any adverse inference. The High Court had not called upon CIAL to produce those minutes.12. As regards the merits of Cambattas proposal, it was contended by Mr. Andhyarujina that all the three offers of Cambatta were superior in terms of parameters laid down by CIAL than Air Indias offer. He submitted that even after CIAL unilaterally raised the license fee of Air India from 17 per cent to 20 per cent in the 10th year to match Cambattas offer and imposed a condition that Air India would not sub-contract, it did not become comparable with the offer of Cambatta as Air India did not offer to pay 2 per cent bonus in license fee. It was also submitted that Air Indias representation that it would be able to bring more traffic was illusory and for that reason also Air Indias proposal cannot be regarded as superior or even comparable with the proposal of Cambatta. We do not think that CIAL did any wrong in taking into consideration the fact that Air India is an airline and being a national carrier would be in a position to bring more traffic of Air India and other domestic lines if it was awarded the contract. As regards the merits of the rival offers, we do not think it proper to look at only the financial aspect and hold that CIAL did not accept Cambattas offer, even though it was better, because it wanted to favour Air India or that it had acted under the influence of Air India and the Ministry of Civil Aviation. In a commercial transaction of a complex nature what may appear to be better, on the face of it, may not be considered so when an overall view is taken. In such matters the Court cannot substitute its decision for the decision of the party awarding the contract. On the basis of the material placed on record we find that CIAL bona fide believed that involving a public sector undertaking and a national carrier would, in the long run, prove to be more beneficial to CIAL. For all these reasons it is not possible to agree with the finding of the High Court that CIAL had acted arbitrarily and unreasonably and was also influenced by extraneous considerations during its decision making process. 13. ### Response: 1
587	VINIT GARG Vs. UNIVERSITY GRANTS COMMISSION,	of the University Grants Commission (UGC), the All India Council for Technical Education (AICTE) and the Distance Education Council (DEC), that some Universities, Institutions Deemed to be Universities and other institutions are offering technical education programmes in the ‘distance mode? without the approval of the concerned Statutory Council. All Universities, Institutions, Deemed to be Universities and other institutions are hereby cautioned that running such programmes and giving misleading advertisements regarding unapproved ‘distance mode courses and programmes of study, shall attract severe action under the provisions of applicable laws, including that of de-recognition and withdrawal of institutional approval. It is hereby clarified, in the public interest that there are a number of courses or programmes of study leading to Degree/Diploma or other awards in Engineering & Technology, Management, Computer Applications, Architecture & Town Planning, Pharmacy, Hotel Management & Catering Technology, Applied Arts and Crafts, etc. which have not been approved by the appropriate Statutory Council for being conducted in the ‘distance mode?. It is also reiterated that all courses or programmes of study in the ‘distance mode? require the approval of DEC.?The public notice had cautioned that the universities/ institutions/deemed to be universities offering technical education programme through distance education mode without approval of concerned statutory authorities were doing so in contravention of the law and would be treated severely. The last sentence of the notification had made it clear that in addition to the concerned statutory councils, all courses and the programmes offered for study in distance mode would require approval of the DEC. A memorandum of understanding was arrived at on 10 th May, 2007 among the UGC, AICTE and DEC to work in close co-operation in pursuit of excellence in technical and general education being imparted through distance and mixed mode in the country. 25. In any case these aspects and contentions were fully considered in Orissa Lift Irrigation Corporation Limited-I and it has been held that B.Tech. degrees could not have been awarded through distance learning mode without the approval of the DEC and without any specific approval of the AICTE and UGC and award of such degrees without approval of the three were invalid and cannot be recognised. 26. Functioning of the DEC has come in for rather strong criticism in several quarters. Till 2006, the DEC had approved about 45 programmes of 23 universities out of applications for approximately 200 programmes. In 2007, the DEC repealed the programme approval process and the system of institutional recognition was started. As per this decision, all programmes approved by respective authorities of the institution were deemed to have recognition of the DEC. As a result of this decision, within a short span, the number of approved programmes increased to over 3000 in 2010. The provisional recognition letter of the DEC would uniformly state that before starting such programmes, the required approvals from other regulatory bodies have to be obtained but the said stipulation was not followed in most cases and provisional recognition was granted by the DEC to technical programmes through distance mode without recognition/approval of the AICTE or UGC. This had paved way for commercialisation and was a retrograde step which had resulted in deterioration of the quality of open learning programmes/degrees. After burning its fingers, the DEC switched back to programme recognition. The DEC itself was finally wound up in 2013. 27. In Orissa Lift Irrigation Corporation Limited-I, this Court, took note of the order dated 29 th December, 2012 issued by the Ministry of Human Resource Development, Government of India in view of the recommendations suggested in the Madhava Menon Committee report for regulating the standards of education being imparted through distance mode to hold that the unilateral approvals of the DEC were invalid. It was observed:"55. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under sub-clause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction."The said order, the Court noted, had definitively vested the UGC and AICTE, among other statutory regulators, with powers to regulate technical courses imparted through distance learning mode and made it mandatory for institutions intending to impart such courses to seek their approval and recognition, observing as under:?[T]he Central Government in exercise of the powers conferred by sub-section 1 of section 20 of the UGC 1956 and the AICTE Act, 1987 hereby directs: - The UGC and AICTE as already empowered under their respective Acts, would also act as a regulator for Higher Education (excluding Technical Education) and Technical Education through open & Distance Learning (ODL) mode respectively Universities are empowered under their respective Act to offer any programme course including in Technical Education in the conventional mode. However, if they offer any programme/course in ODL mode they would require recognition from the UGC, AICTE, NCTE and other such regulators of the conventional mode of education in those areas of study.?	0[ds]4. We may at the outset record that the petitioners have given up and not raised the contention that the decision authored by one of us (Uday Umesh Lalit, J.) in Orissa Lift Irrigation Corporation Limited-I is per incuriam for the ratio is contrary to the decision in Bharathidasan University (supra). Indeed, such contention cannot be accepted as the latter decision has been considered in Orissa Lift Irrigation Corporation Limited-I.We record our inability to accept the contentions raised by the petitioners, for they are misconstruing the judgment of this Court in Orissa Lift Irrigation Corporation Limited-I which settles the controversy beyond any doubt and debate.Accordingly, the Court in Orissa Lift Irrigation Corporation Limited-I distinguished the decision in Bharathidasan University (supra), which had, relying upon the definition in clause 2(h) on the meaning of the term ‘technical institution?, held that a deemed to be university established under a state law was entitled to start courses in ‘technical education? without any approval of the AICTE. This was done by limiting Bharathidasan University ?s (supra) application to courses/programmes integrally adjunct/connected to the sanctioned and permitted courses and programmes, and not to new and different courses/programmes like award of B.Tech. degrees through distance learning mode. On role of the AICTE and distance learning as a mode for acquiring B. Tech degrees, it was held in Orissa Lift Irrigation Corporation Limited-ITechnical education leading to the award of degrees in Engineering consists of imparting of lessons in theory as well as practicals. The practicals form the backbone of such education which is hands-on approach involving actual application of principles taught in theory under the watchful eyes of demonstrators or lecturers. Face to face imparting of knowledge in theory classes is to be reinforced in practical classes. The practicals, thus, constitute an integral part of the technical education system. If this established concept of imparting technical education as a qualitative norm is to be modified or altered and in a given case to be substituted by distance education learning, then as a concept AICTE ought to have accepted it in clear terms. What parameters ought to be satisfied if the regular course of imparting technical education is in any way to be modified or altered, is for AICTE alone to decide. The decision must be specific and unequivocal and cannot be inferred merely because of absence of any guidelines in the matter. No such decision was ever expressed by AICTE. On the other hand, it has always maintained that courses leading to degrees in Engineering cannot be undertaken through distance education mode. Whether that approach is correct or not is not the point in issue. For the present purposes, if according to AICTE such courses ought not to be taught in distance education mode, that is the final word and is binding—unless rectified in a manner known to law. Even National Policy on Education while emphasising the need to have a flexible, pattern and programmes through distance education learning in technical and managerial education, laid down in Para 6.19 that AICTE will be responsible for planning, formulation and maintenance of norms and standards including maintenance of parity of certification and ensuring coordinated and integrated development of technical and management education. In our view, whether subjects leading to degrees in Engineering could be taught in distance education mode or not is within the exclusive domain of AICTE. The answer to the first limb of the first question posed by us is therefore clear that without the guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the deemed to be universities were not justified in introducing suchthe dictum laid down above, it is plainly clear that approval of the AICTE was mandatory for starting the aforesaid courses. Admittedly, approval of the AICTE was not obtained by TIET,our opinion, the petitioners and TIET, Patiala are misconstruing paragraph 49 of Orissa Lift Irrigation Corporation Limited-I. The aforesaid paragraph refers to the 1994 Regulations issued by the AICTE under which no courses or programmes could be introduced by any technical institution/ university, including a deemed university or a university department or college, except with approval of the AICTE. In Bharathidasan University (supra) this mandate of the 1994 Regulations was declared to be bad to the extent that it had required the university to take approval for introducing any course or programme in technical education. Same opinion was expressed in Association of Management of Private Colleges v. All India Council for Technical Education and Others (2013) 8 SCC 271 to state that affiliated colleges of the university are entitled to the same protection. Thereupon, in Orissa Lift Irrigation Corporation Limited-I a distinction was made by creating two categories of deemed to be universities – Category-I, i.e. such deemed to be universities that have been conferred status of ‘excellence? in the field of technical subjects and desire to introduce courses or programmes ‘integrally connected? with the area of subjects for which they had been conferred deemed to be university status. Clarifying this, the Court had cited an example of an engineering college of excellence that has been conferred deemed to be university status and now wish to introduce courses in new or specialised subjects like robotics and nanotechnology, which subjects were integrally connected to the university?s own field of excellence. Category-II would be of those universities that have been conferred deemed to be university status for excellence in subjects, but want to introduce new courses unrelated to the field for which they were conferred status of excellence. In the latter category, the deemed to be university cannot claim immunity from regulatory control of the AICTE and must take approval of the AICTE. Paragraph 49, we would like to clarify, deals with universities including deemed to be universities imparting higher education for degree courses/programmes through regular mode. This paragraph does not specifically deal with or confer any right upon the deemed to be universities to start distance education courses, even if integrally connected with the approved regular courses.The foregoing analysis becomes clear when we read Orissa Lift Irrigation Corporation Limited-I in its entirety, particularly the immediately preceding paragraph, i.e. paragraph 48 as quoted above, wherein it has been specifically stipulated and mandated that whether subjects leading to degrees in engineering would be taught in distance education mode or not is within the exclusive domain of the AICTE.In view of the aforesaid statutory provisions and lack of prior approval of the UGC or AICTE, we do not think that TIET, Patiala was competent to award graduation degrees in technical courses via distance mode.In Orissa Lift Irrigation Corporation Limited-I, the Court also made a distinction between students who had taken admission in deemed to be universities offering technical degrees through distance learning in the academic years 2001 to 2005 and 2005- 2006 onwards. The reason for distinction was paragraph 5 of the 2004 Guidelines and ex-post facto approvals granted by the UGC and DEC to deemed to be universities that had offered technical degrees in the academic years 2001-2005. It was held that the said exercise of grant of ex-post facto approvals was completely uncalled for and contrary to law and illegal. Accordingly, the ex post facto approvals were set aside with the consequential directions to recall all the engineering degrees granted pursuant to the said approvals. However, conscious that the ex post facto approvals were in terms of paragraph 5 of the 2004 Guidelines, while suspending the degrees awarded to students who had been enrolled during the academic years 2001 to 2005, the Court had given these students an opportunity to appear and clear such examination under joint supervision of the AICTE-UGC. It was[T]he matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 2001-2005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of said ex-post-facto approval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students. We, therefore, deem it appropriate to grant some chance to the concerned students to have their ability tested by authorities competent in that behalf. We, therefore, direct that all the degrees in Engineering granted to students who were enrolled during the academic years 2001 to 2005 shall stand suspended till they pass such examination under the joint supervision of AICTE- UGC in the manner indicated hereinafter. Further, every single advantage on the basis of that degree shall also standaforesaid directions were not in respect of any engineering degree granted by deemed to be universities to candidates admitted/enrolled post the academic year 2004-2005. Grant of any degree for students enrolled post the academic year 2004-2005 was held as contrary to law and illegal, and could not be treated as regular and at par with the regular degrees. Therefore, paragraph 49 would not be of any avail to the petitioners.We would also refer to the second round of litigation as applications were filed seeking clarification and modification of the directions in Orissa Lift Irrigation Corporation Limited-I. The decision dated 22 nd January, 2018 in Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro and Others (2018) 2 SCC 298 (hereinafter referred to as ‘Orissa Lift Irrigation Corporation Limited-II ?) had decided several applications of diploma holders who had enrolled for engineering or B.Tech. degree in deemed to be universities through distance learning mode. One of the contentions raised in the applications was that the deemed to be universities awarding engineering degrees through distance learning mode in Orissa Lift Irrigation Corporation Limited-I were not institutes of excellence in the field of engineering and, thus, there would be a distinction between engineering degrees awarded through distance education mode by deemed to be universities declared as institutions of excellence and the degrees awarded by other deemed to be universities. This contention was squarely rejected by referring to the fact that engineering degrees through distance education mode awarded by Vinayaka Mission?s Research Foundation in Orissa Lift Irrigation Corporation Limited-I had been also declared to be invalid, though the said institution in its field of activity and excellence included the subject of engineering. Dealing with other contentions raised by the applicants, the Court in Orissa Lift Irrigation Corporation Limited-II held asWe now turn to the general submission advanced by all the learned counsel that the candidates after securing the degrees in Engineering through distance education mode, have advanced in career and that their ability was tested at various levels and as such requirement of passing the examination in terms of the judgment be dispensed within their case. We cannot make any such exception. The infirmity in their degrees is basis and fundamental and cannot be wished away. At the same time, we find some force in their submission that if the suspension of their degrees and all advantages were to apply as indicated in the judgment, the candidates concerned may lose their jobs and even if they were to successfully pass the test, restoration of their jobs and present position would pose someCourt, therefore, granting a one-time relaxation to the candidates who had enrolled themselves during the academic years 2001-2005, held that candidates would, in terms of the judgment in Orissa Lift Irrigation Corporation Limited I, be eligible to appear for the test conducted by the AICTE.Given the aforesaid ratio, we reject the plea that the petitioners are entitled to relief as was granted to the petitioners in Orissa Lift Irrigation Corporation Limited I and II. This contention is unacceptable for the reason that in Orissa Lift Irrigation Corporation Limited I and II, no relief was granted to the candidates who had taken admission in 2005 or thereafter. Relief in the form of one-time relaxation vide examination to be conducted by the AICTE was granted to those candidates/students who had taken admission in academic years beginning from 2001 and tillaforesaid letter states that TIET, Patiala had made an application to the DEC requesting for recognition of programmes offered through distance mode and that they had been granted provisional recognition for offering such programmes. The letter records that an application was submitted by TIET, Patiala but no specific reference was made to the programmes or courses offered nor the date when the application was filed is indicated. The letter also does not refer to approval by the AICTE or UGC. It had further required TIET, Patiala to submit a fresh application for the next academic year from June-July 2008.We have already referred to the 2004 Guidelines issued by the UGC and the AICTE Act to hold that TIET, Patiala had failed to take their prior approval before starting B. Tech. degree courses through distance education mode. Provisional recognition by the DEC being contrary to the law would not matter for at best the DEC would be equally guilty for violating the law in terms of 2004 Guidelines issued by the UGC and the AICTE Act. The legal issue stands foreclosed and cannot be argued in view of the clear dictum and ratio enunciated in Orissa Lift Irrigation Corporation Limited-I. We would also refer to the notification issued by the Government of India on 1 st March 1995 quoted in Orissa Lift Irrigation Corporation Limited-I on distance education programme by deemed to be universities etc., which was to the followingthe recommendation of the Board of Assessment for Education Qualifications, the Government of India has decided that all the qualifications awarded through Distance Education by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the UGC Act, 1956 and Institutions of National importance declared under an Act of Parliament stand automatically recognized for the purpose of employment to posts and services under the Central Government, provided it has been approved by Distance Education Council, Indira Gandhi Nation Open University, K 76, Hauz Khas, New Delhi-110016 and wherever necessary by All India Council for Technical Education, I.G. Sports Complex, I.P. Estate, Newtherefore, in terms of the said notification also approval of the AICTE was required.TIET, Patiala accepts that no approval, provisional or otherwise, was granted for the next academic year, i.e. June-July 2008, yet B.Tech. degree programmes through distance mode for the academic year June-July 2008 were offered by TIET, Patiala contrary to the statutes and law.The submission/contention of the petitioners and TIET, Patiala completely overlooks several developments, correspondence and policy decisions taken which have been noticed in Orissa Lift Irrigation Corporation Limited-I, particularly the notification issued by the AICTE on 28 th November, 2005 clearly stating that no technical institution of the Government/ Government aided/ private institution, whether affiliated or not to any University, shall start new courses or increase the intake for the same without approval of the AICTE. Notification issued by the Ministry of Human Resource Development, Government of India on 5 th April, 2006 in exercise of powers vested in the Central Government under Section 20(1) of the UGC Act and Section 20(1) of the AICTE Act had clarified the role of the UGC and AICTE for maintaining standards of education and that the deemed to be universities are required to maintain minimum standards prescribed by the AICTE for various courses within the jurisdiction of the said Council. This was followed by a joint public notice issued by the AICTE, UGC and DEC on 4 th February,public notice had cautioned that the universities/ institutions/deemed to be universities offering technical education programme through distance education mode without approval of concerned statutory authorities were doing so in contravention of the law and would be treated severely. The last sentence of the notification had made it clear that in addition to the concerned statutory councils, all courses and the programmes offered for study in distance mode would require approval of the DEC. A memorandum of understanding was arrived at on 10 th May, 2007 among the UGC, AICTE and DEC to work in close co-operation in pursuit of excellence in technical and general education being imparted through distance and mixed mode in the country.In any case these aspects and contentions were fully considered in Orissa Lift Irrigation Corporation Limited-I and it has been held that B.Tech. degrees could not have been awarded through distance learning mode without the approval of the DEC and without any specific approval of the AICTE and UGC and award of such degrees without approval of the three were invalid and cannot be recognised.Functioning of the DEC has come in for rather strong criticism in several quarters. Till 2006, the DEC had approved about 45 programmes of 23 universities out of applications for approximately 200 programmes. In 2007, the DEC repealed the programme approval process and the system of institutional recognition was started. As per this decision, all programmes approved by respective authorities of the institution were deemed to have recognition of the DEC. As a result of this decision, within a short span, the number of approved programmes increased to over 3000 in 2010. The provisional recognition letter of the DEC would uniformly state that before starting such programmes, the required approvals from other regulatory bodies have to be obtained but the said stipulation was not followed in most cases and provisional recognition was granted by the DEC to technical programmes through distance mode without recognition/approval of the AICTE or UGC. This had paved way for commercialisation and was a retrograde step which had resulted in deterioration of the quality of open learning programmes/degrees. After burning its fingers, the DEC switched back to programme recognition. The DEC itself was finally wound up in 2013.In Orissa Lift Irrigation Corporation Limited-I, this Court, took note of the order dated 29 th December, 2012 issued by the Ministry of Human Resource Development, Government of India in view of the recommendations suggested in the Madhava Menon Committee report for regulating the standards of education being imparted through distance mode to hold that the unilateral approvals of the DEC were invalid. It wasPara 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under sub-clause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely withoutsaid order, the Court noted, had definitively vested the UGC and AICTE, among other statutory regulators, with powers to regulate technical courses imparted through distance learning mode and made it mandatory for institutions intending to impart such courses to seek their approval and recognition, observing asCentral Government in exercise of the powers conferred by sub-section 1 of section 20 of the UGC 1956 and the AICTE Act, 1987 herebyUGC and AICTE as already empowered under their respective Acts, would also act as a regulator for Higher Education (excluding Technical Education) and Technical Education through open & Distance Learning (ODL) mode respectively Universities are empowered under their respective Act to offer any programme course including in Technical Education in the conventional mode. However, if they offer any programme/course in ODL mode they would require recognition from the UGC, AICTE, NCTE and other such regulators of the conventional mode of education in those areas of study.?	0	8,473	### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: of the University Grants Commission (UGC), the All India Council for Technical Education (AICTE) and the Distance Education Council (DEC), that some Universities, Institutions Deemed to be Universities and other institutions are offering technical education programmes in the ‘distance mode? without the approval of the concerned Statutory Council. All Universities, Institutions, Deemed to be Universities and other institutions are hereby cautioned that running such programmes and giving misleading advertisements regarding unapproved ‘distance mode courses and programmes of study, shall attract severe action under the provisions of applicable laws, including that of de-recognition and withdrawal of institutional approval. It is hereby clarified, in the public interest that there are a number of courses or programmes of study leading to Degree/Diploma or other awards in Engineering & Technology, Management, Computer Applications, Architecture & Town Planning, Pharmacy, Hotel Management & Catering Technology, Applied Arts and Crafts, etc. which have not been approved by the appropriate Statutory Council for being conducted in the ‘distance mode?. It is also reiterated that all courses or programmes of study in the ‘distance mode? require the approval of DEC.?The public notice had cautioned that the universities/ institutions/deemed to be universities offering technical education programme through distance education mode without approval of concerned statutory authorities were doing so in contravention of the law and would be treated severely. The last sentence of the notification had made it clear that in addition to the concerned statutory councils, all courses and the programmes offered for study in distance mode would require approval of the DEC. A memorandum of understanding was arrived at on 10 th May, 2007 among the UGC, AICTE and DEC to work in close co-operation in pursuit of excellence in technical and general education being imparted through distance and mixed mode in the country. 25. In any case these aspects and contentions were fully considered in Orissa Lift Irrigation Corporation Limited-I and it has been held that B.Tech. degrees could not have been awarded through distance learning mode without the approval of the DEC and without any specific approval of the AICTE and UGC and award of such degrees without approval of the three were invalid and cannot be recognised. 26. Functioning of the DEC has come in for rather strong criticism in several quarters. Till 2006, the DEC had approved about 45 programmes of 23 universities out of applications for approximately 200 programmes. In 2007, the DEC repealed the programme approval process and the system of institutional recognition was started. As per this decision, all programmes approved by respective authorities of the institution were deemed to have recognition of the DEC. As a result of this decision, within a short span, the number of approved programmes increased to over 3000 in 2010. The provisional recognition letter of the DEC would uniformly state that before starting such programmes, the required approvals from other regulatory bodies have to be obtained but the said stipulation was not followed in most cases and provisional recognition was granted by the DEC to technical programmes through distance mode without recognition/approval of the AICTE or UGC. This had paved way for commercialisation and was a retrograde step which had resulted in deterioration of the quality of open learning programmes/degrees. After burning its fingers, the DEC switched back to programme recognition. The DEC itself was finally wound up in 2013. 27. In Orissa Lift Irrigation Corporation Limited-I, this Court, took note of the order dated 29 th December, 2012 issued by the Ministry of Human Resource Development, Government of India in view of the recommendations suggested in the Madhava Menon Committee report for regulating the standards of education being imparted through distance mode to hold that the unilateral approvals of the DEC were invalid. It was observed:"55. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under sub-clause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction."The said order, the Court noted, had definitively vested the UGC and AICTE, among other statutory regulators, with powers to regulate technical courses imparted through distance learning mode and made it mandatory for institutions intending to impart such courses to seek their approval and recognition, observing as under:?[T]he Central Government in exercise of the powers conferred by sub-section 1 of section 20 of the UGC 1956 and the AICTE Act, 1987 hereby directs: - The UGC and AICTE as already empowered under their respective Acts, would also act as a regulator for Higher Education (excluding Technical Education) and Technical Education through open & Distance Learning (ODL) mode respectively Universities are empowered under their respective Act to offer any programme course including in Technical Education in the conventional mode. However, if they offer any programme/course in ODL mode they would require recognition from the UGC, AICTE, NCTE and other such regulators of the conventional mode of education in those areas of study.? ### Response: 0
588	THANKAMONY AMMA Vs. OMANA AMMA N	matter was decided in favour of the appellants by both the courts below. 10. The scope of revisional powers under Section 20 of the Act came up for consideration in Rukmini Amma Saradamma v. Kallyani Sulochana and others (1993) 1 SCC 499. While considering whether the High Court could have reappreciated entire evidence, it was laid down:"20. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re- appreciating the entire evidence both oral or documentary in the light of the Commissioner?s report (Exts. C-1 and C-2 mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ?propriety? it cannot mean that there could be a re- appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.?11. In Ubaiba v. Damodaran (1999) 5 SCC 645 exercise of revisional power was considered in the context of an issue whether the relationship of landlord- tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. This Court dealt with the matter as under:-"3. Mr K. Sukumaran, the learned Senior Counsel appearing for the appellant contended that however wide the jurisdiction of the revisional court under the Act in question may be, but it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority and therefore the impugned order of the High Court is unsustainable in law. In support of this contention reliance has been placed on a decision of this Court in the case of Rukmini Amma Saradamma v. Kallyani Sulochana 1 whereunder the selfsame provision of the Kerala Act was under consideration. This Court after noticing the word ?propriety? used in Section 20 came to the conclusion that the approach of the High Court was totally wrong and even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. The Court also further observed ?even by the presence of the word ‘propriety? it cannot mean that there could be any reappreciation of evidence?. The learned counsel for the respondent on the other hand contended that the aforesaid decision will have no application to the case in hand where the dispute involved relates to a jurisdictional fact and according to the learned counsel where the dispute is in relation to a jurisdictional fact there should not be any fetter on the power of the revisional court even to reappreciate the evidence and come to its own conclusion. On being asked to support the aforesaid proposition no authority could be placed though on first principle learned counsel for the respondent argued as aforesaid. Having examined the rival submission and having gone through the decision of this Court referred to earlier we are of the considered opinion that though the revisional power under the Rent Act may be wider than Section 115 of the Code of Civil Procedure it cannot be equated even with the second appellate power conferred on the civil court under the Code of Civil Procedure. Notwithstanding the use of the expression ?propriety? in Section 20, the revisional court therefore will not be entitled to reappreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court in the light of the aforesaid ratio of this Court it is crystal clear that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. In the circumstances, the impugned revisional order of the High Court is wholly unsustainable and we set aside the same and the order of the appellate authority is affirmed.12. A Constitution Bench of this Court considered the revisional powers of the High Court under Rent Acts operating in different States in Hindustan Petroleum Corporation Limited v. Dilbahar Singh (2014) 9 SCC 78. The decision in Rukmini Amma Saradamma v. Kallyani Sulochana and others 1 was again referred to in para 16. In para 38 it was observed:"38. Rukmini (1993) 1 SCC 499 holds, and in our view, rightly that even the wider language of Section 20 of the Kerala Rent Control Act does not enable the High Court to act as a first or a second court of appeal. We are in full agreement with the view of the three-Judge Bench in Rukmini 1 that the word ?propriety? does not confer power upon the High Court to reappreciate evidence to come to a different conclusion but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned Kalyani Sulochana v. Saradamma, 1991 SCC OnLine Ker 213 : (1991) 2 KLJ 105 before it. We approve the view of this Court in Rukmini (1993) 1 SCC 499. ?13. Considering the instant matter in the backdrop of law laid down by this Court it must be stated that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction.	1[ds]10. The scope of revisional powers under Section 20 of the Act came up for consideration in Rukmini Amma Saradamma v. Kallyani Sulochana and others (1993) 1 SCC 499. While considering whether the High Court could have reappreciated entire evidence, it was laidWe are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re- appreciating the entire evidence both oral or documentary in the light of the Commissioner?s report (Exts. C-1 and C-2 mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ?propriety? it cannot mean that there could be a re- appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.In Ubaiba v. Damodaran (1999) 5 SCC 645 exercise of revisional power was considered in the context of an issue whether the relationship of landlord- tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. This Court dealt with the matter asMr K. Sukumaran, the learned Senior Counsel appearing for the appellant contended that however wide the jurisdiction of the revisional court under the Act in question may be, but it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority and therefore the impugned order of the High Court is unsustainable in law. In support of this contention reliance has been placed on a decision of this Court in the case of Rukmini Amma Saradamma v. Kallyani Sulochana 1 whereunder the selfsame provision of the Kerala Act was under consideration. This Court after noticing the word ?propriety? used in Section 20 came to the conclusion that the approach of the High Court was totally wrong and even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. The Court also further observed ?even by the presence of the word ‘propriety? it cannot mean that there could be any reappreciation of evidence?. The learned counsel for the respondent on the other hand contended that the aforesaid decision will have no application to the case in hand where the dispute involved relates to a jurisdictional fact and according to the learned counsel where the dispute is in relation to a jurisdictional fact there should not be any fetter on the power of the revisional court even to reappreciate the evidence and come to its own conclusion. On being asked to support the aforesaid proposition no authority could be placed though on first principle learned counsel for the respondent argued as aforesaid. Having examined the rival submission and having gone through the decision ofthis Court referred to earlier we are of the considered opinion that though the revisional power under the Rent Act may be wider than Section 115 of the Code of Civil Procedure it cannot be equated even with the second appellate power conferred on the civil court under the Code of Civil Procedure. Notwithstanding the use of the expression ?propriety? in Section 20, the revisional court therefore will not be entitled to reappreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court in the light of the aforesaid ratio of this Court it is crystal clear that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. In the circumstances, the impugned revisional order of the High Court is wholly unsustainable and we set aside the same and the order of the appellate authority is affirmed.A Constitution Bench of this Court considered the revisional powers of the High Court under Rent Acts operating in different States in Hindustan Petroleum Corporation Limited v. Dilbahar Singh (2014) 9 SCC 78. The decision in Rukmini Amma Saradamma v. Kallyani Sulochana and others 1 was again referred to in para 16. In para 38 it wasRukmini (1993) 1 SCC 499 holds, and in our view, rightly that even the wider language of Section 20 of the Kerala Rent Control Act does not enable the High Court to act as a first or a second court of appeal. We are in full agreement with the view of the three-Judge Bench in Rukmini 1 that the word ?propriety? does not confer power upon the High Court to reappreciate evidence to come to a different conclusion but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugnedKalyani Sulochana v. Saradamma, 1991 SCC OnLine Ker 213 : (1991) 2 KLJ 105 before it. We approve the view of this Court in Rukmini (1993) 1 SCC 499. Considering the instant matter in the backdrop of law laid down by this Court it must be stated that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction.	1	2,434	### 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: matter was decided in favour of the appellants by both the courts below. 10. The scope of revisional powers under Section 20 of the Act came up for consideration in Rukmini Amma Saradamma v. Kallyani Sulochana and others (1993) 1 SCC 499. While considering whether the High Court could have reappreciated entire evidence, it was laid down:"20. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re- appreciating the entire evidence both oral or documentary in the light of the Commissioner?s report (Exts. C-1 and C-2 mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ?propriety? it cannot mean that there could be a re- appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.?11. In Ubaiba v. Damodaran (1999) 5 SCC 645 exercise of revisional power was considered in the context of an issue whether the relationship of landlord- tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. This Court dealt with the matter as under:-"3. Mr K. Sukumaran, the learned Senior Counsel appearing for the appellant contended that however wide the jurisdiction of the revisional court under the Act in question may be, but it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority and therefore the impugned order of the High Court is unsustainable in law. In support of this contention reliance has been placed on a decision of this Court in the case of Rukmini Amma Saradamma v. Kallyani Sulochana 1 whereunder the selfsame provision of the Kerala Act was under consideration. This Court after noticing the word ?propriety? used in Section 20 came to the conclusion that the approach of the High Court was totally wrong and even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. The Court also further observed ?even by the presence of the word ‘propriety? it cannot mean that there could be any reappreciation of evidence?. The learned counsel for the respondent on the other hand contended that the aforesaid decision will have no application to the case in hand where the dispute involved relates to a jurisdictional fact and according to the learned counsel where the dispute is in relation to a jurisdictional fact there should not be any fetter on the power of the revisional court even to reappreciate the evidence and come to its own conclusion. On being asked to support the aforesaid proposition no authority could be placed though on first principle learned counsel for the respondent argued as aforesaid. Having examined the rival submission and having gone through the decision of this Court referred to earlier we are of the considered opinion that though the revisional power under the Rent Act may be wider than Section 115 of the Code of Civil Procedure it cannot be equated even with the second appellate power conferred on the civil court under the Code of Civil Procedure. Notwithstanding the use of the expression ?propriety? in Section 20, the revisional court therefore will not be entitled to reappreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court in the light of the aforesaid ratio of this Court it is crystal clear that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. In the circumstances, the impugned revisional order of the High Court is wholly unsustainable and we set aside the same and the order of the appellate authority is affirmed.12. A Constitution Bench of this Court considered the revisional powers of the High Court under Rent Acts operating in different States in Hindustan Petroleum Corporation Limited v. Dilbahar Singh (2014) 9 SCC 78. The decision in Rukmini Amma Saradamma v. Kallyani Sulochana and others 1 was again referred to in para 16. In para 38 it was observed:"38. Rukmini (1993) 1 SCC 499 holds, and in our view, rightly that even the wider language of Section 20 of the Kerala Rent Control Act does not enable the High Court to act as a first or a second court of appeal. We are in full agreement with the view of the three-Judge Bench in Rukmini 1 that the word ?propriety? does not confer power upon the High Court to reappreciate evidence to come to a different conclusion but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned Kalyani Sulochana v. Saradamma, 1991 SCC OnLine Ker 213 : (1991) 2 KLJ 105 before it. We approve the view of this Court in Rukmini (1993) 1 SCC 499. ?13. Considering the instant matter in the backdrop of law laid down by this Court it must be stated that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. ### Response: 1
589	Murli Industries Limited Vs. Assistant Commissioner of Income Tax and ors	238 of IBC) have an overriding effect, if there is any inconsistency with any of the provisions of the law for the time being in force, including the Income Tax Act, 1961. The Honble Apex Court has also held that section 31 of the amended Act will have retrospective effect. 19. Having said so, it is now crystallized that the claims which were not a part of the Resolution Plan including recoverable statutory dues, shall stand extinguished upon approval of the Resolution Plan. 20. In the present case, the Income Tax Department had, on 07.06.2017, raised claims to the tune of Rs. 50,23,770/-. The said claim was fully and finally settled at 4,00,000/- in terms of the Resolution Plan. The impugned notice does not disclose any reason as to why the claim raised through the impugned notice has not been included in the aforesaid claim before RP. Of course, there could be a case where the statutory authority was precluded from raising claim in the CIRP proceedings because of fault attributable to the Corporate Debtor, viz; where the assessment of previous year has been escaped because of suppression of fact by the assessee and that the suppressed fact has been noticed subsequently by the Assessing Officer leading to issuance of notice under Section 148 of the Act subsequent to approval of the Resolution Plan. However, impugned notice being silent on this point, this Court is unable to gather the reasons for not raising the claim earlier before the Resolution Professional or the Adjudicating Authority. 21. We may add here that the Explanation to Section 147 of the Income Tax Act, 1961 creates a deeming fiction of cases where the income chargeable to tax has escaped assessment. Clause (a) deals with a situation where no return of income has been furnished by the assessee although his total income exceeded maximum amount which is not chargeable to income tax. Clause (b) deals with a situation where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowances or relief in the return. There are other Clauses also that would indicate the reasons for escaping the assessment. The point is, once the public announcement is made under the IBC by the Resolution Professional calling upon all concerned, including the statutory bodies, to raise claim, it would be expected from all the stakeholders to diligently raise their claim. The Income Tax authorities in that sense, ought to have been diligent to verify the previous years assessment of the Corporate Debtor as permissible under the law and to raise the claim in the prescribed form within time before the Resolution Professional. In the present case, the Income Tax Authorities failed to do so and therefore, the claim stood extinguished. 22. As stated earlier, there could be a contingency where statuary claim is raised after the approval of the Resolution Plan, owing to receipt of information of the Corporate Debtor having suppressed certain facts while filing returns of the previous years, which then could not be a part of the Resolution Plan. To counter such a situation, the statutory authorities will have to explore the possibility of raising such claims before the Resolution Professional or Adjudicating Authority, as the case may be, by requesting to make certain provisions for payment of statutory claims in the Resolution Plan. Whether to accept such claim is a matter that should be left to the COC, the Resolution Professional or the Adjudicating Authority. However, in absence of any such claim having been made and dealt with by the Resolution Professional and in absence of any provision to settle such claim in the Resolution Plan, such claim could not be raised subsequently. In that sense, the Petitioner is correct in contending that the impugned notice could not have been issued by the Assessing Officer. 23. The Income Tax Authority or the Legislature may also explore possibility to make necessary provisions to overcome such situation by lending circular under Rules or by way of an Amendment in the Income Tax Act, 1961, in line with the section 44(6) of the Maharashtra Value Added Tax, Act, 2002, which provides as under; 44. Special provision regarding liability to pay tax in certain cases: (6) Subject to the provisions of the Companies Act, 2013, where any tax or other amount recoverable under this Act from a private company, whether existing or wound up or under liquidation, for any period, cannot be recovered, for any reason whatsoever, then, every person who was a director of the private company during such period shall be jointly and severally liable for the payment of such tax or other amount unless, he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the said company. We did not come across any such provision under the Income Tax Act, 1961 nor did the parties before us informed of its existence. 24. We, accordingly, record our answer in the negative to the question framed. 25. So far as the preliminary objection of maintainability of the petition is concerned, the law is well settled, which also is reflected in Ghanashyam Mishras case (supra). In paragraph 137 of the Honble Supreme Courts judgment, it has been held that the alternate remedy would not operate as a bar for invoking jurisdiction under Article 226 of the Constitution of India in at least three contingencies, namely (1) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; (2) where there has been a violation of the principle of natural justice; and (3) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 26. We find that the impugned notice falls under category – 3 above. Accordingly, the preliminary objection is rejected.	1[ds]9. We are unable to accede to the submissions made by Mr. Bhattad, learned counsel for Respondent Nos. 1 and 2, raising preliminary objections, the reasons for which will follow in the later part of the judgment.the answer is traceable in Ghanashyam Mishras case (supra). The Honble Supreme Court while dealing with the batch of matters relating to CIRP proceedings, framed the following important questions.2.1. (i) As to whether any creditor including the Central Government, State Government or any local authority is bound by the resolution plan once it is approved by an adjudicating authority under sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016.2.2. (ii) As to whether the amendment to Section 31 by Section 7 of Act 26 of 2019 is clarificatory/declaratory or substantive in nature2.3 (iii) As to whether after approval of resolution plan by the adjudicating authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the corporate debtor, which are not a part of the resolution plan approved by the adjudicating authority11. While settling the answer to the aforesaid questions, the Honble Supreme Court has elaborately discussed series of its judgments. We will cite only those findings that are helpful in answering the question involved in the present Petition.12. As held by the Honble Supreme Court, one of the dominant objects of the IBC is to see that an attempt has to be made to revive the Corporate Debtor and make it a going concern. For that a Resolution Applicant has to prepare a Resolution Plan on the basis of the Information Memorandum containing various details that have been gathered by Resolution Professional after having received various claims in response to the statutorily mandated public notice. The resolution plan is approved by Committee of Creditors(hereinafter referred to as COC). The Resolution Plan is then required to be approved by the Adjudicating Authority i.e., NCLT and once it is approved, the management is handed over under the plan to the Successful Resolution Applicant so that the Corporate Debtor is able to pay back its debt and get back on its feet.14. The Honble Supreme Court, in context with raising subsequent claims has held that a Successful Resolution Applicant cannot suddenly be faced with undecided claims after the Resolution Plan is submitted by him, as it would lead to uncertainty about the amount payable by a Prospective Resolution Applicant who would successfully take over the business of the Corporate Debtor. It is accordingly held by the Honble Supreme Court that once the plan is approved by Adjudicating Authority, it becomes binding on the Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders including statutory bodies involved in the Resolution Plan. It is further held that the legislative intent behind this is to freeze all the claims so that the Resolution Applicant starts on a clean slate and is not flung with any surprise claims.15. On the point of claims by the Central Government, State Government or other local authorities, the important rulings find place in the following paragraphs:94. We have no hesitation to say, that the word other stakeholders would squarely cover the Central Government, any State Government or any local authorities. The legislature, noticing that on account of obvious omission, certain tax authorities were not abiding by the mandate of I&B Code and continuing with the proceedings, has brought out the 2019 amendment so as to cure the said mischief. We therefore hold, that the 2019 amendment is declaratory and clarificatory in nature and therefore retrospective in operation.98. It is a cardinal principle of law, that a statute has to be read as a whole. Harmonious construction of sub section (10) of Section 3 of the I&B Code read with sub sections (20) and (21) of Section 5 thereof would reveal, that even a claim in respect of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority would come within the ambit of operational debt. The Central Government, any State Government or any local authority to whom an operational debt is owed would come within the ambit of operational creditor as defined under subsection (20) of Section 5 of the I&B Code. Consequently, a person to whom a debt is owed would be covered by the definition of creditor as defined under subsection (10) of Section 3 of the I&B Code. As such, even without the 2019 amendment, the Central Government, any State Government or any local authority to whom a debt is owed, including the statutory dues, would be covered by the term creditor and in any case, by the term other stakeholders as provided in sub section (1) of Section 31 of the I&B Code.99. The Division Bench of the Rajasthan High Court in D.B. Civil Writ Petition No.9480 of 2019 in the case of Ultra Tech Nathdwara Cement Ltd. vs. Union of India & Ors., by judgment and order dated 7.4.2020 has taken a view, that the demand notices, issued by the Central Goods and Service Tax Department, for a period prior to the date on which NCLT has granted its approval to the resolution plan, are not permissible in law. While doing so, the Rajasthan High Court has relied on the judgment of this Court in the case of Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra).100. The Calcutta High Court in the case of Akshay Jhunjhunwala & Anr. vs. Union of India through the Ministry of Corporate Affairs & Ors. 35 has also taken a view, that the claim of operational creditor will also include a claim of a statutory authority on account of money receivable pursuant to an imposition by a statute. We are in agreement with the views taken by these Courts.16. Ultimately, the Honble Supreme Court has answered the questions framed in the following manner.102.1. That once a resolution plan is duly approved by the Adjudicating Authority under sub section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan;102.2. 2019 amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect;102.3. Consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued.17. A careful reading of the above findings, would show that even a claim in respect of dues arising under any law for the time being in force, including claims under the Income Tax Act, 1961 which is payable to the Central Government or the State Government, would come within the ambit of Operational Creditors. Further, the claim of operational creditors will also include a claim of statutory authority like Income Tax Department on account of money receivable pursuant to an imposition by a statute. The Honble Supreme Court has also upheld the view taken by the Rajasthan High Court holding that the demand notices issued by the Central Goods and Service Tax Department, for a period prior to the date on which NCLT has granted its approval to the Resolution Plan, are not permissible in law. The concluding remarks of the Honble Apex Court are that, on the date of approval of the Resolution Plan by the Adjudicating Authority, all such claims which are not a part of the Resolution Plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not a part of the Resolution Plan. The expression that no person will be entitled to initiate any proceedings would include the proceedings in the nature of notice issued under Section 148 of the Income Tax Act, 1961.18. As we understand from the above rulings, the aim and object of IBC is to revive the Corporate Debtor by putting quietus to the claims against it. Providing certainty to the Resolution Applicant of no claims in future against the Corporate Debtor appears to be the essence of the Resolution Plan. Such inference could further be substantiated on the ground that the provisions of the IBC (Section 238 of IBC) have an overriding effect, if there is any inconsistency with any of the provisions of the law for the time being in force, including the Income Tax Act, 1961. The Honble Apex Court has also held that section 31 of the amended Act will have retrospective effect.19. Having said so, it is now crystallized that the claims which were not a part of the Resolution Plan including recoverable statutory dues, shall stand extinguished upon approval of the Resolution Plan.20. In the present case, the Income Tax Department had, on 07.06.2017, raised claims to the tune of Rs. 50,23,770/-. The said claim was fully and finally settled at 4,00,000/- in terms of the Resolution Plan. The impugned notice does not disclose any reason as to why the claim raised through the impugned notice has not been included in the aforesaid claim before RP. Of course, there could be a case where the statutory authority was precluded from raising claim in the CIRP proceedings because of fault attributable to the Corporate Debtor, viz; where the assessment of previous year has been escaped because of suppression of fact by the assessee and that the suppressed fact has been noticed subsequently by the Assessing Officer leading to issuance of notice under Section 148 of the Act subsequent to approval of the Resolution Plan. However, impugned notice being silent on this point, this Court is unable to gather the reasons for not raising the claim earlier before the Resolution Professional or the Adjudicating Authority.21. We may add here that the Explanation to Section 147 of the Income Tax Act, 1961 creates a deeming fiction of cases where the income chargeable to tax has escaped assessment. Clause (a) deals with a situation where no return of income has been furnished by the assessee although his total income exceeded maximum amount which is not chargeable to income tax. Clause (b) deals with a situation where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowances or relief in the return. There are other Clauses also that would indicate the reasons for escaping the assessment. The point is, once the public announcement is made under the IBC by the Resolution Professional calling upon all concerned, including the statutory bodies, to raise claim, it would be expected from all the stakeholders to diligently raise their claim. The Income Tax authorities in that sense, ought to have been diligent to verify the previous years assessment of the Corporate Debtor as permissible under the law and to raise the claim in the prescribed form within time before the Resolution Professional. In the present case, the Income Tax Authorities failed to do so and therefore, the claim stood extinguished.22. As stated earlier, there could be a contingency where statuary claim is raised after the approval of the Resolution Plan, owing to receipt of information of the Corporate Debtor having suppressed certain facts while filing returns of the previous years, which then could not be a part of the Resolution Plan. To counter such a situation, the statutory authorities will have to explore the possibility of raising such claims before the Resolution Professional or Adjudicating Authority, as the case may be, by requesting to make certain provisions for payment of statutory claims in the Resolution Plan. Whether to accept such claim is a matter that should be left to the COC, the Resolution Professional or the Adjudicating Authority. However, in absence of any such claim having been made and dealt with by the Resolution Professional and in absence of any provision to settle such claim in the Resolution Plan, such claim could not be raised subsequently. In that sense, the Petitioner is correct in contending that the impugned notice could not have been issued by the Assessing Officer.We did not come across any such provision under the Income Tax Act, 1961 nor did the parties before us informed of its existence.24. We, accordingly, record our answer in the negative to the question framed.25. So far as the preliminary objection of maintainability of the petition is concerned, the law is well settled, which also is reflected in Ghanashyam Mishras case (supra). In paragraph 137 of the Honble Supreme Courts judgment, it has been held that the alternate remedy would not operate as a bar for invoking jurisdiction under Article 226 of the Constitution of India in at least three contingencies, namely(1) where the writ petition has been filed for the enforcement of any of the Fundamental Rights;(2) where there has been a violation of the principle of natural justice; and(3) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.26. We find that the impugned notice falls under category – 3 above. Accordingly, the preliminary objection is rejected.	1	4,284	### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: 238 of IBC) have an overriding effect, if there is any inconsistency with any of the provisions of the law for the time being in force, including the Income Tax Act, 1961. The Honble Apex Court has also held that section 31 of the amended Act will have retrospective effect. 19. Having said so, it is now crystallized that the claims which were not a part of the Resolution Plan including recoverable statutory dues, shall stand extinguished upon approval of the Resolution Plan. 20. In the present case, the Income Tax Department had, on 07.06.2017, raised claims to the tune of Rs. 50,23,770/-. The said claim was fully and finally settled at 4,00,000/- in terms of the Resolution Plan. The impugned notice does not disclose any reason as to why the claim raised through the impugned notice has not been included in the aforesaid claim before RP. Of course, there could be a case where the statutory authority was precluded from raising claim in the CIRP proceedings because of fault attributable to the Corporate Debtor, viz; where the assessment of previous year has been escaped because of suppression of fact by the assessee and that the suppressed fact has been noticed subsequently by the Assessing Officer leading to issuance of notice under Section 148 of the Act subsequent to approval of the Resolution Plan. However, impugned notice being silent on this point, this Court is unable to gather the reasons for not raising the claim earlier before the Resolution Professional or the Adjudicating Authority. 21. We may add here that the Explanation to Section 147 of the Income Tax Act, 1961 creates a deeming fiction of cases where the income chargeable to tax has escaped assessment. Clause (a) deals with a situation where no return of income has been furnished by the assessee although his total income exceeded maximum amount which is not chargeable to income tax. Clause (b) deals with a situation where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowances or relief in the return. There are other Clauses also that would indicate the reasons for escaping the assessment. The point is, once the public announcement is made under the IBC by the Resolution Professional calling upon all concerned, including the statutory bodies, to raise claim, it would be expected from all the stakeholders to diligently raise their claim. The Income Tax authorities in that sense, ought to have been diligent to verify the previous years assessment of the Corporate Debtor as permissible under the law and to raise the claim in the prescribed form within time before the Resolution Professional. In the present case, the Income Tax Authorities failed to do so and therefore, the claim stood extinguished. 22. As stated earlier, there could be a contingency where statuary claim is raised after the approval of the Resolution Plan, owing to receipt of information of the Corporate Debtor having suppressed certain facts while filing returns of the previous years, which then could not be a part of the Resolution Plan. To counter such a situation, the statutory authorities will have to explore the possibility of raising such claims before the Resolution Professional or Adjudicating Authority, as the case may be, by requesting to make certain provisions for payment of statutory claims in the Resolution Plan. Whether to accept such claim is a matter that should be left to the COC, the Resolution Professional or the Adjudicating Authority. However, in absence of any such claim having been made and dealt with by the Resolution Professional and in absence of any provision to settle such claim in the Resolution Plan, such claim could not be raised subsequently. In that sense, the Petitioner is correct in contending that the impugned notice could not have been issued by the Assessing Officer. 23. The Income Tax Authority or the Legislature may also explore possibility to make necessary provisions to overcome such situation by lending circular under Rules or by way of an Amendment in the Income Tax Act, 1961, in line with the section 44(6) of the Maharashtra Value Added Tax, Act, 2002, which provides as under; 44. Special provision regarding liability to pay tax in certain cases: (6) Subject to the provisions of the Companies Act, 2013, where any tax or other amount recoverable under this Act from a private company, whether existing or wound up or under liquidation, for any period, cannot be recovered, for any reason whatsoever, then, every person who was a director of the private company during such period shall be jointly and severally liable for the payment of such tax or other amount unless, he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the said company. We did not come across any such provision under the Income Tax Act, 1961 nor did the parties before us informed of its existence. 24. We, accordingly, record our answer in the negative to the question framed. 25. So far as the preliminary objection of maintainability of the petition is concerned, the law is well settled, which also is reflected in Ghanashyam Mishras case (supra). In paragraph 137 of the Honble Supreme Courts judgment, it has been held that the alternate remedy would not operate as a bar for invoking jurisdiction under Article 226 of the Constitution of India in at least three contingencies, namely (1) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; (2) where there has been a violation of the principle of natural justice; and (3) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 26. We find that the impugned notice falls under category – 3 above. Accordingly, the preliminary objection is rejected. ### Response: 1
590	Padamallu Ramanamma Vs. Arisenkula Appalanarasamma	Alagiriswami, J.1. This is an unfortunate litigation between a mother and her only daughter. The mother filed a suit. O. S. No. 40 of 1956 against the daughter claiming a certain house as her own and that she let it out to her daughter on a monthly rent of Rs. 30 and sought eviction of the daughter from the house. The daughter contended that the sale deed by which the mother purchased the site on which the house stands from the (daughters) husband was a nominal one and that the house was constructed by her and her husband from out of their funds and that she was not a tenant. The mother also filed another suit. O. S. No. 14 of 1957 for recovery of certain furniture and utensils and for the rent. The Trial Court found that the sale deed was not nominal that the daughter as well as her husband contributed towards the construction of the house and that it was the joint property of all the three and that the tenancy pleaded by the mother was false. Both the suits were dismissed by the Trial Court. On appeal the High Court of Andhra Pradesh allowed the mothers appeal in O. S. No. 40 of 1956 only in respect of possession. The appeal against the judgment in O. S. No. 14 of 1957 was dismissed. The daughter has, therefore, filed this appeal against the judgment of the High Court on certificate granted by the High Court.2. Exhibit A-2 is the sale deed dated 14th September, 1948 for a site of the extent of 10 cents purchased by the respondent (mother) from the appellants husband for Rs. 200/-. A sum of Rs. 100/- was paid before the Sub-Registrar, Rs. 100/- having been already paid. The appellants husband had a land 20 cents in extent and it is out of these 20 cents that he sold 10 cents to his mother-in-law, respondent. The payment of Rupees 100/- before him is endorsed by the Sub-Registrar on the sale deed itself. If it was merely a nominal sale deed there was no reason way only 10 cents out of 20 cents owned by the appellants husband was sold under Ex. A-2.Both the Courts below have concurrently held that the sale deed is not nominal but is a genuine transaction and we see no reason to take a different view.3. The next question is whether the house was constructed by the appellant and her husband with their moneys. The Trial Court held that the construction of the house was a joint enterprise by the appellant, the respondent and her second husband. The High Court took the view that the appellant might have advanced some money towards the construction of the house but that it did not confer any right on her in respect of the house. We shall now discuss the evidence on this point in brief.4. The appellants case was that by the time her husband executed a sale deed of the land on which the house stands, he had constructed it up to the roof level. Both the courts below refused to believe that case on the ground that if that was so it would have been mentioned in the sale deed itself. P. W. 1, Paparao, the respondents second husband seems to have been looking after the construction first through D. W. 3 and later through P. W. 7. after P. W. 1 and D. W. 3 fell out. The letters written by D. W. 3 to Paparao, wherein he promised to complete the work early and refers to the several steps taken by him prove this. Later, the letters written by P. W. 7 to P. W. 1 are also to the same effect. These letters show that P. W. 1 was not only advancing money from time to time but was actually in charge of the construction. These letters are spread over the period from January, 1949 to the end of 1952. A letter written by D. W. 3 to P. W. 1 (Ex. A-34) urges that the appellant should be allowed to stay in the house for some time. The tax receipts and demand notices are all in the name of P. W. 1 and later the respondent. More important than that are the two clinching circumstances. In Ex. A-33 dated 3-8-1954 the appellant wrote to P. W. 1 saying that she would quit the house if she was paid a sum of Rs. 2,000/- given by her after the death of her husband. Another circumstance is that Ex. B-6, a letter written by P. W. 1 to the appellant shows that she wanted to have 5 acres 24 cents of land settled in her favour, and actually 3 acres of land were settled on her subsequently. If there were any dispute about the house it would have been settled at that time. The appellant would not also have written Ex. A-33 to P. W. 1. All these make it abundantly clear that it was the respondent and her second husband that should have constructed the house and even if the appellant had advanced some money towards the construction she is not entitle to any share in the house.	0[ds]3. The next question is whether the house was constructed by the appellant and her husband with their moneys.	0	943	### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: Alagiriswami, J.1. This is an unfortunate litigation between a mother and her only daughter. The mother filed a suit. O. S. No. 40 of 1956 against the daughter claiming a certain house as her own and that she let it out to her daughter on a monthly rent of Rs. 30 and sought eviction of the daughter from the house. The daughter contended that the sale deed by which the mother purchased the site on which the house stands from the (daughters) husband was a nominal one and that the house was constructed by her and her husband from out of their funds and that she was not a tenant. The mother also filed another suit. O. S. No. 14 of 1957 for recovery of certain furniture and utensils and for the rent. The Trial Court found that the sale deed was not nominal that the daughter as well as her husband contributed towards the construction of the house and that it was the joint property of all the three and that the tenancy pleaded by the mother was false. Both the suits were dismissed by the Trial Court. On appeal the High Court of Andhra Pradesh allowed the mothers appeal in O. S. No. 40 of 1956 only in respect of possession. The appeal against the judgment in O. S. No. 14 of 1957 was dismissed. The daughter has, therefore, filed this appeal against the judgment of the High Court on certificate granted by the High Court.2. Exhibit A-2 is the sale deed dated 14th September, 1948 for a site of the extent of 10 cents purchased by the respondent (mother) from the appellants husband for Rs. 200/-. A sum of Rs. 100/- was paid before the Sub-Registrar, Rs. 100/- having been already paid. The appellants husband had a land 20 cents in extent and it is out of these 20 cents that he sold 10 cents to his mother-in-law, respondent. The payment of Rupees 100/- before him is endorsed by the Sub-Registrar on the sale deed itself. If it was merely a nominal sale deed there was no reason way only 10 cents out of 20 cents owned by the appellants husband was sold under Ex. A-2.Both the Courts below have concurrently held that the sale deed is not nominal but is a genuine transaction and we see no reason to take a different view.3. The next question is whether the house was constructed by the appellant and her husband with their moneys. The Trial Court held that the construction of the house was a joint enterprise by the appellant, the respondent and her second husband. The High Court took the view that the appellant might have advanced some money towards the construction of the house but that it did not confer any right on her in respect of the house. We shall now discuss the evidence on this point in brief.4. The appellants case was that by the time her husband executed a sale deed of the land on which the house stands, he had constructed it up to the roof level. Both the courts below refused to believe that case on the ground that if that was so it would have been mentioned in the sale deed itself. P. W. 1, Paparao, the respondents second husband seems to have been looking after the construction first through D. W. 3 and later through P. W. 7. after P. W. 1 and D. W. 3 fell out. The letters written by D. W. 3 to Paparao, wherein he promised to complete the work early and refers to the several steps taken by him prove this. Later, the letters written by P. W. 7 to P. W. 1 are also to the same effect. These letters show that P. W. 1 was not only advancing money from time to time but was actually in charge of the construction. These letters are spread over the period from January, 1949 to the end of 1952. A letter written by D. W. 3 to P. W. 1 (Ex. A-34) urges that the appellant should be allowed to stay in the house for some time. The tax receipts and demand notices are all in the name of P. W. 1 and later the respondent. More important than that are the two clinching circumstances. In Ex. A-33 dated 3-8-1954 the appellant wrote to P. W. 1 saying that she would quit the house if she was paid a sum of Rs. 2,000/- given by her after the death of her husband. Another circumstance is that Ex. B-6, a letter written by P. W. 1 to the appellant shows that she wanted to have 5 acres 24 cents of land settled in her favour, and actually 3 acres of land were settled on her subsequently. If there were any dispute about the house it would have been settled at that time. The appellant would not also have written Ex. A-33 to P. W. 1. All these make it abundantly clear that it was the respondent and her second husband that should have constructed the house and even if the appellant had advanced some money towards the construction she is not entitle to any share in the house. ### Response: 0
591	Assistant Commissioner of Income-tax Vs. Victory Aqua Farm Ltd	provisions of Section 32 of the Act. It is not even necessary to deal with this aspect in detail with reference to the various judgments, inasmuch as judgment of this Court in Commissioner of Income Tax, Karnataka v. Karnataka Power Corporation [2002(9) SCC 571] clinches the issue. Therein the Court has taken into consideration the earlier judgments on which some reliance was placed by the learned counsel for the Revenue and are suitably dealt with. The relevant portion of the said judgment reads as under: "5. It was the case of the assessee that it was entitled to investment allowance as applicable to a plant in respect of its power generating station building. In a note filed before the Commissioner (Appeals) it stated that it had included for the purpose the value of its Potential Transformer Foundation. Cable Duct System, Outdoor Yard Structures and Tail Race Channel. It explained that the process of generation started from letting in water from the reservoir into the pen-stocks and ducts which were the water conductor system into the turbines. Once electricity had been produced by generation, it had to be conducted, as it was not possible to store the same, and the process of generation continued until the electricity was led to the transmission tower. The water that was used for rotation of the turbines had to be removed and this was done through the Tail Race Channel. For stepping up the electricity, transformers were used in the outdoor yard. The conduction of the electricity was through conductors held in ducts, called the Cable Duct System, which were specifically designed for the purpose. The case of the assessee, therefore, was that all these were part of the special engineering works that were an essential part of a generating plant and, therefore, it was entitled to have the same treated as a plant for the purposes of investment allowance. The Commissioner accepted the correctness of the assessees case. He held that it was clear that the generating station buildings had to be treated as a plant for the purposes of investment allowance. These buildings could not be separated from the machinery and the machinery could not be worked without such special construction. He, therefore, allowed investment, allowance on the generating station, building, as claimed. The Tribunal affirmed this finding, as, indeed did the High Court. 6. We, therefore, have before us a finding of fact recorded by the fact finding authority that the generating station building is an integral part of the assessees generating system. 7. Our attention has been drawn by learned Counsel for the Revenue to the judgment of this Court in Commissioner of Income Tax v. Anand Theatres 224 I.T.R. 192. He submits that, in that judgment, this Court has held that, except in exceptional cases, the building in which the plant is situated must be distinguished from the plant and that, therefore, the assessees generating station building was not to be treated as a plant for the purposes of investment allowance. 8. It is difficult to read the judgment in the case of Anand Theatres so broadly. The question before the court was whether a building that was used as a hotel or a cinema theatre could be given depreciation on the basis that it was a "plant" and it was in relation to that question that the court considered a host of authorities of this country and England and came to the conclusion that a building which was used as a hotel or cinema theatre could not be given depreciation on the basis that it was a plant. We must add that the Court said, "To differentiate a building for grant of additional depreciation by holding it to be a plant in one case where a building is specially designed and constructed with some special features to attract the customers and the building not so constructed but used for the same purpose, namely, as a hotel or theatre would be unreasonable." This observation is, in our view, limited to buildings that are used for the purposes of hotels or cinema theatres and will not always apply otherwise. The question, basically, is a question of fact, and where it is found as a fact that a building has been so planned and constructed as to serve an assessees special technical requirements, it will qualify to be treated as a plant for the purposes of investment allowance. 9. In the instant case, there is a finding by the fact finding authority that the assessees generating station building is so constructed as to be an integral part of its generating system. It must, therefore, be held that it is a "plant" and entitled to investment allowance accordingly. The third question is answered in the affirmative and in favour of the assessee." 5. An attempt was made by the learned counsel for the Revenue to the effect that the pond in question was natural and not constructed/specially designed by the assessee. We do not find it be so. In the judgment dated 14.10.2004 of the High Court, which is decided in favour of the assessee, the High Court has specifically mentioned that the prawns are grown in specially designed ponds. Further this very contention that these are natural ponds has been specifically rejected as not correct. Moreover, from the order passed by the Assessing Officer we find that this was not the reason given by the Assessing Officer to reject the claim. Therefore, finding of fact on this aspect cannot be gone into at this stage. 6. We find that the judgment dated 14.10.2004 rightly rests this case on functional test and since the ponds were specially designed for rearing/breeding of the prawns, they have to be treated as tools of the business of the assessee and the depreciation was admissible on these ponds. We, thus, decide the question in favour of the assessee and as a consequence, appeals of the Revenue are dismissed and that of the assessee are allowed. ORDER 7.	0[ds]4. It is not in dispute that if these ponds are plants, then they are eligible for depreciation at the rates applicable to plant and machinery and case would be covered by the provisions of Section 32 of the Act. It is not even necessary to deal with this aspect in detail with reference to the various judgments, inasmuch as judgment of this Court in Commissioner of Income Tax, Karnataka v. Karnataka Power Corporation [2002(9) SCC 571] clinches the issue. Therein the Court has taken into consideration the earlier judgments on which some reliance was placed by the learned counsel for the Revenue and are suitably dealt with. The relevant portion of the said judgment reads asIt was the case of the assessee that it was entitled to investment allowance as applicable to a plant in respect of its power generating station building. In a note filed before the Commissioner (Appeals) it stated that it had included for the purpose the value of its Potential Transformer Foundation. Cable Duct System, Outdoor Yard Structures and Tail Race Channel. It explained that the process of generation started from letting in water from the reservoir into theand ducts which were the water conductor system into the turbines. Once electricity had been produced by generation, it had to be conducted, as it was not possible to store the same, and the process of generation continued until the electricity was led to the transmission tower. The water that was used for rotation of the turbines had to be removed and this was done through the Tail Race Channel. For stepping up the electricity, transformers were used in the outdoor yard. The conduction of the electricity was through conductors held in ducts, called the Cable Duct System, which were specifically designed for the purpose. The case of the assessee, therefore, was that all these were part of the special engineering works that were an essential part of a generating plant and, therefore, it was entitled to have the same treated as a plant for the purposes of investment allowance. The Commissioner accepted the correctness of the assessees case. He held that it was clear that the generating station buildings had to be treated as a plant for the purposes of investment allowance. These buildings could not be separated from the machinery and the machinery could not be worked without such special construction. He, therefore, allowed investment, allowance on the generating station, building, as claimed. The Tribunal affirmed this finding, as, indeed did the High Court.We, therefore, have before us a finding of fact recorded by the fact finding authority that the generating station building is an integral part of the assessees generating system.In the instant case, there is a finding by the fact finding authority that the assessees generating station building is so constructed as to be an integral part of its generating system. It must, therefore, be held that it is a "plant" and entitled to investment allowance accordingly. The third question is answered in the affirmative and in favour of the assessee.An attempt was made by the learned counsel for the Revenue to the effect that the pond in question was natural and not constructed/specially designed by the assessee. We do not find it be so. In the judgment dated 14.10.2004 of the High Court, which is decided in favour of the assessee, the High Court has specifically mentioned that the prawns are grown in specially designed ponds. Further this very contention that these are natural ponds has been specifically rejected as not correct. Moreover, from the order passed by the Assessing Officer we find that this was not the reason given by the Assessing Officer to reject the claim. Therefore, finding of fact on this aspect cannot be gone into at this. We find that the judgment dated 14.10.2004 rightly rests this case on functional test and since the ponds were specially designed for rearing/breeding of the prawns, they have to be treated as tools of the business of the assessee and the depreciation was admissible on these ponds. We, thus, decide the question in favour of the assessee and as a consequence, appeals of the Revenue are dismissed and that of the assessee are allowed.	0	1,489	### 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: provisions of Section 32 of the Act. It is not even necessary to deal with this aspect in detail with reference to the various judgments, inasmuch as judgment of this Court in Commissioner of Income Tax, Karnataka v. Karnataka Power Corporation [2002(9) SCC 571] clinches the issue. Therein the Court has taken into consideration the earlier judgments on which some reliance was placed by the learned counsel for the Revenue and are suitably dealt with. The relevant portion of the said judgment reads as under: "5. It was the case of the assessee that it was entitled to investment allowance as applicable to a plant in respect of its power generating station building. In a note filed before the Commissioner (Appeals) it stated that it had included for the purpose the value of its Potential Transformer Foundation. Cable Duct System, Outdoor Yard Structures and Tail Race Channel. It explained that the process of generation started from letting in water from the reservoir into the pen-stocks and ducts which were the water conductor system into the turbines. Once electricity had been produced by generation, it had to be conducted, as it was not possible to store the same, and the process of generation continued until the electricity was led to the transmission tower. The water that was used for rotation of the turbines had to be removed and this was done through the Tail Race Channel. For stepping up the electricity, transformers were used in the outdoor yard. The conduction of the electricity was through conductors held in ducts, called the Cable Duct System, which were specifically designed for the purpose. The case of the assessee, therefore, was that all these were part of the special engineering works that were an essential part of a generating plant and, therefore, it was entitled to have the same treated as a plant for the purposes of investment allowance. The Commissioner accepted the correctness of the assessees case. He held that it was clear that the generating station buildings had to be treated as a plant for the purposes of investment allowance. These buildings could not be separated from the machinery and the machinery could not be worked without such special construction. He, therefore, allowed investment, allowance on the generating station, building, as claimed. The Tribunal affirmed this finding, as, indeed did the High Court. 6. We, therefore, have before us a finding of fact recorded by the fact finding authority that the generating station building is an integral part of the assessees generating system. 7. Our attention has been drawn by learned Counsel for the Revenue to the judgment of this Court in Commissioner of Income Tax v. Anand Theatres 224 I.T.R. 192. He submits that, in that judgment, this Court has held that, except in exceptional cases, the building in which the plant is situated must be distinguished from the plant and that, therefore, the assessees generating station building was not to be treated as a plant for the purposes of investment allowance. 8. It is difficult to read the judgment in the case of Anand Theatres so broadly. The question before the court was whether a building that was used as a hotel or a cinema theatre could be given depreciation on the basis that it was a "plant" and it was in relation to that question that the court considered a host of authorities of this country and England and came to the conclusion that a building which was used as a hotel or cinema theatre could not be given depreciation on the basis that it was a plant. We must add that the Court said, "To differentiate a building for grant of additional depreciation by holding it to be a plant in one case where a building is specially designed and constructed with some special features to attract the customers and the building not so constructed but used for the same purpose, namely, as a hotel or theatre would be unreasonable." This observation is, in our view, limited to buildings that are used for the purposes of hotels or cinema theatres and will not always apply otherwise. The question, basically, is a question of fact, and where it is found as a fact that a building has been so planned and constructed as to serve an assessees special technical requirements, it will qualify to be treated as a plant for the purposes of investment allowance. 9. In the instant case, there is a finding by the fact finding authority that the assessees generating station building is so constructed as to be an integral part of its generating system. It must, therefore, be held that it is a "plant" and entitled to investment allowance accordingly. The third question is answered in the affirmative and in favour of the assessee." 5. An attempt was made by the learned counsel for the Revenue to the effect that the pond in question was natural and not constructed/specially designed by the assessee. We do not find it be so. In the judgment dated 14.10.2004 of the High Court, which is decided in favour of the assessee, the High Court has specifically mentioned that the prawns are grown in specially designed ponds. Further this very contention that these are natural ponds has been specifically rejected as not correct. Moreover, from the order passed by the Assessing Officer we find that this was not the reason given by the Assessing Officer to reject the claim. Therefore, finding of fact on this aspect cannot be gone into at this stage. 6. We find that the judgment dated 14.10.2004 rightly rests this case on functional test and since the ponds were specially designed for rearing/breeding of the prawns, they have to be treated as tools of the business of the assessee and the depreciation was admissible on these ponds. We, thus, decide the question in favour of the assessee and as a consequence, appeals of the Revenue are dismissed and that of the assessee are allowed. ORDER 7. ### Response: 0
592	State of Tamil Naduv. Messrs Shakti Estates Vs. Shanmugham Estate, Tamil Nadu	of the tract developed, the extent and value of the trees standing on the land, the inevitability of the jungle having to be cleared and the standing trees disposed of before commercial crops could be grown, the manner in which the forest trees were disposed of are all, we think, insignia that mark out the entire set of activities as a concern in the nature of trade. 9. It is true that, in the area of income tax law, it has been held that no adventure to the nature of trade can be spelt out where all that a person does amounts to a mere realisation of his capital assets. It has been held thus that an owner of a huge estate who does not want to retain it any longer cannot be taxed on the surplus accruing to him on the sale of his capital assets even though he might carry out the realisation to best advantage in a commercial manner such as by forming a company, developing the lands, plotting them out, advertising them for sale, waiting for a favourable market and selling them over a period of several years. But this line of cases is if no help in the context of the facts of the present case and in the view we have taken above of the assesses transactions. Here the assesses did not merely realise the value of a capital asset belonging to them. They went in for the acquisition of an asset fully realisation its potentialities for exploitation not merely as a plantation but also, incidentally, by disposing of the existing growth on the land. It seems impossible to say that they did not intend to do this also while going in for the acquisition. If one purchases an asset with a view to turn it to account in such manner, we think, one is certainly carrying out an adventure in the nature of trade. 10. Moreover, we have also to give full affect to the definitions in the statute we are concerned with. The definition of a "business" also includes "any transaction in connection with or incidental to or ancillary" to a trade and thus, even on the assessees own arguments, these activities were incidental and ancillary to the business which the assessee was carrying on or definitely intended to carry on. It is also immaterial, on this definition, that the assessee may not have had a "motive of making a profit or gain" on these sales though on the facts, it is clear that such motive must have existed and, in any event, could not be ruled out. The reference to a "casual" dealer in the second definition also renders it immaterial that the assessees may not have intended to be regular dealers in sleepers, timber, firewood or charcoal but that this was something casual or incidental to the acquisition and exploitation of a forest for running a plantation. 11. Before concluding, we may refer to the decision cited before us. The decisions of the High Court in the present cases and in Kuttirayin case ((1976) 38 STC 282 (Ker) HC)) support the assessee contention but, for reasons given above, we are unable to accept them as correct. The decision of the Madras High Court in L. N. Plantation Co. v. State ((1981 52 STC 7 (Mad) supports the departments contention and we approve of the same. In Tamil Nadu Trading Co. v. State of T. N. ((1981) 52 STC 7 (Mad) the Madras High Court was dealing with a case where the assessee was found to be a dealer in timber. But, in the course of their judgment, the court made the following observations which support the case of the department. Even if it were to be assumed, without accepting for the sake of argument, that the assessee purchased the land for the purpose of coffee plantation, the sale of timber and fuel would fall under "any transaction" in connection with or incidental or ancillary to the business of coffee plantation and would therefore fall within the definition of "business" under Section 2(d) of the Act. We agree. 12. Three decisions of this Court were also referred to by counsel. State of T. N. v. Burmah Shell Oil Storage and Distributing Co. ((1973) 3 SCC 511 : 1973 SCC (Tax) 269 : (1973) 31 STC 426 ) and District Controller of Stores, N. Rly. v. Assistant C. T. O. ((1976) 1 SCC 660 : 1976 SCC (Tax) 98 : (1976) 37 STC 423 ) were cases where an assessee, carrying on a business, had to dispose of unserviceable or useless material and such disposals were held taxable as "business" sales, the transactions being incidental or ancillary to the principal business carried on by the assessee. The disposals effected by the Shakti Estate whose plantation business had started in full swing will certainly fall squarely within the principle of these decisions. But, as we have discussed above, in our view, even the sales effected before the plantation started yielding results would be covered by the definitions as the venture undertaken by the assessee has to be considered as an integral whole and there can be no doubt that the sale of the forest produce was part of the activities in the contemplation of the assessee right from the beginning. 13. As against the above decisions, reliance was placed, on behalf of the assessee, on Deputy Commissioner v. Palampadam Plantation (Dy. Commr. of Agrl. Income-tax & Sales Tax v. Palampadam Plantations Ltd., (1969) 1 SCC 662 : (1969) 24 STC 231 ) where, it is said, it was held that an assessee could not be held taxable as a dealer on the sale of trees of spontaneous growth in a plantation. But that decision clearly turned on the specific language of the definition of "dealer" contained in Section 2(viii)(e) of the Kerala General Sales Tax Act, 1963, and does not lay down any general proposition as contended for on behalf of the assessee.	1[ds]9. It is true that, in the area of income tax law, it has been held that no adventure to the nature of trade can be spelt out where all that a person does amounts to a mere realisation of his capital assets. It has been held thus that an owner of a huge estate who does not want to retain it any longer cannot be taxed on the surplus accruing to him on the sale of his capital assets even though he might carry out the realisation to best advantage in a commercial manner such as by forming a company, developing the lands, plotting them out, advertising them for sale, waiting for a favourable market and selling them over a period of several years. But this line of cases is if no help in the context of the facts of the present case and in the view we have taken above of the assesses transactions. Here the assesses did not merely realise the value of a capital asset belonging to them. They went in for the acquisition of an asset fully realisation its potentialities for exploitation not merely as a plantation but also, incidentally, by disposing of the existing growth on the land. It seems impossible to say that they did not intend to do this also while going in for the acquisition. If one purchases an asset with a view to turn it to account in such manner, we think, one is certainly carrying out an adventure in the nature of trade10. Moreover, we have also to give full affect to the definitions in the statute we are concerned with. The definition of a "business" also includes "any transaction in connection with or incidental to or ancillary" to a trade and thus, even on the assessees own arguments, these activities were incidental and ancillary to the business which the assessee was carrying on or definitely intended to carry on. It is also immaterial, on this definition, that the assessee may not have had a "motive of making a profit or gain" on these sales though on the facts, it is clear that such motive must have existed and, in any event, could not be ruled out. The reference to a "casual" dealer in the second definition also renders it immaterial that the assessees may not have intended to be regular dealers in sleepers, timber, firewood or charcoal but that this was something casual or incidental to the acquisition and exploitation of a forest for running a plantation	1	2,915	### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: of the tract developed, the extent and value of the trees standing on the land, the inevitability of the jungle having to be cleared and the standing trees disposed of before commercial crops could be grown, the manner in which the forest trees were disposed of are all, we think, insignia that mark out the entire set of activities as a concern in the nature of trade. 9. It is true that, in the area of income tax law, it has been held that no adventure to the nature of trade can be spelt out where all that a person does amounts to a mere realisation of his capital assets. It has been held thus that an owner of a huge estate who does not want to retain it any longer cannot be taxed on the surplus accruing to him on the sale of his capital assets even though he might carry out the realisation to best advantage in a commercial manner such as by forming a company, developing the lands, plotting them out, advertising them for sale, waiting for a favourable market and selling them over a period of several years. But this line of cases is if no help in the context of the facts of the present case and in the view we have taken above of the assesses transactions. Here the assesses did not merely realise the value of a capital asset belonging to them. They went in for the acquisition of an asset fully realisation its potentialities for exploitation not merely as a plantation but also, incidentally, by disposing of the existing growth on the land. It seems impossible to say that they did not intend to do this also while going in for the acquisition. If one purchases an asset with a view to turn it to account in such manner, we think, one is certainly carrying out an adventure in the nature of trade. 10. Moreover, we have also to give full affect to the definitions in the statute we are concerned with. The definition of a "business" also includes "any transaction in connection with or incidental to or ancillary" to a trade and thus, even on the assessees own arguments, these activities were incidental and ancillary to the business which the assessee was carrying on or definitely intended to carry on. It is also immaterial, on this definition, that the assessee may not have had a "motive of making a profit or gain" on these sales though on the facts, it is clear that such motive must have existed and, in any event, could not be ruled out. The reference to a "casual" dealer in the second definition also renders it immaterial that the assessees may not have intended to be regular dealers in sleepers, timber, firewood or charcoal but that this was something casual or incidental to the acquisition and exploitation of a forest for running a plantation. 11. Before concluding, we may refer to the decision cited before us. The decisions of the High Court in the present cases and in Kuttirayin case ((1976) 38 STC 282 (Ker) HC)) support the assessee contention but, for reasons given above, we are unable to accept them as correct. The decision of the Madras High Court in L. N. Plantation Co. v. State ((1981 52 STC 7 (Mad) supports the departments contention and we approve of the same. In Tamil Nadu Trading Co. v. State of T. N. ((1981) 52 STC 7 (Mad) the Madras High Court was dealing with a case where the assessee was found to be a dealer in timber. But, in the course of their judgment, the court made the following observations which support the case of the department. Even if it were to be assumed, without accepting for the sake of argument, that the assessee purchased the land for the purpose of coffee plantation, the sale of timber and fuel would fall under "any transaction" in connection with or incidental or ancillary to the business of coffee plantation and would therefore fall within the definition of "business" under Section 2(d) of the Act. We agree. 12. Three decisions of this Court were also referred to by counsel. State of T. N. v. Burmah Shell Oil Storage and Distributing Co. ((1973) 3 SCC 511 : 1973 SCC (Tax) 269 : (1973) 31 STC 426 ) and District Controller of Stores, N. Rly. v. Assistant C. T. O. ((1976) 1 SCC 660 : 1976 SCC (Tax) 98 : (1976) 37 STC 423 ) were cases where an assessee, carrying on a business, had to dispose of unserviceable or useless material and such disposals were held taxable as "business" sales, the transactions being incidental or ancillary to the principal business carried on by the assessee. The disposals effected by the Shakti Estate whose plantation business had started in full swing will certainly fall squarely within the principle of these decisions. But, as we have discussed above, in our view, even the sales effected before the plantation started yielding results would be covered by the definitions as the venture undertaken by the assessee has to be considered as an integral whole and there can be no doubt that the sale of the forest produce was part of the activities in the contemplation of the assessee right from the beginning. 13. As against the above decisions, reliance was placed, on behalf of the assessee, on Deputy Commissioner v. Palampadam Plantation (Dy. Commr. of Agrl. Income-tax & Sales Tax v. Palampadam Plantations Ltd., (1969) 1 SCC 662 : (1969) 24 STC 231 ) where, it is said, it was held that an assessee could not be held taxable as a dealer on the sale of trees of spontaneous growth in a plantation. But that decision clearly turned on the specific language of the definition of "dealer" contained in Section 2(viii)(e) of the Kerala General Sales Tax Act, 1963, and does not lay down any general proposition as contended for on behalf of the assessee. ### Response: 1
593	SAGUFA AHMED & ORS Vs. UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD & ORS	to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. 19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. 20. It may be useful in this regard to make a reference to Section 10 of the General Clauses Act, 1897 which reads as follows: 10. Computation of time - (1) Where, by any 19 [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies. (2) This section applies also to all [Central Acts] and, Regulations made on or after the fourteenth day of January, 1887. 21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963 which reads as follows: - 4. Expiry of prescribed period when court is closed.— Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. 22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation. We may see a few examples: (i) Section 3(1) makes every proceeding filed after the prescribed period, liable to be dismissed, subject however to the provisions in Sections 4 to 24. (ii) Section 5 enables the admission of any appeal or application after the prescribed period. (iii) Section 6 uses the expression prescribed period in relation to proceedings to be initiated by persons under legal disability. 23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period. 24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows: 13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words? 14. Section 2(j) of the 1963 Act defines 2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable.	0[ds]13. Therefore, it is true, as contended by the appellants, that the period of limitation of 45 days prescribed in Section 421(3) would start running only from the date on which a copy of the order of the Tribunal is made available to the person aggrieved. It is also true that under Section 420(3) of the Act read with Rule 50, the appellants were entitled to be furnished with a certified copy of the order free of cost.14. Therefore if the appellants had chosen not to file a copy application, but to await the receipt of a free copy of the order in terms of Section 420(3) read with Rule 50, they would be perfectly justified in falling back on Section 421(3), for fixing the date from which limitation would start running. But the appellants in this case, chose to apply for a certified copy after 27 days of the pronouncement of the order in their presence and they now fall back upon Section 421(3).15. Despite the above factual position, we do not want to hold against the appellants, the fact that they waited from 25.10.2019 (the date of the order of NCLT) upto 21.11.2019, to make a copy application. But atleast from 19.12.2019, the date on which a certified copy was admittedly received by the counsel for the appellants, the period of limitation cannot be stopped from running.16. From 19.12.2019, the date on which the counsel for the appellants received the copy of the order, the appellants had a period of 45 days to file an appeal. This period expired on 02.02.2020.17. By virtue of the proviso to Section 421(3), the Appellate Tribunal was empowered to condone the delay upto a period of period of 45 days. This period of 45 days started running from 02.02.2020 and it expired even according to the appellants on 18.03.2020. The appellants did not file the appeal on or before 18.03.2020, but filed it on 20.07.2020. It is relevant to note that the lock down was imposed only on 24.03.2020 and there was no impediment for the appellants to file the appeal on or before 18.03.2020. To overcome this difficulty, the appellants rely upon the order of this Court dated 23.03.2020.10. Section 420(3) of the Companies Act, 2013 mandates the NCLT to send a copy of every order passed under Section 420(1) to all the parties concerned.11. Rule 50 of the National Company Law Tribunal Rules, 2016 also mandates the Registry of the NCLT to send a certified copy of the final order to the parties concerned free of cost. However, Rule 50 also enables the Registry of the NCLT to make available the certified copies with cost as per schedule of fees in all other cases (meaning thereby to persons who are not parties).12. Section 421(1) provides for a remedy of appeal to the Appellate Tribunal as against an order of NCLT. Sub-Section (3) of Section 421 prescribes the period of limitation for filing an appeal and the proviso thereunder confers a limited discretion upon the Appellate Tribunal to condone the delay.18. To get over their failure to file an appeal on or before 18.03.2020, the appellants rely upon the order of this Court dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020. It reads as follows:This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.Issue notice to all the Registrars General of the High Courts, returnable in four weeks.19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period.22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation.23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period.24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows:13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?14. Section 2(j) of the 1963 Act defines2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act.Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable.21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963	0	2,600	### 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: to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. 19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. 20. It may be useful in this regard to make a reference to Section 10 of the General Clauses Act, 1897 which reads as follows: 10. Computation of time - (1) Where, by any 19 [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies. (2) This section applies also to all [Central Acts] and, Regulations made on or after the fourteenth day of January, 1887. 21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963 which reads as follows: - 4. Expiry of prescribed period when court is closed.— Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. 22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation. We may see a few examples: (i) Section 3(1) makes every proceeding filed after the prescribed period, liable to be dismissed, subject however to the provisions in Sections 4 to 24. (ii) Section 5 enables the admission of any appeal or application after the prescribed period. (iii) Section 6 uses the expression prescribed period in relation to proceedings to be initiated by persons under legal disability. 23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period. 24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows: 13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words? 14. Section 2(j) of the 1963 Act defines 2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable. ### Response: 0
594	Belwal Spinning Mills Ltd Vs. U.P.State Electricity Board	of the amount of quantity supplied to the consumer in the absence of fraud where a dispute is raised by either of the party about the functioning of the meter, cannot be overlooked. Sub section (6) has been amended and the legislature has introduced a conscious departure by deleting the requirement of assessing the quantity of electricity consumed for the entire period during which the Electrical Inspector or the competent authority was of the opinion that the meter had ceased to be correct. In our view, by limiting the period for estimation to be made by the Electrical Inspector by the amendment of sub-section (6) and further providing that for the anterior period, in the absence of fraud, the register of the meter shall be conclusive proof of the supply of the electricity it is quite evident that even if it transpires that the installed meter ceased to be correct, then for the period anterior to the statutory period for which the estimation is not to be mae by the Electrical Inspector, the register of teh meter about the consumption of the electricity supplied to the consumer shall be binding between the parties by treating such recording as conclusive proof of the consumption in the absence of any fraud practised by the consumer. By the amendment of sub-section (6) the Electrical Inspector has been purposely obsolved from the duty to determine as to from which point of time beyond the said statutory period, the meter had cease to function so taht for such entire entire period, the estimation of the supply of electricity need not be made. Such amendment of sub-section (60, n our view, only means that beyond the statutory period, in the event of dispute between the parties as to the proper functioning of the meter and other electrical apparatus, the consumer has liability to pay the estimated amount indicated by the Electrical Inspector limiting the estimate upto the statutory period and not beyond that but for the other anterior period the consumer is required to pay according to the consumption of electricity registered in the disputed meter provided there is no fraud practised by the consumer because dispute of such anterior period remains unresolved by the change introduced by the amendment.Such legislative change by the amendment of sub-section 6 of Section 26, in our view, has be en introduced to set at rest any dispute between the licensee and the consumer about the actual consumption of the quantity of electricity by the consumer where no fraud has been practised by the consumer for all other period anterior to statory period for estimation. There is good reason for such legislative change because is may not be possible to precisely determine exactly from which point of time the meter ceased to be correct. The scheme under Electricity Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer so that consumption of electricity is computed on the basis of reading in the meter. The scheme also reveals that unilateral decision of either of the parties about the correct status of the meter is not be accepted by the other party if the other party raises objection as to the status of the meter. Whenever both parties do not accept a meter to be correct and the dispute is raised, such dispute is got to be resolved by referring to a statutory authority under Section 26(6), namely, the Electrical Inspectr. Within the integrated scheme under Section 26 of the Electricity Act, it is not possible that even though dispute is raised about the mal functioning of the meter such dispute will be treated as statutorily resolved for a limited period in accordance with the amended sub-section (6)of Section 26 but for other period anterior to the same, the dispute will remain unresolved and claim of the licensee be open to be challenged. Therefore, simply on the finding that mere had ceased to be correct by the Electrical Inspector on entering the reference a licensee may not be justified in contending that a particular meter had ceased to be correct from a particular point of time even though the licensee, despite its statutory duty to maintain the correct meter by repairing or rectifying the defective meter and by re placing it if necessary has failed to take appropriate step. Both Mr Sen and the learned Solicitor General in their fairness, have submitted that beyond the statutory period for which no estimation for the consumption of electricity is to be made by the Electrical Inspector attaching statutory finality to such estimation, although the licensee is not precluded from raising revised claim for other period anterior to the statutory period of estimation but such claim will be open to be challenged by the consumer. In our view, by the amendment of sub-section (6) of Section 26, the Legistature has intended to put an end of such contest between the licensee and the consumer and has set at rest of any dispute relating to any period anterior to the statutory period of estimation by providing that in a casee of dispute as to functioning of meter, the reading in the meter for the period beyond the period of statutory estimation, will be final.As in none of these appeals, there is any alloegation that the concerned consumer had paractised fraud or had tampered with the emter or other electrical appartus provided for recording the supply of electricity to the consumer, the consumer will be entitled t o the statutory protection of correctness of the recording of the consumption or supply of electricity consumed in the meter/check meter as conclusive proof of such amount of quantity of electricity consumed for all the period anterior to statutory period of estuation under Section 26(6) of the Act because admittedly there is dispute as to the proper functioning of the meter and check meter installed at the premises of the consumer. 31.	0[ds]In appreciating the intention of the legislature, the provision for treating the recording of the disputed meter to be the conclusive proof of the amount of quantity supplied to the consumer in the absence of fraud where a dispute is raised by either of the party about the functioning of the meter, cannot be overlooked. Sub section (6) has been amended and the legislature has introduced a conscious departure by deleting the requirement of assessing the quantity of electricity consumed for the entire period during which the Electrical Inspector or the competent authority was of the opinion that the meter had ceased to be correct. In our view, by limiting the period for estimation to be made by the Electrical Inspector by the amendment of sub-section (6) and further providing that for the anterior period, in the absence of fraud, the register of the meter shall be conclusive proof of the supply of the electricity it is quite evident that even if it transpires that the installed meter ceased to be correct, then for the period anterior to the statutory period for which the estimation is not to be mae by the Electrical Inspector, the register of teh meter about the consumption of the electricity supplied to the consumer shall be binding between the parties by treating such recording as conclusive proof of the consumption in the absence of any fraud practised by the consumer. By the amendment of sub-section (6) the Electrical Inspector has been purposely obsolved from the duty to determine as to from which point of time beyond the said statutory period, the meter had cease to function so taht for such entire entire period, the estimation of the supply of electricity need not be made. Such amendment of sub-section (60, n our view, only means that beyond the statutory period, in the event of dispute between the parties as to the proper functioning of the meter and other electrical apparatus, the consumer has liability to pay the estimated amount indicated by the Electrical Inspector limiting the estimate upto the statutory period and not beyond that but for the other anterior period the consumer is required to pay according to the consumption of electricity registered in the disputed meter provided there is no fraud practised by the consumer because dispute of such anterior period remains unresolved by the change introduced by the amendment.Such legislative change by the amendment of sub-section 6 of Section 26, in our view, has be en introduced to set at rest any dispute between the licensee and the consumer about the actual consumption of the quantity of electricity by the consumer where no fraud has been practised by the consumer for all other period anterior to statory period for estimation. There is good reason for such legislative change because is may not be possible to precisely determine exactly from which point of time the meter ceased to be correct. The scheme under Electricity Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer so that consumption of electricity is computed on the basis of reading in the meter. The scheme also reveals that unilateral decision of either of the parties about the correct status of the meter is not be accepted by the other party if the other party raises objection as to the status of the meter. Whenever both parties do not accept a meter to be correct and the dispute is raised, such dispute is got to be resolved by referring to a statutory authority under Section 26(6), namely, the Electrical Inspectr. Within the integrated scheme under Section 26 of the Electricity Act, it is not possible that even though dispute is raised about the mal functioning of the meter such dispute will be treated as statutorily resolved for a limited period in accordance with the amended sub-section (6)of Section 26 but for other period anterior to the same, the dispute will remain unresolved and claim of the licensee be open to be challenged. Therefore, simply on the finding that mere had ceased to be correct by the Electrical Inspector on entering the reference a licensee may not be justified in contending that a particular meter had ceased to be correct from a particular point of time even though the licensee, despite its statutory duty to maintain the correct meter by repairing or rectifying the defective meter and by re placing it if necessary has failed to take appropriateour view, by the amendment of sub-section (6) of Section 26, the Legistature has intended to put an end of such contest between the licensee and the consumer and has set at rest of any dispute relating to any period anterior to the statutory period of estimation by providing that in a casee of dispute as to functioning of meter, the reading in the meter for the period beyond the period of statutory estimation, will be final.As in none of these appeals, there is any alloegation that the concerned consumer had paractised fraud or had tampered with the emter or other electrical appartus provided for recording the supply of electricity to the consumer, the consumer will be entitled t o the statutory protection of correctness of the recording of the consumption or supply of electricity consumed in the meter/check meter as conclusive proof of such amount of quantity of electricity consumed for all the period anterior to statutory period of estuation under Section 26(6) of the Act because admittedly there is dispute as to the proper functioning of the meter and check meter installed at the premises of the consumer.	0	12,298	### 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: of the amount of quantity supplied to the consumer in the absence of fraud where a dispute is raised by either of the party about the functioning of the meter, cannot be overlooked. Sub section (6) has been amended and the legislature has introduced a conscious departure by deleting the requirement of assessing the quantity of electricity consumed for the entire period during which the Electrical Inspector or the competent authority was of the opinion that the meter had ceased to be correct. In our view, by limiting the period for estimation to be made by the Electrical Inspector by the amendment of sub-section (6) and further providing that for the anterior period, in the absence of fraud, the register of the meter shall be conclusive proof of the supply of the electricity it is quite evident that even if it transpires that the installed meter ceased to be correct, then for the period anterior to the statutory period for which the estimation is not to be mae by the Electrical Inspector, the register of teh meter about the consumption of the electricity supplied to the consumer shall be binding between the parties by treating such recording as conclusive proof of the consumption in the absence of any fraud practised by the consumer. By the amendment of sub-section (6) the Electrical Inspector has been purposely obsolved from the duty to determine as to from which point of time beyond the said statutory period, the meter had cease to function so taht for such entire entire period, the estimation of the supply of electricity need not be made. Such amendment of sub-section (60, n our view, only means that beyond the statutory period, in the event of dispute between the parties as to the proper functioning of the meter and other electrical apparatus, the consumer has liability to pay the estimated amount indicated by the Electrical Inspector limiting the estimate upto the statutory period and not beyond that but for the other anterior period the consumer is required to pay according to the consumption of electricity registered in the disputed meter provided there is no fraud practised by the consumer because dispute of such anterior period remains unresolved by the change introduced by the amendment.Such legislative change by the amendment of sub-section 6 of Section 26, in our view, has be en introduced to set at rest any dispute between the licensee and the consumer about the actual consumption of the quantity of electricity by the consumer where no fraud has been practised by the consumer for all other period anterior to statory period for estimation. There is good reason for such legislative change because is may not be possible to precisely determine exactly from which point of time the meter ceased to be correct. The scheme under Electricity Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer so that consumption of electricity is computed on the basis of reading in the meter. The scheme also reveals that unilateral decision of either of the parties about the correct status of the meter is not be accepted by the other party if the other party raises objection as to the status of the meter. Whenever both parties do not accept a meter to be correct and the dispute is raised, such dispute is got to be resolved by referring to a statutory authority under Section 26(6), namely, the Electrical Inspectr. Within the integrated scheme under Section 26 of the Electricity Act, it is not possible that even though dispute is raised about the mal functioning of the meter such dispute will be treated as statutorily resolved for a limited period in accordance with the amended sub-section (6)of Section 26 but for other period anterior to the same, the dispute will remain unresolved and claim of the licensee be open to be challenged. Therefore, simply on the finding that mere had ceased to be correct by the Electrical Inspector on entering the reference a licensee may not be justified in contending that a particular meter had ceased to be correct from a particular point of time even though the licensee, despite its statutory duty to maintain the correct meter by repairing or rectifying the defective meter and by re placing it if necessary has failed to take appropriate step. Both Mr Sen and the learned Solicitor General in their fairness, have submitted that beyond the statutory period for which no estimation for the consumption of electricity is to be made by the Electrical Inspector attaching statutory finality to such estimation, although the licensee is not precluded from raising revised claim for other period anterior to the statutory period of estimation but such claim will be open to be challenged by the consumer. In our view, by the amendment of sub-section (6) of Section 26, the Legistature has intended to put an end of such contest between the licensee and the consumer and has set at rest of any dispute relating to any period anterior to the statutory period of estimation by providing that in a casee of dispute as to functioning of meter, the reading in the meter for the period beyond the period of statutory estimation, will be final.As in none of these appeals, there is any alloegation that the concerned consumer had paractised fraud or had tampered with the emter or other electrical appartus provided for recording the supply of electricity to the consumer, the consumer will be entitled t o the statutory protection of correctness of the recording of the consumption or supply of electricity consumed in the meter/check meter as conclusive proof of such amount of quantity of electricity consumed for all the period anterior to statutory period of estuation under Section 26(6) of the Act because admittedly there is dispute as to the proper functioning of the meter and check meter installed at the premises of the consumer. 31. ### Response: 0
595	Mallappa Girimallappa Betgeri & Others Vs. R. Yellappagouda Patil & Others	held that the "K" properties were joint family properties. Since the subsequently acquired properties had been admittedly purchased with the income of the "K" properties, it followed that they were also joint properties.8. It is not the practice of this Court to set aside findings of fact concurrently arrived at by the courts below. We, therefore, have to proceed on the basis that the appellant has failed to prove that the "K" properties had been transferred to him by Irangouda entirely without any consideration.9. In our view, this finding was based on proper evidence. Not only was there the statement in the deed of sale that the "K" properties had been transferred in consideration of Rs. 2, 000 paid by the appellant to Irangouda but in a suit which Gangawa had filed in 1906 against the appellant and Irangouda to set aside their adoptions, which suit it may be stated was compromised by a provision for a larger maintenance being made for her, the appellant had put in a written statement in which he contended that the properties had been sold to him for Rs. 2, 000. It may also be pointed out that in the sale deed it had been stated that a part of the consideration, namely, Rs. 600 was paid in the presence of the Registrar. The appellant did not lead any evidence to show that no. consideration was paid for the sale deed except his own bare statement. Dr. Barlingay appearing in support of the appeal has suggested various reasons why it should have been held on the evidence that the transfer of the "K" properties to the appellant was really without consideration. We do not feel justified in entering into a discussion of those reasons and we deem it enough to say that the Courts below could on the evidence before them legally come to the conclusion that the consideration mentioned in the deed of sale had been paid. It is not for this Court to substitute its own view on the question for the view taken by the Courts below.10. We then find that the appellant was a manager of a joint family and had acquired the "K" properties in his own name for a consideration. It was never disputed that the Belhode properties were joint family properties. The Courts below held that the Belhode properties provided a sufficient nucleus of joint family property out of which the "K" properties might have been acquired. The sufficiency of the nucleus is again a question of fact and it is not for us to interfere with the findings of the Courts below on that question. For reasons to be hereinafter stated, we think that apart from the Belhode properties the appellant had no. other source of income. In those circumstances a presumption arises that the "K" properties were the properties of the joint family : See Srinivas Krishnarao Kango v. Narayan Devji Kango, 1955 (1) SCR 1 : 1954 AIR(SC) 379). Unless that presumption is rebutted it must prevail. It is quite clear that the appellant has failed to displace that presumption. The only way in which he sought to do so was by proving that the transfer to him was by way of a gift. But he has failed. The presumption remains unrebutted.11. It had been contended on the appellants behalf that he had been in possession of the "K" properties since his adoption by Gangawa in 1903 and might have paid the consideration mentioned in the deed of sale out of the income received from them. We find it somewhat difficult to appreciate the point of this contention. However that may be, the learned trial Judge found no. sufficient evidence to prove that the appellant was in possession of the "K" properties prior to the execution of the deed of sale. The learned Judges of the High Court do not appear to have differed from that finding. They however observed that assuming that the appellant was so in possession of the "K" properties, it had not been proved that he had paid the consideration for the transfer of the "K" properties to him out of their income. So the High Court held in our view rightly, that the presumption had not been rebutted. We may add that no. question of the consideration for the acquisition of the "K" properties being paid out of their income really arose for, according to the appellant, he had got them without paying any consideration.12. Dr. Barlingay contended that no. presumption arose that a property in the possession of a member of a joint family was joint property, where the person in possession is proved to have been the owner of other sources of income. No. authority has been cited in support of this contention and we are not aware of any. But it seems to us that the question does not really arise. The Courts below have not held that the appellant had at any time prior to the execution of the deed of sale in his favour, been in possession of the "K" properties or in receipt of any income from them. It has therefore not been shown that at the relevant time the appellant had any other source of income than the joint family properties.13. Again, the only basis on which Dr Barlingay placed his contention that the presumption did not arise when the person in possession of the property had other source of income, was the possibility that he might have acquired the property out of that income. But, as we have earlier stated, clearly that is not a possibility in the present case. The appellants case being that he acquired the "K" properties by way of a gift and entirely without consideration, it is not open to him to contend that the consideration may have been paid out of a particular source.14. There is therefore no. reason why a presumption should not arise in this case that the "K" properties were joint family properties.	0[ds]9. In our view, this finding was based on proper evidence. Not only was there the statement in the deed of sale that the "K" properties had been transferred in consideration of Rs. 2, 000 paid by the appellant to Irangouda but in a suit which Gangawa had filed in 1906 against the appellant and Irangouda to set aside their adoptions, which suit it may be stated was compromised by a provision for a larger maintenance being made for her, the appellant had put in a written statement in which he contended that the properties had been sold to him for Rs. 2, 000. It may also be pointed out that in the sale deed it had been stated that a part of the consideration, namely, Rs. 600 was paid in the presence of the Registrar. The appellant did not lead any evidence to show that no. consideration was paid for the sale deed except his own bare statement. Dr. Barlingay appearing in support of the appeal has suggested various reasons why it should have been held on the evidence that the transfer of the "K" properties to the appellant was really without consideration. We do not feel justified in entering into a discussion of those reasons and we deem it enough to say that the Courts below could on the evidence before them legally come to the conclusion that the consideration mentioned in the deed of sale had been paid. It is not for this Court to substitute its own view on the question for the view taken by the Courts below.10. We then find that the appellant was a manager of a joint family and had acquired the "K" properties in his own name for a consideration. It was never disputed that the Belhode properties were joint family properties. The Courts below held that the Belhode properties provided a sufficient nucleus of joint family property out of which the "K" properties might have been acquired. The sufficiency of the nucleus is again a question of fact and it is not for us to interfere with the findings of the Courts below on that question. For reasons to be hereinafter stated, we think that apart from the Belhode properties the appellant had no. other source of income. In those circumstances a presumption arises that the "K" properties were the properties of the joint family : See Srinivas Krishnarao Kango v. Narayan Devji Kango, 1955 (1) SCR 1 : 1954 AIR(SC) 379). Unless that presumption is rebutted it must prevail. It is quite clear that the appellant has failed to displace that presumption. The only way in which he sought to do so was by proving that the transfer to him was by way of a gift. But he has failed. The presumption remainsfind it somewhat difficult to appreciate the point of this contention. However that may be, the learned trial Judge found no. sufficient evidence to prove that the appellant was in possession of the "K" properties prior to the execution of the deed of sale. The learned Judges of the High Court do not appear to have differed from that finding. They however observed that assuming that the appellant was so in possession of the "K" properties, it had not been proved that he had paid the consideration for the transfer of the "K" properties to him out of their income. So the High Court held in our view rightly, that the presumption had not been rebutted. We may add that no. question of the consideration for the acquisition of the "K" properties being paid out of their income really arose for, according to the appellant, he had got them without paying anyit seems to us that the question does not really arise. The Courts below have not held that the appellant had at any time prior to the execution of the deed of sale in his favour, been in possession of the "K" properties or in receipt of any income from them. It has therefore not been shown that at the relevant time the appellant had any other source of income than the joint family properties.13. Again, the only basis on which Dr Barlingay placed his contention that the presumption did not arise when the person in possession of the property had other source of income, was the possibility that he might have acquired the property out of that income. But, as we have earlier stated, clearly that is not a possibility in the present case. The appellants case being that he acquired the "K" properties by way of a gift and entirely without consideration, it is not open to him to contend that the consideration may have been paid out of a particular source.14. There is therefore no. reason why a presumption should not arise in this case that the "K" properties were joint family properties.	0	1,920	### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: held that the "K" properties were joint family properties. Since the subsequently acquired properties had been admittedly purchased with the income of the "K" properties, it followed that they were also joint properties.8. It is not the practice of this Court to set aside findings of fact concurrently arrived at by the courts below. We, therefore, have to proceed on the basis that the appellant has failed to prove that the "K" properties had been transferred to him by Irangouda entirely without any consideration.9. In our view, this finding was based on proper evidence. Not only was there the statement in the deed of sale that the "K" properties had been transferred in consideration of Rs. 2, 000 paid by the appellant to Irangouda but in a suit which Gangawa had filed in 1906 against the appellant and Irangouda to set aside their adoptions, which suit it may be stated was compromised by a provision for a larger maintenance being made for her, the appellant had put in a written statement in which he contended that the properties had been sold to him for Rs. 2, 000. It may also be pointed out that in the sale deed it had been stated that a part of the consideration, namely, Rs. 600 was paid in the presence of the Registrar. The appellant did not lead any evidence to show that no. consideration was paid for the sale deed except his own bare statement. Dr. Barlingay appearing in support of the appeal has suggested various reasons why it should have been held on the evidence that the transfer of the "K" properties to the appellant was really without consideration. We do not feel justified in entering into a discussion of those reasons and we deem it enough to say that the Courts below could on the evidence before them legally come to the conclusion that the consideration mentioned in the deed of sale had been paid. It is not for this Court to substitute its own view on the question for the view taken by the Courts below.10. We then find that the appellant was a manager of a joint family and had acquired the "K" properties in his own name for a consideration. It was never disputed that the Belhode properties were joint family properties. The Courts below held that the Belhode properties provided a sufficient nucleus of joint family property out of which the "K" properties might have been acquired. The sufficiency of the nucleus is again a question of fact and it is not for us to interfere with the findings of the Courts below on that question. For reasons to be hereinafter stated, we think that apart from the Belhode properties the appellant had no. other source of income. In those circumstances a presumption arises that the "K" properties were the properties of the joint family : See Srinivas Krishnarao Kango v. Narayan Devji Kango, 1955 (1) SCR 1 : 1954 AIR(SC) 379). Unless that presumption is rebutted it must prevail. It is quite clear that the appellant has failed to displace that presumption. The only way in which he sought to do so was by proving that the transfer to him was by way of a gift. But he has failed. The presumption remains unrebutted.11. It had been contended on the appellants behalf that he had been in possession of the "K" properties since his adoption by Gangawa in 1903 and might have paid the consideration mentioned in the deed of sale out of the income received from them. We find it somewhat difficult to appreciate the point of this contention. However that may be, the learned trial Judge found no. sufficient evidence to prove that the appellant was in possession of the "K" properties prior to the execution of the deed of sale. The learned Judges of the High Court do not appear to have differed from that finding. They however observed that assuming that the appellant was so in possession of the "K" properties, it had not been proved that he had paid the consideration for the transfer of the "K" properties to him out of their income. So the High Court held in our view rightly, that the presumption had not been rebutted. We may add that no. question of the consideration for the acquisition of the "K" properties being paid out of their income really arose for, according to the appellant, he had got them without paying any consideration.12. Dr. Barlingay contended that no. presumption arose that a property in the possession of a member of a joint family was joint property, where the person in possession is proved to have been the owner of other sources of income. No. authority has been cited in support of this contention and we are not aware of any. But it seems to us that the question does not really arise. The Courts below have not held that the appellant had at any time prior to the execution of the deed of sale in his favour, been in possession of the "K" properties or in receipt of any income from them. It has therefore not been shown that at the relevant time the appellant had any other source of income than the joint family properties.13. Again, the only basis on which Dr Barlingay placed his contention that the presumption did not arise when the person in possession of the property had other source of income, was the possibility that he might have acquired the property out of that income. But, as we have earlier stated, clearly that is not a possibility in the present case. The appellants case being that he acquired the "K" properties by way of a gift and entirely without consideration, it is not open to him to contend that the consideration may have been paid out of a particular source.14. There is therefore no. reason why a presumption should not arise in this case that the "K" properties were joint family properties. ### Response: 0
596	Bhatnagars And Co. Ltd Vs. The Union Of India(And Connected Petitions)	an appeal to the Central Board of Revenue. The said appeal was, however, dismissed. The petitioner then moved the Central Government against this order but on 22-9-1955, the Central Government refused to interfere. It appears that on 31-3-1956, the Collector of Customs ordered that the goods should be auctioned. When this order was passed, the petitioner filed one of the petitions before us. He obtained an interim order of stay but the said order was ultimately vacated. Broadly stated, these are the facts which give rise to the present petitions. 3. Though five petitions have been presented by the petitioner, his grievance substantially is against the confiscation of the consignments of soda ash and against the seizure of his licences by the investigating authorities. Each petition seeks to put the grievance, of the petitioner in a different form and, though the prayers ultimately made are also not of the same pattern, in the main, the petitioner wants this Court to give him relief against what he regards as illegal so seizure of the goods and against the virtual invalidation of his licences for import. The period during which the licences granted to him could have been operated upon has expired and the petitioner, in one of his petitions, seeks an order from this Court directing the Government to revalidate the licences so as to allow the petitioner to import the article in question during the unexpired period of his licences.4. Though it would have been possible to deal with these petitions collectively by delivering a common judgment, we would prefer to deal with the matter separately and consider the points raised in each petition by itself. 5. Petition No. 423 of 1956 in a sense stands apart from the other petitions in the present group. The facts which we have already mentioned are enumerated by the petitioner even in this petition but the substantial relief which he seeks to claim and which the petitioner pressed before us in his argument is in respect of his allegation that the Union of India and other respondents to the petition have acted in contempt of this Court and appropriate action should, therefore, be taken by us against the said respondents. This contention arises in this way.The petitioner had made a similar petition to this Court, No. 571 of 1954, in respect of one of the three consignments in question. This petition had come before this Court for hearing on 24-3-1955. Shri K.R. Chaudhury appeared for the petitioner before this Court. The order passed by this Court would show that the learned Solicitor-General of India made a statement to the Court indicating that the goods which had been confiscated by the Customs Authorities would not he sold or otherwise dealt with for a month from the date of the communication to the petitioner of the final order that the Central Government may pass in the revisional petition preferred by him before them. Acting on this undertaking, this Court allowed the petitioner a period of one month from the date of the communication to him of the final order which the Central Government might pass on his revisional petition to enable him to file a petition for Special Leave to appeal if he was so advised. Then the order recorded the undertaking given by the Solicitor-General. Subject to this order the petition was dismissed.However, no order was passed as to costs. It is common ground that for several months thereafter the revisional petition preferred by the petitioner to the Central Government was not desposed of. Ultimately it was dismissed. The petitioner seems to be under the impression that the Solicitor-General, on behalf of the Central Government, had given an undertaking that the petitioners revisional petition would be disposed of within a certain specified time. Indeed the petition seeks to suggest that the undertaking was that the revisional petition would be disposed immediately in a day or two, and, since the revisional petition was not disposed of within the time mentioned by the Solicitor-General, the petitioner says that all the respondents are guilty of contempt. It is clear that the petitioners grievance and the prayer for a writ are entirely misconceived. The petitioner is entirely in error in assuming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two. Indeed, the Solicitor-General fairly told us that, at the time when the petitioners earlier application was disposed of, he had expressed the hope that the petitioners revisional petition would he dealt with by the Central Government at an early date; but the expression of this hope had nothing to do with the undertaking which the Solicitor- General gave and which was included in the Courts order.The petitioner presumably thinks that the Courts order required that his revisional petition should be disposed of by the Central Government within a month. This assumption is entirely unwarranted. The period of one month which is mentioned in the order was the period granted to the petitioner to move this Court for Special Leave after the decision of his revisional petition by the Central Government was communicated to him. In other words, if the decisions of the Central Government had gone against the petitioner, the petitioner was given one months period within which to move this Court for Special Leave and the Union of India agreed not to deal with the property of the petitioner or dispose of it during that period. In our opinion, the order is plain and unambiguous and there is no scope for any misunderstanding whatever. If no undertaking was given as assumed by the petitioner, it is impossible to understand how any contempt can arise on the ground that the undertaking had not been complied with.Besides, the petitioner has not stopped to consider which person the Union of India represents as respondent 1 in his petition. He has also not paused to consider how the other respondents could be guilty of contempt.	0[ds]The petitioner is entirely in error in assuming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two.Indeed, the Solicitor-General fairly told us that, at the time when the petitioners earlier application was disposed of, he had expressed the hope that the petitioners revisional petition would he dealt with by the Central Government at an early date; but the expression of this hope had nothing to do with the undertaking which the Solicitor- General gave and which was included in the Courtse petitioner presumably thinks that the Courts order required that his revisional petition should be disposed of by the Central Government within a. This assumption is entirely unwarranted. The period of one month which is mentioned in the order was the period granted to the petitioner to move this Court for Special Leave after the decision of his revisional petition by the Central Government was communicated to him. In other words, if the decisions of the Central Government had gone against the petitioner, the petitioner was given one months period within which to move this Court for Special Leave and the Union of India agreed not to deal with the property of the petitioner or dispose of it during that period. In our opinion, the order is plain and unambiguous and there is no scope for any misunderstanding whatever. If no undertaking was given as assumed by the petitioner, it is impossible to understand how any contempt can arise on the ground that the undertaking had not been complied with.Besides, the petitioner has not stopped to consider which person the Union of India represents as respondent 1 in his petition. He has also not paused to consider how the other respondents could be guilty of contemptIn our opinion, this petition is also entirely misconceived and there is no substance in the contention raised by the petitioner.It is hardly necessary to emphasize that, in modern times, the export and import policy of any democratic State is bound to be flexible. The needs of the country, the position of foreign exchange, the need to protect national industries and all other relevant considerations have to be examined by the Central Government from time to time and rules in regard to export and import suitably adjusted. It would, therefore, be idle to suggest that there should be unfettered and unrestricted freedom of expert and import or that the policy of the Government in regard to export and import should be fixed and not changed according to the requirements of the country. It is in the light of this position that the policy statement in the Press Note has to be consideredThe Public Notice which was issued about the same time gives the relevant particulars in regard to the import of soda ash and other commodities. Tenders wore invited and cl. 4 of the Public Notice shows that the offerer whose offer was accepted by the Chief Controller of Imports would be required to enter into a contract of sale within ten days of the acceptance of the offer with the importer-distributor selected by the Government in that behalf. No doubt discretion was left to the Chief Controller of Imports to reject any offer without assigning any reason. Subject to the terms and conditions set out in the Notice, if a contract was concluded, an import licence for the quantity contracted to be purchased would be issued in favour of the buyer subject to such conditions as might be imposed by the Government of India in that behalf7. It appears that, prior to 1953, import licences were freely granted. In 1953, licences began to be granted to established importers subject to certain conditions. It also appears that Government decided from time to time the total quantity of the specified commodity which should be imported. Then the extent of the business of the applicant for licences during the prescribed period was taken into account and the total amount of import was then distributed pro rata amongst the several applicants. When it was found that even this method did not work satisfactorily, the Government decided to canalise distribution but while canalisation was introduced in this manner, tenders were invited for import licences and they were considered on merits and licences granted to several claimants. It way be that, if the I.C.I. and the Tata Oil Mills Co. Ltd., were amongst the applicants for licences, their competitors in the line may have found it difficult to fight with these two powerful rivals but that is very different from saying that, by the method of canalisation, the Government had introduced a monopoly in the import of the commodity in question.It is also important to emphasize that the petitioner is not oven an established importer. He was granted a licence during the free period, and so it is difficult to understand his grievance that a monopoly had been created and that he was thereby deprived of his fundamental right to carry on his trade. Government found that the importers of soda ash resorted to malpractices leading to speculation, and violent fluctuations, in prices of the commodity. It was open to the Government, and indeed national interests made it their duty, to intervene and regulate the distribution of the commodity in a suitable manner.That is all that Government purported to do by the policy statement to which objection has been taken by the petitioner. Besides, it is difficult to entertain the argument from the present petitioner that the alleged monopoly has affected his right to carry on trade.In substance no monopoly has been created and the petitioners application is entirely misconceivedWe have already mentioned the material facts in regard to the confiscation of the consignments of soda ash of 100 tons and 20 tons respectively which has given rise to all these proceedings. Now, the order dated 3-5-1954, has been passed by the Controller of Imports and Exports for Chief Controller of Imports and Exports and it communicates to the petitioner the decision of the Chief Controller that no licence or customs clearance permit would be granted to him against his application for and upto the licensing period July 1953. The petitioner was, however, told that his applications for January- June 1954 licensing period would be dealt with in the normal course according to the policy contained in the Red Book. Then the order adds that it had been decided that re-validation of the licences mentioned in Annexure A to the petitioners advocates letter on 20-4-1954 could not be allowed. That is why the said licences were returned to the petitioner. It is this latter part of the order by which the petitioner feels aggrieved and against which the petitioner seeks remedy by the present petition. The petitioners case is that, since he was granted licences which were to be alive for one year from 13-2-1952, the illegal seizure of the licence and the unauthorised confiscation of the consignments in question caused considerable prejudice to him. The return of the licences is poor consolation to the petitioner because the period during which the licences were to operate had already expired. He, therefore, claims that the licences should be revalidated in the sense that the period during which he can operate upon those licences should be suitably extended. At is true that if the relevant authorities were inclined to revalidate the licences in that sense, it would have been open to them to do so. But it is difficult to understand how the petitioner can invoke the jurisdiction of this Court under Art. 32 of the Constitution for obtaining this relief. We do not propose to discuss this matter elaborately because, in our opinion, the position in law is abundantly clear.The authorities have found that, though the licences were obtained by the petitioner in his name, he has been trafficking in these licences, that the consignments had been ordered by another individual Messrs. N. Jivanlal and Co. that the said individual holds no licence for import of soda ash and as such the consignments received by the said individual are liable to be confiscated. It the petitioners grievance is that the view taken by the appropriate authorities in this matter is erroneous, that is not a matter which can be legitimately before us in a petition under Art. 32. It may perhaps be, as the learned Solicitor -General suggested, that the petitioner may have a remedy by suit for damages but that is a matter with which we are not concernedIf the goods have been seized in accordance with law and they have been seized as a result of the findings recorded by the relevant authorities competent to hold enquiry under the Sea Customs Act, it is not open to the petitioner to contend that we should ask the authorities to exercise discretion in favour of the petitioner and allow his licences a further lease of life. Essentially the petitioners grievance is against the conclusions of fact reached by the relevant authorities.If the said conclusions cannot be challenged before us in the present writ petition, the petitioner would obviously not be entitled to any relief of the kind claimed by him9. That leaves two more petitions filed by the petitioner, Petitions Nos. 42 of 1955 and 46 of 195610. The first argument is based upon the fact that while enacting. The Imports and Exports (Control) Act, 1947, Act No. XVIII of 1947, the provisions contained in R. 84(2) of the Defence of India Rules have not been included in the Act and the contention, which at best may be characterised as ingenious, is that the object of omitting the said provisions while enacting the subsequent Act of 1947 was to release, from the operation of the Import Act, articles which would have fallen under the said omitted provisionsIn our opinion, such a construction is wholly unreasonable. We have no doubt that this provision has to be read disjunctively and distributively, and so read, the import of goods of any specified description would attract the application of the said provision. If we bear in mind the definition of the words "import" and "export," it would be obvious that articles that are carried coastwise would never fall within the category of either import or export. The assumption that the Legislature wanted to release all kinds of goods from the application of S.3 (1) (a) is, in our opinion, so completely inconsistent with the plain and natural meaning of the material clause that we have no hesitation in rejecting Shri Umrigars argument. If one words used in the clause are given their natural meaning, it is clear that the Legislature must have felt, in enacting this Act, that it was unnecessary to continue by re-enactment the provisions of R. 84(2) in the present Act. What was specifically provided in the said rule is in effect included in S.3 (1) (a).We must, therefore hold that the argument that no licence was required for the import of soda ash and its all the orders passed by the appropriate authorities in regard to the confiscation of the consignments are invalid must failThe recent history of judicial decisions, however, shows that, though there is considerable divergence of opinion in the approach to the question of dealing with such a challenge, some principles may be said to be fairly well settled.There is no doubt that legislation which is conditional, properly so called, must be distinguished from legislation which is delegatedThis decision shows that if we can find a reasonably clear statement of policy underlying the provisions of the Act either in the provisions of the Act or in the preamble, then any part of the Act cannot be attacked on the ground of delegated legislation by suggesting that question of policy have been left to the delegate. Turning to the impugned sections of the present Act, it is necessary to remember that the present Act purports to continue for a limited period powers to prohibit or control imports and exports which had already been enacted by the Defence of India Act and the Rules framed thereunder. In other words, this Act does not purport to enact the material provisions for the first time but it purports to continue the previously existing provisions in that behalf and so it would be legitimate to consider the preamble of the predecessor Act and relevant provisions in it to find out whether the Legislature has laid down clearly the policy underlying that Act and has enunicated principles for the guidance of those to whom authority to implement the Act has been delegated. The preamble to the present Act says that it was expedient to continue for a limited period powers to prohibit, restrict or otherwise control imports and exports. The preamble to the Defence of India Act refers to the emergency which had arisen when the Act was passed and refers, inter alia, to the necessity to take special measures to ensure the public safety and public interest. Section 2 of the said Act further provides that the Central Government thought that it was essential to secure public safety and maintenance of public order and, what is more relevant and material, the maintenance of supplies and services essential to the life of the community. Thus it is clear that the broad and main principle underlying the present Act, like its predecessor, was to maintain supplies essential to the life of the community. Thus, if the preamble and the relevant section of the earlier Act are read in the light of the preamble of the present Act, it would be difficult to distinguish this Act from the essential Supplies Act with which this Court was concerned in Harishankar Baglas case (A) Supra. Incidentally we may also observe that in Pannalal Binjraj v. Union of India, Petns. Nos. 97 and 97A etc, of 1956 ((S) A.I.R. 1957 S.C. 397) (B), where the vires of S.5 (7-A) of the Income- tax Act were put in issue before this Court, the challenge was repelled and during the course of the judgment delivered on December 21, 1956, the previous history of the earlier Income-tax Acts was taken into account to decide what policy could be said to underlie the provisions of the impugned section15. The last argument of Shri Umrigar is patently untenable. No doubt Shri Umrigar began this argument by contending that the finding made against the petitioner that he was trafficking in his licences and that the consingement in question did not really belong to him was based on no evidence but ultimately he could not help conceding the fact that there were certain circumstances on which the appropriate authorities relied against the petitioner.The contention that a finding made by a competent authority is based on no legal evidence is easy to make but very difficult to establish. Such a contention can succeed only when it is shown that there is really no legal evidence in support of the view taken by the appropriate authorities.In the present case, it is impossible to accede to the assumption that there is no legal evidence against the petitioner. His poor financial resources, is conduct at all material times when consignments were ordered, the suspicions attaching to the very existence of the firm Messrs N. Jivanlal and Co. in Bombay and the prominent part played by this firm at all stages of the transaction in regard to the consignments as well as the reckless allegations which were made by the authorities which were found to be untrue by the appropriate authorities, cannot be summarily dismissed as being irrelevant or as not constituting legal evidence. At the highest it may be said that there are some circumstances on which Shri. Umrigar wants to rely in favour of the bona fides of client whereas there is a large number of circumstances against him.If all the appropriate authorities, on considering these circumstances, concurrently found against the petitioner, that obviously is not a matter which can be legitimately agitated in the present petition. That is why we do not propose to deal with this aspect of the matter any further.	0	1,827	### 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: an appeal to the Central Board of Revenue. The said appeal was, however, dismissed. The petitioner then moved the Central Government against this order but on 22-9-1955, the Central Government refused to interfere. It appears that on 31-3-1956, the Collector of Customs ordered that the goods should be auctioned. When this order was passed, the petitioner filed one of the petitions before us. He obtained an interim order of stay but the said order was ultimately vacated. Broadly stated, these are the facts which give rise to the present petitions. 3. Though five petitions have been presented by the petitioner, his grievance substantially is against the confiscation of the consignments of soda ash and against the seizure of his licences by the investigating authorities. Each petition seeks to put the grievance, of the petitioner in a different form and, though the prayers ultimately made are also not of the same pattern, in the main, the petitioner wants this Court to give him relief against what he regards as illegal so seizure of the goods and against the virtual invalidation of his licences for import. The period during which the licences granted to him could have been operated upon has expired and the petitioner, in one of his petitions, seeks an order from this Court directing the Government to revalidate the licences so as to allow the petitioner to import the article in question during the unexpired period of his licences.4. Though it would have been possible to deal with these petitions collectively by delivering a common judgment, we would prefer to deal with the matter separately and consider the points raised in each petition by itself. 5. Petition No. 423 of 1956 in a sense stands apart from the other petitions in the present group. The facts which we have already mentioned are enumerated by the petitioner even in this petition but the substantial relief which he seeks to claim and which the petitioner pressed before us in his argument is in respect of his allegation that the Union of India and other respondents to the petition have acted in contempt of this Court and appropriate action should, therefore, be taken by us against the said respondents. This contention arises in this way.The petitioner had made a similar petition to this Court, No. 571 of 1954, in respect of one of the three consignments in question. This petition had come before this Court for hearing on 24-3-1955. Shri K.R. Chaudhury appeared for the petitioner before this Court. The order passed by this Court would show that the learned Solicitor-General of India made a statement to the Court indicating that the goods which had been confiscated by the Customs Authorities would not he sold or otherwise dealt with for a month from the date of the communication to the petitioner of the final order that the Central Government may pass in the revisional petition preferred by him before them. Acting on this undertaking, this Court allowed the petitioner a period of one month from the date of the communication to him of the final order which the Central Government might pass on his revisional petition to enable him to file a petition for Special Leave to appeal if he was so advised. Then the order recorded the undertaking given by the Solicitor-General. Subject to this order the petition was dismissed.However, no order was passed as to costs. It is common ground that for several months thereafter the revisional petition preferred by the petitioner to the Central Government was not desposed of. Ultimately it was dismissed. The petitioner seems to be under the impression that the Solicitor-General, on behalf of the Central Government, had given an undertaking that the petitioners revisional petition would be disposed of within a certain specified time. Indeed the petition seeks to suggest that the undertaking was that the revisional petition would be disposed immediately in a day or two, and, since the revisional petition was not disposed of within the time mentioned by the Solicitor-General, the petitioner says that all the respondents are guilty of contempt. It is clear that the petitioners grievance and the prayer for a writ are entirely misconceived. The petitioner is entirely in error in assuming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two. Indeed, the Solicitor-General fairly told us that, at the time when the petitioners earlier application was disposed of, he had expressed the hope that the petitioners revisional petition would he dealt with by the Central Government at an early date; but the expression of this hope had nothing to do with the undertaking which the Solicitor- General gave and which was included in the Courts order.The petitioner presumably thinks that the Courts order required that his revisional petition should be disposed of by the Central Government within a month. This assumption is entirely unwarranted. The period of one month which is mentioned in the order was the period granted to the petitioner to move this Court for Special Leave after the decision of his revisional petition by the Central Government was communicated to him. In other words, if the decisions of the Central Government had gone against the petitioner, the petitioner was given one months period within which to move this Court for Special Leave and the Union of India agreed not to deal with the property of the petitioner or dispose of it during that period. In our opinion, the order is plain and unambiguous and there is no scope for any misunderstanding whatever. If no undertaking was given as assumed by the petitioner, it is impossible to understand how any contempt can arise on the ground that the undertaking had not been complied with.Besides, the petitioner has not stopped to consider which person the Union of India represents as respondent 1 in his petition. He has also not paused to consider how the other respondents could be guilty of contempt. ### Response: 0
597	B.S.E. Brokers Forum, Bombay & Ors. Vs. Securities & Exchange Board Of India & Ors.	fairness to the petitioners, we must notice the fact that the High Court at an interim stage had appointed a Committee headed by Justice A.N. Mody to submit a report as to the reasonableness of the levy. The petitioners rely heavily on the aid report to support their cse while they have the reservations as to the Bhatt Committee report. We are aware that the superior courts have often appointed Committees nd Commissions to assist the court in technical matters with which the courts are generally not very familiar. Though in the instant case, the facts involved are matters pertaining to the securities market with its own intricacies, we find that the question involved mainly pertains to the legislative competence, nature and reasonableness of the levy. We are not called upon to decide or to recommend as to what is the best way to levy the impugned fee. So long as the Legislature has the legislative competence to levy and the Board has not exceeded its statutory authority in imposing the levy, we need not go into other niceties of the levy which are not in the realm of our jurisdiction. We have examined the reasonableness of the levy qua the statutory power of the Board and its quantum with reference to the need of the Board and not with reference to whether it is the best available method of levy. It is possible that Justice Mody Committees recommendation are better than the method adopted by the Board but then that is not what we have to decide in this case. Hence, we have not made any specific reference to that report. Of course, we have referred to some of the recommendations of the Bhatt Committee because that part of the report is favourable to the case of the petitioners and the Government of India has accepted the same and the Board has, in principle, agreed to implement that report and not because Bhatt Committee report is more acceptable to us than Justice Mody Committee Report. 47. Lastly, on behalf of the trading members of the National Stock Exchange it is contended that they are not the members of the said Stock Exchange so as to bring them within the ambit of the levy. This argument is based on the premise that it is only a full-fledged member of a Stock Exchange who can be called upon to be registered under Section 12(2) of he Act and not any other member of the Stock Exchange. They contend that the National Stock Exchange has only institutional members who are treated as full-fledged members and all others are only trading members who do not have any right and obligations expected of a member of the Stock Exchange. It is also contended that under the Rules and Regulations, a stock broker to be registered as such under the Act has to be a regular member of the Stock Exchange and since the said Rules and Regulations of the Board do not recognise a trading member as a member of the Stock Exchange, they cannot be brought within the net of the levy. they rely on the definition of `Stock Exchange under Rule 2(d) of the Rules which states that `Stock Exchange means a stock exchange which is for the time being recognised by the Central Government under Section 4 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and a stock broker is defined as a member of a stock exchange. Since the stock brokers of NSE are not the members as defined under Section 2(e) of the Act and the NSE being a company of which shareholders are only institutions and trading members not being shareholders, they do not fall within the definition of a member of a stock exchange. It is difficult to accept this argument. Section 3(2)(c) of the SCR Act requires a stock exchange which applies for recognition to specify various classes of members who will be admitted as members of the stock exchange. This does not make any distinction between a full-fledged member and a trading member of the NSE. Further, Clause 9 of Part II of Annexure to Form `A requires a stock exchange, inter alia, to state the different classes of members, if any, and such number of members thereof, and the privileges enjoined by such class of persons. Definition of a trading member under the NSE bye-laws itself shows that a trading member to the a stock broker and a member of the NSE registered in accordance with Chapter V of its bye-laws. Article 1(m) of the Articles of NSE defines a `trading member to mean a member of the stock exchange. Explanation to it further clarifies that there may be more than one class of trading members of the Exchange as may be determined by its Board from time to time. A trading member of the NSE need not necessarily be a member of the company that is NSE. Therefore, it is clear from the Articles of NSE that the said Exchange itself recognises a trading member to be a member of the Stock Exchange though with limited rights. Therefore, it is clear that there can be more than one class of members who can be admitted as members of the Stock Exchange and any of those members belonging to any of those classes so long as they are registered as such by a Stock Exchange, will fall within the definition of `member as defined in Section 2 @ of the SCR Act and Rule 2(e) of the SEBI Rules. it is also undisputed that the trading members of the NSE are carrying on the business of stock brokering, hence, keeping in mind the objects of the Act, it would be futile to contend that the trading members of the NSE cannot be considred to be the stock brokers for the limited purpose of the liability to pay the impugned fee under the Act, Rules and Regulations. Therefore, this contention also should fail.	0[ds]17. Section 29 of the Act empowers the Central Government to make, by notification, rules for carrying out the purposes of the Act. It is an undisputed fact that such Rules have been notified. Pursuant to the power vested in the Board under Section 30 of the Act, the Board has framed the SecuritiesExchange Board of Indias) Regulation, 1992 (the Regulations) with previous approval of the Central Government which came into force w.e.f.d 23.10.1992. Regulation 10 of the Said Regulations provides for payment of fees as specified in Schedule III of the said Regulations. Schedule III of the said Regulations provides that every stock broker will have to pay a registration fee where his annual turnover does not exceed Rs. 1 crore a sum of Rs. 5,000/for each financial year. In case of stock brokers whose annual turnover exceeds Rs. 1 crore during any financial year, the fee payable is a sum of Rs. 5,000 plus 100th of 1 per cent of the turnover in excess of Rs. 1 crore for each financial year. It also provides that after the expiry of 5 financial years from the date of initial registration as a stock broker, he will have to pay a sum of Rs. 5,000/for a block of 5 financial years commencing from the 6th financial year after the date of grant of initial registration to keep his registration in force. It also provides for instalments for payment of the said fee from the stock brokers. In regard toand other intermediaries, the Schedule provides for a flat rate of fee.From the enumeration of the above provisions of the Act, Rules and Regulations, it is clear that the Board is empowered to collect two types of fee, namely, the fee under Section 11(2)(k) for carrying out the purposes of Section 11 and a fee for the purpose of registering the applicants under Section 12(2) of the Act. The quantum of fee to be paid is fixed under Schedule III of the Regulations as provided under the Act. Therefore, there is no room to attack the levy on the ground that the same is not authorised by law.It is no doubt that a perusal of Forms `A and `D shows that these forms are issued pursuant to the requirement of Regulations 2 and 6 and Section 12(2) of the Act which, however, does not by itself determine the nature of the fee in question. It is a well established principle in law that so long as the impugned power is traceable to the concerned Statute, mere omission or error in reciting the correct provision of law does not denude the power of the authority of taking a statutory action so long as its action is legitimately traceable to a statutory power governing such action. In such cases, this Court will always rely upon Section 114(3) of the Evidence Act to draw a statutory presumption that the official acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the courts will uphold such Statethe said principles to the facts of this cae, we notice that the Board has the necessary competence to collect the fees for the purpose of carrying out the mandates under Section 11(2)(k) of the Act and also the power to collect the registration fee under Section 12(2) of the Act. Therefore, in our opinion, the Board has the necessary authority to collect a cumulative fee both for the purposes of regulating the activities contemplated under Section 11 of the Act as also for the purpose of registration under Section 12(2) of the Act, and the fee levied is both regulatory and registration fee leviable under Section 11(2)(k) and 12(2) of the Act.As noticed in the City Corporation of Calicut (supra), the traditional concept of quid pro quo in a fee has undergone considerable transformation. From a conspectus of the ratio of the above judgment, we find that so far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and the same does not lose the character of fee provided the fee so charged is not excessive. It is also not necessary that the services to be rendered by the collecting authority should be confined to the contributories alone. As held in Sirsilk Ltd. (supra), if the levy is for the benefit of the entire industry, there is sufficient quid pro quo between the levy recovered and services rendered to the industry as a whole. If we apply the test as laid down by this Court in the abovesaid judgments to the facts of the case in hand, it can be seen that the Statute under Section 11 of the Act requires the Board to undertake various activities to regulate the business of the securities market which requires constant and continuing supervision including investigation and instituting legal proceedings against the offending traders, wherever necessary. Such activities are clearly regulatory activities and the Board is empowered under Section 11(2)(k) to charge the required fee for the said purpose, and once it is held that the fee levied is also regulatory in nature then the requirement of quid pro quo recedes to the background and the same need not be confined to the contributoriesthe argument that the amount required for the capital expenditure of the Board should be met by the Government of India and not out of the regulatory fee charged by the Board, has no force. The Board is an autonomous body created by an Act of Parliament to control the activities of the securities market in which thousands of members of gullible public will be inventing huge sums of money. Therefore, there is every need for a vigilant supervision of the activities of the market and for that purpose if the Statute intends that the necessary funds should be met by collection of fees from the securities market itself then the said levy cannot be questioned on the ground that the monies required for the capital expenditure of the Board should be met by the Government of India. That apart, this court in the case of Sreenivasa General Trades (supra) has rejected a similarargument, in our opinion, proceeds on the footing that the law requires every contributor to pay equally. We are unable to accept this argument either. It is true that every classification must have a reasonable nexus with the object to be achieved. In the instant case the question that arises in answering this argument of the petitioners is whether all persons involved in the business of stock exchange should be equally burdened or is it open to the Board to distribute the burden based on certain classification. At this stage, it should be borne in mind that the collection made from a class of persons even if it is a fee can also inure to the benefit of theso long as they are within the object governing the levy. From the material on record, it is seen that approx. 50 per cent of the total expenditure to be incurred by the Board would be on brokers related services and from amongst all the players in the share market brokers form a distinct and separate class as compared to others including other intermediaries. Therefore, in our opinion, there is nothing wrong in either clarifying the brokers as a separate class for the subject of levy based on their annual turnover because the volume of transaction of the brokers has a direct bearing on the regulatory expenses of the Board. Hence, this classification has a direct nexus with the object to theis a settled principle in law that if the State has the authority to impose a levy then it has a wide discretion in choosing the measure of levy provided, of course, it withstands the test of reasonableness. Many levies may have a similar measure but by such similarity in the measure, the levies do not become the same. Therefore, if the impugned levy adopts a measure which is either similar to the one adopted while levying turnover tax orthe impugned levy ipso facto by adoption of such measure, would not become either anor a turnover tax or even a fee on income or a fee onbecause a tax on land or building is imposed with reference to its income or yield, it does not cease to be a tax on land or building. The income or yield of the IInd/building is taken merely as a measure of the tax; it does not alter the nature or character of the levy. It still remains a tax on land or building. There is no set pattern of levy of tax on lands and buildingsindeed there can be no such standardisation. There cannot be uniform levy unrelated to the quality, character or income/yield of the land. Any such levy has been held to be arbitrary and discriminatory. No one can say that a tax under a particular entry must be levied only in a particular manner, which may have been adoptedto the extent of the recommendations made by the Expert Committee, we are of the opinion that the Board is bound to bring abut corresponding changes so as to remove the anomalies pointed out by the Committee. This was pointed out to learned Counsel for the respondents when it was submitted that the Board has accepted these recommendations and the proposed changes were not brought about because of the pendency of this petition and the necessary changes to incorporate the recommendations of the Bhatt Committee would be done after disposal of these petitions. We record this submission on behalf of the Board and direct that the said changes, recommended by the Bhatt Committee will be incorporated in the Regulations. Subject to the above, we are of the view that the challenge made to the levy based on the measure of turnover has to bein the instant case, the facts involved are matters pertaining to the securities market with its own intricacies, we find that the question involved mainly pertains to the legislative competence, nature and reasonableness of theis difficult to accept this argument. Section 3(2)(c) of the SCR Act requires a stock exchange which applies for recognition to specify various classes of members who will be admitted as members of the stock exchange. This does not make any distinction between amember and a trading member of the NSE. Further, Clause 9 of Part II of Annexure to Form `A requires a stock exchange, inter alia, to state the different classes of members, if any, and such number of members thereof, and the privileges enjoined by such class of persons. Definition of a trading member under the NSEitself shows that a trading member to the a stock broker and a member of the NSE registered in accordance with Chapter V of itsArticle 1(m) of the Articles of NSE defines a `trading member to mean a member of the stock exchange. Explanation to it further clarifies that there may be more than one class of trading members of the Exchange as may be determined by its Board from time to time. A trading member of the NSE need not necessarily be a member of the company that is NSE. Therefore, it is clear from the Articles of NSE that the said Exchange itself recognises a trading member to be a member of the Stock Exchange though with limited rights. Therefore, it is clear that there can be more than one class of members who can be admitted as members of the Stock Exchange and any of those members belonging to any of those classes so long as they are registered as such by a Stock Exchange, will fall within the definition of `member as defined in Section 2 @ of the SCR Act and Rule 2(e) of the SEBI Rules. it is also undisputed that the trading members of the NSE are carrying on the business of stock brokering, hence, keeping in mind the objects of the Act, it would be futile to contend that the trading members of the NSE cannot be considred to be the stock brokers for the limited purpose of the liability to pay the impugned fee under the Act, Rules and Regulations. Therefore, this contention also should fail.	0	12,803	### 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: fairness to the petitioners, we must notice the fact that the High Court at an interim stage had appointed a Committee headed by Justice A.N. Mody to submit a report as to the reasonableness of the levy. The petitioners rely heavily on the aid report to support their cse while they have the reservations as to the Bhatt Committee report. We are aware that the superior courts have often appointed Committees nd Commissions to assist the court in technical matters with which the courts are generally not very familiar. Though in the instant case, the facts involved are matters pertaining to the securities market with its own intricacies, we find that the question involved mainly pertains to the legislative competence, nature and reasonableness of the levy. We are not called upon to decide or to recommend as to what is the best way to levy the impugned fee. So long as the Legislature has the legislative competence to levy and the Board has not exceeded its statutory authority in imposing the levy, we need not go into other niceties of the levy which are not in the realm of our jurisdiction. We have examined the reasonableness of the levy qua the statutory power of the Board and its quantum with reference to the need of the Board and not with reference to whether it is the best available method of levy. It is possible that Justice Mody Committees recommendation are better than the method adopted by the Board but then that is not what we have to decide in this case. Hence, we have not made any specific reference to that report. Of course, we have referred to some of the recommendations of the Bhatt Committee because that part of the report is favourable to the case of the petitioners and the Government of India has accepted the same and the Board has, in principle, agreed to implement that report and not because Bhatt Committee report is more acceptable to us than Justice Mody Committee Report. 47. Lastly, on behalf of the trading members of the National Stock Exchange it is contended that they are not the members of the said Stock Exchange so as to bring them within the ambit of the levy. This argument is based on the premise that it is only a full-fledged member of a Stock Exchange who can be called upon to be registered under Section 12(2) of he Act and not any other member of the Stock Exchange. They contend that the National Stock Exchange has only institutional members who are treated as full-fledged members and all others are only trading members who do not have any right and obligations expected of a member of the Stock Exchange. It is also contended that under the Rules and Regulations, a stock broker to be registered as such under the Act has to be a regular member of the Stock Exchange and since the said Rules and Regulations of the Board do not recognise a trading member as a member of the Stock Exchange, they cannot be brought within the net of the levy. they rely on the definition of `Stock Exchange under Rule 2(d) of the Rules which states that `Stock Exchange means a stock exchange which is for the time being recognised by the Central Government under Section 4 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and a stock broker is defined as a member of a stock exchange. Since the stock brokers of NSE are not the members as defined under Section 2(e) of the Act and the NSE being a company of which shareholders are only institutions and trading members not being shareholders, they do not fall within the definition of a member of a stock exchange. It is difficult to accept this argument. Section 3(2)(c) of the SCR Act requires a stock exchange which applies for recognition to specify various classes of members who will be admitted as members of the stock exchange. This does not make any distinction between a full-fledged member and a trading member of the NSE. Further, Clause 9 of Part II of Annexure to Form `A requires a stock exchange, inter alia, to state the different classes of members, if any, and such number of members thereof, and the privileges enjoined by such class of persons. Definition of a trading member under the NSE bye-laws itself shows that a trading member to the a stock broker and a member of the NSE registered in accordance with Chapter V of its bye-laws. Article 1(m) of the Articles of NSE defines a `trading member to mean a member of the stock exchange. Explanation to it further clarifies that there may be more than one class of trading members of the Exchange as may be determined by its Board from time to time. A trading member of the NSE need not necessarily be a member of the company that is NSE. Therefore, it is clear from the Articles of NSE that the said Exchange itself recognises a trading member to be a member of the Stock Exchange though with limited rights. Therefore, it is clear that there can be more than one class of members who can be admitted as members of the Stock Exchange and any of those members belonging to any of those classes so long as they are registered as such by a Stock Exchange, will fall within the definition of `member as defined in Section 2 @ of the SCR Act and Rule 2(e) of the SEBI Rules. it is also undisputed that the trading members of the NSE are carrying on the business of stock brokering, hence, keeping in mind the objects of the Act, it would be futile to contend that the trading members of the NSE cannot be considred to be the stock brokers for the limited purpose of the liability to pay the impugned fee under the Act, Rules and Regulations. Therefore, this contention also should fail. ### Response: 0
598	State Of Kerala Vs. A.B. Abdul Khadir & Ors	credit facilities and a most of other factors - natural and business - enter into the maintenance of trade relations and the free flow of trade cannot necessarily be deemed to have been obstructed merely because in a particular State the rate of tax on sales is higher than the rates prevailing in other State.8. On behalf of the appellant it was contended that the High Court was not right in holding that the ratio of Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686 ) applied to the present case and, that, Kerala Act 9 of 1964 as violative of Art. 301 of the Constitution. The view taken by the High Court was that in the absence of any production of tobacco inside Kerala State it was not competent for the Kerala Legislature to enact the impugned Act under Article 304 (a) of the Constitution. In support of this view the High Court relied upon the following passage from the judgment of this Court:"Exercise of the power under Article 304 (a) can only be effective if the tax or duty imposed on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State are such that there is no discrimination against imported goods. As no foreign liquor is produced or manufactured in the State of Orissa the power to legislate given by Art. 304 is not available and the restriction which is declared on the ground of trade, commerce or intercourse by Art. 301 of the Constitution remains unfettered."9. In our opinion the High Court has not correctly appreciated the import of the decision of this Court in the Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686). The appellant in that case challenged the imposition of a duty of excise on foreign liquor imported into the Orissa State which had been levied at Rs. 40 per L. P. Gallon until March 31, 1961 by virtue of a notification issued in 1937 under section 27 of the Bihar and Orissa Excise Act, 1915 and which had been enhanced with effect from April 1, 1961 by a fresh notification. It was contended on behalf of the appellant that since no foreign liquor was manufactured within the State and consequently no excise duty was being levied on any locally manufactured foreign liquor countervailing duty could not be charged on such liquor brought from outside the State and that the impost was in violation of Arts. 301, 303 and 304 of the Constitution. It was held by the majority of Judges that the notification dated March 31, 1961 enhancing the levy by Rs. 30/- per L. P. Gallon infringed the guarantee of freedom under Art. 301 and may be saved only if it falls within the exception contained in Art. 304. As no liquor was produced or manufactured within the State, the protection of Article 304 was not available. The decision was based on the assumption that the notification dated March 31, 1961 enhancing duty on Foreign liquor infringed the guarantee under Art. 301 and may be saved if it fell within the exceptions contained in Art. 304 of the Constitution.The Court did not intend to lay down the proposition that imposition of a duty or tax in every case would be tantamount per se to an infringement of Art. 301. As we have already pointed out it is well established by numerous authorities of this Court that only such restrictions or impediments which directly or immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by Art. 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstance. In the present case the High Court has not gone into the question whether the provisions of Act 9 of 1964 and the notification dated January 25, 1951 issued under the Cochin Tobacco Act constitute such restrictions or impediments as directly and immediately hamper free flow of trade, commerce and intercourse and, therefore, fall within the prohibition imposed under Art. 301 of the Constitution. Unless the High Court first comes to the finding on the available material whether or not there is infringement of the guarantee under Art. 301 of the Constitution the further question as to whether the statute is saved under Art. 304 (b) does not arise and the principle laid down by this Court in Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686 ) cannot be invoked.10. It was also said on behalf of the respondents that the State Legislature had no power to levy and collect licence fee under the impugned Act as it was in substance a duty of excise falling under the Union List. The Contrary viewpoint was presented on behalf of the appellant and it was contended that the legislation falls under Entry 62 of List II and the State Legislature was competent to enact. It is open to the parties to argue this matter before the High Court at the time of re-hearing.11. For the reasons already expressed we hold that the appeal should be allowed and the judgment of the Kerala High Court dated October 3, 1966 in O. P. 934 of 1964 should be set aside and the case should go back for hearing in the light of the law laid down in this judgment.12. It is desirable that the High Court should give an opportunity to the parties to file further affidavits before taking up the case for re-hearing.13. On behalf of the appellants Mr. Chagla has given an undertaking that the provisions of the Act would not be enforced against the respondents for a month from this date. The respondents say that they will apply to the Keral High Court for stay in the	1[ds]The view taken by the High Court was that in the absence of any production of tobacco inside Kerala State it was not competent for the Kerala Legislature to enact the impugned Act under Article 304 (a) of the Constitution.In our opinion the High Court has not correctly appreciated the import of the decision of this Court in the Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SCthe present case the High Court has not gone into the question whether the provisions of Act 9 of 1964 and the notification dated January 25, 1951 issued under the Cochin Tobacco Act constitute such restrictions or impediments as directly and immediately hamper free flow of trade, commerce and intercourse and, therefore, fall within the prohibition imposed under Art. 301 of the Constitution. Unless the High Court first comes to the finding on the available material whether or not there is infringement of the guarantee under Art. 301 of the Constitution the further question as to whether the statute is saved under Art. 304 (b) does not arise and the principle laid down by this Court in Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686 ) cannot be invoked.n our opinion the High Court has not correctly appreciated the import of the decision of this Court in the Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC1686). The appellant in that case challenged the imposition of a duty of excise on foreign liquor imported into the Orissa State which had been levied at Rs. 40 per L. P. Gallon until March 31, 1961 by virtue of a notification issued in 1937 under section 27 of the Bihar and Orissa Excise Act, 1915 and which had been enhanced with effect from April 1, 1961 by a fresh notification. It was contended on behalf of the appellant that since no foreign liquor was manufactured within the State and consequently no excise duty was being levied on any locally manufactured foreign liquor countervailing duty could not be charged on such liquor brought from outside the State and that the impost was in violation of Arts. 301, 303 and 304 of the Constitution. It was held by the majority of Judges that the notification dated March 31, 1961 enhancing the levy by Rs. 30/per L. P. Gallon infringed the guarantee of freedom under Art. 301 and may be saved only if it falls within the exception contained in Art. 304. As no liquor was produced or manufactured within the State, the protection of Article 304 was not available. The decision was based on the assumption that the notification dated March 31, 1961 enhancing duty on Foreign liquor infringed the guarantee under Art. 301 and may be saved if it fell within the exceptions contained in Art. 304 of the Constitution.The Court did not intend to lay down the proposition that imposition of a duty or tax in every case would be tantamount per se to an infringement of Art. 301. As we have already pointed out it is well established by numerous authorities of this Court that only such restrictions or impediments which directly or immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by Art. 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstance. Inthe present case the High Court has not gone into the question whether the provisions of Act 9 of 1964 and the notification dated January 25, 1951 issued under the Cochin Tobacco Act constitute such restrictions or impediments as directly and immediately hamper free flow of trade, commerce and intercourse and, therefore, fall within the prohibition imposed under Art. 301 of the Constitution. Unless the High Court first comes to the finding on the available material whether or not there is infringement of the guarantee under Art. 301 of the Constitution the further question as to whether the statute is saved under Art. 304 (b) does not arise and the principle laid down by this Court in Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686 ) cannot beis open to the parties to argue this matter before the High Court at the time of	1	4,267	### 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: credit facilities and a most of other factors - natural and business - enter into the maintenance of trade relations and the free flow of trade cannot necessarily be deemed to have been obstructed merely because in a particular State the rate of tax on sales is higher than the rates prevailing in other State.8. On behalf of the appellant it was contended that the High Court was not right in holding that the ratio of Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686 ) applied to the present case and, that, Kerala Act 9 of 1964 as violative of Art. 301 of the Constitution. The view taken by the High Court was that in the absence of any production of tobacco inside Kerala State it was not competent for the Kerala Legislature to enact the impugned Act under Article 304 (a) of the Constitution. In support of this view the High Court relied upon the following passage from the judgment of this Court:"Exercise of the power under Article 304 (a) can only be effective if the tax or duty imposed on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State are such that there is no discrimination against imported goods. As no foreign liquor is produced or manufactured in the State of Orissa the power to legislate given by Art. 304 is not available and the restriction which is declared on the ground of trade, commerce or intercourse by Art. 301 of the Constitution remains unfettered."9. In our opinion the High Court has not correctly appreciated the import of the decision of this Court in the Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686). The appellant in that case challenged the imposition of a duty of excise on foreign liquor imported into the Orissa State which had been levied at Rs. 40 per L. P. Gallon until March 31, 1961 by virtue of a notification issued in 1937 under section 27 of the Bihar and Orissa Excise Act, 1915 and which had been enhanced with effect from April 1, 1961 by a fresh notification. It was contended on behalf of the appellant that since no foreign liquor was manufactured within the State and consequently no excise duty was being levied on any locally manufactured foreign liquor countervailing duty could not be charged on such liquor brought from outside the State and that the impost was in violation of Arts. 301, 303 and 304 of the Constitution. It was held by the majority of Judges that the notification dated March 31, 1961 enhancing the levy by Rs. 30/- per L. P. Gallon infringed the guarantee of freedom under Art. 301 and may be saved only if it falls within the exception contained in Art. 304. As no liquor was produced or manufactured within the State, the protection of Article 304 was not available. The decision was based on the assumption that the notification dated March 31, 1961 enhancing duty on Foreign liquor infringed the guarantee under Art. 301 and may be saved if it fell within the exceptions contained in Art. 304 of the Constitution.The Court did not intend to lay down the proposition that imposition of a duty or tax in every case would be tantamount per se to an infringement of Art. 301. As we have already pointed out it is well established by numerous authorities of this Court that only such restrictions or impediments which directly or immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by Art. 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstance. In the present case the High Court has not gone into the question whether the provisions of Act 9 of 1964 and the notification dated January 25, 1951 issued under the Cochin Tobacco Act constitute such restrictions or impediments as directly and immediately hamper free flow of trade, commerce and intercourse and, therefore, fall within the prohibition imposed under Art. 301 of the Constitution. Unless the High Court first comes to the finding on the available material whether or not there is infringement of the guarantee under Art. 301 of the Constitution the further question as to whether the statute is saved under Art. 304 (b) does not arise and the principle laid down by this Court in Kalyani Stores case, (1966) 1 SCR 865 = (AIR 1966 SC 1686 ) cannot be invoked.10. It was also said on behalf of the respondents that the State Legislature had no power to levy and collect licence fee under the impugned Act as it was in substance a duty of excise falling under the Union List. The Contrary viewpoint was presented on behalf of the appellant and it was contended that the legislation falls under Entry 62 of List II and the State Legislature was competent to enact. It is open to the parties to argue this matter before the High Court at the time of re-hearing.11. For the reasons already expressed we hold that the appeal should be allowed and the judgment of the Kerala High Court dated October 3, 1966 in O. P. 934 of 1964 should be set aside and the case should go back for hearing in the light of the law laid down in this judgment.12. It is desirable that the High Court should give an opportunity to the parties to file further affidavits before taking up the case for re-hearing.13. On behalf of the appellants Mr. Chagla has given an undertaking that the provisions of the Act would not be enforced against the respondents for a month from this date. The respondents say that they will apply to the Keral High Court for stay in the ### Response: 1
599	KATTUKANDI EDATHIL KRISHNAN & ANR Vs. KATTUKANDI EDATHIL VALSAN & ORS	the date of birth of the first plaintiff is shown as 12.05.1942. K.E. Damodaran and Chiruthakutty are described as father and mother. Ex.B-1 is the copy of the similar certificate produced by the defendants. On comparing Ex.A-9 and Ex.B-1, it is seen that some corrections have been made in Ex.A-9 with regard to the place of birth. However, it is to be noted that in both the documents, the name of the father and the mother of the first plaintiff are one and the same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 is the Insurance Policy which shows name of his house as Kattukandy Edathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School Leaving Certificate of K.E. Damodaran kept in his possession. According to him he got the same since he is the son of Damodaran. Ex. A4, dated 01.08.1963, is a Trade certificate issued in favour of the first plaintiff which was issued by the Secretary of State Council for training in vocational Trades, since he was a student of the Junior Technical School, Manjeri. In this certificate the name of the first plaintiff is shown as Krishnan K. S/o Sri. K.E. Damodaran. The name of the house is shown as Edathil house, Chalappuram. 24. The plaintiffs have produced Ex.A5, the Malayala Manorama Daily dated 16.02.1985. In this paper it is reported that Chiruthakutty, wife of Kattukandy Edathil Damodaran, aged 75 years had expired. The name of the first plaintiff is shown as the son of Chiruthakutty. Ex.A6 is the true copy of a voters list of the year 1970. In this document, the name of Chiruthakutty is shown as the wife of K.E. Damodaran. Ex.A7 dated 24.03.1980 is the petition filed by the first plaintiff before the village officer, Panniyankara. In this document the first plaintiff is certified as the son of Damodaran by the village officer. The same is dated 24.03.1980. Ex.A8 is also a similar certificate describing the first plaintiff as the son of Damodaran by the village officer. This is dated 04.05.1979. In the death certificate of Chiruthakutty dated 15.12.1985 (Ex.A10) the name of her husband is shown as Damodaran. Ex.A11 is the Electoral card of the first plaintiff in which the first plaintiff is described as the son of Damodaran and Chiruthakutty is described as the wife of Damodaran. Plaintiffs have also produced several other documents such as electoral card (Ex.A12) dated 02.11.1983, Ex.A13, a community certificate dated 07.11.1980, Ex.A14-Marriage certificate dated 29.04.1971, Ex.A15, the receipt issued by the Life Insurance Corporation of India in favour of the plaintiffs etc. Ex.A20 is an important document which is a Discharge Certificate of the first plaintiff from the Military Service wherein he is described as the son of K.E. Damodaran. Ex.A21 is the S.S.L.C. book of the first plaintiff. 25. There is also enough materials on record to show that Chiruthakutty was getting some money from the family of Damodaran, including in particular the letters at Exs.A22 and A23, which were addressed to the first plaintiff by his mother- Chiruthakutty long back in the year 1976. The Trial Court has discussed this aspect of the matter as under: …..There is sufficient evidence to prove that K.E. Damodaran, Kattukandy Edathil had married Chiruthakutty and the 1st plaintiff is the son of Damodaran. It is the pertinent to note that the definite case of the plaintiffs is that the family used to give income from the family property to Chiruthakutty till her death in the year 1985. The plaintiff has produced Exts. A22 and A23 letters, addressed to the 1st defendant. On going through Ext. A22 it is seen that the same has been addressed to the 1st plaintiff by his mother Chiruthakutty long back in the year 1976. Of course the date is not mentioned in the letter but from the seal affixed in the document it is seen that the same has been posted in the year 1976. In this letter it is seen recorded that the mother went to Edathil House and also the 3rd defendant is mentioned as Umadathi. It is also seen from the letter that she is getting some money from the family. In Ext. A23 also it is seen that she is getting money from the family and there is reference to the 3rd defendant and the other defendant i.e., the daughter of the 3rd defendant i.e. DW1 has admitted that she is called as Umadathi. So Exts. A22 and A23 supports the case of the plaintiffs. The letters are seen addressed to the 1st plaintiff while he was in military service. From the letters it is seen that the mother has written the same when the 2nd child was born to him and there is also enquiries with regard to the illness of the 1st plaintiff. On going through these letters it can be seen that the documents are genuine. I find it difficult to conclude the same has been created by the plaintiffs to support their case as contended by the defendants. 26. As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW-2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property. 27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court.	1[ds]14. It is not disputed that the suit property belongs to one Kattukandi Edathil family which is a Thiyya family of Calicut governed by the Mitakshara Law of Inheritance. The said property originally belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons, namely, Damodaran, Achuthan, Sekharan and Narayanan. It is also admitted that Achuthan married Kalyani and they had a son named Karunakaran (Defendant No.1). Karunakaran married Umadevi (Defendant No.3) and they had three children, namely, Valsan, Kasturi and Saraswati Bai (Defendant Nos.2, 4 and 5 respectively). Sekharan and Narayanan did not marry. The plaintiffs have contended that Damodaran married one Chiruthakutty and they had a son by the name of Krishnan (Plaintiff No.1). However, the defendants have contended that Damodaran never married Chiruthakutty. The court below has recorded a finding of fact that the first plaintiff was the son of Damodaran and Chiruthakutty, but not a legitimate son.15. It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.16. In Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy and Ors. AIR 1927 PC 185 , the Privy Council laid down the general proposition as under:…where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.18. In Badri Prasad v. Dy. Director of Consolidation and Others (1978) 3 SCC 527, it was held by this Court that a strong presumption arises in favour of wedlock where two partners have lived together for long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon the bastardy.19. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994) 1 SCC 460, this Court held as under:4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. [See: Gokul Chand v. Parvin Kumari – AIR 1952 231 : 1952 SCR 825 ].20. Similar view has been taken by this Court in Tulsa and Others v. Durghatiya and Others (2008) 4 SCC 520 ; Challamma v. Tilaga and Others (2009) 9 SCC 299 ; Madan Mohan Singh and Others v. Rajni Kant and Another (2010) 9 SCC 209 and Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 22. The first plaintiff was examined as PW-1 who deposed that his father-Damodaran and mother-Chiruthakutty resided in the suit schedule property. PW-1 further deposed that he shifted his residence along with his mother after the demise of his father when he obtained a job. PW-1 has also stated that the defendants gave a share of the income till the death of his mother in the year 1985. PW-2 is a neighbour. In his evidence he has stated that Kattukandi Edathil Damodaran had married Chiruthakutty. They had resided at Kattukandi Edathil House as husband and wife. They have a son by the name of Krishnan. In his cross-examination, he has stated that, as per custom, some persons had participated in their marriage. Even before marriage, Chiruthakutty had been at Kattukandi Edathil House. PW-2 has also stated that Chiruthakutty had rented a room at Chalapurram and after marriage, they had stayed in a rented house and that Damodaranas sister also participated in the marriage. The evidence of PW-2 also shows that the marriage between Damodaran and Chiruthakutty was a love marriage.On comparing Ex.A-9 and Ex.B-1, it is seen that some corrections have been made in Ex.A-9 with regard to the place of birth. However, it is to be noted that in both the documents, the name of the father and the mother of the first plaintiff are one and the same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 is the Insurance Policy which shows name of his house as Kattukandy Edathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School Leaving Certificate of K.E. Damodaran kept in his possession. According to him he got the same since he is the son of Damodaran. Ex. A4, dated 01.08.1963, is a Trade certificate issued in favour of the first plaintiff which was issued by the Secretary of State Council for training in vocational Trades, since he was a student of the Junior Technical School, Manjeri. In this certificate the name of the first plaintiff is shown as Krishnan K. S/o Sri. K.E. Damodaran. The name of the house is shown as Edathil house, Chalappuram.25. There is also enough materials on record to show that Chiruthakutty was getting some money from the family of Damodaran, including in particular the letters at Exs.A22 and A23, which were addressed to the first plaintiff by his mother- Chiruthakutty long back in the year 1976. The Trial Court has discussed this aspect of the matter as under:…..There is sufficient evidence to prove that K.E. Damodaran, Kattukandy Edathil had married Chiruthakutty and the 1st plaintiff is the son of Damodaran. It is the pertinent to note that the definite case of the plaintiffs is that the family used to give income from the family property to Chiruthakutty till her death in the year 1985. The plaintiff has produced Exts. A22 and A23 letters, addressed to the 1st defendant. On going through Ext. A22 it is seen that the same has been addressed to the 1st plaintiff by his mother Chiruthakutty long back in the year 1976. Of course the date is not mentioned in the letter but from the seal affixed in the document it is seen that the same has been posted in the year 1976. In this letter it is seen recorded that the mother went to Edathil House and also the 3rd defendant is mentioned as Umadathi. It is also seen from the letter that she is getting some money from the family. In Ext. A23 also it is seen that she is getting money from the family and there is reference to the 3rd defendant and the other defendant i.e., the daughter of the 3rd defendant i.e. DW1 has admitted that she is called as Umadathi. So Exts. A22 and A23 supports the case of the plaintiffs. The letters are seen addressed to the 1st plaintiff while he was in military service. From the letters it is seen that the mother has written the same when the 2nd child was born to him and there is also enquiries with regard to the illness of the 1st plaintiff. On going through these letters it can be seen that the documents are genuine. I find it difficult to conclude the same has been created by the plaintiffs to support their case as contended by the defendants.26. As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW-2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property.27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court.29. Before parting, we deem it necessary to address a concerning trend of delay in drawing up the final decrees under Rule 18 of Or- der XX of the Code of Civil Procedure, 1908 (for short, CPC). This provision deals with decrees in suits for partition or separate pos- session of share therein. It provides as under:18. Decree in suit for partition of property or sepa- rate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accor- dance with such declaration and with the provisions of section 54;(2) if and in so far as such decree relates to any other immovable property or to movable prop- erty, the Court may, if the partition or separation cannot be conveniently made without further in- quiry, pass a preliminary decree declaring the right of the several parties, interested in the property and giving such further directions as may be required.Sub section (2) of Section 2 defines the decree as under:(2) decree means the formal expression of an ad- judication which, so far as regards the Court ex- pressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either pre- liminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include—(a) any adjudication from which an appeal lies as an appeal from an order, or(b) any order of dismissal for default.Explanation.—A decree is preliminary when fur- ther proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;30. It is clear from the above that a preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in sep- arate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. Thus, fundamentally, the distinction between pre- liminary and final decree is that:- a preliminary decree merely de- clares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been con- ducted and rights of the parties being finally determined, a final de- cree incorporating such determination needs to be drawn up.31. Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of. [See : Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC 689 ; Bimal Kumar and Another v. Shakuntala Debi and Others (2012) 3 SCC 548] .32. Since there is no limitation for initiating final decree proceed- ings, the litigants tend to take their own sweet time for initiating fi- nal decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the par- ties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the par- ties in one proceedings and requiring initiation of separate proceed- ings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree. This Court, in Shub Karan Bubna (supra), had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to the CPC. The discussion of this Court is in paragraphs 23 to 29 which are as under:A suggestion for debate and legislative action23. The century old civil procedure contemplates judg- ments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a pause be- tween a decree and execution. A pause has also devel- oped by practice between a preliminary decree and a final decree. The pause is to enable the defendant to volun- tarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defen- dants normally do not comply with decrees without the pursuance of an execution. In very few cases the defen- dants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases.24. A litigant coming to court seeking relief is not in- terested in receiving a paper decree when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his sepa- rated share. Why is it necessary for him to remind the court and approach the court at different stages?25. Because of the artificial division of suits into pre- liminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, ade- quate importance is not given to the final decree proceed- ings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the re- lief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their ju- niors to conduct the final decree proceedings and then give it to their clerks for conducting the execution pro- ceedings.26. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary de- cree is granted within a year or two, the final decree pro- ceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice sys- tem. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plain- tiff will see the fruits of the decree. The proverbial obser- vation by the Privy Council is that the difficulties of a liti- gant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.28. We hope that the Law Commission and Parliament will bestow their attention on this issue and make appro- priate recommendations/amendments so that the suit will be a continuous process from the stage of its initia- tion to the stage of securing actual relief.29. The present system involving a proceeding for dec- laration of the right, a separate proceeding for quantifica- tion or ascertainment of relief, and another separate pro- ceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings, that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief.33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary de- cree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropri- ate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn.	1	3,381	### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: the date of birth of the first plaintiff is shown as 12.05.1942. K.E. Damodaran and Chiruthakutty are described as father and mother. Ex.B-1 is the copy of the similar certificate produced by the defendants. On comparing Ex.A-9 and Ex.B-1, it is seen that some corrections have been made in Ex.A-9 with regard to the place of birth. However, it is to be noted that in both the documents, the name of the father and the mother of the first plaintiff are one and the same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 is the Insurance Policy which shows name of his house as Kattukandy Edathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School Leaving Certificate of K.E. Damodaran kept in his possession. According to him he got the same since he is the son of Damodaran. Ex. A4, dated 01.08.1963, is a Trade certificate issued in favour of the first plaintiff which was issued by the Secretary of State Council for training in vocational Trades, since he was a student of the Junior Technical School, Manjeri. In this certificate the name of the first plaintiff is shown as Krishnan K. S/o Sri. K.E. Damodaran. The name of the house is shown as Edathil house, Chalappuram. 24. The plaintiffs have produced Ex.A5, the Malayala Manorama Daily dated 16.02.1985. In this paper it is reported that Chiruthakutty, wife of Kattukandy Edathil Damodaran, aged 75 years had expired. The name of the first plaintiff is shown as the son of Chiruthakutty. Ex.A6 is the true copy of a voters list of the year 1970. In this document, the name of Chiruthakutty is shown as the wife of K.E. Damodaran. Ex.A7 dated 24.03.1980 is the petition filed by the first plaintiff before the village officer, Panniyankara. In this document the first plaintiff is certified as the son of Damodaran by the village officer. The same is dated 24.03.1980. Ex.A8 is also a similar certificate describing the first plaintiff as the son of Damodaran by the village officer. This is dated 04.05.1979. In the death certificate of Chiruthakutty dated 15.12.1985 (Ex.A10) the name of her husband is shown as Damodaran. Ex.A11 is the Electoral card of the first plaintiff in which the first plaintiff is described as the son of Damodaran and Chiruthakutty is described as the wife of Damodaran. Plaintiffs have also produced several other documents such as electoral card (Ex.A12) dated 02.11.1983, Ex.A13, a community certificate dated 07.11.1980, Ex.A14-Marriage certificate dated 29.04.1971, Ex.A15, the receipt issued by the Life Insurance Corporation of India in favour of the plaintiffs etc. Ex.A20 is an important document which is a Discharge Certificate of the first plaintiff from the Military Service wherein he is described as the son of K.E. Damodaran. Ex.A21 is the S.S.L.C. book of the first plaintiff. 25. There is also enough materials on record to show that Chiruthakutty was getting some money from the family of Damodaran, including in particular the letters at Exs.A22 and A23, which were addressed to the first plaintiff by his mother- Chiruthakutty long back in the year 1976. The Trial Court has discussed this aspect of the matter as under: …..There is sufficient evidence to prove that K.E. Damodaran, Kattukandy Edathil had married Chiruthakutty and the 1st plaintiff is the son of Damodaran. It is the pertinent to note that the definite case of the plaintiffs is that the family used to give income from the family property to Chiruthakutty till her death in the year 1985. The plaintiff has produced Exts. A22 and A23 letters, addressed to the 1st defendant. On going through Ext. A22 it is seen that the same has been addressed to the 1st plaintiff by his mother Chiruthakutty long back in the year 1976. Of course the date is not mentioned in the letter but from the seal affixed in the document it is seen that the same has been posted in the year 1976. In this letter it is seen recorded that the mother went to Edathil House and also the 3rd defendant is mentioned as Umadathi. It is also seen from the letter that she is getting some money from the family. In Ext. A23 also it is seen that she is getting money from the family and there is reference to the 3rd defendant and the other defendant i.e., the daughter of the 3rd defendant i.e. DW1 has admitted that she is called as Umadathi. So Exts. A22 and A23 supports the case of the plaintiffs. The letters are seen addressed to the 1st plaintiff while he was in military service. From the letters it is seen that the mother has written the same when the 2nd child was born to him and there is also enquiries with regard to the illness of the 1st plaintiff. On going through these letters it can be seen that the documents are genuine. I find it difficult to conclude the same has been created by the plaintiffs to support their case as contended by the defendants. 26. As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW-2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property. 27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court. ### Response: 1

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