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KAMLESH Vs. UNION OF INDIA THROUGH SECRETARY, DEPARTMENT OF POST

30.3.92 after noon regular appoint is made. Miss Kamlesh d/o Shri Sardar Singh, H. No. 147 Pooth Kalan, Delhi – 41 is offered the provisional appointment. She should clearly understand that the provisional appointment will be terminated when regular appointment is made and she shall have no claim for appointment to any post. The undersigned also reserves the right to terminate the provisional appointment at any time before the period mentioned in para 1 above without notice and without assigning any reason thereof. Miss Kamlesh will be governed by the EDA (Conduct and Service) Rules 1964 as amended from time to time and all other rules and orders applicable to EDA. In case the above conditions are acceptable to Miss Kamlesh, she should sign the duplicate copy of this memo and return the same to the undersigned immediately. Sd/- Sr. Supdt. Of Post Offices Delhi North Dn. 110 054. 3. On the basis of an order passed by the Central Administrative Tribunal (for short the Tribunal) dated 05.02.2003, the appellant made a representation for regularization of service with benefits of seniority. This representation was rejected by the third respondent, by order dated 28.04.2003. The appellant challenged the said order by filing O.A. 1736 of 2003 before the Tribunal. The Tribunal dismissed the said O.A. by order dated 07.05.2004. The respondent passed an order on 20.05.2004 discontinuing the service of the appellant with immediate effect. In the meantime, the appellant filed W.P. No. 9282 of 2004, challenging the legality and correctness of the order passed by the Tribunal dated 26.05.2004. Thereafter, the appellant also challenged the order of discontinuation of her service dated 20.05.2004, by filing an application in the writ petition. In the said case, the question for consideration was whether the appointee can seek regularization by reason of prolonged service. After considering this question in detail, the Court dismissed the writ petition by order dated 08.07.2004. Thereafter, the appellant filed a Review Application, against the said order which was also dismissed by the High Court on 03.12.2004. 4. The appellant filed a Special Leave Petition seeking leave to challenge the orders of the High Court dated 08.07.2004 and 03.12.2004. The Special Leave Petition was dismissed by this Court on 28.03.2008 granting liberty to the appellant to approach the High Court for appropriate reliefs. Accordingly, the appellant filed a Miscellaneous Application No. 8277 of 2008 in Writ Petition No. 9282 of 2004. The High Court by the impugned order has dismissed the miscellaneous application. 5. On 14.03.2011, this Court passed an order directing reinstatement of the appellant to the post of EDE, where she was working before her termination and further, she was directed to be paid on the same basis as other similarly situated employees are being paid on regular basis. 6. We have heard learned counsel for the parties. 7. It is clear from the order of appointment of the appellant that she was provisionally appointed to the post of EDE. It was clarified in the appointment order itself that the provisional appointment will be terminated when regular appointment is made and that she shall have no claim for appointment to any post. The Tribunal has dismissed her claim for regularization by holding that she was not entitled to regularization of her service. The Division Bench of the High Court has again considered the contentions of the appellant in detail. While rejecting the review petition filed by the appellant, the Court has observed as under: The petitioner had filed Original Application before the Central Administrative Tribunal seeking regularization, which was dismissed by the Tribunal. Against the order, he preferred writ petition, which was dismissed by us vide our order dated 8.7.2004. While dismissing the writ petition on merits, in the last para we also noted the statement of the learned counsel for the respondent that after the discontinuation of the petitioners they were replaced by regular incumbents who had joined the services. The petitioner thereafter filed review application pointing out that the aforesaid statement of the counsel for the respondent was not correct as no regular incumbents had joined. This review petition was also dismissed on 3.12.2004 clearly observing that even if the aforesaid statement of the counsel for the respondent is not correct and is not taken on record, it did not have any bearing on the merits of the decision in so far as prayer of the petitioner for regularization is concerned. The review petition was dismissed vide said order dated 3.12.2004. It appears that the petitioner challenged the orders passed in the writ petition as well as in the review petition by filing Special Leave Petition in the Supreme Court. In that SLP, order dated 28.3.2008 is passed by the Supreme Court dismissing the SLP. In the opening para of the said order the Supreme Court took note of the observations made in para 11 of the orders passed in the writ petition wherein the statement of the respondent to the effect that regular incumbents have been appointed who have joined is noted. After taking note of that para, submission of the learned counsel for the petitioner is noted that he wanted to rely upon certain information obtained by him under the Right to Information Act and taking note of this submission the Supreme Court observed that the petitioner could approach the High Court for this purpose to pass appropriate orders in accordance with law. It is under these circumstances present review petition is filed but the submission remains the same, namely, there are no appointments on regular basis and no regular incumbents have replaced the petitioner after their services were terminated. It is clear from the narration of events mentioned above that this was precisely the submission in the review petition also which was dismissed on 3.12.2004. Therefore, no fresh plea is taken on the basis of which second review petition would be maintainable. We accordingly dismiss the review petition. 8. We do not find any error in the order impugned in this appeal.

0[ds]7. It is clear from the order of appointment of the appellant that she was provisionally appointed to the post of EDE. It was clarified in the appointment order itself that the provisional appointment will be terminated when regular appointment is made and that she shall have no claim for appointment to any post. The Tribunal has dismissed her claim for regularization by holding that she was not entitled to regularization of her service. The Division Bench of the High Court has again considered the contentions of the appellant in detail. While rejecting the review petition filed by the appellant, the Court has observed as under:The petitioner had filed Original Application before the Central Administrative Tribunal seeking regularization, which was dismissed by the Tribunal. Against the order, he preferred writ petition, which was dismissed by us vide our order dated 8.7.2004. While dismissing the writ petition on merits, in the last para we also noted the statement of the learned counsel for the respondent that after the discontinuation of the petitioners they were replaced by regular incumbents who had joined the services. The petitioner thereafter filed review application pointing out that the aforesaid statement of the counsel for the respondent was not correct as no regular incumbents had joined. This review petition was also dismissed on 3.12.2004 clearly observing that even if the aforesaid statement of the counsel for the respondent is not correct and is not taken on record, it did not have any bearing on the merits of the decision in so far as prayer of the petitioner for regularization is concerned. The review petition was dismissed vide said order dated 3.12.2004. It appears that the petitioner challenged the orders passed in the writ petition as well as in the review petition by filing Special Leave Petition in the Supreme Court. In that SLP, order dated 28.3.2008 is passed by the Supreme Court dismissing the SLP. In the opening para of the said order the Supreme Court took note of the observations made in para 11 of the orders passed in the writ petition wherein the statement of the respondent to the effect that regular incumbents have been appointed who have joined is noted. After taking note of that para, submission of the learned counsel for the petitioner is noted that he wanted to rely upon certain information obtained by him under the Right to Information Act and taking note of this submission the Supreme Court observed that the petitioner could approach the High Court for this purpose to pass appropriate orders in accordance with law. It is under these circumstances present review petition is filed but the submission remains the same, namely, there are no appointments on regular basis and no regular incumbents have replaced the petitioner after their services were terminated. It is clear from the narration of events mentioned above that this was precisely the submission in the review petition also which was dismissed on 3.12.2004. Therefore, no fresh plea is taken on the basis of which second review petition would be maintainable. We accordingly dismiss the review petition8. We do not find any error in the order impugned in this appeal.

### Instruction: Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document. ### Input: 30.3.92 after noon regular appoint is made. Miss Kamlesh d/o Shri Sardar Singh, H. No. 147 Pooth Kalan, Delhi – 41 is offered the provisional appointment. She should clearly understand that the provisional appointment will be terminated when regular appointment is made and she shall have no claim for appointment to any post. The undersigned also reserves the right to terminate the provisional appointment at any time before the period mentioned in para 1 above without notice and without assigning any reason thereof. Miss Kamlesh will be governed by the EDA (Conduct and Service) Rules 1964 as amended from time to time and all other rules and orders applicable to EDA. In case the above conditions are acceptable to Miss Kamlesh, she should sign the duplicate copy of this memo and return the same to the undersigned immediately. Sd/- Sr. Supdt. Of Post Offices Delhi North Dn. 110 054. 3. On the basis of an order passed by the Central Administrative Tribunal (for short the Tribunal) dated 05.02.2003, the appellant made a representation for regularization of service with benefits of seniority. This representation was rejected by the third respondent, by order dated 28.04.2003. The appellant challenged the said order by filing O.A. 1736 of 2003 before the Tribunal. The Tribunal dismissed the said O.A. by order dated 07.05.2004. The respondent passed an order on 20.05.2004 discontinuing the service of the appellant with immediate effect. In the meantime, the appellant filed W.P. No. 9282 of 2004, challenging the legality and correctness of the order passed by the Tribunal dated 26.05.2004. Thereafter, the appellant also challenged the order of discontinuation of her service dated 20.05.2004, by filing an application in the writ petition. In the said case, the question for consideration was whether the appointee can seek regularization by reason of prolonged service. After considering this question in detail, the Court dismissed the writ petition by order dated 08.07.2004. Thereafter, the appellant filed a Review Application, against the said order which was also dismissed by the High Court on 03.12.2004. 4. The appellant filed a Special Leave Petition seeking leave to challenge the orders of the High Court dated 08.07.2004 and 03.12.2004. The Special Leave Petition was dismissed by this Court on 28.03.2008 granting liberty to the appellant to approach the High Court for appropriate reliefs. Accordingly, the appellant filed a Miscellaneous Application No. 8277 of 2008 in Writ Petition No. 9282 of 2004. The High Court by the impugned order has dismissed the miscellaneous application. 5. On 14.03.2011, this Court passed an order directing reinstatement of the appellant to the post of EDE, where she was working before her termination and further, she was directed to be paid on the same basis as other similarly situated employees are being paid on regular basis. 6. We have heard learned counsel for the parties. 7. It is clear from the order of appointment of the appellant that she was provisionally appointed to the post of EDE. It was clarified in the appointment order itself that the provisional appointment will be terminated when regular appointment is made and that she shall have no claim for appointment to any post. The Tribunal has dismissed her claim for regularization by holding that she was not entitled to regularization of her service. The Division Bench of the High Court has again considered the contentions of the appellant in detail. While rejecting the review petition filed by the appellant, the Court has observed as under: The petitioner had filed Original Application before the Central Administrative Tribunal seeking regularization, which was dismissed by the Tribunal. Against the order, he preferred writ petition, which was dismissed by us vide our order dated 8.7.2004. While dismissing the writ petition on merits, in the last para we also noted the statement of the learned counsel for the respondent that after the discontinuation of the petitioners they were replaced by regular incumbents who had joined the services. The petitioner thereafter filed review application pointing out that the aforesaid statement of the counsel for the respondent was not correct as no regular incumbents had joined. This review petition was also dismissed on 3.12.2004 clearly observing that even if the aforesaid statement of the counsel for the respondent is not correct and is not taken on record, it did not have any bearing on the merits of the decision in so far as prayer of the petitioner for regularization is concerned. The review petition was dismissed vide said order dated 3.12.2004. It appears that the petitioner challenged the orders passed in the writ petition as well as in the review petition by filing Special Leave Petition in the Supreme Court. In that SLP, order dated 28.3.2008 is passed by the Supreme Court dismissing the SLP. In the opening para of the said order the Supreme Court took note of the observations made in para 11 of the orders passed in the writ petition wherein the statement of the respondent to the effect that regular incumbents have been appointed who have joined is noted. After taking note of that para, submission of the learned counsel for the petitioner is noted that he wanted to rely upon certain information obtained by him under the Right to Information Act and taking note of this submission the Supreme Court observed that the petitioner could approach the High Court for this purpose to pass appropriate orders in accordance with law. It is under these circumstances present review petition is filed but the submission remains the same, namely, there are no appointments on regular basis and no regular incumbents have replaced the petitioner after their services were terminated. It is clear from the narration of events mentioned above that this was precisely the submission in the review petition also which was dismissed on 3.12.2004. Therefore, no fresh plea is taken on the basis of which second review petition would be maintainable. We accordingly dismiss the review petition. 8. We do not find any error in the order impugned in this appeal. ### Response: 0 ### Explanation: 7. It is clear from the order of appointment of the appellant that she was provisionally appointed to the post of EDE. It was clarified in the appointment order itself that the provisional appointment will be terminated when regular appointment is made and that she shall have no claim for appointment to any post. The Tribunal has dismissed her claim for regularization by holding that she was not entitled to regularization of her service. The Division Bench of the High Court has again considered the contentions of the appellant in detail. While rejecting the review petition filed by the appellant, the Court has observed as under:The petitioner had filed Original Application before the Central Administrative Tribunal seeking regularization, which was dismissed by the Tribunal. Against the order, he preferred writ petition, which was dismissed by us vide our order dated 8.7.2004. While dismissing the writ petition on merits, in the last para we also noted the statement of the learned counsel for the respondent that after the discontinuation of the petitioners they were replaced by regular incumbents who had joined the services. The petitioner thereafter filed review application pointing out that the aforesaid statement of the counsel for the respondent was not correct as no regular incumbents had joined. This review petition was also dismissed on 3.12.2004 clearly observing that even if the aforesaid statement of the counsel for the respondent is not correct and is not taken on record, it did not have any bearing on the merits of the decision in so far as prayer of the petitioner for regularization is concerned. The review petition was dismissed vide said order dated 3.12.2004. It appears that the petitioner challenged the orders passed in the writ petition as well as in the review petition by filing Special Leave Petition in the Supreme Court. In that SLP, order dated 28.3.2008 is passed by the Supreme Court dismissing the SLP. In the opening para of the said order the Supreme Court took note of the observations made in para 11 of the orders passed in the writ petition wherein the statement of the respondent to the effect that regular incumbents have been appointed who have joined is noted. After taking note of that para, submission of the learned counsel for the petitioner is noted that he wanted to rely upon certain information obtained by him under the Right to Information Act and taking note of this submission the Supreme Court observed that the petitioner could approach the High Court for this purpose to pass appropriate orders in accordance with law. It is under these circumstances present review petition is filed but the submission remains the same, namely, there are no appointments on regular basis and no regular incumbents have replaced the petitioner after their services were terminated. It is clear from the narration of events mentioned above that this was precisely the submission in the review petition also which was dismissed on 3.12.2004. Therefore, no fresh plea is taken on the basis of which second review petition would be maintainable. We accordingly dismiss the review petition8. We do not find any error in the order impugned in this appeal.

KANWAR PAL SINGH Vs. THE STATE OF UTTAR PRADESH

raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above 9. We would in the end refer to the judgment in Jeewan Kumar Raut (supra) on which considerable reliance was placed by the appellant at the time of the hearing. The said judgment was distinguished in Institute of Chartered Accountants (supra) by observing that the provisions of the Transplantation of Human Organs Act, 1994 (TOHO Act for short) were different and were not similar to the provisions of sub-section 2 to Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause. We would like to further elucidate and explain that in Jeewan Kumar Raut (supra) this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) to Section 167 of the Code on the ground that the Central Bureau of Investigation (CBI for short) had failed to file the charge-sheet within 90 days from the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein, viz., offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 of the Code as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of said Act, which would prevail over the provisions of the Code. Reference was made to clause (iv) of sub-section (3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the Mines Regulation Act i.e. the Mines and Minerals (Development and Regulation) Act, 1957. 10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit. 11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State (1995) 1 Cal LT 95 wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression same offence, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act.

1[ds]5. We find the submission of the appellant to be untenable. In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting judgments of the Delhi High Court, Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be prosecuted for the offences under Sections 379/114 and other provisions of the IPC on theAccordingly, in Sanjay (supra) it was held that the investigation of the offences is within the domain of the police and the power of a police officer to investigate into cognizable offences is not ordinarily impinged by any fetters albeit the power must be exercised as per the statutory provisions and for legitimate purposes. The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached the statutory provisions and put the personal liberty and/or the property of a citizen in jeopardy by an illegal and improper use of the powers or when the investigation by the police is not found to be bona fide or when the investigation is tainted with animosity. While examining the issue, this Court in Sanjay (supra) took notice of the decision in H.N. Rishbud v. State of Delhi AIR 1955 SC 196 wherein this Court has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of the cognizance or trial. The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan(1994) 3 SCC 440 is that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that the government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their benefit than to serve private interests7. As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable under Section 379 of the IPC. Thus, they are two different and not the same offence. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State(2009) 109 DRJ 594, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected8. We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State(1995) 1 Cal LT 95wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression same offence, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act7. As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable under Section 379 of the IPC. Thus, they are two different and not the same offence. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State(2009) 109 DRJ 594, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected8. We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State(1995) 1 Cal LT 95wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression same offence, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above 9. We would in the end refer to the judgment in Jeewan Kumar Raut (supra) on which considerable reliance was placed by the appellant at the time of the hearing. The said judgment was distinguished in Institute of Chartered Accountants (supra) by observing that the provisions of the Transplantation of Human Organs Act, 1994 (TOHO Act for short) were different and were not similar to the provisions of sub-section 2 to Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause. We would like to further elucidate and explain that in Jeewan Kumar Raut (supra) this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) to Section 167 of the Code on the ground that the Central Bureau of Investigation (CBI for short) had failed to file the charge-sheet within 90 days from the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein, viz., offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 of the Code as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of said Act, which would prevail over the provisions of the Code. Reference was made to clause (iv) of sub-section (3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the Mines Regulation Act i.e. the Mines and Minerals (Development and Regulation) Act, 1957. 10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit. 11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State (1995) 1 Cal LT 95 wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression same offence, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act. ### Response: 1 ### Explanation: by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression same offence, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act7. As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable under Section 379 of the IPC. Thus, they are two different and not the same offence. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State(2009) 109 DRJ 594, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected8. We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State(1995) 1 Cal LT 95wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression same offence, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO

Manke Ram Vs. State of Haryana

appellant in this case is that even if the prosecution case is to be accepted as presented, the appellant can only be held guilty of an offence punishable under Section 304 Part II of the IPC and the courts below have erred in not accepting this argument addressed on behalf of the appellant before them. In this regard, learned counsel for the appellant contended that the appellant had absolutely no motive whatsoever to commit the murder of the deceased and as a matter of fact he had invited deceased to his room for a friendly drink and it is at that time because of the intervention of PW-5 who was younger to the appellant and the deceased and lower in rank, the appellant got enraged, because of which a fight started and in that fight the incident in question took place without premeditation in the heat of passion in which fight the deceased suffered fatal injuries. Learned counsel submitted that both the appellant and the deceased were inebriated, therefore, there is every possibility of their actions being beyond their control. In such circumstances, it is submitted that the offence would be one falling under Exception 4 to Section 300 hence will be a culpable homicide not amounting to murder which is punishable under Section 304 Part II of IPC.5. Learned counsel appearing for the State, however, contended that the courts below have rightly come to the conclusion that the appellant did commit the murder of Suraj Mal may be without any motive but he had certainly taken an undue advantage of having a service revolver with him and fired the same knowingly that it might cause death, therefore, the action of the appellant would fall outside Exception 4 to Section 300 and would amount to murder which would attract the punishment under Section 302 of the IPC. 6. Having perused the material on record and considering the arguments of the parties, we are inclined to agree with the argument addressed on behalf of the appellant. There is no doubt that Suraj Mal met a homicidal death on 17.11.1993 at Sangatpura Police Outpost consequent to gun shot fired by the appellant. The question, for our consideration, is whether this action of appellant which caused the death of Suraj Mal would amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the appellant and the deceased and a few days before the incident in question the appellant was promoted to the rank of Assistant Sub-Inspector of Police and he was put In-charge of Sangatpura Police Station wherein the deceased was also posted as Head Constable. It is also the case of the prosecution itself that on the fatal day when the appellant came back from the duty to his quarter he invited the deceased to his room to have a drink which was accepted by the deceased and both of them were drinking in the room of the appellant. It is at that point of time PW-5 who happened to be the nephew of the deceased came into the room and interrupted their drinking session by asking his uncle to get up and join him for dinner which was obviously not liked by the appellant who being offended by said interruption started abusing in a language which was not to the liking of the deceased who protested against such abuses. It is also the prosecution case that it is sequel to this interruption of PW-5, a physical fight started between the appellant and the deceased in which, of course, the appellant used his service revolver causing fatal injuries. While PW-5 states that there was no physical fight between the deceased and the appellant, the appellant contends that there was such physical fight in which he was sought to be strangulated by the deceased because of which he used the service revolver to protect himself. The fact that there was a physical fight between the deceased and the appellant, though not admitted by PW-5, the same cannot be denied because it has come in the evidence of PW-6 and 9 that when they came to the spot the appellant and the deceased were grappling outside the room and they over-powered the accused and snatched the weapon. In such circumstances, we will have to examine the prosecution evidence whether the appellant had taken an undue advantage or acted in a cruel or unusual manner so as to deprive him of the benefit of Exception 4 to Section 300. As noted above, there is no motive for killing the deceased. The drinking session in the room of the appellant was by mutual consent and admittedly the fight started because of the intervention of PW-5. From these circumstances, it can be very clearly held that the the incident in question took place in a sudden fight in the heat of passion. The next question, therefore, for our consideration, is whether the appellant did take an undue advantage of the said fight or acted in a cruel or unusual manner. Keeping the fact that both the appellant and the deceased had consumed considerable amount of alcohol which is established from the evidence of the doctor and the service revolver being next to the place where the fight took place and was not kept there by a planned act by the appellant, it cannot be altogether ruled out that the shots were fired not with an intention of taking any undue advantage by the appellant. It is probable that in an inebriated condition the appellant used the service revolver because of the physical fight between the two. We do not think the two courts below have properly appreciated this aspect of the prosecution case when it found the appellant guilty of murder and punished him under Section 302 IPC. Having considered the material on record, we are of the opinion that the appellant could only be found guilty of an offence punishable under Section 304 Part II.

1[ds]6. Having perused the material on record and considering the arguments of the parties, we are inclined to agree with the argument addressed on behalf of the appellant. There is no doubt that Suraj Mal met a homicidal death on 17.11.1993 at Sangatpura Police Outpost consequent to gun shot fired by the appellant.The question, for our consideration, is whether this action of appellant which caused the death of Suraj Mal would amount to murder or culpable homicide not amounting tomurder. It is an admitted fact that there was no enmity between the appellant and the deceased and a few days before the incident in question the appellant was promoted to the rank of Assistantof Police and he was putof Sangatpura Police Station wherein the deceased was also posted as Head Constable. It is also the case of the prosecution itself that on the fatal day when the appellant came back from the duty to his quarter he invited the deceased to his room to have a drink which was accepted by the deceased and both of them were drinking in the room of the appellant. It is at that point of timewho happened to be the nephew of the deceased came into the room and interrupted their drinking session by asking his uncle to get up and join him for dinner which was obviously not liked by the appellant who being offended by said interruption started abusing in a language which was not to the liking of the deceased who protested against such abuses. It is also the prosecution case that it is sequel to this interruption ofa physical fight started between the appellant and the deceased in which, of course, the appellant used his service revolver causing fatal injuries. Whilestates that there was no physical fight between the deceased and the appellant, the appellant contends that there was such physical fight in which he was sought to be strangulated by the deceased because of which he used the service revolver to protect himself. The fact that there was a physical fight between the deceased and the appellant, though not admitted bythe same cannot be denied because it has come in the evidence ofand 9 that when they came to the spot the appellant and the deceased were grappling outside the room and theythe accused and snatched the weapon. In such circumstances, we will have to examine the prosecution evidence whether the appellant had taken an undue advantage or acted in a cruel or unusual manner so as to deprive him of the benefit of Exception 4 to Section 300. As noted above, there is no motive for killing the deceased. The drinking session in the room of the appellant was by mutual consent and admittedly the fight started because of the intervention ofFrom these circumstances, it can be very clearly held that the the incident in question took place in a sudden fight in the heat of passion. Thenext question, therefore, for our consideration, is whether the appellant did take an undue advantage of the said fight or acted in a cruel or unusual manner.Keeping the fact that both the appellant and the deceased had consumed considerable amount of alcohol which is established from the evidence of the doctor and the service revolver being next to the place where the fight took place and was not kept there by a planned act by the appellant, it cannot be altogether ruled out that the shots were fired not with an intention of taking any undue advantage by the appellant. It is probable that in an inebriated condition the appellant used the service revolver because of the physical fight between the two. We do not think the two courts below have properly appreciated this aspect of the prosecution case when it found the appellant guilty of murder and punished him under Section 302 IPC. Having considered the material on record, we are of the opinion that the appellant could only be found guilty of an offence punishable under Section 304 Part II.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: appellant in this case is that even if the prosecution case is to be accepted as presented, the appellant can only be held guilty of an offence punishable under Section 304 Part II of the IPC and the courts below have erred in not accepting this argument addressed on behalf of the appellant before them. In this regard, learned counsel for the appellant contended that the appellant had absolutely no motive whatsoever to commit the murder of the deceased and as a matter of fact he had invited deceased to his room for a friendly drink and it is at that time because of the intervention of PW-5 who was younger to the appellant and the deceased and lower in rank, the appellant got enraged, because of which a fight started and in that fight the incident in question took place without premeditation in the heat of passion in which fight the deceased suffered fatal injuries. Learned counsel submitted that both the appellant and the deceased were inebriated, therefore, there is every possibility of their actions being beyond their control. In such circumstances, it is submitted that the offence would be one falling under Exception 4 to Section 300 hence will be a culpable homicide not amounting to murder which is punishable under Section 304 Part II of IPC.5. Learned counsel appearing for the State, however, contended that the courts below have rightly come to the conclusion that the appellant did commit the murder of Suraj Mal may be without any motive but he had certainly taken an undue advantage of having a service revolver with him and fired the same knowingly that it might cause death, therefore, the action of the appellant would fall outside Exception 4 to Section 300 and would amount to murder which would attract the punishment under Section 302 of the IPC. 6. Having perused the material on record and considering the arguments of the parties, we are inclined to agree with the argument addressed on behalf of the appellant. There is no doubt that Suraj Mal met a homicidal death on 17.11.1993 at Sangatpura Police Outpost consequent to gun shot fired by the appellant. The question, for our consideration, is whether this action of appellant which caused the death of Suraj Mal would amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the appellant and the deceased and a few days before the incident in question the appellant was promoted to the rank of Assistant Sub-Inspector of Police and he was put In-charge of Sangatpura Police Station wherein the deceased was also posted as Head Constable. It is also the case of the prosecution itself that on the fatal day when the appellant came back from the duty to his quarter he invited the deceased to his room to have a drink which was accepted by the deceased and both of them were drinking in the room of the appellant. It is at that point of time PW-5 who happened to be the nephew of the deceased came into the room and interrupted their drinking session by asking his uncle to get up and join him for dinner which was obviously not liked by the appellant who being offended by said interruption started abusing in a language which was not to the liking of the deceased who protested against such abuses. It is also the prosecution case that it is sequel to this interruption of PW-5, a physical fight started between the appellant and the deceased in which, of course, the appellant used his service revolver causing fatal injuries. While PW-5 states that there was no physical fight between the deceased and the appellant, the appellant contends that there was such physical fight in which he was sought to be strangulated by the deceased because of which he used the service revolver to protect himself. The fact that there was a physical fight between the deceased and the appellant, though not admitted by PW-5, the same cannot be denied because it has come in the evidence of PW-6 and 9 that when they came to the spot the appellant and the deceased were grappling outside the room and they over-powered the accused and snatched the weapon. In such circumstances, we will have to examine the prosecution evidence whether the appellant had taken an undue advantage or acted in a cruel or unusual manner so as to deprive him of the benefit of Exception 4 to Section 300. As noted above, there is no motive for killing the deceased. The drinking session in the room of the appellant was by mutual consent and admittedly the fight started because of the intervention of PW-5. From these circumstances, it can be very clearly held that the the incident in question took place in a sudden fight in the heat of passion. The next question, therefore, for our consideration, is whether the appellant did take an undue advantage of the said fight or acted in a cruel or unusual manner. Keeping the fact that both the appellant and the deceased had consumed considerable amount of alcohol which is established from the evidence of the doctor and the service revolver being next to the place where the fight took place and was not kept there by a planned act by the appellant, it cannot be altogether ruled out that the shots were fired not with an intention of taking any undue advantage by the appellant. It is probable that in an inebriated condition the appellant used the service revolver because of the physical fight between the two. We do not think the two courts below have properly appreciated this aspect of the prosecution case when it found the appellant guilty of murder and punished him under Section 302 IPC. Having considered the material on record, we are of the opinion that the appellant could only be found guilty of an offence punishable under Section 304 Part II. ### Response: 1 ### Explanation: 6. Having perused the material on record and considering the arguments of the parties, we are inclined to agree with the argument addressed on behalf of the appellant. There is no doubt that Suraj Mal met a homicidal death on 17.11.1993 at Sangatpura Police Outpost consequent to gun shot fired by the appellant.The question, for our consideration, is whether this action of appellant which caused the death of Suraj Mal would amount to murder or culpable homicide not amounting tomurder. It is an admitted fact that there was no enmity between the appellant and the deceased and a few days before the incident in question the appellant was promoted to the rank of Assistantof Police and he was putof Sangatpura Police Station wherein the deceased was also posted as Head Constable. It is also the case of the prosecution itself that on the fatal day when the appellant came back from the duty to his quarter he invited the deceased to his room to have a drink which was accepted by the deceased and both of them were drinking in the room of the appellant. It is at that point of timewho happened to be the nephew of the deceased came into the room and interrupted their drinking session by asking his uncle to get up and join him for dinner which was obviously not liked by the appellant who being offended by said interruption started abusing in a language which was not to the liking of the deceased who protested against such abuses. It is also the prosecution case that it is sequel to this interruption ofa physical fight started between the appellant and the deceased in which, of course, the appellant used his service revolver causing fatal injuries. Whilestates that there was no physical fight between the deceased and the appellant, the appellant contends that there was such physical fight in which he was sought to be strangulated by the deceased because of which he used the service revolver to protect himself. The fact that there was a physical fight between the deceased and the appellant, though not admitted bythe same cannot be denied because it has come in the evidence ofand 9 that when they came to the spot the appellant and the deceased were grappling outside the room and theythe accused and snatched the weapon. In such circumstances, we will have to examine the prosecution evidence whether the appellant had taken an undue advantage or acted in a cruel or unusual manner so as to deprive him of the benefit of Exception 4 to Section 300. As noted above, there is no motive for killing the deceased. The drinking session in the room of the appellant was by mutual consent and admittedly the fight started because of the intervention ofFrom these circumstances, it can be very clearly held that the the incident in question took place in a sudden fight in the heat of passion. Thenext question, therefore, for our consideration, is whether the appellant did take an undue advantage of the said fight or acted in a cruel or unusual manner.Keeping the fact that both the appellant and the deceased had consumed considerable amount of alcohol which is established from the evidence of the doctor and the service revolver being next to the place where the fight took place and was not kept there by a planned act by the appellant, it cannot be altogether ruled out that the shots were fired not with an intention of taking any undue advantage by the appellant. It is probable that in an inebriated condition the appellant used the service revolver because of the physical fight between the two. We do not think the two courts below have properly appreciated this aspect of the prosecution case when it found the appellant guilty of murder and punished him under Section 302 IPC. Having considered the material on record, we are of the opinion that the appellant could only be found guilty of an offence punishable under Section 304 Part II.

Kr. Jyoti Sarup and Another Vs. Board of Revenue, U. P

and by the substantive part of sub-section (1) gives the assessee an option to adopt any one of the two methods; then comes the proviso which says that once the option is exercised, there can be no variation without the permission of the Board of Revenue. The appellants are seeking to read the words "in any one year" after the word "computation" in the proviso, and this they cannot be allowed to do. The scheme of the Act is that every assessee has to furnish a return by a prescribed date and once he has furnished the return, he can, under sub-section (4) of section 15, only correct the mistakes or fill in the omissions in the return and for that purpose submit a revised return; he has been given no right to vary the method of computation after he has filed a return for the year of assessment. If the proviso gave such a right of variation within the assessment year, one would expect this to be mentioned in section 15 (4). On the interpretation sought to be put upon the proviso by the appellants, there would be a conflict between the proviso and section 15 (4) of the Act. 8. On behalf of the appellants our attention has been drawn to the proviso to section 2 (11) (i) (a) and section 13 of the Indian Income- tax Act, 1922. We do not think that these provisions help us to determine the true scope and effect of the proviso to sub section (1) of section 6 of the Act. For one thing, the language is different; for another, the scheme and purpose of these different provisions is also not the same. Section 13 of the Income-tax Act refers to the method of accounting regularly employed by the assessee, and no question of option arises therein. The proviso to sub-clause (i) (a) of section 2 (11) enacts that once an assessee has been assessed in respect of a business, profession or vocation newly set up an assessee has exercised the option under sub-clause (c) although no assessment may have yet been made or could have been made as a result of the exercise of the option, the assessee cannot in respect of that source, business, profession or vocation change his previous year except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may impose. We do not see how this provision helps the appellants in the construction they are seeking to put upon the proviso to sub-section (1) of section 6 of the Act. 9. Next, it has been argued that the Board of Revenue did not apply its mind when it refused permission to the appellants. It appears that the application of the appellants was noted on by an officer of the Board of Revenue; this note was put up to the Deputy Secretary to the Board, who endorsed the note, with his own opinion, to the Senior Member of the Board. B. V. Bhadkamkar, who was then the Senior Member of the Board, signed below the endorsement of the Deputy Secretary in token of his approval of the orders proposed. The note stated that though the multiple method was easier and non-controversial, in some cases the assessee wanted a variation in order to reduce the amount payable to Government as tax in any one year. The administrative difficulties of such a variation were adverted to in the note. It is submitted that the Senior Member of the Board merely signed the note; he did not indicate what reasons led him to refuse permission to the appellants. The High Court has pointed out that when a senior officer signs a note submitted to him, it shows that he approves of it. In these circumstances we are unable to accept the contention that the Board failed to apply its mind when permission to vary the method of computation was refused to the appellants; on the contrary, the note shows that all the relevant considerations were kept in mind. 10. Lastly, it has been contended that the proviso to sub-section (1) of section 6 gives an unfettered discretion to the Board to give or refuse permission, and lays down no principles for its guidance; therefore, the proviso is capable of discriminatory application and is violative of the guarantee of equal protection of the laws in article 14 of the Constitution. We are unable to accept this contention as correct. In Matajog Dobey v. H. C. Bhari and Ram Krishna Dalmia v. Shri S.R. Tendolkar this court had said that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretions confided not to a petty official but to a high authority. Moreover, it appears to us that the provisions of section 6 themselves provide sufficient guidance to the Board of Revenue for the exercise of its discretion under the impugned proviso. These provisions lay down two alternative methods, with their advantages and disadvantages; the assessee has initially an option to choose one of the two methods; but once he has done so, he cannot vary it without the permission of the Board. Obviously, the Board in the exercise of its discretion must act reasonably and must take into consideration the relevant factors including the difficulties which a variation in the method of computation will give rise to. We do not, therefore, think that the discretion vested in the Board is per se discriminatory. 11. The appellants have asked for permission to adduce additional evidence at this stage in order to show that the Board had given permission to vary the method of computation in certain other case. The facts of those cases are not known to us, nor are we sitting in appeal over the Board of Revenue so that we may embark on an examination of the facts of each case. Accordingly, we have refused the permission asked for by the appellants.

0[ds]7. We are in agreement with the view, expressed by the High Court. It is indeed true, as has been pointed out by learned counsel for the appellants, that the Act like the Indian Income-tax Act, 1922, contemplates as assessment for each year on the income of the previous year. That does not necessarily mean that the restriction imposed by the proviso to sub-section (1) of section 6 is limited to one year only. The proviso must be construed with reference to the language used and the scheme of section 6. That section mentions two alternative methods of computation, and by the substantive part of sub-section (1) gives the assessee an option to adopt any one of the two methods; then comes the proviso which says that once the option is exercised, there can be no variation without the permission of the Board of Revenue. The appellants are seeking to read the words "in any one year" after the word "computation" in the proviso, and this they cannot be allowed to do. The scheme of the Act is that every assessee has to furnish a return by a prescribed date and once he has furnished the return, he can, under sub-section (4) of section 15, only correct the mistakes or fill in the omissions in the return and for that purpose submit a revised return; he has been given no right to vary the method of computation after he has filed a return for the year of assessment. If the proviso gave such a right of variation within the assessment year, one would expect this to be mentioned in section 15 (4). On the interpretation sought to be put upon the proviso by the appellants, there would be a conflict between the proviso and section 15 (4) of thedo not think that these provisions help us to determine the true scope and effect of the proviso to sub section (1) of section 6 of thedo not see how this provision helps the appellants in the construction they are seeking to put upon the proviso to sub-section (1) of section 6 of theappears that the application of the appellants was noted on by an officer of the Board of Revenue; this note was put up to the Deputy Secretary to the Board, who endorsed the note, with his own opinion, to the Senior Member of the Board. B. V. Bhadkamkar, who was then the Senior Member of the Board, signed below the endorsement of the Deputy Secretary in token of his approval of the orders proposed. The note stated that though the multiple method was easier and non-controversial, in some cases the assessee wanted a variation in order to reduce the amount payable to Government as tax in any one year. The administrative difficulties of such a variation were adverted to in theHigh Court has pointed out that when a senior officer signs a note submitted to him, it shows that he approves of it. In these circumstances we are unable to accept the contention that the Board failed to apply its mind when permission to vary the method of computation was refused to the appellants; on the contrary, the note shows that all the relevant considerations were kept inare unable to accept this contention asit appears to us that the provisions of section 6 themselves provide sufficient guidance to the Board of Revenue for the exercise of its discretion under the impugned proviso. These provisions lay down two alternative methods, with their advantages and disadvantages; the assessee has initially an option to choose one of the two methods; but once he has done so, he cannot vary it without the permission of the Board. Obviously, the Board in the exercise of its discretion must act reasonably and must take into consideration the relevant factors including the difficulties which a variation in the method of computation will give rise to. We do not, therefore, think that the discretion vested in the Board is per sefacts of those cases are not known to us, nor are we sitting in appeal over the Board of Revenue so that we may embark on an examination of the facts of each case. Accordingly, we have refused the permission asked for by the appellants.

### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: and by the substantive part of sub-section (1) gives the assessee an option to adopt any one of the two methods; then comes the proviso which says that once the option is exercised, there can be no variation without the permission of the Board of Revenue. The appellants are seeking to read the words "in any one year" after the word "computation" in the proviso, and this they cannot be allowed to do. The scheme of the Act is that every assessee has to furnish a return by a prescribed date and once he has furnished the return, he can, under sub-section (4) of section 15, only correct the mistakes or fill in the omissions in the return and for that purpose submit a revised return; he has been given no right to vary the method of computation after he has filed a return for the year of assessment. If the proviso gave such a right of variation within the assessment year, one would expect this to be mentioned in section 15 (4). On the interpretation sought to be put upon the proviso by the appellants, there would be a conflict between the proviso and section 15 (4) of the Act. 8. On behalf of the appellants our attention has been drawn to the proviso to section 2 (11) (i) (a) and section 13 of the Indian Income- tax Act, 1922. We do not think that these provisions help us to determine the true scope and effect of the proviso to sub section (1) of section 6 of the Act. For one thing, the language is different; for another, the scheme and purpose of these different provisions is also not the same. Section 13 of the Income-tax Act refers to the method of accounting regularly employed by the assessee, and no question of option arises therein. The proviso to sub-clause (i) (a) of section 2 (11) enacts that once an assessee has been assessed in respect of a business, profession or vocation newly set up an assessee has exercised the option under sub-clause (c) although no assessment may have yet been made or could have been made as a result of the exercise of the option, the assessee cannot in respect of that source, business, profession or vocation change his previous year except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may impose. We do not see how this provision helps the appellants in the construction they are seeking to put upon the proviso to sub-section (1) of section 6 of the Act. 9. Next, it has been argued that the Board of Revenue did not apply its mind when it refused permission to the appellants. It appears that the application of the appellants was noted on by an officer of the Board of Revenue; this note was put up to the Deputy Secretary to the Board, who endorsed the note, with his own opinion, to the Senior Member of the Board. B. V. Bhadkamkar, who was then the Senior Member of the Board, signed below the endorsement of the Deputy Secretary in token of his approval of the orders proposed. The note stated that though the multiple method was easier and non-controversial, in some cases the assessee wanted a variation in order to reduce the amount payable to Government as tax in any one year. The administrative difficulties of such a variation were adverted to in the note. It is submitted that the Senior Member of the Board merely signed the note; he did not indicate what reasons led him to refuse permission to the appellants. The High Court has pointed out that when a senior officer signs a note submitted to him, it shows that he approves of it. In these circumstances we are unable to accept the contention that the Board failed to apply its mind when permission to vary the method of computation was refused to the appellants; on the contrary, the note shows that all the relevant considerations were kept in mind. 10. Lastly, it has been contended that the proviso to sub-section (1) of section 6 gives an unfettered discretion to the Board to give or refuse permission, and lays down no principles for its guidance; therefore, the proviso is capable of discriminatory application and is violative of the guarantee of equal protection of the laws in article 14 of the Constitution. We are unable to accept this contention as correct. In Matajog Dobey v. H. C. Bhari and Ram Krishna Dalmia v. Shri S.R. Tendolkar this court had said that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretions confided not to a petty official but to a high authority. Moreover, it appears to us that the provisions of section 6 themselves provide sufficient guidance to the Board of Revenue for the exercise of its discretion under the impugned proviso. These provisions lay down two alternative methods, with their advantages and disadvantages; the assessee has initially an option to choose one of the two methods; but once he has done so, he cannot vary it without the permission of the Board. Obviously, the Board in the exercise of its discretion must act reasonably and must take into consideration the relevant factors including the difficulties which a variation in the method of computation will give rise to. We do not, therefore, think that the discretion vested in the Board is per se discriminatory. 11. The appellants have asked for permission to adduce additional evidence at this stage in order to show that the Board had given permission to vary the method of computation in certain other case. The facts of those cases are not known to us, nor are we sitting in appeal over the Board of Revenue so that we may embark on an examination of the facts of each case. Accordingly, we have refused the permission asked for by the appellants. ### Response: 0 ### Explanation: 7. We are in agreement with the view, expressed by the High Court. It is indeed true, as has been pointed out by learned counsel for the appellants, that the Act like the Indian Income-tax Act, 1922, contemplates as assessment for each year on the income of the previous year. That does not necessarily mean that the restriction imposed by the proviso to sub-section (1) of section 6 is limited to one year only. The proviso must be construed with reference to the language used and the scheme of section 6. That section mentions two alternative methods of computation, and by the substantive part of sub-section (1) gives the assessee an option to adopt any one of the two methods; then comes the proviso which says that once the option is exercised, there can be no variation without the permission of the Board of Revenue. The appellants are seeking to read the words "in any one year" after the word "computation" in the proviso, and this they cannot be allowed to do. The scheme of the Act is that every assessee has to furnish a return by a prescribed date and once he has furnished the return, he can, under sub-section (4) of section 15, only correct the mistakes or fill in the omissions in the return and for that purpose submit a revised return; he has been given no right to vary the method of computation after he has filed a return for the year of assessment. If the proviso gave such a right of variation within the assessment year, one would expect this to be mentioned in section 15 (4). On the interpretation sought to be put upon the proviso by the appellants, there would be a conflict between the proviso and section 15 (4) of thedo not think that these provisions help us to determine the true scope and effect of the proviso to sub section (1) of section 6 of thedo not see how this provision helps the appellants in the construction they are seeking to put upon the proviso to sub-section (1) of section 6 of theappears that the application of the appellants was noted on by an officer of the Board of Revenue; this note was put up to the Deputy Secretary to the Board, who endorsed the note, with his own opinion, to the Senior Member of the Board. B. V. Bhadkamkar, who was then the Senior Member of the Board, signed below the endorsement of the Deputy Secretary in token of his approval of the orders proposed. The note stated that though the multiple method was easier and non-controversial, in some cases the assessee wanted a variation in order to reduce the amount payable to Government as tax in any one year. The administrative difficulties of such a variation were adverted to in theHigh Court has pointed out that when a senior officer signs a note submitted to him, it shows that he approves of it. In these circumstances we are unable to accept the contention that the Board failed to apply its mind when permission to vary the method of computation was refused to the appellants; on the contrary, the note shows that all the relevant considerations were kept inare unable to accept this contention asit appears to us that the provisions of section 6 themselves provide sufficient guidance to the Board of Revenue for the exercise of its discretion under the impugned proviso. These provisions lay down two alternative methods, with their advantages and disadvantages; the assessee has initially an option to choose one of the two methods; but once he has done so, he cannot vary it without the permission of the Board. Obviously, the Board in the exercise of its discretion must act reasonably and must take into consideration the relevant factors including the difficulties which a variation in the method of computation will give rise to. We do not, therefore, think that the discretion vested in the Board is per sefacts of those cases are not known to us, nor are we sitting in appeal over the Board of Revenue so that we may embark on an examination of the facts of each case. Accordingly, we have refused the permission asked for by the appellants.

Commissioner Of Income-Tax, Kerala Vs. Gemini Cashew Sales Corporation, Quilon

the true costs of trading in the particular year into account for that year and thus promotes the ascertainment of the annual profits or gains arising or accruing from the trade." Lord MacDermott was of the view that the provision made by the Company led to anomalies, and was not admissible as made, and the case should be remitted to the Special Commissioner whether it is practicable to arrive at satisfactory deductions. Lord Radcliffe with whom the Lord Chancellor and Lord Tucker agreed was of the view that there is no rule of law which forbids the introduction of a provision for future payments in or payments out, if the right to receive them or the liability to make them is in legal terms contingent at the closing of the relevant year. 10. The question which arises in the present case is not about the admissibility of a provision made by a trader by the adoption of a reasonably satisfactory method estimating the present value of an obligation which may arise in future to pay a sum of money to his employees. The question that falls to be determined is whether the liability which arises on transfer of the business is to be regarded as a permissible outgoing in the account of the business which is transferred. Broadly stated, the present value on commercial valuation of money to become due in future, under a definite obligation will be a permissible outgoing or deduction in computing the taxable profits of a trader, even if in certain conditions the obligation may cease to exist because of forfeiture of the right. Where, however, the obligation of the trader is purely contingent, no question of estimating its present value may arise, for to be a permissible outgoing or allowance, there must in the year of account be a present obligation capable of commercial valuation. 11. As already observed, the liability to pay retrenchment compensation arose for the first time after the closure of the business and not before. It arose not in the carrying on of the business, but on account of the transfer of the business. During the entire period that the business, was continuing, there was on liability to pay retrenchment compensation. The liability which arose on transfer of the business was not of a revenue nature. Profits of a business involve comparison between the state of the business at two specific dates. Normally the liability which occurs after the last date, unless its source is in a pre-existing definite obligation, cannot be regarded as a part of the outgoing of the business debitable in the profit and loss account. A deduction which is proper and necessary for ascertaining the balance of profits and gains of the business is undoubtedly properly allowable, but where a liability to make a payment arises not in the course of the business, not for the purpose of carrying on the business, but springs from the transfer of the business, it is not, in our judgment, a properly debitable item in its profit and loss account as a revenue outgoing. The claim of the firm to treat it as an item in the determination of the profits of the firm under S. 10 (1) of the Income-tax Act cannot, therefore be sustained. 12. Under S. 10 (2) (xv) of the Indian Income-tax Act in the computation of taxable profits (omitting parts of the clause not material) "any expenditure laid out or expended wholly and exclusively for the purpose of such business, profession or vocation", i. e. business, profession or vocation carried on by the assessee, is a permissible allowance. But to be a permissible allowance the expenditure must be for the purpose of carrying on the business. Where accounts are maintained on the mercantile system, if liability to make the payment has arisen during the time the business is carried on, it may appropriately be regarded as expenditure. But where the liability is, during the whole of the period that the business is carried on, wholly contingent and does not raise any definite obligation during the time that the business is carried on, it cannot fall within the expression "expenditure laid out or expended wholly and exclusively" for the purpose of the business. 13. Two cases illustrative of the principle may be noticed. It was held by the Madras High Court in Commissioner of Income-tax, Madras v. Indian Metal and Metallurgical Corporation (1964) 51 ITR 240 (Mad) that a provision made in the annual accounts maintained by an employer setting apart by way of a reserve to meet the liability, if any, to which the employer may become subject in the event of retrenching workmen because of the necessity of retrenchment of the services of the staff, was not a liability in praesenti in the year of account, but was only a contingent liability which may arise on the happening of a particular contingency and was not allowable as a deduction in assessment of tax. This Court in dealing with a case under the Wealth Tax Act in Standard Mills Company Ltd. v. Commissioner of Wealth-tax Bombay, 1967-63 ITR 470 : (AIR 1967 SC 595 ) held that a liability under the award of the Industrial Court to pay gratuity to its employees at certain rates on death while in service, or on voluntary retirement or resignation after fifteen years continuous service, or on termination of service after certain specified periods, but not if the employee was dismissed for dishonesty for dishonesty or misconduct, was a mere contingent liability which arose only when the employment of employee was determined by death, incapacity, retirement or resignation : the liability did not exist in praesenti. 14. The amount of Rs. 1,41,506 claimed as a permissible allowance by the assessee in the profit and loss account cannot, in our judgment be regarded as properly admissible either under S. 10 (1) or S. 10 (2) (xv) of the Income-tax Act. The answer to the question must, therefore, be in the negative.

1[ds]That case can have no application to the present case6. In the view we take, that the allowance claimed is not a proper outgoing or allowance in computing the profits of the assessee, we do not express any opinion on the question whether the workmen of the undertaking became entitled to retrenchment compensation on the transfer of the undertaking to WalterThe obligation to pay compensation becomes definite only when there is retrenchment by the employer, or when the ownership or management of the undertaking is, except in the cases contemplated by the proviso transferred to a new employer, and not till then. The right therefore arises from determination of employment, or from transfer of the undertaking it has no existence before these events take place, thepresent value on commercial valuation of money to become due in future, under a definite obligation will be a permissible outgoing or deduction in computing the taxable profits of a trader, even if in certain conditions the obligation may cease to exist because of forfeiture of the right. Where,, theobligation of the trader is purely contingent, no question of estimating its present value may arise, for to be a permissible outgoing ore must in the year of account be a present obligation capable of commercial valuation11. As already, theliability to pay retrenchment compensation arose for the first time after the closure of the business and not before. It arose not in the carrying on of the business, but on account of the transfer of the business. During the entire period that the business, wasthere wason liability to pay retrenchment compensation. The liability which arose on transfer of the business was not of a revenue nature. Profits of a business involve comparison between the state of the business at two specific dates. Normally the liability which occurs after the last date, unless its source is in a pre-existing definite obligation, cannot be regarded as a part of the outgoing of the business debitable in the profit and loss account. A deduction which is proper and necessary for ascertaining the balance of profits and gains of the business is undoubtedly properly allowable, but where a liability to make a payment arises not in the course of the business, not for the purpose of carrying on the business, but springs from the transfer of the business, it is not, in our judgment, a properly debitable item in its profit and loss account as a revenue outgoing. The claim ofthe firmto treat it as an item in the determination of the profits ofthe firmunder S. 10 (1) of the Income-tax Actcannot,thereforebe sustained12. Under S. 10 (2) (xv) of the Indian Income-tax Act in the computation of taxable profits (omitting parts of the clause not material) "any expenditure laid out or expended wholly and exclusively for the purpose of such business, profession or vocation", i. e. business, profession or vocation carried on by the assessee, is a permissible allowance. But to be a permissible allowance the expenditure must be for the purpose of carrying on the business. Where accounts are maintained on the mercantilesystem,if liability to make the payment has arisen during the time the business is carried on, it may appropriately be regarded as expenditure. But where the liability is, during the whole of the period that the business is carried on, wholly contingent and does not raise any definite obligation during the time that the business is carried on, it cannot fall within the expression "expenditure laid out or expended wholly and exclusively" for the purpose of the business14. The amount of Rs. 1,41,506 claimed as a permissible allowance by the assessee in the profit and loss accountcannot,in our judgment be regarded as properly admissible either under S. 10 (1) or S. 10 (2) (xv) of the Income-tax Act. The answer to the question, be in the negative.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: the true costs of trading in the particular year into account for that year and thus promotes the ascertainment of the annual profits or gains arising or accruing from the trade." Lord MacDermott was of the view that the provision made by the Company led to anomalies, and was not admissible as made, and the case should be remitted to the Special Commissioner whether it is practicable to arrive at satisfactory deductions. Lord Radcliffe with whom the Lord Chancellor and Lord Tucker agreed was of the view that there is no rule of law which forbids the introduction of a provision for future payments in or payments out, if the right to receive them or the liability to make them is in legal terms contingent at the closing of the relevant year. 10. The question which arises in the present case is not about the admissibility of a provision made by a trader by the adoption of a reasonably satisfactory method estimating the present value of an obligation which may arise in future to pay a sum of money to his employees. The question that falls to be determined is whether the liability which arises on transfer of the business is to be regarded as a permissible outgoing in the account of the business which is transferred. Broadly stated, the present value on commercial valuation of money to become due in future, under a definite obligation will be a permissible outgoing or deduction in computing the taxable profits of a trader, even if in certain conditions the obligation may cease to exist because of forfeiture of the right. Where, however, the obligation of the trader is purely contingent, no question of estimating its present value may arise, for to be a permissible outgoing or allowance, there must in the year of account be a present obligation capable of commercial valuation. 11. As already observed, the liability to pay retrenchment compensation arose for the first time after the closure of the business and not before. It arose not in the carrying on of the business, but on account of the transfer of the business. During the entire period that the business, was continuing, there was on liability to pay retrenchment compensation. The liability which arose on transfer of the business was not of a revenue nature. Profits of a business involve comparison between the state of the business at two specific dates. Normally the liability which occurs after the last date, unless its source is in a pre-existing definite obligation, cannot be regarded as a part of the outgoing of the business debitable in the profit and loss account. A deduction which is proper and necessary for ascertaining the balance of profits and gains of the business is undoubtedly properly allowable, but where a liability to make a payment arises not in the course of the business, not for the purpose of carrying on the business, but springs from the transfer of the business, it is not, in our judgment, a properly debitable item in its profit and loss account as a revenue outgoing. The claim of the firm to treat it as an item in the determination of the profits of the firm under S. 10 (1) of the Income-tax Act cannot, therefore be sustained. 12. Under S. 10 (2) (xv) of the Indian Income-tax Act in the computation of taxable profits (omitting parts of the clause not material) "any expenditure laid out or expended wholly and exclusively for the purpose of such business, profession or vocation", i. e. business, profession or vocation carried on by the assessee, is a permissible allowance. But to be a permissible allowance the expenditure must be for the purpose of carrying on the business. Where accounts are maintained on the mercantile system, if liability to make the payment has arisen during the time the business is carried on, it may appropriately be regarded as expenditure. But where the liability is, during the whole of the period that the business is carried on, wholly contingent and does not raise any definite obligation during the time that the business is carried on, it cannot fall within the expression "expenditure laid out or expended wholly and exclusively" for the purpose of the business. 13. Two cases illustrative of the principle may be noticed. It was held by the Madras High Court in Commissioner of Income-tax, Madras v. Indian Metal and Metallurgical Corporation (1964) 51 ITR 240 (Mad) that a provision made in the annual accounts maintained by an employer setting apart by way of a reserve to meet the liability, if any, to which the employer may become subject in the event of retrenching workmen because of the necessity of retrenchment of the services of the staff, was not a liability in praesenti in the year of account, but was only a contingent liability which may arise on the happening of a particular contingency and was not allowable as a deduction in assessment of tax. This Court in dealing with a case under the Wealth Tax Act in Standard Mills Company Ltd. v. Commissioner of Wealth-tax Bombay, 1967-63 ITR 470 : (AIR 1967 SC 595 ) held that a liability under the award of the Industrial Court to pay gratuity to its employees at certain rates on death while in service, or on voluntary retirement or resignation after fifteen years continuous service, or on termination of service after certain specified periods, but not if the employee was dismissed for dishonesty for dishonesty or misconduct, was a mere contingent liability which arose only when the employment of employee was determined by death, incapacity, retirement or resignation : the liability did not exist in praesenti. 14. The amount of Rs. 1,41,506 claimed as a permissible allowance by the assessee in the profit and loss account cannot, in our judgment be regarded as properly admissible either under S. 10 (1) or S. 10 (2) (xv) of the Income-tax Act. The answer to the question must, therefore, be in the negative. ### Response: 1 ### Explanation: That case can have no application to the present case6. In the view we take, that the allowance claimed is not a proper outgoing or allowance in computing the profits of the assessee, we do not express any opinion on the question whether the workmen of the undertaking became entitled to retrenchment compensation on the transfer of the undertaking to WalterThe obligation to pay compensation becomes definite only when there is retrenchment by the employer, or when the ownership or management of the undertaking is, except in the cases contemplated by the proviso transferred to a new employer, and not till then. The right therefore arises from determination of employment, or from transfer of the undertaking it has no existence before these events take place, thepresent value on commercial valuation of money to become due in future, under a definite obligation will be a permissible outgoing or deduction in computing the taxable profits of a trader, even if in certain conditions the obligation may cease to exist because of forfeiture of the right. Where,, theobligation of the trader is purely contingent, no question of estimating its present value may arise, for to be a permissible outgoing ore must in the year of account be a present obligation capable of commercial valuation11. As already, theliability to pay retrenchment compensation arose for the first time after the closure of the business and not before. It arose not in the carrying on of the business, but on account of the transfer of the business. During the entire period that the business, wasthere wason liability to pay retrenchment compensation. The liability which arose on transfer of the business was not of a revenue nature. Profits of a business involve comparison between the state of the business at two specific dates. Normally the liability which occurs after the last date, unless its source is in a pre-existing definite obligation, cannot be regarded as a part of the outgoing of the business debitable in the profit and loss account. A deduction which is proper and necessary for ascertaining the balance of profits and gains of the business is undoubtedly properly allowable, but where a liability to make a payment arises not in the course of the business, not for the purpose of carrying on the business, but springs from the transfer of the business, it is not, in our judgment, a properly debitable item in its profit and loss account as a revenue outgoing. The claim ofthe firmto treat it as an item in the determination of the profits ofthe firmunder S. 10 (1) of the Income-tax Actcannot,thereforebe sustained12. Under S. 10 (2) (xv) of the Indian Income-tax Act in the computation of taxable profits (omitting parts of the clause not material) "any expenditure laid out or expended wholly and exclusively for the purpose of such business, profession or vocation", i. e. business, profession or vocation carried on by the assessee, is a permissible allowance. But to be a permissible allowance the expenditure must be for the purpose of carrying on the business. Where accounts are maintained on the mercantilesystem,if liability to make the payment has arisen during the time the business is carried on, it may appropriately be regarded as expenditure. But where the liability is, during the whole of the period that the business is carried on, wholly contingent and does not raise any definite obligation during the time that the business is carried on, it cannot fall within the expression "expenditure laid out or expended wholly and exclusively" for the purpose of the business14. The amount of Rs. 1,41,506 claimed as a permissible allowance by the assessee in the profit and loss accountcannot,in our judgment be regarded as properly admissible either under S. 10 (1) or S. 10 (2) (xv) of the Income-tax Act. The answer to the question, be in the negative.

Mahendra Mills Ltd Vs. P.B. Desai, Appellate Assistant Commissioner of Income Tax and Anr

the closing stock of assessment year 1959-60 formed a part of the evidence re1evant to the assessment for the assessment year 1960-61, Thus to the extent of ascertaining the closing and opening stock positions, the two assessments telescoped into each other. Indeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessees appeal regarding A. Y. 1960-61. The Tribunals finding, that the value of the closing stock for A. Y. 1959-60 should be Rupees 5,89,439/-, had completely replaced the Income-tax Officers finding in regard to that fact with effect from the date of the Income-tax Officers order relating to A. Y. 1959-60. If the I.T. Os, finding with regard to the closing stock for A. Y. l959-60 was relevant to any part of the "record of appeal" the Tribunals decision which superseded that finding was equally so within the contemplation of Section 35 of the Act. It cannot be gainsaid that the mistake in regard to the opening stock for A. Y. 1960-61 being Rs. 8.,04,121/-, was quite apparent when the Appellate Assistant Commissioner undertook to rectify his appellate order dated 30-6-1965. The correct figure of finally determined by the Tribuna1 being Rs. 5,89,439|-.Thus considered, it is clear that for the purpose of ascertaining the true stock position the record of the assessment for A. Y. 1959-60. including the Tribunals decision was not extraneous or irrelevant to the record of the appeal and could legitimately be looked into for the purpose of correcting the mistake by the Appellate Assistant Commissioner. 16. Thus the first contention of the appellant stands overruled. 17. The second point canvassed by Shri Desai is well-nigh covered by the ratio of the Privy Council decision in Khem Chands case. 6 ITR 414 = 65 Ind App 236 = (AIR 1938 PC 175 ) (supra). The assesses in that case did not produce his account books and the Income-tax Officer made an assessment on the best judgment basis. On the application of the assessee, however, he allowed registration of the assessee-firm on January 17, 1927. As it was a registered firm, he did not in the assessment order made under Section 23 (4) on the same day assess any super tax. The Commissioner of Income-tax in exercise of his powers under Section 33 of the Act called for the record, cancelled the registration on January 28. 1927, and directed the I.T. O. to take necessary consequential action The result was that by an order dated May 4. 1929, the assesses was assessed to super tax. Three days later a demand notice was issued. On these facts, delivering the opinion of the Judicial Committee. Lord Romer made these pertinent observations in regard to the applicability of S. 35: "in their Lordships opinion. the case clearly would have fallen within the provisions of Section 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For looking at the record of the assessments made upon them as it stood after the cancellation of the respondents registration - and the order affecting the cancellation would have formed part of that record - it would be apparent that a mistake had been made in stating that no super tax, was leviable." 18. From the quotes above it is evident that the Judicial Committee considered the order of the Commissioner cancelling the registration of the assessees firm. - although passed about 11 days after the original assessment - to have formed part of the record of that assessment, for the purpose of rectifying the mistake as a mistake apparent from the record of the case. On parity of reasoning, in the instant case the finding of the Tribunal as to the valuation of the stock although recorded subsequently to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of appeal and taken into account for the purpose of correcting the mistake under Section 35 as to the value of the opening stock for A. Y. 1960-61 apparent from that record. 19. We do not want to overburden this judgment by a discussion of Ganapatho Subraya Hegdes case, 84 ITR 523 = (1972 Tax LR 2516) (Mys (supra) cited by Shri Desai. Suffice it to say that this was a case under Section 37 of the Mysore Agricultural Income-tax Act, 1957. The notice for rectification issued in that case and the orders of the authority were found to be defective inasmuch as they did not state that there was any mistake apparent on the record of the assessment proceedings for the previous three years in question. Maharana Mills case, 1959 Supp (2) SCR 547 = (AIR 1959 SC 881 ) and Khemchands case, 6 ITR 414 = 65 Ind App 236 = (AIR 1938 PC 175 ) (supra) were not noticed by the High Court in that case. 20. Lastly, Shri Desai urged that we should not lose sight of the startling results which might flow from a liberal interpretation of Section 35. It is apprehended that if the phrase "record of the appeal" is widely interpreted so as to cover the records of all collateral proceedings and subsequent events. it would leave the door wide open to endless harassment of assessees; the income-tax authorities would under the guise of correcting mistakes lightly reopen assessments long past and closed and thus introduce an element of disconcerting instability in the administration of the Act. 21. In our opinion there is no room for any such apprehension. It must be remembered that a decision is a precedent on its own facts. Each case presents its own features. The income-tax authorities and Tribunals are supposed to apply the ratio of a decision to the facts of Particular cases with due care and discernment bearing in mind the restricted scope of their jurisdiction under S. 35 and the object for which it is conferred.

0[ds]13. The interpretation of the words "record of appeal" is not a matter which is res integra15. The observations of this Court, quoted above, fully apply to the facts of the case in hand. It will bear repetition that the closing stock for the assessment year 1959-60 as entered in the books of the assesses was Rs. 5,89,439/- and as found by the Income-tax Officer was Rs. 8,04,121/-.Since the closing stock of one assessment year furnishes the figure of the opening stock for the succeeding year, it follows that the record showing the closing stock of assessment year 1959-60 formed a part of the evidence re1evant to the assessment for the assessment year 1960-61, Thus to the extent of ascertaining the closing and opening stock positions, the two assessments telescoped into each other. Indeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessees appeal regarding A. Y. 1960-61. The Tribunals finding, that the value of the closing stock for A. Y. 1959-60 should be Rupees 5,89,439/-, had completely replaced the Income-tax Officers finding in regard to that fact with effect from the date of the Income-tax Officers order relating to A. Y. 1959-60. If the I.T. Os, finding with regard to the closing stock for A. Y. l959-60 was relevant to any part of the "record of appeal" the Tribunals decision which superseded that finding was equally so within the contemplation of Section 35 of the Act. It cannot be gainsaid that the mistake in regard to the opening stock for A. Y. 1960-61 being Rs. 8.,04,121/-, was quite apparent when the Appellate Assistant Commissioner undertook to rectify his appellate order dated 30-6-1965. The correct figure of finally determined by the Tribuna1 being Rs. 5,89,439|-.Thus considered, it is clear that for the purpose of ascertaining the true stock position the record of the assessment for A. Y. 1959-60. including the Tribunals decision was not extraneous or irrelevant to the record of the appeal and could legitimately be looked into for the purpose of correcting the mistake by the Appellate Assistant Commissioner16. Thus the first contention of the appellant stands overruled17. The second point canvassed by Shri Desai is well-nigh covered by the ratio of the Privy Council decision in Khem Chands case18. From the quotes above it is evident that the Judicial Committee considered the order of the Commissioner cancelling the registration of the assessees firm. - although passed about 11 days after the original assessment - to have formed part of the record of that assessment, for the purpose of rectifying the mistake as a mistake apparent from the record of the case. On parity of reasoning, in the instant case the finding of the Tribunal as to the valuation of the stock although recorded subsequently to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of appeal and taken into account for the purpose of correcting the mistake under Section 35 as to the value of the opening stock for A. Y. 1960-61 apparent from that recordIt is apprehended that if the phrase "record of the appeal" is widely interpreted so as to cover the records of all collateral proceedings and subsequent events. it would leave the door wide open to endless harassment of assessees; the income-tax authorities would under the guise of correcting mistakes lightly reopen assessments long past and closed and thus introduce an element of disconcerting instability in the administration of the Act21. In our opinion there is no room for any such apprehension. It must be remembered that a decision is a precedent on its own facts. Each case presents its own features. The income-tax authorities and Tribunals are supposed to apply the ratio of a decision to the facts of Particular cases with due care and discernment bearing in mind the restricted scope of their jurisdiction under S. 35 and the object for which it is conferred.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: the closing stock of assessment year 1959-60 formed a part of the evidence re1evant to the assessment for the assessment year 1960-61, Thus to the extent of ascertaining the closing and opening stock positions, the two assessments telescoped into each other. Indeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessees appeal regarding A. Y. 1960-61. The Tribunals finding, that the value of the closing stock for A. Y. 1959-60 should be Rupees 5,89,439/-, had completely replaced the Income-tax Officers finding in regard to that fact with effect from the date of the Income-tax Officers order relating to A. Y. 1959-60. If the I.T. Os, finding with regard to the closing stock for A. Y. l959-60 was relevant to any part of the "record of appeal" the Tribunals decision which superseded that finding was equally so within the contemplation of Section 35 of the Act. It cannot be gainsaid that the mistake in regard to the opening stock for A. Y. 1960-61 being Rs. 8.,04,121/-, was quite apparent when the Appellate Assistant Commissioner undertook to rectify his appellate order dated 30-6-1965. The correct figure of finally determined by the Tribuna1 being Rs. 5,89,439|-.Thus considered, it is clear that for the purpose of ascertaining the true stock position the record of the assessment for A. Y. 1959-60. including the Tribunals decision was not extraneous or irrelevant to the record of the appeal and could legitimately be looked into for the purpose of correcting the mistake by the Appellate Assistant Commissioner. 16. Thus the first contention of the appellant stands overruled. 17. The second point canvassed by Shri Desai is well-nigh covered by the ratio of the Privy Council decision in Khem Chands case. 6 ITR 414 = 65 Ind App 236 = (AIR 1938 PC 175 ) (supra). The assesses in that case did not produce his account books and the Income-tax Officer made an assessment on the best judgment basis. On the application of the assessee, however, he allowed registration of the assessee-firm on January 17, 1927. As it was a registered firm, he did not in the assessment order made under Section 23 (4) on the same day assess any super tax. The Commissioner of Income-tax in exercise of his powers under Section 33 of the Act called for the record, cancelled the registration on January 28. 1927, and directed the I.T. O. to take necessary consequential action The result was that by an order dated May 4. 1929, the assesses was assessed to super tax. Three days later a demand notice was issued. On these facts, delivering the opinion of the Judicial Committee. Lord Romer made these pertinent observations in regard to the applicability of S. 35: "in their Lordships opinion. the case clearly would have fallen within the provisions of Section 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For looking at the record of the assessments made upon them as it stood after the cancellation of the respondents registration - and the order affecting the cancellation would have formed part of that record - it would be apparent that a mistake had been made in stating that no super tax, was leviable." 18. From the quotes above it is evident that the Judicial Committee considered the order of the Commissioner cancelling the registration of the assessees firm. - although passed about 11 days after the original assessment - to have formed part of the record of that assessment, for the purpose of rectifying the mistake as a mistake apparent from the record of the case. On parity of reasoning, in the instant case the finding of the Tribunal as to the valuation of the stock although recorded subsequently to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of appeal and taken into account for the purpose of correcting the mistake under Section 35 as to the value of the opening stock for A. Y. 1960-61 apparent from that record. 19. We do not want to overburden this judgment by a discussion of Ganapatho Subraya Hegdes case, 84 ITR 523 = (1972 Tax LR 2516) (Mys (supra) cited by Shri Desai. Suffice it to say that this was a case under Section 37 of the Mysore Agricultural Income-tax Act, 1957. The notice for rectification issued in that case and the orders of the authority were found to be defective inasmuch as they did not state that there was any mistake apparent on the record of the assessment proceedings for the previous three years in question. Maharana Mills case, 1959 Supp (2) SCR 547 = (AIR 1959 SC 881 ) and Khemchands case, 6 ITR 414 = 65 Ind App 236 = (AIR 1938 PC 175 ) (supra) were not noticed by the High Court in that case. 20. Lastly, Shri Desai urged that we should not lose sight of the startling results which might flow from a liberal interpretation of Section 35. It is apprehended that if the phrase "record of the appeal" is widely interpreted so as to cover the records of all collateral proceedings and subsequent events. it would leave the door wide open to endless harassment of assessees; the income-tax authorities would under the guise of correcting mistakes lightly reopen assessments long past and closed and thus introduce an element of disconcerting instability in the administration of the Act. 21. In our opinion there is no room for any such apprehension. It must be remembered that a decision is a precedent on its own facts. Each case presents its own features. The income-tax authorities and Tribunals are supposed to apply the ratio of a decision to the facts of Particular cases with due care and discernment bearing in mind the restricted scope of their jurisdiction under S. 35 and the object for which it is conferred. ### Response: 0 ### Explanation: 13. The interpretation of the words "record of appeal" is not a matter which is res integra15. The observations of this Court, quoted above, fully apply to the facts of the case in hand. It will bear repetition that the closing stock for the assessment year 1959-60 as entered in the books of the assesses was Rs. 5,89,439/- and as found by the Income-tax Officer was Rs. 8,04,121/-.Since the closing stock of one assessment year furnishes the figure of the opening stock for the succeeding year, it follows that the record showing the closing stock of assessment year 1959-60 formed a part of the evidence re1evant to the assessment for the assessment year 1960-61, Thus to the extent of ascertaining the closing and opening stock positions, the two assessments telescoped into each other. Indeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessees appeal regarding A. Y. 1960-61. The Tribunals finding, that the value of the closing stock for A. Y. 1959-60 should be Rupees 5,89,439/-, had completely replaced the Income-tax Officers finding in regard to that fact with effect from the date of the Income-tax Officers order relating to A. Y. 1959-60. If the I.T. Os, finding with regard to the closing stock for A. Y. l959-60 was relevant to any part of the "record of appeal" the Tribunals decision which superseded that finding was equally so within the contemplation of Section 35 of the Act. It cannot be gainsaid that the mistake in regard to the opening stock for A. Y. 1960-61 being Rs. 8.,04,121/-, was quite apparent when the Appellate Assistant Commissioner undertook to rectify his appellate order dated 30-6-1965. The correct figure of finally determined by the Tribuna1 being Rs. 5,89,439|-.Thus considered, it is clear that for the purpose of ascertaining the true stock position the record of the assessment for A. Y. 1959-60. including the Tribunals decision was not extraneous or irrelevant to the record of the appeal and could legitimately be looked into for the purpose of correcting the mistake by the Appellate Assistant Commissioner16. Thus the first contention of the appellant stands overruled17. The second point canvassed by Shri Desai is well-nigh covered by the ratio of the Privy Council decision in Khem Chands case18. From the quotes above it is evident that the Judicial Committee considered the order of the Commissioner cancelling the registration of the assessees firm. - although passed about 11 days after the original assessment - to have formed part of the record of that assessment, for the purpose of rectifying the mistake as a mistake apparent from the record of the case. On parity of reasoning, in the instant case the finding of the Tribunal as to the valuation of the stock although recorded subsequently to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of appeal and taken into account for the purpose of correcting the mistake under Section 35 as to the value of the opening stock for A. Y. 1960-61 apparent from that recordIt is apprehended that if the phrase "record of the appeal" is widely interpreted so as to cover the records of all collateral proceedings and subsequent events. it would leave the door wide open to endless harassment of assessees; the income-tax authorities would under the guise of correcting mistakes lightly reopen assessments long past and closed and thus introduce an element of disconcerting instability in the administration of the Act21. In our opinion there is no room for any such apprehension. It must be remembered that a decision is a precedent on its own facts. Each case presents its own features. The income-tax authorities and Tribunals are supposed to apply the ratio of a decision to the facts of Particular cases with due care and discernment bearing in mind the restricted scope of their jurisdiction under S. 35 and the object for which it is conferred.

Bansidhar Shankarlal Vs. Mohd. Ibrahim & Anr

Ramchandra Shukul (ILR 52 ALL 430) Roopnarain Ramchandra Private Ltd. v. Brahmapootra Tea Co. (India) Ltd. and Another. (65 Cal WN 1060)Section 171 of the Indian Companies Act, 1913 provided that -"When a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the Company except by leave of the Court and subject to such terms as the Court may impose."This section is in terms analogous to Section 231 of the English Companies Act, 1948 (11 and 122 Geo. 6 Ch. 38). The object of Section 171 is plain. It is intended to ensure that the assets of a company ordered to be wound up by the Court shall be administered for the benefit of all the creditors, and that some creditors only shall not obtain in advantage over others by instituting or prosecuting proceedings against the company. The section is intended to maintain control of the court which has made an order for winding up on proceedings which may be pending against the company or may be initiated after the order of winding up, and the Court may remain seized of all those matters so that its affairs are administered equitably and in an orderly fashion.6. When the Second Appeal No. 1380 of 1954 was pending before the High Court of Calcutta at the instance of the Company and Bansidhar against the decree passed by the District Court in enjectment, the Company was ordered to be wound up by order of the High Court of Calcutta and the liquidators were appointed. The liquidators prosecuted the appeal. There is no evidence on the record whether the liquidators obtained the sanction of the Court under Section 179(1) (a) of the Companies Act 1913. But there is no reason to suppose that the liquidators did not obtain the sanction of the Court. If sanction of the Court under Section 179 to prosecute the appeal before the High Court was obtained, and it must be so assumed, the contention raised on behalf of Bansidhar loses all significance for an execution applications is only a continuation of the suite and the control of the High Court ensures during the execution proceeding also. It the sanction of the Court has been obtained for the prosecution of the suit, it would be plainly unnecessary to obtain fresh sanction to the institution of execution proceedings at the instance of the successful party. It is true that the sanction obtained by the liquidators is granted under Section 179 of the Companies Act to initiate or enforce a claim of the company or to defend an action, whereas the leave of the Court to institute or to continue a suit against the company in winding up is obtained under Section 171. It would be giving effect to a technicality divorced from the true object of the section to hold that even in a suit filed or prosecuted with the sanction of the Court, the decree may not be enforced by a successful party without leave under Section 171 of the Act.7. Even granting that sanction under Section 179 does not dispense with the leave under Section 171 of the Act, to institute a proceedings in execution against a company ordered to be wound up, we do not think that there is anything in the Act which makes the leave a condition precedent to the institution of a proceedings in execution of a decree against the company and failure to obtain leave before institution of the proceeding entails dismissal of the proceedings. The suit or proceedings instituted without leave of the Court may, in out judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceedings will be instituted on the date granting leave.In Buckley on the Companies Act, 13th Edn., at p. 490 it is observed:"Leave to continue after winding up a debenture-holders action, whether previously or subsequently commenced, will be given unless the liquidator is able and willing to give in the winding up the relief which could be obtained in the action."The Calcutta High Court in Suresh Chandra v. The Bank of Calcutta examined the decision of the English Courts in some details and observed that as regards Section 171 of the Indian Companies Act, 1913, the High Court has jurisdiction to grant leave to proceed with the suit or other proceedings against a company in liquidations even if such leave was not obtained for its commencement. The proceedings may at best be regarded as instituted on the date on which the leave was obtained for the High Court.8. Considering the question both on principle and authority we are unable to agree with the view expressed by the Calcutta High Court in Har Narain Misras case (supra) and in Godavari Sugar and Refineries Ltd. case (supra) by the Andhra Pradesh High Court.9. Counsel for the appellant, however, urged that this Court is not concerned in this appeal with the correctness of one or the other of the two conflicting views. Counsel says the Court has only to consider the correctness of the view of the High Court refusing to granted the certificate. In our judgment, it would be a futile exercise if we come to the conclusion that the view taken by the High Court on the merits of the case is true, still to certify the case for appeal. The proposed appeal only involves the question about the maintainability of the execution proceeding commenced by the plaintiff and against the company in liquidation without leave of the High Court which has ordered the company to be wound up. WE entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the on which we have expressed out opinion against the appellant.

0[ds]8. Considering the question both on principle and authority we are unable to agree with the view expressed by the Calcutta High Court in Har Narain Misras case (supra) and in Godavari Sugar and Refineries Ltd. case (supra) by the Andhra Pradesh High Court.9.Counsel for the appellant, however, urged that this Court is not concerned in this appeal with the correctness of one or the other of the two conflicting views. Counsel says the Court has only to consider the correctness of the view of the High Court refusing to granted the certificate.In our judgment, it would be a futile exercise if we come to the conclusion that the view taken by the High Court on the merits of the case is true, still to certify the case for appeal. The proposed appeal only involves the question about the maintainability of the execution proceeding commenced by the plaintiff and against the company in liquidation without leave of the High Court which has ordered the company to be wound up. WE entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the on which we have expressed out opinion against the appellant.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: Ramchandra Shukul (ILR 52 ALL 430) Roopnarain Ramchandra Private Ltd. v. Brahmapootra Tea Co. (India) Ltd. and Another. (65 Cal WN 1060)Section 171 of the Indian Companies Act, 1913 provided that -"When a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the Company except by leave of the Court and subject to such terms as the Court may impose."This section is in terms analogous to Section 231 of the English Companies Act, 1948 (11 and 122 Geo. 6 Ch. 38). The object of Section 171 is plain. It is intended to ensure that the assets of a company ordered to be wound up by the Court shall be administered for the benefit of all the creditors, and that some creditors only shall not obtain in advantage over others by instituting or prosecuting proceedings against the company. The section is intended to maintain control of the court which has made an order for winding up on proceedings which may be pending against the company or may be initiated after the order of winding up, and the Court may remain seized of all those matters so that its affairs are administered equitably and in an orderly fashion.6. When the Second Appeal No. 1380 of 1954 was pending before the High Court of Calcutta at the instance of the Company and Bansidhar against the decree passed by the District Court in enjectment, the Company was ordered to be wound up by order of the High Court of Calcutta and the liquidators were appointed. The liquidators prosecuted the appeal. There is no evidence on the record whether the liquidators obtained the sanction of the Court under Section 179(1) (a) of the Companies Act 1913. But there is no reason to suppose that the liquidators did not obtain the sanction of the Court. If sanction of the Court under Section 179 to prosecute the appeal before the High Court was obtained, and it must be so assumed, the contention raised on behalf of Bansidhar loses all significance for an execution applications is only a continuation of the suite and the control of the High Court ensures during the execution proceeding also. It the sanction of the Court has been obtained for the prosecution of the suit, it would be plainly unnecessary to obtain fresh sanction to the institution of execution proceedings at the instance of the successful party. It is true that the sanction obtained by the liquidators is granted under Section 179 of the Companies Act to initiate or enforce a claim of the company or to defend an action, whereas the leave of the Court to institute or to continue a suit against the company in winding up is obtained under Section 171. It would be giving effect to a technicality divorced from the true object of the section to hold that even in a suit filed or prosecuted with the sanction of the Court, the decree may not be enforced by a successful party without leave under Section 171 of the Act.7. Even granting that sanction under Section 179 does not dispense with the leave under Section 171 of the Act, to institute a proceedings in execution against a company ordered to be wound up, we do not think that there is anything in the Act which makes the leave a condition precedent to the institution of a proceedings in execution of a decree against the company and failure to obtain leave before institution of the proceeding entails dismissal of the proceedings. The suit or proceedings instituted without leave of the Court may, in out judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceedings will be instituted on the date granting leave.In Buckley on the Companies Act, 13th Edn., at p. 490 it is observed:"Leave to continue after winding up a debenture-holders action, whether previously or subsequently commenced, will be given unless the liquidator is able and willing to give in the winding up the relief which could be obtained in the action."The Calcutta High Court in Suresh Chandra v. The Bank of Calcutta examined the decision of the English Courts in some details and observed that as regards Section 171 of the Indian Companies Act, 1913, the High Court has jurisdiction to grant leave to proceed with the suit or other proceedings against a company in liquidations even if such leave was not obtained for its commencement. The proceedings may at best be regarded as instituted on the date on which the leave was obtained for the High Court.8. Considering the question both on principle and authority we are unable to agree with the view expressed by the Calcutta High Court in Har Narain Misras case (supra) and in Godavari Sugar and Refineries Ltd. case (supra) by the Andhra Pradesh High Court.9. Counsel for the appellant, however, urged that this Court is not concerned in this appeal with the correctness of one or the other of the two conflicting views. Counsel says the Court has only to consider the correctness of the view of the High Court refusing to granted the certificate. In our judgment, it would be a futile exercise if we come to the conclusion that the view taken by the High Court on the merits of the case is true, still to certify the case for appeal. The proposed appeal only involves the question about the maintainability of the execution proceeding commenced by the plaintiff and against the company in liquidation without leave of the High Court which has ordered the company to be wound up. WE entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the on which we have expressed out opinion against the appellant. ### Response: 0 ### Explanation: 8. Considering the question both on principle and authority we are unable to agree with the view expressed by the Calcutta High Court in Har Narain Misras case (supra) and in Godavari Sugar and Refineries Ltd. case (supra) by the Andhra Pradesh High Court.9.Counsel for the appellant, however, urged that this Court is not concerned in this appeal with the correctness of one or the other of the two conflicting views. Counsel says the Court has only to consider the correctness of the view of the High Court refusing to granted the certificate.In our judgment, it would be a futile exercise if we come to the conclusion that the view taken by the High Court on the merits of the case is true, still to certify the case for appeal. The proposed appeal only involves the question about the maintainability of the execution proceeding commenced by the plaintiff and against the company in liquidation without leave of the High Court which has ordered the company to be wound up. WE entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the on which we have expressed out opinion against the appellant.

Awadesh Kumar Jha @ Akhilesh Kumar Jha Vs. The State Of Bihar

basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally with the leave of the court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.xx xx xx58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.”(emphasis supplied by this Court) 25. It is well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of offence or the same occurrence or incident giving rise to one or more offences for which chargesheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under sub-Section (8) to Section 173 of Cr.P.C. The reliance is placed on the decision of this court rendered in T.T.Antony v. State of Kerala ((2001) 6 SCC 181 ), relevant paras of which read thus: “19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.xx xx xx21. ...The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs — the first and the second — is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.”(emphasis supplied) 26. However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the term “further investigation” occurred under sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of the case in continuation of the earlier investigation with respect to which the chargesheet has already been filed. The reliance is placed on the judgment of this Court in the case of Rama Chaudhary v. State of Bihar (2009) 6 SCC 346 ), the relevant para 17 reads thus: “17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”(emphasis supplied) 27. Therefore, for the above said reasons the submissions made on behalf of both the appellants are not tenable in law and the same cannot be accepted by this Court. Further, the case of Amitbhai Anilchandra Shah (supra) upon which strong reliance is placed by the learned counsel for both the appellants is also totally inapplicable to the fact situation and it does not support the case of both the appellants.

0[ds]23. From a bare perusal of second FIR, it is abundantly clear that both the appellants have furnished wrong information to the police as to their names,name and address during the course of investigation made on the first FIR. This Court is of the view that the offences alleged to have committed by them are mentioned in second FIR, which offences are distinct offences committed by both the appellants and the same have no connection with the offences for which the first FIR was registered against them. Therefore, for the reason stated supra, the contention urged by the learned counsel on behalf of both the appellants that instead of institution of second FIR for the said offences, a further investigation as provided under(8) to Section 173 of Cr.P.C. should have been done by the investigation officer on the ground of they being the part of same transaction with offences registered under first FIR is wholly untenable in law and liable to be rejected.It is well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of offence or the same occurrence or incident giving rise to one or more offences for which chargesheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under(8) to Section 173 of Cr.P.C.However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the termed under) to Section 173 of Cr.P.C.connotes the investigation of the case in continuation of the earlier investigation with respect to which the chargesheet has already been filed.Therefore, for the above said reasons the submissions made on behalf of both the appellants are not tenable in law and the same cannot be accepted by this Court. Further, the case of Amitbhai Anilchandra Shah (supra) upon which strong reliance is placed by the learned counsel for both the appellants is also totally inapplicable to the fact situation and it does not support the case of both the appellants.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally with the leave of the court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.xx xx xx58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.”(emphasis supplied by this Court) 25. It is well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of offence or the same occurrence or incident giving rise to one or more offences for which chargesheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under sub-Section (8) to Section 173 of Cr.P.C. The reliance is placed on the decision of this court rendered in T.T.Antony v. State of Kerala ((2001) 6 SCC 181 ), relevant paras of which read thus: “19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.xx xx xx21. ...The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs — the first and the second — is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.”(emphasis supplied) 26. However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the term “further investigation” occurred under sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of the case in continuation of the earlier investigation with respect to which the chargesheet has already been filed. The reliance is placed on the judgment of this Court in the case of Rama Chaudhary v. State of Bihar (2009) 6 SCC 346 ), the relevant para 17 reads thus: “17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”(emphasis supplied) 27. Therefore, for the above said reasons the submissions made on behalf of both the appellants are not tenable in law and the same cannot be accepted by this Court. Further, the case of Amitbhai Anilchandra Shah (supra) upon which strong reliance is placed by the learned counsel for both the appellants is also totally inapplicable to the fact situation and it does not support the case of both the appellants. ### Response: 0 ### Explanation: 23. From a bare perusal of second FIR, it is abundantly clear that both the appellants have furnished wrong information to the police as to their names,name and address during the course of investigation made on the first FIR. This Court is of the view that the offences alleged to have committed by them are mentioned in second FIR, which offences are distinct offences committed by both the appellants and the same have no connection with the offences for which the first FIR was registered against them. Therefore, for the reason stated supra, the contention urged by the learned counsel on behalf of both the appellants that instead of institution of second FIR for the said offences, a further investigation as provided under(8) to Section 173 of Cr.P.C. should have been done by the investigation officer on the ground of they being the part of same transaction with offences registered under first FIR is wholly untenable in law and liable to be rejected.It is well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of offence or the same occurrence or incident giving rise to one or more offences for which chargesheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under(8) to Section 173 of Cr.P.C.However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the termed under) to Section 173 of Cr.P.C.connotes the investigation of the case in continuation of the earlier investigation with respect to which the chargesheet has already been filed.Therefore, for the above said reasons the submissions made on behalf of both the appellants are not tenable in law and the same cannot be accepted by this Court. Further, the case of Amitbhai Anilchandra Shah (supra) upon which strong reliance is placed by the learned counsel for both the appellants is also totally inapplicable to the fact situation and it does not support the case of both the appellants.

H.N. Jagannath & Others Vs. State of Karnataka & Others

evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed land de-notified has also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seeking de-notification. The writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.12. We do not find any reason to interfere in the finding of fact rendered by the learned Single Judge that possession was taken by BDA on 23.09.1986. There is nothing to be adjudicated further in respect of the title or possession of the property. The title as well as the possession of the property has vested with the BDA for about more than 30 years prior to this day and sites were formed and allotted to various persons including the appellant herein. In the light of such voluminous records and having regard to the fact that respondent no. 4 has been repeatedly making futile attempts by approaching the courts of law by raising frivolous contentions, the Division Bench ought not to have granted liberty to respondent no. 4 to approach the civil court once again for the very same relief, for which it has failed earlier. In view of this, learned counsel for the appellant is justified in contending that the Division Bench has completely erred in reviving the dispute which had long been given a legal quietus after a series of litigations. The Judgment of the Division Bench, if allowed to stand, will unsettle the settled state of affairs involving hundreds of allottees of sites who have constructed the houses and are residing therein. The impugned judgment of the Division Bench virtually sets at naught a number of judgments rendered by the civil court as well as the High Court in the very matter (and was given without any reason much less a valid reason).13. The Division Bench has erroneously conferred jurisdiction upon the civil court to decide the validity of the acquisition. This Court has repeatedly held in a number of judgments that, by implication, the power of a civil court to take cognizance of such cases under Section 9 of the CPC stands excluded and the civil court has no jurisdiction to go into the question of validity under Section 4 and declaration under Section 6 of the Land Acquisition Act. It is only the High Court which will consider such matter under Article 226 of the Constitution. So, the civil suit, per se is not maintainable for adjudicating the validity or otherwise of the acquisition notifications & proceedings arising therefrom. This Court in the case of Bangalore Development Authority v. Brijesh Reddy & Anr, 2013(2) R.C.R.(Civil) 444 : 2013(2) Recent Apex Judgments (R.A.J.) 356 : 2013 (3) SCC 66 ] while considering the acquisition notifications issued under BDA Act observed thus:"It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 26 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power."A similar view is taken by this Court in other cases. The Judgments of this Court in Laxmi Chand & Ors. v. Gram Panchayat, Kararia & Ors. [1996 (7) SCC 218 ], Shri Girish Vyas v. State of Maharashtra [2012 (3) SCC 619 ], State of Bihar v. Dhirendra Kumar & Ors. [1995 (4) SCC 229 ], Commissioner, Bangalore Development Authority v. K. S. Narayan [206 (8) SCC 336] & Commissioner, Mutha Associates & Ors. v. State of Maharashtra [2013 (14) SCC 304 ]considered the acquisition proceedings relating to the lands which were acquired either under the provisions of the BDA Act or under the Land Acquisition Act. In all these judgments, similar question arose i.e. as to whether the civil court had jurisdiction to decide the validity of the acquisition notifications or not.14. Having regard to the discussion made supra, in our considered opinion, it is a clear case of contempt committed by respondent no.4 by repeatedly approaching the courts of law for almost the same relief which was negatived by the courts for three decades. However, we decline to initiate contempt proceedings and to impose heavy costs, under the peculiar facts and circumstance of this case.15. It is to be noted that the Division Bench has given liberty to respondent no. 4 to work out his remedy in a civil suit without even setting aside the findings of the learned Single Judge and the findings rendered in the judgments passed by the Civil Court and the High Court of Karnataka in a number of matters (mentioned supra). In our opinion the Division Bench of the High Court of Karnataka has in a casual manner relegated the parties to the civil court to work out their remedies in the suit which is to be instituted afresh by respondent no. 4. Thus, the said conclusion of the Division Bench of the High Court is not sustainable in law.

1[ds]The BDA has formed and allotted the sites. Most of the allottees have constructed houses and are residing peacefully. However, respondent no. 4 still contends that possession has remained with it and therefore the acquisition needs to be set aside and that the land should beAs detailed supra, respondent no. 4 has already approached the civil court thrice and High Court on six occasions. Whenever the suits are withdrawn, respondent no. 4 has not sought any liberty to approach the civil court once again. Thus, it was not open for respondent no. 4 to approach the civil court repeatedly for the very reliefs. Consistently, the civil court on three occasions has negatived the contention of the appellant.11. Even when respondent no. 4 approached the High Court of Karnataka by filing the writ petitions and writ appeals, it has failed. Futile attempts have been made by respondent no. 4 only to see that the allottees are harassed and to keep the litigation pending. After the final notification, an award was passed and compensation was deposited. Possession was taken and the same was evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed landhas also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seekingThe writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.12. We do not find any reason to interfere in the finding of fact rendered by the learned Single Judge that possession was taken by BDA on 23.09.1986. There is nothing to be adjudicated further in respect of the title or possession of the property. The title as well as the possession of the property has vested with the BDA for about more than 30 years prior to this day and sites were formed and allotted to various persons including the appellant herein.The Division Bench has erroneously conferred jurisdiction upon the civil court to decide the validity of the acquisition. This Court has repeatedly held in a number of judgments that, by implication, the power of a civil court to take cognizance of such cases under Section 9 of the CPC stands excluded and the civil court has no jurisdiction to go into the question of validity under Section 4 and declaration under Section 6 of the Land Acquisition Act. It is only the High Court which will consider such matter under Article 226 of the Constitution. So, the civil suit, per se is not maintainable for adjudicating the validity or otherwise of the acquisition notifications & proceedings arising therefrom.Having regard to the discussion made supra, in our considered opinion, it is a clear case of contempt committed by respondent no.4 by repeatedly approaching the courts of law for almost the same relief which was negatived by the courts for three decades. However, we decline to initiate contempt proceedings and to impose heavy costs, under the peculiar facts and circumstance of this case.15. It is to be noted that the Division Bench has given liberty to respondent no. 4 to work out his remedy in a civil suit without even setting aside the findings of the learned Single Judge and the findings rendered in the judgments passed by the Civil Court and the High Court of Karnataka in a number of matters (mentioned supra). In our opinion the Division Bench of the High Court of Karnataka has in a casual manner relegated the parties to the civil court to work out their remedies in the suit which is to be instituted afresh by respondent no. 4. Thus, the said conclusion of the Division Bench of the High Court is not sustainable in law.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed land de-notified has also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seeking de-notification. The writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.12. We do not find any reason to interfere in the finding of fact rendered by the learned Single Judge that possession was taken by BDA on 23.09.1986. There is nothing to be adjudicated further in respect of the title or possession of the property. The title as well as the possession of the property has vested with the BDA for about more than 30 years prior to this day and sites were formed and allotted to various persons including the appellant herein. In the light of such voluminous records and having regard to the fact that respondent no. 4 has been repeatedly making futile attempts by approaching the courts of law by raising frivolous contentions, the Division Bench ought not to have granted liberty to respondent no. 4 to approach the civil court once again for the very same relief, for which it has failed earlier. In view of this, learned counsel for the appellant is justified in contending that the Division Bench has completely erred in reviving the dispute which had long been given a legal quietus after a series of litigations. The Judgment of the Division Bench, if allowed to stand, will unsettle the settled state of affairs involving hundreds of allottees of sites who have constructed the houses and are residing therein. The impugned judgment of the Division Bench virtually sets at naught a number of judgments rendered by the civil court as well as the High Court in the very matter (and was given without any reason much less a valid reason).13. The Division Bench has erroneously conferred jurisdiction upon the civil court to decide the validity of the acquisition. This Court has repeatedly held in a number of judgments that, by implication, the power of a civil court to take cognizance of such cases under Section 9 of the CPC stands excluded and the civil court has no jurisdiction to go into the question of validity under Section 4 and declaration under Section 6 of the Land Acquisition Act. It is only the High Court which will consider such matter under Article 226 of the Constitution. So, the civil suit, per se is not maintainable for adjudicating the validity or otherwise of the acquisition notifications & proceedings arising therefrom. This Court in the case of Bangalore Development Authority v. Brijesh Reddy & Anr, 2013(2) R.C.R.(Civil) 444 : 2013(2) Recent Apex Judgments (R.A.J.) 356 : 2013 (3) SCC 66 ] while considering the acquisition notifications issued under BDA Act observed thus:"It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 26 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power."A similar view is taken by this Court in other cases. The Judgments of this Court in Laxmi Chand & Ors. v. Gram Panchayat, Kararia & Ors. [1996 (7) SCC 218 ], Shri Girish Vyas v. State of Maharashtra [2012 (3) SCC 619 ], State of Bihar v. Dhirendra Kumar & Ors. [1995 (4) SCC 229 ], Commissioner, Bangalore Development Authority v. K. S. Narayan [206 (8) SCC 336] & Commissioner, Mutha Associates & Ors. v. State of Maharashtra [2013 (14) SCC 304 ]considered the acquisition proceedings relating to the lands which were acquired either under the provisions of the BDA Act or under the Land Acquisition Act. In all these judgments, similar question arose i.e. as to whether the civil court had jurisdiction to decide the validity of the acquisition notifications or not.14. Having regard to the discussion made supra, in our considered opinion, it is a clear case of contempt committed by respondent no.4 by repeatedly approaching the courts of law for almost the same relief which was negatived by the courts for three decades. However, we decline to initiate contempt proceedings and to impose heavy costs, under the peculiar facts and circumstance of this case.15. It is to be noted that the Division Bench has given liberty to respondent no. 4 to work out his remedy in a civil suit without even setting aside the findings of the learned Single Judge and the findings rendered in the judgments passed by the Civil Court and the High Court of Karnataka in a number of matters (mentioned supra). In our opinion the Division Bench of the High Court of Karnataka has in a casual manner relegated the parties to the civil court to work out their remedies in the suit which is to be instituted afresh by respondent no. 4. Thus, the said conclusion of the Division Bench of the High Court is not sustainable in law. ### Response: 1 ### Explanation: The BDA has formed and allotted the sites. Most of the allottees have constructed houses and are residing peacefully. However, respondent no. 4 still contends that possession has remained with it and therefore the acquisition needs to be set aside and that the land should beAs detailed supra, respondent no. 4 has already approached the civil court thrice and High Court on six occasions. Whenever the suits are withdrawn, respondent no. 4 has not sought any liberty to approach the civil court once again. Thus, it was not open for respondent no. 4 to approach the civil court repeatedly for the very reliefs. Consistently, the civil court on three occasions has negatived the contention of the appellant.11. Even when respondent no. 4 approached the High Court of Karnataka by filing the writ petitions and writ appeals, it has failed. Futile attempts have been made by respondent no. 4 only to see that the allottees are harassed and to keep the litigation pending. After the final notification, an award was passed and compensation was deposited. Possession was taken and the same was evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed landhas also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seekingThe writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.12. We do not find any reason to interfere in the finding of fact rendered by the learned Single Judge that possession was taken by BDA on 23.09.1986. There is nothing to be adjudicated further in respect of the title or possession of the property. The title as well as the possession of the property has vested with the BDA for about more than 30 years prior to this day and sites were formed and allotted to various persons including the appellant herein.The Division Bench has erroneously conferred jurisdiction upon the civil court to decide the validity of the acquisition. This Court has repeatedly held in a number of judgments that, by implication, the power of a civil court to take cognizance of such cases under Section 9 of the CPC stands excluded and the civil court has no jurisdiction to go into the question of validity under Section 4 and declaration under Section 6 of the Land Acquisition Act. It is only the High Court which will consider such matter under Article 226 of the Constitution. So, the civil suit, per se is not maintainable for adjudicating the validity or otherwise of the acquisition notifications & proceedings arising therefrom.Having regard to the discussion made supra, in our considered opinion, it is a clear case of contempt committed by respondent no.4 by repeatedly approaching the courts of law for almost the same relief which was negatived by the courts for three decades. However, we decline to initiate contempt proceedings and to impose heavy costs, under the peculiar facts and circumstance of this case.15. It is to be noted that the Division Bench has given liberty to respondent no. 4 to work out his remedy in a civil suit without even setting aside the findings of the learned Single Judge and the findings rendered in the judgments passed by the Civil Court and the High Court of Karnataka in a number of matters (mentioned supra). In our opinion the Division Bench of the High Court of Karnataka has in a casual manner relegated the parties to the civil court to work out their remedies in the suit which is to be instituted afresh by respondent no. 4. Thus, the said conclusion of the Division Bench of the High Court is not sustainable in law.

Mulamchand Vs. State of Madhya Pradesh

(3) were mandatory and the contracts were therefore void and not binding on the Union of India which was not liable for damages for breach of the contracts. The same principle was reiterated by this Court in a latter case - State of West Bengal v. B. K. Mondal and Sons, 1962 Supp (1) SCR 876 = (AIR 1962 SC 779 ).The principle is that the provisions of Section 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Article 299 (1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case. The reason is that the provisions of Section 175 (3) of the Government of India Act and the corresponding provisions of Article 299 (1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in Section 175 (3) of the Government of India Act and Article 299 (1) of the Constitution on the ground of public policy - on the ground of protection of general public - and these formalities cannot be waived or dispensed with. If the plea of the respondent regarding estoppel or ratification is admitted that would mean in effect the repeal of an important constitutional provision intended for the protection of the general public.That is why the plea of estoppel or ratification cannot be permitted in such a case. But if money is deposited and goods are supplied or if services are rendered in terms of the void contract, the provisions of Section 70 of the Indian Contract Act may be applicable. In other words if the conditions imposed by Section 70 of the Indian Contract Act are satisfied then the provisions of that section can be invoked by the aggrieved party to the void contract.The first condition is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied, Section 70 imposes upon the latter person the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. The important point to notice is that in a case falling under Section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract, nor ask for damages for the breach of the contract, for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. So where a claim for compensation is made by one person against another under Section 70 it is not on the basis of any subsisting contract between the parties but on a different kind of obligation. The juristic basis of the obligation in such a case is not founded upon any contract or tort but upon a third category of law, namely, quasi-contract or restitution. In Bibrosa v. Fairbairn, 1943 AC 32 Lord Wright has stated the legal position as follows :"......any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution."7. In Nelson v. Larholt, (1948) 1 KB 339 Lord Denning has observed as follows :"It is no longer appropriate to draw distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."8. Applying the principles to the present case, it is manifest that the appellant would have been entitled to compensation under Section 70 of the Indian Contract Act if he had adduced evidence in support of his claim, but the trial court has examined the evidence on this point and reached the conclusion that the appellant did collect lac in the jungles in the year 1951 but later on abandoned the working of his own accord. It is well established that a person who seeks restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises.In other words, an accounting by the plaintiff is a condition of restitution from the defendant (See Restatement of the Law of Restitution, American Law Institute, 1937 Edn., p. 634). The appellant did not produce sufficient evidence to show to what extent he worked the contract and what was the profit made by him in the year 1951 and the succeeding years. In the absence of reliable evidence on this point the appellant was not entitled to restitution or refund of the deposit he had made. The case of the appellant with regard to this part of his claim was therefore rightly disallowed both by the trial court and the High Court and the respondent is therefore not liable to refund the amount of deposit.

0[ds]6. In our opinion, the reasoning adopted by the trial court and by the High Court for rejecting the claim of the appellant is not correct. It is now well established that where a contract between the Dominion of India and a private individual is not in the form required by Section 175 (3) ofthe Government of India Act, 1935, it was void and could not be enforced and therefore the Dominion of India cannot be sued by a private individual for breach of such awas stated in that case that under Section 175 (3) ofthe Government of India Act, 1935, the contracts had (a) to be expressed to be made by the Governor-General, (b) to be executed on behalf of the Governor-General and (c) to be executed by officers duly appointed in that behalf and in such manner as the Governor-General directed or authorised. The evidence in the case showed that the contracts were not expressed to be made by the Governor-General and were not executed on his behalf. It was held by this Court that the provisions of S. 175 (3) were mandatory and the contracts were therefore void and not binding on the Union of India which was not liable for damages for breach of thethe principles to the present case, it is manifest that the appellant would have been entitled to compensation under Section 70 of the Indian Contract Act if he had adduced evidence in support of his claim, but the trial court has examined the evidence on this point and reached the conclusion that the appellant did collect lac in the jungles in the year 1951 but later on abandoned the working of his own accord. It is well established that a person who seeks restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises.In other words, an accounting by the plaintiff is a condition of restitution from the defendant (See Restatement of the Law of Restitution, American Law Institute, 1937 Edn., p. 634). The appellant did not produce sufficient evidence to show to what extent he worked the contract and what was the profit made by him in the year 1951 and the succeeding years. In the absence of reliable evidence on this point the appellant was not entitled to restitution or refund of the deposit he had made. The case of the appellant with regard to this part of his claim was therefore rightly disallowed both by the trial court and the High Court and the respondent is therefore not liable to refund the amount of deposit.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: (3) were mandatory and the contracts were therefore void and not binding on the Union of India which was not liable for damages for breach of the contracts. The same principle was reiterated by this Court in a latter case - State of West Bengal v. B. K. Mondal and Sons, 1962 Supp (1) SCR 876 = (AIR 1962 SC 779 ).The principle is that the provisions of Section 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Article 299 (1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case. The reason is that the provisions of Section 175 (3) of the Government of India Act and the corresponding provisions of Article 299 (1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in Section 175 (3) of the Government of India Act and Article 299 (1) of the Constitution on the ground of public policy - on the ground of protection of general public - and these formalities cannot be waived or dispensed with. If the plea of the respondent regarding estoppel or ratification is admitted that would mean in effect the repeal of an important constitutional provision intended for the protection of the general public.That is why the plea of estoppel or ratification cannot be permitted in such a case. But if money is deposited and goods are supplied or if services are rendered in terms of the void contract, the provisions of Section 70 of the Indian Contract Act may be applicable. In other words if the conditions imposed by Section 70 of the Indian Contract Act are satisfied then the provisions of that section can be invoked by the aggrieved party to the void contract.The first condition is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied, Section 70 imposes upon the latter person the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. The important point to notice is that in a case falling under Section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract, nor ask for damages for the breach of the contract, for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. So where a claim for compensation is made by one person against another under Section 70 it is not on the basis of any subsisting contract between the parties but on a different kind of obligation. The juristic basis of the obligation in such a case is not founded upon any contract or tort but upon a third category of law, namely, quasi-contract or restitution. In Bibrosa v. Fairbairn, 1943 AC 32 Lord Wright has stated the legal position as follows :"......any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution."7. In Nelson v. Larholt, (1948) 1 KB 339 Lord Denning has observed as follows :"It is no longer appropriate to draw distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."8. Applying the principles to the present case, it is manifest that the appellant would have been entitled to compensation under Section 70 of the Indian Contract Act if he had adduced evidence in support of his claim, but the trial court has examined the evidence on this point and reached the conclusion that the appellant did collect lac in the jungles in the year 1951 but later on abandoned the working of his own accord. It is well established that a person who seeks restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises.In other words, an accounting by the plaintiff is a condition of restitution from the defendant (See Restatement of the Law of Restitution, American Law Institute, 1937 Edn., p. 634). The appellant did not produce sufficient evidence to show to what extent he worked the contract and what was the profit made by him in the year 1951 and the succeeding years. In the absence of reliable evidence on this point the appellant was not entitled to restitution or refund of the deposit he had made. The case of the appellant with regard to this part of his claim was therefore rightly disallowed both by the trial court and the High Court and the respondent is therefore not liable to refund the amount of deposit. ### Response: 0 ### Explanation: 6. In our opinion, the reasoning adopted by the trial court and by the High Court for rejecting the claim of the appellant is not correct. It is now well established that where a contract between the Dominion of India and a private individual is not in the form required by Section 175 (3) ofthe Government of India Act, 1935, it was void and could not be enforced and therefore the Dominion of India cannot be sued by a private individual for breach of such awas stated in that case that under Section 175 (3) ofthe Government of India Act, 1935, the contracts had (a) to be expressed to be made by the Governor-General, (b) to be executed on behalf of the Governor-General and (c) to be executed by officers duly appointed in that behalf and in such manner as the Governor-General directed or authorised. The evidence in the case showed that the contracts were not expressed to be made by the Governor-General and were not executed on his behalf. It was held by this Court that the provisions of S. 175 (3) were mandatory and the contracts were therefore void and not binding on the Union of India which was not liable for damages for breach of thethe principles to the present case, it is manifest that the appellant would have been entitled to compensation under Section 70 of the Indian Contract Act if he had adduced evidence in support of his claim, but the trial court has examined the evidence on this point and reached the conclusion that the appellant did collect lac in the jungles in the year 1951 but later on abandoned the working of his own accord. It is well established that a person who seeks restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises.In other words, an accounting by the plaintiff is a condition of restitution from the defendant (See Restatement of the Law of Restitution, American Law Institute, 1937 Edn., p. 634). The appellant did not produce sufficient evidence to show to what extent he worked the contract and what was the profit made by him in the year 1951 and the succeeding years. In the absence of reliable evidence on this point the appellant was not entitled to restitution or refund of the deposit he had made. The case of the appellant with regard to this part of his claim was therefore rightly disallowed both by the trial court and the High Court and the respondent is therefore not liable to refund the amount of deposit.