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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.

Ramachanrappa Vs. Manager,Royal Sundaram Allian.Co.Ltd

evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.4 and Yadava Kumar v. National Insurance Co. Ltd.5) Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 14. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning `4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of `3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was `100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of `3000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between `100/- to 150/- per day or `4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from `4500/- to `3000/- per month. We, therefore, accept his statement that his monthly earning was `4500/-. 15. The appellant, in so far as disability caused due to accident is concerned, had stated in his evidence that he had sustained severe bodily injuries which has resulted in permanent partial disability, which would affect his future earning capacity as a Coolie. The Doctor, who was examined as claimants witness, has stated that the appellant has sustained malunited fracture 2nd, 3rd, 4th, 5th MCB right and malunited fracture scapula right and in his opinion, the appellant has suffered permanent physical disability of 41% to right upper limb and in view of the disability, the claimant cannot work as a Coolie and cannot do any other manual work as a Coolie. The Tribunal, while assessing the loss of income has taken the disability to the whole body as 1/3rd of particular limb and has assessed the loss of income, at 1/3rd of 41% which comes to about 13.5%. So the loss of income taken at 13.5% of `3000/- and has quantified the loss of future income at `72,900/-. We cannot accept this quantification arrived at by the Tribunal, since the assessment of compensation under the head of loss of earning capacity is calculated abysmally on the lower side. On the question of disability caused due to the accident, the Doctor, who has been examined as claimants witness, says that because of the injury sustained by the claimant, he cannot work as a Coolie and cannot do any other manual work. This part of the evidence is not controverted by the insurance company by subjecting the claimant to cross-examination. Therefore, we can safely conclude that claimant has become permanently disabled and, therefore, has lost the future earning capacity permanently. The claimant has also suffered prolonged medical treatment and hospitalization. Looking to the amount awarded by the Tribunal, we are of the view that the same is too less and, therefore, we are inclined to enhance the same. Taking into consideration the future economic loss, he would suffer because of permanent partial disability, which would not permit him to work as a Coolie or any other job, the medical expenses incurred, pain and sufferings, loss of income during treatment, period of loss of future amenities and discomfort, in our view, interest of justice will be served if an additional amount of `2,00,000/- (Rupees Two Lakhs) is granted to the appellant by way of compensation.

1[ds]14. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning `4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of `3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was `100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of `3000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between `100/- to 150/- per day or `4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from `4500/- to `3000/- per month. We, therefore, accept his statement that his monthly earning was `4500/-15. The appellant, in so far as disability caused due to accident is concerned, had stated in his evidence that he had sustained severe bodily injuries which has resulted in permanent partial disability, which would affect his future earning capacity as a Coolie. The Doctor, who was examined as claimants witness, has stated that the appellant has sustained malunited fracture 2nd, 3rd, 4th, 5th MCB right and malunited fracture scapula right and in his opinion, the appellant has suffered permanent physical disability of 41% to right upper limb and in view of the disability, the claimant cannot work as a Coolie and cannot do any other manual work as a Coolie. The Tribunal, while assessing the loss of income has taken the disability to the whole body as 1/3rd of particular limb and has assessed the loss of income, at 1/3rd of 41% which comes to about 13.5%. So the loss of income taken at 13.5% of `3000/- and has quantified the loss of future income at `72,900/-. We cannot accept this quantification arrived at by the Tribunal, since the assessment of compensation under the head of loss of earning capacity is calculated abysmally on the lower side. On the question of disability caused due to the accident, the Doctor, who has been examined as claimants witness, says that because of the injury sustained by the claimant, he cannot work as a Coolie and cannot do any other manual work. This part of the evidence is not controverted by the insurance company by subjecting the claimant to cross-examination. Therefore, we can safely conclude that claimant has become permanently disabled and, therefore, has lost the future earning capacity permanently. The claimant has also suffered prolonged medical treatment and hospitalization. Looking to the amount awarded by the Tribunal, we are of the view that the same is too less and, therefore, we are inclined to enhance the same. Taking into consideration the future economic loss, he would suffer because of permanent partial disability, which would not permit him to work as a Coolie or any other job, the medical expenses incurred, pain and sufferings, loss of income during treatment, period of loss of future amenities and discomfort, in our view, interest of justice will be served if an additional amount of `2,00,000/- (Rupees Two Lakhs) is granted to the appellant by way of compensation.

### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.4 and Yadava Kumar v. National Insurance Co. Ltd.5) Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 14. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning `4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of `3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was `100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of `3000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between `100/- to 150/- per day or `4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from `4500/- to `3000/- per month. We, therefore, accept his statement that his monthly earning was `4500/-. 15. The appellant, in so far as disability caused due to accident is concerned, had stated in his evidence that he had sustained severe bodily injuries which has resulted in permanent partial disability, which would affect his future earning capacity as a Coolie. The Doctor, who was examined as claimants witness, has stated that the appellant has sustained malunited fracture 2nd, 3rd, 4th, 5th MCB right and malunited fracture scapula right and in his opinion, the appellant has suffered permanent physical disability of 41% to right upper limb and in view of the disability, the claimant cannot work as a Coolie and cannot do any other manual work as a Coolie. The Tribunal, while assessing the loss of income has taken the disability to the whole body as 1/3rd of particular limb and has assessed the loss of income, at 1/3rd of 41% which comes to about 13.5%. So the loss of income taken at 13.5% of `3000/- and has quantified the loss of future income at `72,900/-. We cannot accept this quantification arrived at by the Tribunal, since the assessment of compensation under the head of loss of earning capacity is calculated abysmally on the lower side. On the question of disability caused due to the accident, the Doctor, who has been examined as claimants witness, says that because of the injury sustained by the claimant, he cannot work as a Coolie and cannot do any other manual work. This part of the evidence is not controverted by the insurance company by subjecting the claimant to cross-examination. Therefore, we can safely conclude that claimant has become permanently disabled and, therefore, has lost the future earning capacity permanently. The claimant has also suffered prolonged medical treatment and hospitalization. Looking to the amount awarded by the Tribunal, we are of the view that the same is too less and, therefore, we are inclined to enhance the same. Taking into consideration the future economic loss, he would suffer because of permanent partial disability, which would not permit him to work as a Coolie or any other job, the medical expenses incurred, pain and sufferings, loss of income during treatment, period of loss of future amenities and discomfort, in our view, interest of justice will be served if an additional amount of `2,00,000/- (Rupees Two Lakhs) is granted to the appellant by way of compensation. ### Response: 1 ### Explanation: 14. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning `4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of `3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was `100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of `3000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between `100/- to 150/- per day or `4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from `4500/- to `3000/- per month. We, therefore, accept his statement that his monthly earning was `4500/-15. The appellant, in so far as disability caused due to accident is concerned, had stated in his evidence that he had sustained severe bodily injuries which has resulted in permanent partial disability, which would affect his future earning capacity as a Coolie. The Doctor, who was examined as claimants witness, has stated that the appellant has sustained malunited fracture 2nd, 3rd, 4th, 5th MCB right and malunited fracture scapula right and in his opinion, the appellant has suffered permanent physical disability of 41% to right upper limb and in view of the disability, the claimant cannot work as a Coolie and cannot do any other manual work as a Coolie. The Tribunal, while assessing the loss of income has taken the disability to the whole body as 1/3rd of particular limb and has assessed the loss of income, at 1/3rd of 41% which comes to about 13.5%. So the loss of income taken at 13.5% of `3000/- and has quantified the loss of future income at `72,900/-. We cannot accept this quantification arrived at by the Tribunal, since the assessment of compensation under the head of loss of earning capacity is calculated abysmally on the lower side. On the question of disability caused due to the accident, the Doctor, who has been examined as claimants witness, says that because of the injury sustained by the claimant, he cannot work as a Coolie and cannot do any other manual work. This part of the evidence is not controverted by the insurance company by subjecting the claimant to cross-examination. Therefore, we can safely conclude that claimant has become permanently disabled and, therefore, has lost the future earning capacity permanently. The claimant has also suffered prolonged medical treatment and hospitalization. Looking to the amount awarded by the Tribunal, we are of the view that the same is too less and, therefore, we are inclined to enhance the same. Taking into consideration the future economic loss, he would suffer because of permanent partial disability, which would not permit him to work as a Coolie or any other job, the medical expenses incurred, pain and sufferings, loss of income during treatment, period of loss of future amenities and discomfort, in our view, interest of justice will be served if an additional amount of `2,00,000/- (Rupees Two Lakhs) is granted to the appellant by way of compensation.

State of Maharashtra Vs. Prabhakarrao

(1) Leave granted. (2) The State of Maharashtra and the police inspector, Anti Corruption Bureau, Jalna, have filed this appeal assailing the judgment passed by the Bombay High Court quashing the first information report FIR No. 3001 of 2000 dated 9/2/2000, registered at the police station, Ashti, Taluk Partur, Jalna, alleging commission of offences punishable under sections 7, 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988 by the respondents herein. Considering the application filed by the respondent no. 1 under section 482 Criminal Procedure Code seeking quashing of the FIR, the High Court by the order under challenge quashed the FIR holding, inter alia, that the accused was not a public servant as defined under the Prevention of Corruption Act, 1988. The High Court placed reliance on the decision of this Court in the case of State of Maharashtra v. Laljit Rajshi Shah and Ors. reported in [JT 2000 (2) SC 546 ]. It is relevant to note here that the aforementioned decision was rendered in a case covered by the Prevention of Corruption Act, 1947 and not under the statute which is applicable in the present case. Considering the definition of the expression "public servant defined in section 21 Indian Penal Code which was adopted in the Prevention of Corruption Act, 1947, this Court took the view that members of the managing committee and chairman of the co-operative societies under the Maharashtra Co-operative Societies Act are not public servants. In the Prevention of Corruption Act, 1988 which is relevant for the purpose of the case in hand, the definition of the expression public servant is different. Section 2(c) enumerates the persons who are public servants. The provision so far as material for the present case is quoted below: "2(c): "Public servant" means :-(i) any person in the service or pay of the government or remunerated by the government by fees or commission for the performance of any public duty;(ii) any person in the service or pay of a local authority;(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the government or a government company as defined in section 617 of the Companies Act, 1956(1 of 1956);(ix) any person who is the president, secretary or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the central government or a state government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the government or a government company as defined in section 617 of the Companies Act, 1956(1 of 1956);Explanation 1 - Persons falling under any of the above sub-clauses are public servants, whether appointed by the government or not. Explanation 2 - Wherever the words, "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation." (3) Under clause (iii) of section 2(c) any person in the service or pay of a corporation established by or under Central, Provincial or State Act or an authority or a body owned or controlled or aided by the government and under clause (ix) the president, secretary and other office-bearers of a registered co-operative society engaged in agriculture industry, have been included in the definition of "public servant.(4) The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of section 2(c) of the Prevention of Corruption Act, 1988 For determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained. (5) Unfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that section 21 of the Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier, section 21 IPC is of no relevance to consider the question which has to be, on interpretation of provision of section 2(c) of the Prevention of Corruption Act, 1988, read with the relevant provisions of Maharashtra Co-operative Societies Act, 1960. (6) Shri S.V. Deshpande, learned counsel appearing for the petitioners and Mr. L. Nageswara Rao, learned senior counsel appearing for the respondents fairly accepted the position that the question noted above was not raised and therefore, not considered by the High Court while passing the order under challenge. (7) In the context of the facts and circumstances of the case, we are of the view that it will be appropriate that the trial court should consider the question if it is raised by any party. The judgment under challenge being unsustainable is set aside. Parties are given liberty to raise the question of maintainability of the proceeding under the provision of the Prevention of Corruption Act, 1988, before the trial court. If such a question is raised, the court will decide the same on the basis of the material and in accordance with law.

1[ds](7) In the context of the facts and circumstances of the case, we are of the view that it will be appropriate that the trial court should consider the question if it is raised by any party. The judgment under challenge being unsustainable is set aside. Parties are given liberty to raise the question of maintainability of the proceeding under the provision of the Prevention of Corruption Act, 1988, before the trial court. If such a question is raised, the court will decide the same on the basis of the material and in accordance withUnfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that section 21 of the Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier, section 21 IPC is of no relevance to consider the question which has to be, on interpretation of provision of section 2(c) of the Prevention of Corruption Act, 1988, read with the relevant provisions of MaharashtraSocieties Act, 1960.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: (1) Leave granted. (2) The State of Maharashtra and the police inspector, Anti Corruption Bureau, Jalna, have filed this appeal assailing the judgment passed by the Bombay High Court quashing the first information report FIR No. 3001 of 2000 dated 9/2/2000, registered at the police station, Ashti, Taluk Partur, Jalna, alleging commission of offences punishable under sections 7, 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988 by the respondents herein. Considering the application filed by the respondent no. 1 under section 482 Criminal Procedure Code seeking quashing of the FIR, the High Court by the order under challenge quashed the FIR holding, inter alia, that the accused was not a public servant as defined under the Prevention of Corruption Act, 1988. The High Court placed reliance on the decision of this Court in the case of State of Maharashtra v. Laljit Rajshi Shah and Ors. reported in [JT 2000 (2) SC 546 ]. It is relevant to note here that the aforementioned decision was rendered in a case covered by the Prevention of Corruption Act, 1947 and not under the statute which is applicable in the present case. Considering the definition of the expression "public servant defined in section 21 Indian Penal Code which was adopted in the Prevention of Corruption Act, 1947, this Court took the view that members of the managing committee and chairman of the co-operative societies under the Maharashtra Co-operative Societies Act are not public servants. In the Prevention of Corruption Act, 1988 which is relevant for the purpose of the case in hand, the definition of the expression public servant is different. Section 2(c) enumerates the persons who are public servants. The provision so far as material for the present case is quoted below: "2(c): "Public servant" means :-(i) any person in the service or pay of the government or remunerated by the government by fees or commission for the performance of any public duty;(ii) any person in the service or pay of a local authority;(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the government or a government company as defined in section 617 of the Companies Act, 1956(1 of 1956);(ix) any person who is the president, secretary or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the central government or a state government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the government or a government company as defined in section 617 of the Companies Act, 1956(1 of 1956);Explanation 1 - Persons falling under any of the above sub-clauses are public servants, whether appointed by the government or not. Explanation 2 - Wherever the words, "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation." (3) Under clause (iii) of section 2(c) any person in the service or pay of a corporation established by or under Central, Provincial or State Act or an authority or a body owned or controlled or aided by the government and under clause (ix) the president, secretary and other office-bearers of a registered co-operative society engaged in agriculture industry, have been included in the definition of "public servant.(4) The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of section 2(c) of the Prevention of Corruption Act, 1988 For determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained. (5) Unfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that section 21 of the Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier, section 21 IPC is of no relevance to consider the question which has to be, on interpretation of provision of section 2(c) of the Prevention of Corruption Act, 1988, read with the relevant provisions of Maharashtra Co-operative Societies Act, 1960. (6) Shri S.V. Deshpande, learned counsel appearing for the petitioners and Mr. L. Nageswara Rao, learned senior counsel appearing for the respondents fairly accepted the position that the question noted above was not raised and therefore, not considered by the High Court while passing the order under challenge. (7) In the context of the facts and circumstances of the case, we are of the view that it will be appropriate that the trial court should consider the question if it is raised by any party. The judgment under challenge being unsustainable is set aside. Parties are given liberty to raise the question of maintainability of the proceeding under the provision of the Prevention of Corruption Act, 1988, before the trial court. If such a question is raised, the court will decide the same on the basis of the material and in accordance with law. ### Response: 1 ### Explanation: (7) In the context of the facts and circumstances of the case, we are of the view that it will be appropriate that the trial court should consider the question if it is raised by any party. The judgment under challenge being unsustainable is set aside. Parties are given liberty to raise the question of maintainability of the proceeding under the provision of the Prevention of Corruption Act, 1988, before the trial court. If such a question is raised, the court will decide the same on the basis of the material and in accordance withUnfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that section 21 of the Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier, section 21 IPC is of no relevance to consider the question which has to be, on interpretation of provision of section 2(c) of the Prevention of Corruption Act, 1988, read with the relevant provisions of MaharashtraSocieties Act, 1960.

Ajaykant Ruia and Another Vs. The State of Maharashtra and Others

Act assumes significance. Can a Company registered under the Companies Act be attributed with the same amount of credulity, innocence and unsuspecting animus which an ordinary person may exhibit in the face of an irresistible offer of financial benefit. The nature and structure of the corporate governance suggests otherwise. The decision making process of a corporate entity is expected to be of a more formal and informed nature. A corporate entity is supposed to have the feel of the financial market. While making a business decision, the company is expected to weigh in a number of factors, including creditworthiness of another company with which it enters into a transaction, the viability of the business model of the later, the overall financial position and the corporate structure and governance of such company, and, ultimately, whether the said company would have the wherewithal to honour the financial commitment.35. With key personnel, like directors and professional managers, a company is not expected to be easily lured by a mere promise of a higher percentage of return on investments, unlike an unsuspecting small time depositor. Th nature, structure and personnel equip a company to take an informed decision whether to enter into a business transaction, be it in the nature of advancement of a loan or making a deposit with another company. In our view, the exclusion of the receipt of money by one company from another company from the purview of the deposit needs to be appreciated in the aforesaid perspective, and that seems to be the rationale behind excluding the said transactions from regulation, under the provisions of the Companies Act and the Rules thereunder.36. To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors.37. We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit.38. The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential.39. In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided.40. In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act.41. Reverting to the facts of the case, it would be necessary to note that it was submitted on behalf of the petitioner that an amount of Rs.24 crores has already been secured by the Competent Authority and it has been kept in an interest bearing fixed deposit. It was further submitted that the company is ready to deposit further amount to meet the outstanding liability of FD holders, i.e., Rs. 36,28,79,797/- shown in the summary as on December 12, 2017. It was, thus, submitted that the company would deposit the balance amount of about Rs.12 crores to meet the said liability.42. We note the aforesaid offer on behalf of the petitioner.

1[ds]6. We have given our anxious consideration to the rival submissions canvassed across the bar. To begin with, we are not persuaded to throw the challenge overboard on the count of locus of the petitioner, raised by the learned Special P.P. Indisputably, the petitioner has been arraigned as an accused in Special MPID case No.4 of 2014.In the charge¬sheet, copy of which is annexed to the petition, it is alleged that the petitioner Ashish Mahendrakar was an authorized signatory, in the accused Financial Establishments namely Birla Power Solutions Ltd., Birla Shloka Edutech Ltd., Zenith Birla (India) Ltd., and Birla Cotsyn (India) Ltd. and has executed important documents of those companies in the said capacity. In this view of the matter, the locus of the petitioner to assail a part of indictment related to the offence punishable under section 3 of the MPID Act cannot be questioned. Even otherwise a legal issue of material significance has been raised in the instant petition.It is nobodys case that the above¬named four companies do not fall within the definition of Financial Establishment.It is trite that though the statement of objects and reasons accompanying a statute cannot be used to determine the true meaning and effect of the substantive provisions of a statute, but it is permissible to make a gainful reference to the statements of objects and reasons for the purpose of understanding the background of the legislation, the state of affairs that preceded the enactment, the attendant and surrounding circumstances in relation to the statute and the mischief which the statute sought to curb.The position which, thus, emerges is that the MPID Act and the enactments passed by the other State Legislatures were with the avowed object of protecting the interest of the depositors. The Legislatures had noticed a pattern of collecting money or deposits from unsuspecting investors after painting a rosy picture of return. The Legislature, thus, provided a special mechanism of attachment of properties and unearthing the money which was swindled so as to ensure that the investors are not left in the lurch by such unscrupulous persons and financial establishments.For an answer, in our view, the legislative prescription, needs to be carefully appreciated in the backdrop of the object of the MPID Act. Indubitably, the MPID Act does not make a distinction between the corporate and ordinary deposit.A conjoint reading of the provisions of the Companies Act, and the Rules framed thereunder leads to a legitimate inference that the Parliament did not deem it necessary to regulate the aspect of receipt of any amount by a company from another company, by classifying as a deposit, for the acceptance of which the specific provisions were made under the Companies Act, 1956 and are made in the Companies Act, 2013. The receipt of a money by one company from other company is, however, clubbed with the items of exclusions provided in the Rules, which define deposit.With key personnel, like directors and professional managers, a company is not expected to be easily lured by a mere promise of a higher percentage of return on investments, unlike an unsuspecting small time depositor. Th nature, structure and personnel equip a company to take an informed decision whether to enter into a business transaction, be it in the nature of advancement of a loan or making a deposit with another company. In our view, the exclusion of the receipt of money by one company from another company from the purview of the deposit needs to be appreciated in the aforesaid perspective, and that seems to be the rationale behind excluding the said transactions from regulation, under the provisions of the Companies Act and the Rules thereunder.To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors.We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit.The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential.In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided.In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act.We note the aforesaid offer on behalf of the petitioner.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: Act assumes significance. Can a Company registered under the Companies Act be attributed with the same amount of credulity, innocence and unsuspecting animus which an ordinary person may exhibit in the face of an irresistible offer of financial benefit. The nature and structure of the corporate governance suggests otherwise. The decision making process of a corporate entity is expected to be of a more formal and informed nature. A corporate entity is supposed to have the feel of the financial market. While making a business decision, the company is expected to weigh in a number of factors, including creditworthiness of another company with which it enters into a transaction, the viability of the business model of the later, the overall financial position and the corporate structure and governance of such company, and, ultimately, whether the said company would have the wherewithal to honour the financial commitment.35. With key personnel, like directors and professional managers, a company is not expected to be easily lured by a mere promise of a higher percentage of return on investments, unlike an unsuspecting small time depositor. Th nature, structure and personnel equip a company to take an informed decision whether to enter into a business transaction, be it in the nature of advancement of a loan or making a deposit with another company. In our view, the exclusion of the receipt of money by one company from another company from the purview of the deposit needs to be appreciated in the aforesaid perspective, and that seems to be the rationale behind excluding the said transactions from regulation, under the provisions of the Companies Act and the Rules thereunder.36. To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors.37. We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit.38. The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential.39. In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided.40. In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act.41. Reverting to the facts of the case, it would be necessary to note that it was submitted on behalf of the petitioner that an amount of Rs.24 crores has already been secured by the Competent Authority and it has been kept in an interest bearing fixed deposit. It was further submitted that the company is ready to deposit further amount to meet the outstanding liability of FD holders, i.e., Rs. 36,28,79,797/- shown in the summary as on December 12, 2017. It was, thus, submitted that the company would deposit the balance amount of about Rs.12 crores to meet the said liability.42. We note the aforesaid offer on behalf of the petitioner. ### Response: 1 ### Explanation: background of the legislation, the state of affairs that preceded the enactment, the attendant and surrounding circumstances in relation to the statute and the mischief which the statute sought to curb.The position which, thus, emerges is that the MPID Act and the enactments passed by the other State Legislatures were with the avowed object of protecting the interest of the depositors. The Legislatures had noticed a pattern of collecting money or deposits from unsuspecting investors after painting a rosy picture of return. The Legislature, thus, provided a special mechanism of attachment of properties and unearthing the money which was swindled so as to ensure that the investors are not left in the lurch by such unscrupulous persons and financial establishments.For an answer, in our view, the legislative prescription, needs to be carefully appreciated in the backdrop of the object of the MPID Act. Indubitably, the MPID Act does not make a distinction between the corporate and ordinary deposit.A conjoint reading of the provisions of the Companies Act, and the Rules framed thereunder leads to a legitimate inference that the Parliament did not deem it necessary to regulate the aspect of receipt of any amount by a company from another company, by classifying as a deposit, for the acceptance of which the specific provisions were made under the Companies Act, 1956 and are made in the Companies Act, 2013. The receipt of a money by one company from other company is, however, clubbed with the items of exclusions provided in the Rules, which define deposit.With key personnel, like directors and professional managers, a company is not expected to be easily lured by a mere promise of a higher percentage of return on investments, unlike an unsuspecting small time depositor. Th nature, structure and personnel equip a company to take an informed decision whether to enter into a business transaction, be it in the nature of advancement of a loan or making a deposit with another company. In our view, the exclusion of the receipt of money by one company from another company from the purview of the deposit needs to be appreciated in the aforesaid perspective, and that seems to be the rationale behind excluding the said transactions from regulation, under the provisions of the Companies Act and the Rules thereunder.To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors.We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit.The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential.In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided.In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act.We note the aforesaid offer on behalf of the petitioner.

State Of Madras Vs. S. Padmanabhan Etc. January 21, 1971

withdrawing the exemption from sales tax or the reductions, in rates of sales tax so far granted under the Madras General Sales Tax Act 1939, and such of them as have been decided to be continued from 1st April 1959 are specified in the notifications annexed to this order : 2. The notifications annexed to this order will be published in the Fort St. George Gazette. The Controller of Stationery and Printing Madras, is requested to publish in the notification in the Fort St. George Gazette, dated the 1st April 1959 without fail. The notification itself may also be reproduced: In exercise of the powers conferred by Section 17 of the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959) and in suppression of all the notifications issued under S.6 of the Madras General Sales Tax Act, 1939 (Madras Act IX of 1939) the Governor of Madras hereby makes the exemption in respect of the tax payable, under the said Madras General Sales Tax Act. 1959, on the sale or purchase of the goods or class of goods or by the class or persons or institutions in regard to the whole or part of their turnover specified in column (2) of the Schedule, below subject to the conditions and restrictions, if any, specified in the corresponding entry in column (3) thereof. This notification shall come into force on the 1st day of April 1959. In the Schedule which contained the exemptions fresh fruit was not one of the items which was exempted from tax. In other words by virtue of this notification the respondents liable to pay tax on the sale of fresh fruit with effect from April 1,1959. it may be mentioned that the exemption with regard to fresh fruits was once again granted with effect from April 1, 1960. It was only during the assessment year 1959-60 that the respondents were liable to pay tax on the sale of fresh fruits under the provisions of the Act. It is unnecessary to refer to the course which the litigation in the shape of writ petitions filed by the respondent took in the High Court. It would be sufficient to mention that by the judgment under appeal the High Court struck down the notification No. 976 dated March 28, 1959. which was to take effect from April 1, 1959. It was held that this notification had been issued before the Act came into force which amounted to an exercise of power which did not exist on the date on which the notification was promulgated. It was further held that the respondents were entitled by reason of the saving provision of S. 61 of the Act to invoke the exemption that had been granted under the earlier Act of 1939. 3. Section 3 provides for the levy of taxes on sale or purchase of goods. Under the first proviso to subsection (1) of that section it was expressly laid down that in case of goods specified therein which included fresh fruits the rate of tax would be 1% on the turnover of a dealer whose total turnover for a year was not less than Rs, 10,000/-. Under the second proviso the dealers dealing exclusively in one or more of the goods enumerated in the first proviso except food-grains, rice products, wheat products and milk whose total turnover for a year was not mare than 30,000/- were not to be liable to pay tax under sub-section (1). Section 17 empowered the Government by notification to make an exemption or reduction in rate in respect of any tax payable under the Act.Now what the Government did was that it made an order on March 28, 1959 in anticipation of the coming into force of the Act on April 1, 1959 It decided that a notification be published in the Fort St. George Gazette on April 1, 1959 declaring the exemptions which would be granted under S, 17 of the Act in suppression of all the previous notifications issued under S. 6 of the Act of 1939. It is not disputed that the impugned notification was actually published in the Gazette on April 1, 1959. On that date the Act had come into force. We are wholly unable to comprehend how the validity of the notification could be impugned when it was actually promulgated on the date on which the Act came into force. The mere fact that it bore an earlier date was of no consequence. Section 53 (4) of the Act expressly provided: (a) All rules made under this Act shall be published in the Fort St. George Gazette, and unless, they are expressed to come into force on a particular day shall come into force on the day on which they are so published. (b) All notifications issued under this Act shall, unless they are expressed to come into force on a particular day, come into force on the day on which they are published. The notification in question was stated to come into force on April 1, 1959. besides it was published on that very day. Therefore, in terms of clause (b) it come into force only on April 1, 1959 and not earlier. No one has challenged nor indeed it can be disputed that on April 1, 1959 a valid notification could be issued under section 17 of the Act. For this reason alone the validity of the notification must be upheld. 4. On behalf of the respondents our attention has been invited to Boppanna Venkateswaraloo v. Supdt, Central Jail, Hyderabad State, (1953) SCR 905 = (AIR 1953 SC 49 ). The facts in that case were altogether different and have been discussed in the judgment of the High Court. We consider it wholly unnecessary to refer to them as the point which arose there about the validity of certain orders made under the Preventive Detention (Second Amendment) Act 1952 was entirely of a different nature and is not apposite for, the purpose of the present case.

1[ds]3. Section 3 provides for the levy of taxes on sale or purchase of goods. Under the first proviso to subsection (1) of that section it was expressly laid down that in case of goods specified therein which included fresh fruits the rate of tax would be 1% on the turnover of a dealer whose total turnover for a year was not less than Rs, 10,000/-. Under the second proviso the dealers dealing exclusively in one or more of the goods enumerated in the first proviso except food-grains, rice products, wheat products and milk whose total turnover for a year was not mare than 30,000/- were not to be liable to pay tax under sub-section (1). Section 17 empowered the Government by notification to make an exemption or reduction in rate in respect of any tax payable under the Act.Now what the Government did was that it made an order on March 28, 1959 in anticipation of the coming into force of the Act on April 1, 1959 It decided that a notification be published in the Fort St. George Gazette on April 1, 1959 declaring the exemptions which would be granted under S, 17 of the Act in suppression of all the previous notifications issued under S. 6 of the Act of 1939. It is not disputed that the impugned notification was actually published in the Gazette on April 1, 1959. On that date the Act had come into force. We are wholly unable to comprehend how the validity of the notification could be impugned when it was actually promulgated on the date on which the Act came into forceThe notification in question was stated to come into force on April 1, 1959. besides it was published on that very day. Therefore, in terms of clause (b) it come into force only on April 1, 1959 and not earlier. No one has challenged nor indeed it can be disputed that on April 1, 1959 a valid notification could be issued under section 17 of the Act. For this reason alone the validity of the notification must be upheld4. On behalf of the respondents our attention has been invited to Boppanna Venkateswaraloo v. Supdt, Central Jail, Hyderabad State, (1953) SCR 905 = (AIR 1953 SC 49 ). The facts in that case were altogether different and have been discussed in the judgment of the High Court. We consider it wholly unnecessary to refer to them as the point which arose there about the validity of certain orders made under the Preventive Detention (Second Amendment) Act 1952 was entirely of a different nature and is not apposite for, the purpose of the present case.

### 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: withdrawing the exemption from sales tax or the reductions, in rates of sales tax so far granted under the Madras General Sales Tax Act 1939, and such of them as have been decided to be continued from 1st April 1959 are specified in the notifications annexed to this order : 2. The notifications annexed to this order will be published in the Fort St. George Gazette. The Controller of Stationery and Printing Madras, is requested to publish in the notification in the Fort St. George Gazette, dated the 1st April 1959 without fail. The notification itself may also be reproduced: In exercise of the powers conferred by Section 17 of the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959) and in suppression of all the notifications issued under S.6 of the Madras General Sales Tax Act, 1939 (Madras Act IX of 1939) the Governor of Madras hereby makes the exemption in respect of the tax payable, under the said Madras General Sales Tax Act. 1959, on the sale or purchase of the goods or class of goods or by the class or persons or institutions in regard to the whole or part of their turnover specified in column (2) of the Schedule, below subject to the conditions and restrictions, if any, specified in the corresponding entry in column (3) thereof. This notification shall come into force on the 1st day of April 1959. In the Schedule which contained the exemptions fresh fruit was not one of the items which was exempted from tax. In other words by virtue of this notification the respondents liable to pay tax on the sale of fresh fruit with effect from April 1,1959. it may be mentioned that the exemption with regard to fresh fruits was once again granted with effect from April 1, 1960. It was only during the assessment year 1959-60 that the respondents were liable to pay tax on the sale of fresh fruits under the provisions of the Act. It is unnecessary to refer to the course which the litigation in the shape of writ petitions filed by the respondent took in the High Court. It would be sufficient to mention that by the judgment under appeal the High Court struck down the notification No. 976 dated March 28, 1959. which was to take effect from April 1, 1959. It was held that this notification had been issued before the Act came into force which amounted to an exercise of power which did not exist on the date on which the notification was promulgated. It was further held that the respondents were entitled by reason of the saving provision of S. 61 of the Act to invoke the exemption that had been granted under the earlier Act of 1939. 3. Section 3 provides for the levy of taxes on sale or purchase of goods. Under the first proviso to subsection (1) of that section it was expressly laid down that in case of goods specified therein which included fresh fruits the rate of tax would be 1% on the turnover of a dealer whose total turnover for a year was not less than Rs, 10,000/-. Under the second proviso the dealers dealing exclusively in one or more of the goods enumerated in the first proviso except food-grains, rice products, wheat products and milk whose total turnover for a year was not mare than 30,000/- were not to be liable to pay tax under sub-section (1). Section 17 empowered the Government by notification to make an exemption or reduction in rate in respect of any tax payable under the Act.Now what the Government did was that it made an order on March 28, 1959 in anticipation of the coming into force of the Act on April 1, 1959 It decided that a notification be published in the Fort St. George Gazette on April 1, 1959 declaring the exemptions which would be granted under S, 17 of the Act in suppression of all the previous notifications issued under S. 6 of the Act of 1939. It is not disputed that the impugned notification was actually published in the Gazette on April 1, 1959. On that date the Act had come into force. We are wholly unable to comprehend how the validity of the notification could be impugned when it was actually promulgated on the date on which the Act came into force. The mere fact that it bore an earlier date was of no consequence. Section 53 (4) of the Act expressly provided: (a) All rules made under this Act shall be published in the Fort St. George Gazette, and unless, they are expressed to come into force on a particular day shall come into force on the day on which they are so published. (b) All notifications issued under this Act shall, unless they are expressed to come into force on a particular day, come into force on the day on which they are published. The notification in question was stated to come into force on April 1, 1959. besides it was published on that very day. Therefore, in terms of clause (b) it come into force only on April 1, 1959 and not earlier. No one has challenged nor indeed it can be disputed that on April 1, 1959 a valid notification could be issued under section 17 of the Act. For this reason alone the validity of the notification must be upheld. 4. On behalf of the respondents our attention has been invited to Boppanna Venkateswaraloo v. Supdt, Central Jail, Hyderabad State, (1953) SCR 905 = (AIR 1953 SC 49 ). The facts in that case were altogether different and have been discussed in the judgment of the High Court. We consider it wholly unnecessary to refer to them as the point which arose there about the validity of certain orders made under the Preventive Detention (Second Amendment) Act 1952 was entirely of a different nature and is not apposite for, the purpose of the present case. ### Response: 1 ### Explanation: 3. Section 3 provides for the levy of taxes on sale or purchase of goods. Under the first proviso to subsection (1) of that section it was expressly laid down that in case of goods specified therein which included fresh fruits the rate of tax would be 1% on the turnover of a dealer whose total turnover for a year was not less than Rs, 10,000/-. Under the second proviso the dealers dealing exclusively in one or more of the goods enumerated in the first proviso except food-grains, rice products, wheat products and milk whose total turnover for a year was not mare than 30,000/- were not to be liable to pay tax under sub-section (1). Section 17 empowered the Government by notification to make an exemption or reduction in rate in respect of any tax payable under the Act.Now what the Government did was that it made an order on March 28, 1959 in anticipation of the coming into force of the Act on April 1, 1959 It decided that a notification be published in the Fort St. George Gazette on April 1, 1959 declaring the exemptions which would be granted under S, 17 of the Act in suppression of all the previous notifications issued under S. 6 of the Act of 1939. It is not disputed that the impugned notification was actually published in the Gazette on April 1, 1959. On that date the Act had come into force. We are wholly unable to comprehend how the validity of the notification could be impugned when it was actually promulgated on the date on which the Act came into forceThe notification in question was stated to come into force on April 1, 1959. besides it was published on that very day. Therefore, in terms of clause (b) it come into force only on April 1, 1959 and not earlier. No one has challenged nor indeed it can be disputed that on April 1, 1959 a valid notification could be issued under section 17 of the Act. For this reason alone the validity of the notification must be upheld4. On behalf of the respondents our attention has been invited to Boppanna Venkateswaraloo v. Supdt, Central Jail, Hyderabad State, (1953) SCR 905 = (AIR 1953 SC 49 ). The facts in that case were altogether different and have been discussed in the judgment of the High Court. We consider it wholly unnecessary to refer to them as the point which arose there about the validity of certain orders made under the Preventive Detention (Second Amendment) Act 1952 was entirely of a different nature and is not apposite for, the purpose of the present case.

VITHALDAS JAGANNATH KHATRI (D) THROUGH SMT. SHAKUNTALA ALIAS SUSHMI Vs. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT

in contravention of Section 8, it is not liable to be included in the ceiling holding of the appellant. (emphasis supplied) This judgment is important in that it delineates the scope of Section 18(l) of the 1961 Act, and confines it to calculating ceiling area and de- limiting surplus land, albeit by the application of another statute, namely, the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. 26. Shri Krishnan Venugopal strongly relied on the observations in Gurdit Singh (supra). This case dealt with Section 32-DD which was introduced into The Pepsu Tenancy and Agricultural Lands Act, 1955 with retrospective effect from 1956. This Section states as follows: 3. The Act was amended by Act 16 of 1962 and Section 32-DD was introduced into the Act with retrospective effect from October 30, 1956. That section reads: 32-DD. Future tenancies in surplus area and certain judgments etc. to be ignored.— Notwithstanding anything contained in this Act, for the purposes of determining the surplus area of any person— (a) a tenancy created after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, in any area of land which could have been declared as the surplus area of such person; and (b) any judgment, decree or order of a court or other authority, obtained after the commencement of that Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored. 27. This Court repelled an argument enlarging the scope of Section 32-DD, which was based on the object sought to be achieved by the Section in the following terms: 12. … We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to Appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to Appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus. 28. Likewise, as has been held by us hereinabove, it is not possible to state that wherever the expressions transfer and partition occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word genuine is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be ignored. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area. 29. Shri Krishnan Venugopal then relied upon Uttar Chand (supra). This case also dealt with 1961 Act, the cut-off date in that case being 04.08.1959. As both the transfers in the aforesaid case were prior to 04.08.1959, this Court held that the High Court was not justified in holding that the said transfers were either collusive or fraudulent. This Court held: 5. These sections are of no assistance to the respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of another member of the family which cannot be clubbed together with land of the concerned owner or family. The argument advanced by the respondent appears to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances the most important fact to be determined was whether or not any transfer that had been made by the person concerned was prior to or after August 4, 1959. If the transfer was prior to August 4, 1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to them and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his mother should be included in the total area of the land owned by the appellant. 30. What is of importance in this case is that in a similar fact situation, if a transfer took place before the cut-off date mentioned by the 1961 Act, the 1961 Act would not apply so as to include lands subsumed in the said transfers, in calculating the ceiling area.. 31. Regard being had to our finding that the Collectors jurisdiction under the 1961 Act does not go to the extent of declaring a registered partition deed that is made before the cut-off date as being sham, it is unnecessary for us to go into any of the other findings of both the learned judges of this Court in relation to Hindu Law.

1[ds]16. On a conspectus of the provisions of the 1961 Act that have been set out hereinabove, what becomes clear is that transfers or partitions of land made in anticipation of or in order to avoid or defeat the 1972 Amending Act were to be ignored in calculating ceiling limits. This was so laid down by the Amending Act, 1975, which made 26.09.1970 the cut-off date after which such transfers became suspect. What is important to note is that the 1961 Act does not in any manner declare such transfers to be void. However, if the contrary is proved on the facts of a given case, i.e. that a bonafide transfer or partition was in fact effected after the cut-off date, the person affected would be out of the clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what is important is the expression shall accordingly be ignored, which occurs in Section 1120. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act is to be seen, it is clear that appeals are provided to the Maharashtra Revenue Tribunal against a declaration or part thereof made under Section 21 of the 1961 Act. The persons who would be aggrieved by such declarations can only be the person or family unit whose ceiling area is determined or the landlord to whom possession of land is to be restored or the right, title and interest of the person or family unit whose land is to be forfeited to the State Government. If at all a cross-objection can be taken by a respondent under Section 33(1A), it can only be a person or family unit or landlord spoken of in Section 21(1) of the 1961 Act. The State Government may perhaps file a cross-objection where it contends that land has wrongly not been forfeited to it. But such is not the case on the facts of this appeal. Thus, the State taking a cross objection on the facts of this case would itself be outside Section 33(1A). If at all the State can be said to be aggrieved by a declaration made under Section 21, a suo moto power of revision is given to the State Government under Section 45, which on the facts of a particular case may well be exercised21. This apart, once it is clear that the elder daughters are affected by virtue of the partition deed being held to be non est in law by the appellate tribunal, they ought to have been made parties to the appeal so that they could have made arguments in favour of the legal validity of the partition deed. This opportunity being denied to them, as has been rightly held by Justice Kaul, is also fatal to the appellate authoritys order, which has therefore wrongly been upheld by the learned Single Judge and Division Bench of the Bombay High CourtIn this case, no question similar to the question that is before us in the present matter arose on the facts. It was assumed that adjudication before the ceiling authority would include an adjudication as to whether a person was made a tenant to defeat the provisions of the 1961 Act. Based on that assumption, the question posed and answered by the Court was that it would be the ceiling authorities - and not the Bombay Tenancy Act authorities - who would be competent to answer such question. This judgment also does not, in any manner, decide the questions that have been posed before this Court, with particular reference to the language of Section 11 of the 1961 Act and partitions which took place prior to a cut-off date where even a limited deeming fiction did not become applicableThis case again is far removed from the facts of the present case, concerning itself with the suo moto powers exercisable under Section 45 of the 1961 Act28. Likewise, as has been held by us hereinabove, it is not possible to state that wherever the expressions transfer and partition occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word genuine is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be ignored. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area30. What is of importance in this case is that in a similar fact situation, if a transfer took place before the cut-off date mentioned by the 1961 Act, the 1961 Act would not apply so as to include lands subsumed in the said transfers, in calculating the ceiling area31. Regard being had to our finding that the Collectors jurisdiction under the 1961 Act does not go to the extent of declaring a registered partition deed that is made before the cut-off date as being sham, it is unnecessary for us to go into any of the other findings of both the learned judges of this Court in relation to Hindu Law.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: in contravention of Section 8, it is not liable to be included in the ceiling holding of the appellant. (emphasis supplied) This judgment is important in that it delineates the scope of Section 18(l) of the 1961 Act, and confines it to calculating ceiling area and de- limiting surplus land, albeit by the application of another statute, namely, the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. 26. Shri Krishnan Venugopal strongly relied on the observations in Gurdit Singh (supra). This case dealt with Section 32-DD which was introduced into The Pepsu Tenancy and Agricultural Lands Act, 1955 with retrospective effect from 1956. This Section states as follows: 3. The Act was amended by Act 16 of 1962 and Section 32-DD was introduced into the Act with retrospective effect from October 30, 1956. That section reads: 32-DD. Future tenancies in surplus area and certain judgments etc. to be ignored.— Notwithstanding anything contained in this Act, for the purposes of determining the surplus area of any person— (a) a tenancy created after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, in any area of land which could have been declared as the surplus area of such person; and (b) any judgment, decree or order of a court or other authority, obtained after the commencement of that Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored. 27. This Court repelled an argument enlarging the scope of Section 32-DD, which was based on the object sought to be achieved by the Section in the following terms: 12. … We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to Appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to Appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus. 28. Likewise, as has been held by us hereinabove, it is not possible to state that wherever the expressions transfer and partition occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word genuine is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be ignored. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area. 29. Shri Krishnan Venugopal then relied upon Uttar Chand (supra). This case also dealt with 1961 Act, the cut-off date in that case being 04.08.1959. As both the transfers in the aforesaid case were prior to 04.08.1959, this Court held that the High Court was not justified in holding that the said transfers were either collusive or fraudulent. This Court held: 5. These sections are of no assistance to the respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of another member of the family which cannot be clubbed together with land of the concerned owner or family. The argument advanced by the respondent appears to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances the most important fact to be determined was whether or not any transfer that had been made by the person concerned was prior to or after August 4, 1959. If the transfer was prior to August 4, 1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to them and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his mother should be included in the total area of the land owned by the appellant. 30. What is of importance in this case is that in a similar fact situation, if a transfer took place before the cut-off date mentioned by the 1961 Act, the 1961 Act would not apply so as to include lands subsumed in the said transfers, in calculating the ceiling area.. 31. Regard being had to our finding that the Collectors jurisdiction under the 1961 Act does not go to the extent of declaring a registered partition deed that is made before the cut-off date as being sham, it is unnecessary for us to go into any of the other findings of both the learned judges of this Court in relation to Hindu Law. ### Response: 1 ### Explanation: 16. On a conspectus of the provisions of the 1961 Act that have been set out hereinabove, what becomes clear is that transfers or partitions of land made in anticipation of or in order to avoid or defeat the 1972 Amending Act were to be ignored in calculating ceiling limits. This was so laid down by the Amending Act, 1975, which made 26.09.1970 the cut-off date after which such transfers became suspect. What is important to note is that the 1961 Act does not in any manner declare such transfers to be void. However, if the contrary is proved on the facts of a given case, i.e. that a bonafide transfer or partition was in fact effected after the cut-off date, the person affected would be out of the clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what is important is the expression shall accordingly be ignored, which occurs in Section 1120. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act is to be seen, it is clear that appeals are provided to the Maharashtra Revenue Tribunal against a declaration or part thereof made under Section 21 of the 1961 Act. The persons who would be aggrieved by such declarations can only be the person or family unit whose ceiling area is determined or the landlord to whom possession of land is to be restored or the right, title and interest of the person or family unit whose land is to be forfeited to the State Government. If at all a cross-objection can be taken by a respondent under Section 33(1A), it can only be a person or family unit or landlord spoken of in Section 21(1) of the 1961 Act. The State Government may perhaps file a cross-objection where it contends that land has wrongly not been forfeited to it. But such is not the case on the facts of this appeal. Thus, the State taking a cross objection on the facts of this case would itself be outside Section 33(1A). If at all the State can be said to be aggrieved by a declaration made under Section 21, a suo moto power of revision is given to the State Government under Section 45, which on the facts of a particular case may well be exercised21. This apart, once it is clear that the elder daughters are affected by virtue of the partition deed being held to be non est in law by the appellate tribunal, they ought to have been made parties to the appeal so that they could have made arguments in favour of the legal validity of the partition deed. This opportunity being denied to them, as has been rightly held by Justice Kaul, is also fatal to the appellate authoritys order, which has therefore wrongly been upheld by the learned Single Judge and Division Bench of the Bombay High CourtIn this case, no question similar to the question that is before us in the present matter arose on the facts. It was assumed that adjudication before the ceiling authority would include an adjudication as to whether a person was made a tenant to defeat the provisions of the 1961 Act. Based on that assumption, the question posed and answered by the Court was that it would be the ceiling authorities - and not the Bombay Tenancy Act authorities - who would be competent to answer such question. This judgment also does not, in any manner, decide the questions that have been posed before this Court, with particular reference to the language of Section 11 of the 1961 Act and partitions which took place prior to a cut-off date where even a limited deeming fiction did not become applicableThis case again is far removed from the facts of the present case, concerning itself with the suo moto powers exercisable under Section 45 of the 1961 Act28. Likewise, as has been held by us hereinabove, it is not possible to state that wherever the expressions transfer and partition occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word genuine is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be ignored. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area30. What is of importance in this case is that in a similar fact situation, if a transfer took place before the cut-off date mentioned by the 1961 Act, the 1961 Act would not apply so as to include lands subsumed in the said transfers, in calculating the ceiling area31. Regard being had to our finding that the Collectors jurisdiction under the 1961 Act does not go to the extent of declaring a registered partition deed that is made before the cut-off date as being sham, it is unnecessary for us to go into any of the other findings of both the learned judges of this Court in relation to Hindu Law.

Unni Krishnan, J.P. and others etc. etc Vs. State of Andhra Pradesh and others etc. etc

and / or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance - the very life blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and / or is affiliated to one or the other Universities in the country. Unless it is recognised and / or affiliated as stated above, its certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and / or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government / University. The idea is that if such students pass the said examination, the Government / University will award its degree / diploma / certificate to them. These educational institutions follow the syllabus prescribed by the Government / University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees / qualifications. They prepare their students for University / Government examinations, request the University / Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised / affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building on roads, bridges etc. In short, the position is this : No educational institution except an University can award degrees (S.22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and / or affiliation. The bodies which grant recognition and / or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising / affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Art.14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation / recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition / affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part-III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Arts.14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved - with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments referred to hereinbefore - the following scheme which every authority granting recognition / affiliation shall impose upon the institutions seeking such recognition / affiliation.The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of. It is the discretion that has mainly led to the commercialisation of education. Capitation fee means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or any one on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions - which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by them - which may be called permitted fees - and to bar them from collecting anything other than the permitted fees, which is what Capitation fees means. Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the Rules that may be framed under these enactments.

1[ds]143. It is thus well established by the decisions of this Court that the provisions of Parts VII and IV are supplementary and complementary to each other and that Fundamental Rights are but a means to achieve the goal indicated inIt is also held that the Fundamental Rights must be construed in the light of the Directive Principles. It is from the above stand point that Question No. 1 has to be approached.In Bandhua Mukti Morcha (AIR 1984 SC 802 ) this Court held that the right to life guaranteed by Art.21 does take in "educational facilities". (The relevant portion has been quoted hereinabefore). Having regard to the fundamental significance of education to the life of an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Art.21. That the right to education has been treated as one of transcendental importance in the life of an individual has been recognised not only in this country since thousands of years, but all over the world. In Mohini Jain (1992 AIR SCW 2100), the importance of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 hereinbefore. In particular, we agree with the observation that without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasised than in the abovefact that right to education occurs in as many as three Articles inviz., Arts.41, 45 and 46 shows the importance attached to it by the founding fathers. Even some of the Articles inviz., Articles 29 and 30 speak of education.It is argued by some of the counsel for the petitioners that Art.21 is negative in character and that it merely declares that no person shall be deprived of his life or persona liberty except according to the procedure established by law. Since the State is not depriving the respondents students of their right to education, Art.21 is not attracted, it is submitted. If and when the State makes a law taking away the right to education, would Art.21 be attracted, according tothem. This argument, in our opinion, is really born of confusion; at any rate, it is designed to confuse the issue. The first question is whether the right to life guaranteed by Art.21 does take in the right to education or not. It is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the right is not determined by perception of threat. The content of right to life is not be to determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law.147. In the above state of law, it would not be correct to contend that Mohini Jain (1992 AIR SCW 2100) was wrong in so far as it declared that "the right to education flows directly from right to life." But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty, guaranteed by Art.21 must be construed in the light of the directive principles in Part IV of thefar as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Art.41 says that the "State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want". Art.45 says that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." Art.46 commands that "the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." Education means knowledgeand "knowledge itself is power." As rightly observed by John Adams, "the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country" (Dissertation on canon and feudal law, 1765).It isin the light of these articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Arts.45 and 41, means : (a) every child / citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child / citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and itsthat as it may, we must say that at least now the State should honour the command of Art.45. It must be made a realityat least now. Indeed, the National Education Policy1986 says that the promise of Art.45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 years.years.150. The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Art.41 from Part IV to Part III we are merely relying upon Art.41 to illustrate the content of the right to education flowing from Art.21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State.151. In the light of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into Art.21, this Court would be enabling each and every citizen of this country to approach the Courts to compel the State to provide him such education as he chooses must be held to be unfounded. The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of, its economic capacity andis true, there is no express provision in the Act which says that no engineering college or any other college or institution imparting technical education shall be established except with the permission of the Council. But this may be for the reason that such a power was intended to be exercised by the Council itself if it thinks necessary to do so. We are of the opinion that the vast powers conferred upon the Council by S.10, including those specified above, do extend to and entitle it to issue an order to the above effect. It can also say that even in the existing institutions, no new course, faculty or class shall be opened except with its approval. It can also pass appropriate directions to the existing institutions as well for achieving the purposes of the Act. Such an order may indeed be necessary for a proper discharge of the wide ranging functions conferred upon the Council.Private educational institutions may be aided as well as unaided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and / or recognising / affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alonesubject to any reservations made under Art.15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses. These are and shall be understood to be the conditions of grant of aid. The reason is simple : public funds, when given as grantand not as loancarry the public character wherever they go. Public funds cannot be donated for private purposes. The element of public character necessarily means a fair conduct in all respects consistent with the constitutional mandate of Arts.14 and 15. All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others), if not already provided, and shall ensure compliance with the same. Again aid may take several forms. For example, a medical college does necessarily require a hospital. We are told that for a 100 seat medical college, there must be a fully equippedhospital. Then alone the medical college can be allowed to function. A Private medical college may not have or may no, establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposedmay be with some relaxation in the matter of fees chargeableand observed. The Governments (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions.165. So far as unaided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Governmental institutions. If they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resourcesand the main source, apart from donations / charities, if any, can only be the fees collected from thewe do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any "occupation within the meaning of Art.19(1)(g),perhaps, it iswe are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Art.19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since times immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. that "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words ........" [See University of Delhi (1964) 2 SCR 703 : (AIR 1963 SC 1873 )]. The Parliament too has manifested its intention repeatedly (by enacting the U. G. C. Act, I. M. C. Act and A.I.C.T.E. Act) that commercialisation of education is not permissible and that no person shall be allowed to steal a march over a more meritorious candidate because of his economic power. The very same intention is expressed by the Legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the preamble to their respective enactments prohibiting charging of capitation fee.167. We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D.C., 1957 SCR 874 : (AIR 1957 SC 699 ), that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of "occupation". The content of the expression "occupation" has to be ascertained keeping in mind the fact that clause (g) employs all the four expressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have a content of its own, distinct from the others. Be that as it may, one thing is clearimparting of education is not and cannot be allowed to become commerce. A law, existing or future, ensuring against it would be a valid measure within the meaning of clause (6) of Art.19. We cannot, therefore, agree with the contrary proposition enunciated in AIR 1968 Bombay 91, AIR 1984 Andh Pra 251 and AIR 1986 Kant. 119 .168.The learned counsel for the petitioners relied upon certain decisions in support of their contention that right to establish an educational institution flows from Art.19(1)(g). The first is in Bharat Sevashram Sangh v. State of Gujarat, (1986) 3 SCR 602 : (AIR 1987 SC 494 ), a decision of a Bench consisting of E. S. Venkataramiah and Ranganath Misra, JJ. At page 609 (of SCR) : (at p. 499 of AIR), while dealing with S.33 of the Gujarat Secondary Education Act empowering the Government to take over an educational institution in certain situations for a period not exceeding five years, the learned Judges observed that "the said provision is introduced in the interest of the general public and does not in any way affect prejudicially the fundamental right of the management guaranteed under Art.19(1) (g) of theConstitution." Actually, the issue now before us was not raised or considered in the said decision. Moreover, the decision does not say whether it is aprofession, occupation, trade oris then placed upon the Seven Judge Bench decision in Bangalore Water Supply and Sewerage Board v. Rajappa (1978) 3 SCR 207 : (AIR 1978 SC 548 ). Krishna Iyer, J. dealing with the meaning of the expression "industry" in I.D. Act observed that even educational institutions would fall within the purview of "industry".We do not think the said observation in a different context has any application here. So far as the other decision in State of Maharashtra v. Lok Shikshan Sanstha 1971 (Suppl.) SCR 879 : (AIR 1973 SC 588 ) is concerned, all that the Court held there was that in view of the operation of emergency, Art.19 is not available to the petitioners seeking to establish an educational institution. Art.358 was held to be a bar. But the decision does not say that such a right does inhere in the petitioners.169. We are also of the opinion that the said activity cannot be called a profession within the meaning of Art.19(1)(g). It is significant to notice the words "to practice any profession". Evidently, the reference is to such professions as may be practiced by citizens i.e., individuals. [See N.U.C. Employees v. Industrial Tribunal, AIR 1962 SC 1080 at 1085]. Establishing educational institutions can by no stretch of imagination be treated as "practising any profession". Teaching may be a profession but establishing an institution, employing teaching and non teaching staff, procuring the necessary infrastructure for running a school or college is not practising profession. It may be anything but not practising a profession.For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public.171. We must, however, make it clear and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation.We must, however, make it clear and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation.In St. Xaviers College v. State of Gujarat (1975) 1 SCR 173 : (AIR 1974 SC 1389 ) it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C. J., stated that this has been "the consistent view of this Court." They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the Statemuch less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and / or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significancethe very life blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and / or is affiliated to one or the other Universities in the country. Unless it is recognised and / or affiliated as stated above, its certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and / or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government / University. The idea is that if such students pass the said examination, the Government / University will award its degree / diploma / certificate to them. These educational institutions follow the syllabus prescribed by the Government / University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees / qualifications. They prepare their students for University / Government examinations, request the University / Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised / affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building on roads, bridges etc. In short, the position is this : No educational institution except an University can award degrees (S.22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and / or affiliation. The bodies which grant recognition and / or affiliation are the authorities of the State. In such a situation, it is obligatoryin the interest of general publicupon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising / affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Art.14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation / recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition / affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it byits activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Arts.14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolvedwith the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments referred to hereinbeforethe following scheme which every authority granting recognition / affiliation shall impose upon the institutions seeking such recognition / affiliation.The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of. It is the discretion that has mainly led to the commercialisation of education. Capitation fee means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or any one on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutionswhich is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by themwhich may be called permitted feesand to bar them from collecting anything other than the permitted fees, which is what Capitation fees means. Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the Rules that may be framed under theseare aware that until the commencement of the current academic year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering colleges. Though all the available seats were being filled by the allottees of the Convenor (State)and the managements were not allowed to admit any student on their owna uniform fee was collected from all the students. The concepts of free seats and payment seats were therefore not relevant in such a situationall were payment seats only. We cannot say that such a system is constitutionally not permissible. But our idea in devising this scheme has been to provide more opportunities to meritorious students, who may not be able to pay the enhanced fee prescribed by the Government for such colleges. The system devised by us would mean correspondingly more financial burden of payment on students whereas in the aforesaid system (in vogue in Andhra Pradesh) the financial burden is equally distributed among all the students. The theoretical foundation for our method is that a candidate / student who is stealing a march over his compatriot on account of his economic power should be made not only to pay for himself but also to pay for another meritorious student. This is the social justification behind the fifty per cent rule prescribed in clause (2) of this scheme.In view of the above, we do not think it necessary to go into or answer Question No. 3. In our opinion, the said question requires debate in a greater depth and any expression of opinion thereon at this juncture is not really warranted.We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Art.14 of the Constitution appliesas it does, without a doubtto the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservationswherein too, merit inter se has to be followed) the applicability of Art.14 cannot be excluded from the supplemental effort / activity. The State Legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or conferred by the State Legislature. On this ground alone, the Section is liable to fail.In the circumstances, it is not necessary for us to go into the question whether the section is bad on account of repugnancy with S.12A of the University Grants Commission Act. It is enough to say that the said section falls foul of Art.14 for the reason given above and must accordingly fail. We agree that the offending portions of S.3A cannot be served from the main body of the section and, therefore, the whole section is liable to fall to the ground.It is not brought to our notice that the enactments of other three States viz., Karnataka, Tamil Nadu and Maharashtra contain similar offending provisions. Indeed, they do not. None of their provisions says that the Management of a private educational institution can admit students, against "payment seats", "irrespective of the ranking assigned to them in such test (entrance test) or examination". Much less do they say that to such admissions, the provision prohibiting capitation fee shall not apply. True, they do not say expressly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the notifications or orders issued thereunder provide otherwise, either expressly or by implication, they would be equally bad for the reason given above.It is true, as pointed out by the High Court that these admissions were made in a hurry but the fact remains that they have been continuing in the said course under the orders of this Court over the last about four months. As stated hereinbefore, the present situation has been brought about by a combination of circumstances namely the enactment of S.3A, the allotment of students to the extent of 50% only by the convenor and the failure of the Government to immediately rectify the misunderstanding of the convenor. In the circumstances we are not satisfied that these students should be sent out at this stage. May be, the result is rather unfortunate but we have to weigh all the relevant circumstances. At the same time we are of the opinion that the managements of these private engineering colleges should not be allowed to walk away with the double advantage referred to above.If really Art.21, which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Art.45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: and / or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance - the very life blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and / or is affiliated to one or the other Universities in the country. Unless it is recognised and / or affiliated as stated above, its certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and / or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government / University. The idea is that if such students pass the said examination, the Government / University will award its degree / diploma / certificate to them. These educational institutions follow the syllabus prescribed by the Government / University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees / qualifications. They prepare their students for University / Government examinations, request the University / Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised / affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building on roads, bridges etc. In short, the position is this : No educational institution except an University can award degrees (S.22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and / or affiliation. The bodies which grant recognition and / or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising / affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Art.14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation / recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition / affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part-III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Arts.14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved - with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments referred to hereinbefore - the following scheme which every authority granting recognition / affiliation shall impose upon the institutions seeking such recognition / affiliation.The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of. It is the discretion that has mainly led to the commercialisation of education. Capitation fee means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or any one on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions - which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by them - which may be called permitted fees - and to bar them from collecting anything other than the permitted fees, which is what Capitation fees means. Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the Rules that may be framed under these enactments. ### Response: 1 ### Explanation: collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutionswhich is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by themwhich may be called permitted feesand to bar them from collecting anything other than the permitted fees, which is what Capitation fees means. Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the Rules that may be framed under theseare aware that until the commencement of the current academic year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering colleges. Though all the available seats were being filled by the allottees of the Convenor (State)and the managements were not allowed to admit any student on their owna uniform fee was collected from all the students. The concepts of free seats and payment seats were therefore not relevant in such a situationall were payment seats only. We cannot say that such a system is constitutionally not permissible. But our idea in devising this scheme has been to provide more opportunities to meritorious students, who may not be able to pay the enhanced fee prescribed by the Government for such colleges. The system devised by us would mean correspondingly more financial burden of payment on students whereas in the aforesaid system (in vogue in Andhra Pradesh) the financial burden is equally distributed among all the students. The theoretical foundation for our method is that a candidate / student who is stealing a march over his compatriot on account of his economic power should be made not only to pay for himself but also to pay for another meritorious student. This is the social justification behind the fifty per cent rule prescribed in clause (2) of this scheme.In view of the above, we do not think it necessary to go into or answer Question No. 3. In our opinion, the said question requires debate in a greater depth and any expression of opinion thereon at this juncture is not really warranted.We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Art.14 of the Constitution appliesas it does, without a doubtto the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservationswherein too, merit inter se has to be followed) the applicability of Art.14 cannot be excluded from the supplemental effort / activity. The State Legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or conferred by the State Legislature. On this ground alone, the Section is liable to fail.In the circumstances, it is not necessary for us to go into the question whether the section is bad on account of repugnancy with S.12A of the University Grants Commission Act. It is enough to say that the said section falls foul of Art.14 for the reason given above and must accordingly fail. We agree that the offending portions of S.3A cannot be served from the main body of the section and, therefore, the whole section is liable to fall to the ground.It is not brought to our notice that the enactments of other three States viz., Karnataka, Tamil Nadu and Maharashtra contain similar offending provisions. Indeed, they do not. None of their provisions says that the Management of a private educational institution can admit students, against "payment seats", "irrespective of the ranking assigned to them in such test (entrance test) or examination". Much less do they say that to such admissions, the provision prohibiting capitation fee shall not apply. True, they do not say expressly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the notifications or orders issued thereunder provide otherwise, either expressly or by implication, they would be equally bad for the reason given above.It is true, as pointed out by the High Court that these admissions were made in a hurry but the fact remains that they have been continuing in the said course under the orders of this Court over the last about four months. As stated hereinbefore, the present situation has been brought about by a combination of circumstances namely the enactment of S.3A, the allotment of students to the extent of 50% only by the convenor and the failure of the Government to immediately rectify the misunderstanding of the convenor. In the circumstances we are not satisfied that these students should be sent out at this stage. May be, the result is rather unfortunate but we have to weigh all the relevant circumstances. At the same time we are of the opinion that the managements of these private engineering colleges should not be allowed to walk away with the double advantage referred to above.If really Art.21, which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Art.45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit.

Oriental Insurance Company Limited Vs. Smt.Archana Bhupendra Jahagirdar & Others

not proved that bonus of Rs.8,50,949/- received by the deceased was on the basis of his performance. Thus, his submission is that the Tribunal has committed a blatant error by taking the yearly income of the deceased at Rs.11,09,000/-. He, therefore, submitted that the compensation granted by the Tribunal is exorbitant. The learned counsel for the first and second respondents not only supported the impugned Award but he submitted that the multiplier of only 10 has been applied by the Tribunal though in terms of settled law laid down by the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121 ), multiplier could not have been less than 15. Thus, his submission is that in fact, first and second respondents were entitled to compensation which is higher than what was granted by the Tribunal.5. We have carefully considered the submissions. We have perused the record. It is not disputed that the date of birth of the deceased was 22nd June 1967 as reflected from the School Leaving Certificate at Exhibit-29. Thus, on the date of the accident, his age can be safely taken as about 36 years. The document at Exhibit-30 shows that the deceased had obtained a degree of Bachelor of Engineering in Computer Science from University of Dharwad. A letter dated 23rd March 1994 addressed by the employer of the deceased shows that by the said letter he was appointed as a Junior Executive on probation for a period of six months. Further letter dated 1st October 1994 sent by the employer discloses that the deceased was confirmed in the employment with effect from 1st October 1994 as a Junior Executive at the consolidated salary of Rs.5100/- per month together with Rs.225/- per month as conveyance allowance. The letter of appointment of the deceased shows that he was entitled to Contributory Provident Fund, LTA, Medical, Bonus and Casual leave etc.6. The first and second respondents examined Shri Mangesh Sawant who was at the relevant time employed as Human Resources Manager of M/s.S.G.S. India Private Limited (employer of the deceased). He stated that as per the record, at the time of his death, the deceased was employed as a Divisional Manager of the said company and initially on 1st April 1994, he was employed as a Junior Executive. He disclosed that the gross monthly salary of the deceased was Rs.67188/- and he received bonus of Rs.8,50,949/- in the year. Apart from that, the witness claimed that the deceased was entitled to Leave Travel Allowance of Rs.30,000/- and medical expenses of Rs.25,000/- during the relevant year. He also deposed that the deceased was a permanent employee of his company. In the cross examination, he admitted that the bonus depends upon the profit of the company and the same is not fixed. The pay slip for the month of April 2003 has been marked as Exhibit-36. The said document has been marked as Exhibit without any objection from the appellant. The said document discloses that the basic salary for April 2003 was Rs.47,288/-. Apart from the basic salary, deceased received House Rent Allowance of Rs.10,083/-, education allowance of Rs.2625/-, and entertainment allowance Rs.7292/- per month. It is obvious that the benefit of the amounts payable towards the allowances was available to the family of the deceased and therefore, the total earnings can be taken at Rs.67,000/- per month.7. The deceased was well qualified and was a permanent employee of a reputed company who had already worked for 9 years for the said company. Following the decision of the Apex Court in the case of Sarla Verma (supra), 50% of the amount will have to be added to his income towards the future prospects of increase in his earnings. Thus, the total emoluments will be Rs.1,00,500/- per month. 20% of the amount will have to be deducted towards income tax. Thus, the net amount will be Rs.80,400/- . One third deduction will have to be made on account of personal expenditure as number of dependents on the deceased are only two. Thus, after deducting the said amount, monthly dependency will come to Rs.53,600/- and yearly dependency will be Rs.6,50,000/-. Going by the decision of the Apex Court in case of Sarla Verma (supra), multiplier of 14 will have to be adopted. Even if multiplier of 13 is adopted, the compensation of Rs.74,28,330/- fixed by the Tribunal will be on the lower side as the compensation payable will be Rs.84,50,000/-.8. At this stage, an argument canvassed by the learned counsel for the appellant is that as there is no cross appeal or cross objection filed, this Court cannot re-assess the compensation awarded by the Tribunal. We must note here that the claim for compensation under section 166 of the said Act is not a suit. In view of section 168, it is the obligation of the Tribunal to determine what is the just compensation payable to the claimants. It is not in dispute that this is an appeal to which the provisions of Code of Civil Procedure,1908 are applicable. The present appeal is, therefore, continuation of the proceedings of the original claim application. Therefore, it is the duty of this Court to determine what will be the just compensation payable to the first and second respondents in accordance with settled principles of law. If this Court finds that the just compensation is more than what is granted by the Tribunal, in absence of any appeal or cross objection by the claimants, this Court may not grant any enhancement. However, it is the duty of this Court to compute the just compensation and to determine whether the compensation fixed by the Tribunal is proper. We find that after applying the settled principles laid down by the Apex Court including the principles laid down in the case of Sarla Verma (supra), the compensation of Rs.74,28,330/- granted by the Tribunal is not at all unreasonable and in fact the just compensation will exceed that amount.

0[ds]7. The deceased was well qualified and was a permanent employee of a reputed company who had already worked for 9 years for the said company. Following the decision of the Apex Court in the case of Sarla Verma (supra), 50% of the amount will have to be added to his income towards the future prospects of increase in his earnings. Thus, the total emoluments will be Rs.1,00,500/per month. 20% of the amount will have to be deducted towards income tax. Thus, the net amount will be Rs.. One third deduction will have to be made on account of personal expenditure as number of dependents on the deceased are only two. Thus, after deducting the said amount, monthly dependency will come to Rs.53,600/and yearly dependency will be Rs.Going by the decision of the Apex Court in case of Sarla Verma (supra), multiplier of 14 will have to be adopted. Even if multiplier of 13 is adopted, the compensation of Rs.74,28,330/At this stage, an argument canvassed by the learned counsel for the appellant is that as there is no cross appeal or cross objection filed, this Court cannotthe compensation awarded by the Tribunal. We must note here that the claim for compensation under section 166 of the said Act is not a suit. In view of section 168, it is the obligation of the Tribunal to determine what is the just compensation payable to the claimants. It is not in dispute that this is an appeal to which the provisions of Code of Civil Procedure,1908 are applicable. The present appeal is, therefore, continuation of the proceedings of the original claim application. Therefore, it is the duty of this Court to determine what will be the just compensation payable to the first and second respondents in accordance with settled principles of law. If this Court finds that the just compensation is more than what is granted by the Tribunal, in absence of any appeal or cross objection by the claimants, this Court may not grant any enhancement. However, it is the duty of this Court to compute the just compensation and to determine whether the compensation fixed by the Tribunal is proper. We find that after applying the settled principles laid down by the Apex Court including the principles laid down in the case of Sarla Verma (supra), the compensation of Rs.74,28,330/granted by the Tribunal is not at all unreasonable and in fact the just compensation will exceed that amount.

### 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: not proved that bonus of Rs.8,50,949/- received by the deceased was on the basis of his performance. Thus, his submission is that the Tribunal has committed a blatant error by taking the yearly income of the deceased at Rs.11,09,000/-. He, therefore, submitted that the compensation granted by the Tribunal is exorbitant. The learned counsel for the first and second respondents not only supported the impugned Award but he submitted that the multiplier of only 10 has been applied by the Tribunal though in terms of settled law laid down by the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121 ), multiplier could not have been less than 15. Thus, his submission is that in fact, first and second respondents were entitled to compensation which is higher than what was granted by the Tribunal.5. We have carefully considered the submissions. We have perused the record. It is not disputed that the date of birth of the deceased was 22nd June 1967 as reflected from the School Leaving Certificate at Exhibit-29. Thus, on the date of the accident, his age can be safely taken as about 36 years. The document at Exhibit-30 shows that the deceased had obtained a degree of Bachelor of Engineering in Computer Science from University of Dharwad. A letter dated 23rd March 1994 addressed by the employer of the deceased shows that by the said letter he was appointed as a Junior Executive on probation for a period of six months. Further letter dated 1st October 1994 sent by the employer discloses that the deceased was confirmed in the employment with effect from 1st October 1994 as a Junior Executive at the consolidated salary of Rs.5100/- per month together with Rs.225/- per month as conveyance allowance. The letter of appointment of the deceased shows that he was entitled to Contributory Provident Fund, LTA, Medical, Bonus and Casual leave etc.6. The first and second respondents examined Shri Mangesh Sawant who was at the relevant time employed as Human Resources Manager of M/s.S.G.S. India Private Limited (employer of the deceased). He stated that as per the record, at the time of his death, the deceased was employed as a Divisional Manager of the said company and initially on 1st April 1994, he was employed as a Junior Executive. He disclosed that the gross monthly salary of the deceased was Rs.67188/- and he received bonus of Rs.8,50,949/- in the year. Apart from that, the witness claimed that the deceased was entitled to Leave Travel Allowance of Rs.30,000/- and medical expenses of Rs.25,000/- during the relevant year. He also deposed that the deceased was a permanent employee of his company. In the cross examination, he admitted that the bonus depends upon the profit of the company and the same is not fixed. The pay slip for the month of April 2003 has been marked as Exhibit-36. The said document has been marked as Exhibit without any objection from the appellant. The said document discloses that the basic salary for April 2003 was Rs.47,288/-. Apart from the basic salary, deceased received House Rent Allowance of Rs.10,083/-, education allowance of Rs.2625/-, and entertainment allowance Rs.7292/- per month. It is obvious that the benefit of the amounts payable towards the allowances was available to the family of the deceased and therefore, the total earnings can be taken at Rs.67,000/- per month.7. The deceased was well qualified and was a permanent employee of a reputed company who had already worked for 9 years for the said company. Following the decision of the Apex Court in the case of Sarla Verma (supra), 50% of the amount will have to be added to his income towards the future prospects of increase in his earnings. Thus, the total emoluments will be Rs.1,00,500/- per month. 20% of the amount will have to be deducted towards income tax. Thus, the net amount will be Rs.80,400/- . One third deduction will have to be made on account of personal expenditure as number of dependents on the deceased are only two. Thus, after deducting the said amount, monthly dependency will come to Rs.53,600/- and yearly dependency will be Rs.6,50,000/-. Going by the decision of the Apex Court in case of Sarla Verma (supra), multiplier of 14 will have to be adopted. Even if multiplier of 13 is adopted, the compensation of Rs.74,28,330/- fixed by the Tribunal will be on the lower side as the compensation payable will be Rs.84,50,000/-.8. At this stage, an argument canvassed by the learned counsel for the appellant is that as there is no cross appeal or cross objection filed, this Court cannot re-assess the compensation awarded by the Tribunal. We must note here that the claim for compensation under section 166 of the said Act is not a suit. In view of section 168, it is the obligation of the Tribunal to determine what is the just compensation payable to the claimants. It is not in dispute that this is an appeal to which the provisions of Code of Civil Procedure,1908 are applicable. The present appeal is, therefore, continuation of the proceedings of the original claim application. Therefore, it is the duty of this Court to determine what will be the just compensation payable to the first and second respondents in accordance with settled principles of law. If this Court finds that the just compensation is more than what is granted by the Tribunal, in absence of any appeal or cross objection by the claimants, this Court may not grant any enhancement. However, it is the duty of this Court to compute the just compensation and to determine whether the compensation fixed by the Tribunal is proper. We find that after applying the settled principles laid down by the Apex Court including the principles laid down in the case of Sarla Verma (supra), the compensation of Rs.74,28,330/- granted by the Tribunal is not at all unreasonable and in fact the just compensation will exceed that amount. ### Response: 0 ### Explanation: 7. The deceased was well qualified and was a permanent employee of a reputed company who had already worked for 9 years for the said company. Following the decision of the Apex Court in the case of Sarla Verma (supra), 50% of the amount will have to be added to his income towards the future prospects of increase in his earnings. Thus, the total emoluments will be Rs.1,00,500/per month. 20% of the amount will have to be deducted towards income tax. Thus, the net amount will be Rs.. One third deduction will have to be made on account of personal expenditure as number of dependents on the deceased are only two. Thus, after deducting the said amount, monthly dependency will come to Rs.53,600/and yearly dependency will be Rs.Going by the decision of the Apex Court in case of Sarla Verma (supra), multiplier of 14 will have to be adopted. Even if multiplier of 13 is adopted, the compensation of Rs.74,28,330/At this stage, an argument canvassed by the learned counsel for the appellant is that as there is no cross appeal or cross objection filed, this Court cannotthe compensation awarded by the Tribunal. We must note here that the claim for compensation under section 166 of the said Act is not a suit. In view of section 168, it is the obligation of the Tribunal to determine what is the just compensation payable to the claimants. It is not in dispute that this is an appeal to which the provisions of Code of Civil Procedure,1908 are applicable. The present appeal is, therefore, continuation of the proceedings of the original claim application. Therefore, it is the duty of this Court to determine what will be the just compensation payable to the first and second respondents in accordance with settled principles of law. If this Court finds that the just compensation is more than what is granted by the Tribunal, in absence of any appeal or cross objection by the claimants, this Court may not grant any enhancement. However, it is the duty of this Court to compute the just compensation and to determine whether the compensation fixed by the Tribunal is proper. We find that after applying the settled principles laid down by the Apex Court including the principles laid down in the case of Sarla Verma (supra), the compensation of Rs.74,28,330/granted by the Tribunal is not at all unreasonable and in fact the just compensation will exceed that amount.

P.S. Somanathan Vs. District Insurance Officers

the calculation as to what the capital sum, if invested at a rate of interest appropriate to a stable economy, would yield by way of annual interest. In ascertaining this, regard was also to be had to the fact that ultimately the capital sum would also be consumed-up over the period for which the dependency was expected to last. 16. In United India Insurance Co. Ltd. v. Bindu & Ors. [(2009) 3 SCC 705] , this Court again reiterated that the choice of the multiplier was to be determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation of a capital sum which, if invested at a rate of interest appropriate to a stable economy, would yield by way of annual interest. 17. In Supe Dei (Smt) & Ors. v. National Insurance Co. Ltd. & Anr. [(2009) 4 SCC 513] , the Court observed that while considering the question of just compensation payable in a case all relevant factors including appropriate multiplier had to be considered, and that the Second Schedule under Section 163-A to the Motor Vehicles Act, 1988, which gave amount of compensation to be determined for purpose of claim under the section, could be taken as a guideline while determining the compensation under Section 166 of the Act. 18. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] , this Court formulated the principles very lucidly and which are quoted below: "Basically only three facts need to be established by the claimants for assessing compensation in the case of death:(a) age of the deceased;(b) income of the deceased; and the(c) the number of dependents.The issues to be determined by the Tribunal to arrive at the loss of dependency are:(i) additions/deductions to be made for arriving at the income;(ii) the deduction to be made towards the personal living expenses of the deceased;and(iii) the multiplier to be applied with reference of the age of the deceased.If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:Step 1 (Ascertaining the multiplicand)The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.Step 2 (Ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected.This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.Step 3 (Actual calculation)The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency to the family." 19. Further, this Court considered the principles laid down in Susamma (supra), Trilok Chandra (supra) and New India Assurance Co. Ltd. v. Charlie & Anr. [(2005) 10 SCC 720] and gave the following table for multiplier: Age of the DeceasedMultiplier Scale as envisaged in Susamma ThomasMultiplier Scale as adopted by Trilok ChandraMultiplier Scale in Trilok Chandra as clarified in CharlieMultiplier specified in Second column in the Table in Second Schedule to the MV ActMultiplier actually used in Second Schedule to the MV Act (as seen from the quantum of compensation) (1)(2)(3)(4)(5)(6) Up to15 years––––––1520 15 to 20 years1618181619 21 to 25 years1517181718 26 to 30 years1416171817 31 to 35 years1315161716 36 to 40 years1214151615 41 to 45 years1113141514 46 to 50 years1012131312 51 to 55 years911111110 56 to 60 years8100988 61 to 65 years6080756 Above 65 years5050555 20. In the present case, the claimants had filed for compensation under Section 166 of the Motor Vehicles Act, 1988. The original claim petition had been filed by the mother and brother of the deceased and the deceased was 33 years of age when he died in the accident. 21. For the purpose of calculating the multiplier, the High Court held that mother was the real legal representative and others could not claim to be the legal representatives of the deceased, and accordingly applied a multiplier of 5, whereas the Tribunal had calculated compensation by considering a multiplier of 16.22. This Court is of the opinion that the law as has been laid correctly in the case of Sarla Varma (supra), in a very well considered judgment, is to be followed.23. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased was looking after the entire family.In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that. By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma (supra). Following the same the High Court should have proceeded to compute the compensation on the age of the deceased.24. Thus, the finding of the High Court is contrary to the ratio in Sarla Verma (supra), which is the leading decision on this question and which we follow.

1[ds]21. For the purpose of calculating the multiplier, the High Court held that mother was the real legal representative and others could not claim to be the legal representatives of the deceased, and accordingly applied a multiplier of 5, whereas the Tribunal had calculated compensation by considering a multiplier of 16.22. This Court is of the opinion that the law as has been laid correctly in the case of Sarla Varma (supra), in a very well considered judgment, is to be followed.23. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased was looking after the entire family.In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that. By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma (supra). Following the same the High Court should have proceeded to compute the compensation on the age of the deceased.24. Thus, the finding of the High Court is contrary to the ratio in Sarla Verma (supra), which is the leading decision on this question and which we follow.

### 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 calculation as to what the capital sum, if invested at a rate of interest appropriate to a stable economy, would yield by way of annual interest. In ascertaining this, regard was also to be had to the fact that ultimately the capital sum would also be consumed-up over the period for which the dependency was expected to last. 16. In United India Insurance Co. Ltd. v. Bindu & Ors. [(2009) 3 SCC 705] , this Court again reiterated that the choice of the multiplier was to be determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation of a capital sum which, if invested at a rate of interest appropriate to a stable economy, would yield by way of annual interest. 17. In Supe Dei (Smt) & Ors. v. National Insurance Co. Ltd. & Anr. [(2009) 4 SCC 513] , the Court observed that while considering the question of just compensation payable in a case all relevant factors including appropriate multiplier had to be considered, and that the Second Schedule under Section 163-A to the Motor Vehicles Act, 1988, which gave amount of compensation to be determined for purpose of claim under the section, could be taken as a guideline while determining the compensation under Section 166 of the Act. 18. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] , this Court formulated the principles very lucidly and which are quoted below: "Basically only three facts need to be established by the claimants for assessing compensation in the case of death:(a) age of the deceased;(b) income of the deceased; and the(c) the number of dependents.The issues to be determined by the Tribunal to arrive at the loss of dependency are:(i) additions/deductions to be made for arriving at the income;(ii) the deduction to be made towards the personal living expenses of the deceased;and(iii) the multiplier to be applied with reference of the age of the deceased.If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:Step 1 (Ascertaining the multiplicand)The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.Step 2 (Ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected.This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.Step 3 (Actual calculation)The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency to the family." 19. Further, this Court considered the principles laid down in Susamma (supra), Trilok Chandra (supra) and New India Assurance Co. Ltd. v. Charlie & Anr. [(2005) 10 SCC 720] and gave the following table for multiplier: Age of the DeceasedMultiplier Scale as envisaged in Susamma ThomasMultiplier Scale as adopted by Trilok ChandraMultiplier Scale in Trilok Chandra as clarified in CharlieMultiplier specified in Second column in the Table in Second Schedule to the MV ActMultiplier actually used in Second Schedule to the MV Act (as seen from the quantum of compensation) (1)(2)(3)(4)(5)(6) Up to15 years––––––1520 15 to 20 years1618181619 21 to 25 years1517181718 26 to 30 years1416171817 31 to 35 years1315161716 36 to 40 years1214151615 41 to 45 years1113141514 46 to 50 years1012131312 51 to 55 years911111110 56 to 60 years8100988 61 to 65 years6080756 Above 65 years5050555 20. In the present case, the claimants had filed for compensation under Section 166 of the Motor Vehicles Act, 1988. The original claim petition had been filed by the mother and brother of the deceased and the deceased was 33 years of age when he died in the accident. 21. For the purpose of calculating the multiplier, the High Court held that mother was the real legal representative and others could not claim to be the legal representatives of the deceased, and accordingly applied a multiplier of 5, whereas the Tribunal had calculated compensation by considering a multiplier of 16.22. This Court is of the opinion that the law as has been laid correctly in the case of Sarla Varma (supra), in a very well considered judgment, is to be followed.23. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased was looking after the entire family.In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that. By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma (supra). Following the same the High Court should have proceeded to compute the compensation on the age of the deceased.24. Thus, the finding of the High Court is contrary to the ratio in Sarla Verma (supra), which is the leading decision on this question and which we follow. ### Response: 1 ### Explanation: 21. For the purpose of calculating the multiplier, the High Court held that mother was the real legal representative and others could not claim to be the legal representatives of the deceased, and accordingly applied a multiplier of 5, whereas the Tribunal had calculated compensation by considering a multiplier of 16.22. This Court is of the opinion that the law as has been laid correctly in the case of Sarla Varma (supra), in a very well considered judgment, is to be followed.23. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased was looking after the entire family.In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that. By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma (supra). Following the same the High Court should have proceeded to compute the compensation on the age of the deceased.24. Thus, the finding of the High Court is contrary to the ratio in Sarla Verma (supra), which is the leading decision on this question and which we follow.

Shri Vallabharaya Swami Varu (Deity) of Swarna, Represented By Its Executive Officer Vs. Deevi Hanumancharyulu and Others

Chandrachud, C.J. 1. The question for determination in this appeal is whether the property described in items 1 to 5 of Schedule A to the plaint was granted in favour of the temple as contended on behalf of the plaintiff or whether it was granted in favour of the ancestors of the Archakas, burdened with service, as contended on behalf of the defendants. This question turns upon the construction of the various entries and recitals in the Inam Fair Register (Ex. A-2) and the document described as the title deed (Ex. B-10) which was granted at the time of the Inam Commission Enquiry. 2. Column 1 of the Inam Fair Register describes the class of inam as Devadayam. But as observed in Venkayya v. Sriramamurthy (AIR 1957 AP 53 ), this description by itself cannot be determinative of the question since it only denotes that the endowment is of a religious character which will include a service inam attached to a temple. Column 10 of the Register shows that the grant was hereditary. In Poohari Fakir Sadavarthy of Bondilipuram v. Commissioner, Hindu Religious and Charitable Endowments (1962 Supp 2 SCR 276, 286 : AIR 1963 SC 510 ), it was observed by this Court that the expression that the grant is hereditary would normally support the conclusion that the grant is made personally and not to the temple, even if the temple was in existence at the time of the making of the grant. Column 13 of the Register shows the name of the grantee as Shri Vallabharaya-swamy Varu, enjoyed by Archakulu. Under column 16, the present holder of the property is described as Divi Vallabhacharyulu. Under columns 19 and 20, the names of the heirs of the original Archakas are set out. Column 21 of the Register sets out the opinion and the recommendations made by the Deputy Collector on February 14, 1881. He says that the oral testimony of the villagers showed that the lands were enjoyed as inam for a series of years and that from the evidence he was disposed to recommend that the whole inam was surveyed as granted to persons rendering Archakatvam and Akhandam service to the temple. In column 22, which sets out the final decision of the Inam Commissioner, it is stated that the inam was confirmed on a quit rent of Rs. 24 so long as the service of the pagoda was efficiently kept up. 3. These entries are by themselves sufficient to justify the concurrent finding recorded by the trial Court and the High Court. But, in addition, the inam title deed Ex. B-10 dated October 4, 1881, shows that these findings are unassailable. The document is dated October 11, 1881 and the Inam Commissioner recites therein that the grant was made to Divi Vallabhacharyulu and that, by the deed, the title of the grantee too the Devadayam or Pagoda was acknowledged. Paragraph 2 of the deed of title recites that the inam was being confirmed on the grantee Divi Vallabhacharyulu and on his successors, subject to a quit rent of Rs. 24 per annum so long as the conditions of the grant were duly fulfilled. 4. On a consideration of this documentary evidence in the case, we have no doubt that the grant is not in favour of the deity but is in favour of the Archakas, subject to the condition that they shall render service to the temple. 5. We, therefore, agree with the judgment of the High Court and the trial Court that the property described in items 1 to 5 of Schedule A to the plaint belongs, not to the plaintiff temple but to the defendants, the Archakas, though of course the property is burdened with service and shall continue to remain with and as of the defendants so long as they render service to the temple.

0[ds]5. We, therefore, agree with the judgment of the High Court and the trial Court that the property described in items 1 to 5 of Schedule A to the plaint belongs, not to the plaintiff temple but to the defendants, the Archakas, though of course the property is burdened with service and shall continue to remain with and as of the defendants so long as they render service to the temple.

### 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: Chandrachud, C.J. 1. The question for determination in this appeal is whether the property described in items 1 to 5 of Schedule A to the plaint was granted in favour of the temple as contended on behalf of the plaintiff or whether it was granted in favour of the ancestors of the Archakas, burdened with service, as contended on behalf of the defendants. This question turns upon the construction of the various entries and recitals in the Inam Fair Register (Ex. A-2) and the document described as the title deed (Ex. B-10) which was granted at the time of the Inam Commission Enquiry. 2. Column 1 of the Inam Fair Register describes the class of inam as Devadayam. But as observed in Venkayya v. Sriramamurthy (AIR 1957 AP 53 ), this description by itself cannot be determinative of the question since it only denotes that the endowment is of a religious character which will include a service inam attached to a temple. Column 10 of the Register shows that the grant was hereditary. In Poohari Fakir Sadavarthy of Bondilipuram v. Commissioner, Hindu Religious and Charitable Endowments (1962 Supp 2 SCR 276, 286 : AIR 1963 SC 510 ), it was observed by this Court that the expression that the grant is hereditary would normally support the conclusion that the grant is made personally and not to the temple, even if the temple was in existence at the time of the making of the grant. Column 13 of the Register shows the name of the grantee as Shri Vallabharaya-swamy Varu, enjoyed by Archakulu. Under column 16, the present holder of the property is described as Divi Vallabhacharyulu. Under columns 19 and 20, the names of the heirs of the original Archakas are set out. Column 21 of the Register sets out the opinion and the recommendations made by the Deputy Collector on February 14, 1881. He says that the oral testimony of the villagers showed that the lands were enjoyed as inam for a series of years and that from the evidence he was disposed to recommend that the whole inam was surveyed as granted to persons rendering Archakatvam and Akhandam service to the temple. In column 22, which sets out the final decision of the Inam Commissioner, it is stated that the inam was confirmed on a quit rent of Rs. 24 so long as the service of the pagoda was efficiently kept up. 3. These entries are by themselves sufficient to justify the concurrent finding recorded by the trial Court and the High Court. But, in addition, the inam title deed Ex. B-10 dated October 4, 1881, shows that these findings are unassailable. The document is dated October 11, 1881 and the Inam Commissioner recites therein that the grant was made to Divi Vallabhacharyulu and that, by the deed, the title of the grantee too the Devadayam or Pagoda was acknowledged. Paragraph 2 of the deed of title recites that the inam was being confirmed on the grantee Divi Vallabhacharyulu and on his successors, subject to a quit rent of Rs. 24 per annum so long as the conditions of the grant were duly fulfilled. 4. On a consideration of this documentary evidence in the case, we have no doubt that the grant is not in favour of the deity but is in favour of the Archakas, subject to the condition that they shall render service to the temple. 5. We, therefore, agree with the judgment of the High Court and the trial Court that the property described in items 1 to 5 of Schedule A to the plaint belongs, not to the plaintiff temple but to the defendants, the Archakas, though of course the property is burdened with service and shall continue to remain with and as of the defendants so long as they render service to the temple. ### Response: 0 ### Explanation: 5. We, therefore, agree with the judgment of the High Court and the trial Court that the property described in items 1 to 5 of Schedule A to the plaint belongs, not to the plaintiff temple but to the defendants, the Archakas, though of course the property is burdened with service and shall continue to remain with and as of the defendants so long as they render service to the temple.

N.Suresh Vs. Yusuf Shariff

of Kowdle Post Office (as deposed by appellant and corroborated by P.W.6, Thimmaiah, Postman)Rs. 2,495/- p.m. TotalRs. 10, 995/- Therefore, it can safely be stated that the appellant was earning minimum Rs.8,500/- per month prior to the accident. 17. The PW.3, Doctor deposed that the right leg is 90% disabled and is permanently paralysed. The leg is amputated. Apart from this, his face has been deformed and is disabled to the extent of 50% to 60%, due to which he is not in a position to open his mouth fully. Therefore, it can safely be stated that the appellant is 90% permanently disabled to earn any income. The Tribunal and the High Court failed to appreciate the facts and fixed the disability at a lower level of 40% or 50%.18. Admitted, the appellant was about 32 years of age at the time of the accident, therefore, the Tribunal was right in applying the multiplier of 16 to determine the compensation. Once the income is considered at Rs.8,500/- per month it comes to Rs.1,02,000/- per annum, 90% of the same comes to Rs.91,800/-. If the same is multiplied by 16 it comes to Rs.91,800/- x 16 = Rs.14,68,800/-. Therefore, it is proper to award Rs.14,68,800/- towards “loss of future earning”. 19. So far as loss of income during the treatment is concerned, the Tribunal has noticed the nature of injuries and treatment taken by the appellant to come to the conclusion that the appellant might not have worked at least for six months. Even if such minimum period for treatment is accepted as six months, the appellant is entitled for a just and proper award of Rs.51,000/- under the head of “loss of income during the treatment”. 20. So far as medical expenses and other incidental charges are concerned, the Tribunal appreciated the different evidence and observed as follows: “iii)Towards medical expenses and other incidental charges: Petitioner contended that he has taken treatment in several hospitals. Initially he was taken to Mandya General Hospital. Later in private car he was taken to JSS Hospital, Mysore. On the same day he was taken to Mahaveer Jain Hospital, Bangalore. He was operated on his right leg and discharged for higher treatment. He was admitted in Boring Hospital, Bangalore wherein he was paid Rs.5,000/- . From that hospital also he was discharged. Later he was admitted in St. John Hospital on 2.3.2003. He was operated on his hand, right leg, left leg, stomach. He was indoor patient for 2 months. Later he took treatment in Kempegowda Dental Hospital for mandible and he was indoor patient for 1 week. All his teeth were removed. He lost all teeth and left leg. He has become completely disabled. P.W.7 Doctor Natarajshekar of Kempegowda Hospital deposed that he treated his dental problems stated that on 9.7.2003 to 15.7.2003 he was indoor patient. All teeth were removed, decided to insert entire set. On 10.7.2003 he was operated and again on 4.9.2003 he was operated for 2nd time. In this connection he has produced Ex.P-5 wound certificate issued by St.John Medical Hospital, Bangalore, Ex.P-6 and P-7 is medical bills and Transporting charges. He has produced medical bills worth of Rs.1,85,628/- rounded off to Rs.1,86,000/- and transportation charges worth of Rs.27,230. Ex.P-9 to 16 case sheet, patient record, discharge summary, Ex.P-17 is the case sheet of St.John Medical College Hospital, Bangalore for having taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 29.3.2003 to 20.4.2003. Others are ex-rays Ex.P-25 is KIMS Hospital records. He further produced Ex.P-26 cash bills worth of Rs.2,590/-. On going through records Ex.P-6 the petitioner has taken into consideration double of hospital bills, which ought to have been reduced, which comes to Rs.1,85,000/- and not 4,83,000/- as calculated. The bills are repeated as item No.8,18,19,34,36,60. The only final bill worth of Rs.73,000/- is shown but he has considered the interval bills also including the final bills it comes to Rs.1,85,628/-. On going through all the medical bills some of them are not supported with prescriptions and not properly explained by the petitioner. Having regard to all the circumstances and treatment taken by him in different hospitals he might have spent for medical expenses. So it is better to consider medical expenses at Rs.1,50,000/-. On perusal of Ex.P-7 transportation charges receipts have been produced, but person who provide vehicle is not mentioned. However he might have spent something for transportation. It is proper to consider Rs.10,000/- for transportation. He was in hospital and taken treatment, he might have spent attendant expenses and special diet, it is found just and proper to award Rs.10,000/- for the same P.W.7 Doctor stated that he has to undergo in future operation of mandible by spending Rs.1,50,000/- for insertion of implant since all the sets removed. X-ray shows fracture of cants of left side. There is permanent disability in the mouth. Considering all these aspects it is found that he requires future medical expenses of Rs.30,000/-. Hence, Petitioner is entitled for compensation under this head is Rs.2,00,000/-.” 21. From the evidence on record the following amounts towards different medical bills are undisputed:(1)The amounts paid during the treatment shows as interval bills and final billsRs. 1,86,000/-(2)Cash Bill (Exhibit P-26)Rs. 2,590/-In this background, the High Court and the Tribunal ought to have accepted the amount of Rs.1,86,000/- towards medical bills, apart from transportation charges. 22. If the aforesaid amount is taken into consideration towards the abovesaid heads, then as per High Court’s calculation the break-up of amounts is as follows: 1.Towards pain and sufferingsRs. 1,00,000/- (as awarded by High Court) 2.Towards medical expensesRs. 1,86,000/- (as determined above) 3.Towards conveyance, nourishing food and attendant chargesRs. 40,000/- (as awarded by the High Court) 4.Towards loss of income during laid-up periodRs. 51,000/- (as determined Above) 5.Towards loss of amenitiesRs. 1,00,000/- (as awarded by the High Court) 6.Towards loss of future incomeRs. 14,68,800/- (as determined Above) 7.Towards future medical expensesRs. 30,000/- (as awarded by the High Court) TotalRs. 19,75,800/-

1[ds]17. The PW.3, Doctor deposed that the right leg is 90% disabled and is permanently paralysed. The leg is amputated. Apart from this, his face has been deformed and is disabled to the extent of 50% to 60%, due to which he is not in a position to open his mouth fully. Therefore, it can safely be stated that the appellant is 90% permanently disabled to earn any income. The Tribunal and the High Court failed to appreciate the facts and fixed the disability at a lower level of 40% or 50%.18. Admitted, the appellant was about 32 years of age at the time of the accident, therefore, the Tribunal was right in applying the multiplier of 16 to determine the compensation. Once the income is considered at Rs.8,500/- per month it comes to Rs.1,02,000/- per annum, 90% of the same comes to Rs.91,800/-. If the same is multiplied by 16 it comes to Rs.91,800/- x 16 = Rs.14,68,800/-. Therefore, it is proper to award Rs.14,68,800/- towards19. So far as loss of income during the treatment is concerned, the Tribunal has noticed the nature of injuries and treatment taken by the appellant to come to the conclusion that the appellant might not have worked at least for six months. Even if such minimum period for treatment is accepted as six months, the appellant is entitled for a just and proper award of Rs.51,000/- under the head ofSo far as medical expenses and other incidental charges are concerned, the Tribunal appreciated the different evidence and observed asmedical expenses and other incidentalcontended that he has taken treatment in several hospitals. Initially he was taken to Mandya General Hospital. Later in private car he was taken to JSS Hospital, Mysore. On the same day he was taken to Mahaveer Jain Hospital, Bangalore. He was operated on his right leg and discharged for higher treatment. He was admitted in Boring Hospital, Bangalore wherein he was paid Rs.5,000/- . From that hospital also he was discharged. Later he was admitted in St. John Hospital on 2.3.2003. He was operated on his hand, right leg, left leg, stomach. He was indoor patient for 2 months. Later he took treatment in Kempegowda Dental Hospital for mandible and he was indoor patient for 1 week. All his teeth were removed. He lost all teeth and left leg. He has become completely disabled. P.W.7 Doctor Natarajshekar of Kempegowda Hospital deposed that he treated his dental problems stated that on 9.7.2003 to 15.7.2003 he was indoor patient. All teeth were removed, decided to insert entire set. On 10.7.2003 he was operated and again on 4.9.2003 he was operated for 2nd time. In this connection he has produced Ex.P-5 wound certificate issued by St.John Medical Hospital, Bangalore, Ex.P-6 and P-7 is medical bills and Transporting charges. He has produced medical bills worth of Rs.1,85,628/- rounded off to Rs.1,86,000/- and transportation charges worth of Rs.27,230. Ex.P-9 to 16 case sheet, patient record, discharge summary, Ex.P-17 is the case sheet of St.John Medical College Hospital, Bangalore for having taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 29.3.2003 to 20.4.2003. Others are ex-rays Ex.P-25 is KIMS Hospital records. He further produced Ex.P-26 cash bills worth of Rs.2,590/-. On going through records Ex.P-6 the petitioner has taken into consideration double of hospital bills, which ought to have been reduced, which comes to Rs.1,85,000/- and not 4,83,000/- as calculated. The bills are repeated as item No.8,18,19,34,36,60. The only final bill worth of Rs.73,000/- is shown but he has considered the interval bills also including the final bills it comes to Rs.1,85,628/-. On going through all the medical bills some of them are not supported with prescriptions and not properly explained by the petitioner. Having regard to all the circumstances and treatment taken by him in different hospitals he might have spent for medical expenses. So it is better to consider medical expenses at Rs.1,50,000/-. On perusal of Ex.P-7 transportation charges receipts have been produced, but person who provide vehicle is not mentioned. However he might have spent something for transportation. It is proper to consider Rs.10,000/- for transportation. He was in hospital and taken treatment, he might have spent attendant expenses and special diet, it is found just and proper to award Rs.10,000/- for the same P.W.7 Doctor stated that he has to undergo in future operation of mandible by spending Rs.1,50,000/- for insertion of implant since all the sets removed. X-ray shows fracture of cants of left side. There is permanent disability in the mouth. Considering all these aspects it is found that he requires future medical expenses of Rs.30,000/-. Hence, Petitioner is entitled for compensation under this head is Rs.2,00,000/-.From the evidence on record the following amounts towards different medical bills are undisputed:(1)The amounts paid during the treatment shows as interval bills and final billsRs. 1,86,000/-(2)Cash Bill (Exhibit P-26)Rs. 2,590/-In this background, the High Court and the Tribunal ought to have accepted the amount of Rs.1,86,000/- towards medical bills, apart from transportation charges.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: of Kowdle Post Office (as deposed by appellant and corroborated by P.W.6, Thimmaiah, Postman)Rs. 2,495/- p.m. TotalRs. 10, 995/- Therefore, it can safely be stated that the appellant was earning minimum Rs.8,500/- per month prior to the accident. 17. The PW.3, Doctor deposed that the right leg is 90% disabled and is permanently paralysed. The leg is amputated. Apart from this, his face has been deformed and is disabled to the extent of 50% to 60%, due to which he is not in a position to open his mouth fully. Therefore, it can safely be stated that the appellant is 90% permanently disabled to earn any income. The Tribunal and the High Court failed to appreciate the facts and fixed the disability at a lower level of 40% or 50%.18. Admitted, the appellant was about 32 years of age at the time of the accident, therefore, the Tribunal was right in applying the multiplier of 16 to determine the compensation. Once the income is considered at Rs.8,500/- per month it comes to Rs.1,02,000/- per annum, 90% of the same comes to Rs.91,800/-. If the same is multiplied by 16 it comes to Rs.91,800/- x 16 = Rs.14,68,800/-. Therefore, it is proper to award Rs.14,68,800/- towards “loss of future earning”. 19. So far as loss of income during the treatment is concerned, the Tribunal has noticed the nature of injuries and treatment taken by the appellant to come to the conclusion that the appellant might not have worked at least for six months. Even if such minimum period for treatment is accepted as six months, the appellant is entitled for a just and proper award of Rs.51,000/- under the head of “loss of income during the treatment”. 20. So far as medical expenses and other incidental charges are concerned, the Tribunal appreciated the different evidence and observed as follows: “iii)Towards medical expenses and other incidental charges: Petitioner contended that he has taken treatment in several hospitals. Initially he was taken to Mandya General Hospital. Later in private car he was taken to JSS Hospital, Mysore. On the same day he was taken to Mahaveer Jain Hospital, Bangalore. He was operated on his right leg and discharged for higher treatment. He was admitted in Boring Hospital, Bangalore wherein he was paid Rs.5,000/- . From that hospital also he was discharged. Later he was admitted in St. John Hospital on 2.3.2003. He was operated on his hand, right leg, left leg, stomach. He was indoor patient for 2 months. Later he took treatment in Kempegowda Dental Hospital for mandible and he was indoor patient for 1 week. All his teeth were removed. He lost all teeth and left leg. He has become completely disabled. P.W.7 Doctor Natarajshekar of Kempegowda Hospital deposed that he treated his dental problems stated that on 9.7.2003 to 15.7.2003 he was indoor patient. All teeth were removed, decided to insert entire set. On 10.7.2003 he was operated and again on 4.9.2003 he was operated for 2nd time. In this connection he has produced Ex.P-5 wound certificate issued by St.John Medical Hospital, Bangalore, Ex.P-6 and P-7 is medical bills and Transporting charges. He has produced medical bills worth of Rs.1,85,628/- rounded off to Rs.1,86,000/- and transportation charges worth of Rs.27,230. Ex.P-9 to 16 case sheet, patient record, discharge summary, Ex.P-17 is the case sheet of St.John Medical College Hospital, Bangalore for having taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 29.3.2003 to 20.4.2003. Others are ex-rays Ex.P-25 is KIMS Hospital records. He further produced Ex.P-26 cash bills worth of Rs.2,590/-. On going through records Ex.P-6 the petitioner has taken into consideration double of hospital bills, which ought to have been reduced, which comes to Rs.1,85,000/- and not 4,83,000/- as calculated. The bills are repeated as item No.8,18,19,34,36,60. The only final bill worth of Rs.73,000/- is shown but he has considered the interval bills also including the final bills it comes to Rs.1,85,628/-. On going through all the medical bills some of them are not supported with prescriptions and not properly explained by the petitioner. Having regard to all the circumstances and treatment taken by him in different hospitals he might have spent for medical expenses. So it is better to consider medical expenses at Rs.1,50,000/-. On perusal of Ex.P-7 transportation charges receipts have been produced, but person who provide vehicle is not mentioned. However he might have spent something for transportation. It is proper to consider Rs.10,000/- for transportation. He was in hospital and taken treatment, he might have spent attendant expenses and special diet, it is found just and proper to award Rs.10,000/- for the same P.W.7 Doctor stated that he has to undergo in future operation of mandible by spending Rs.1,50,000/- for insertion of implant since all the sets removed. X-ray shows fracture of cants of left side. There is permanent disability in the mouth. Considering all these aspects it is found that he requires future medical expenses of Rs.30,000/-. Hence, Petitioner is entitled for compensation under this head is Rs.2,00,000/-.” 21. From the evidence on record the following amounts towards different medical bills are undisputed:(1)The amounts paid during the treatment shows as interval bills and final billsRs. 1,86,000/-(2)Cash Bill (Exhibit P-26)Rs. 2,590/-In this background, the High Court and the Tribunal ought to have accepted the amount of Rs.1,86,000/- towards medical bills, apart from transportation charges. 22. If the aforesaid amount is taken into consideration towards the abovesaid heads, then as per High Court’s calculation the break-up of amounts is as follows: 1.Towards pain and sufferingsRs. 1,00,000/- (as awarded by High Court) 2.Towards medical expensesRs. 1,86,000/- (as determined above) 3.Towards conveyance, nourishing food and attendant chargesRs. 40,000/- (as awarded by the High Court) 4.Towards loss of income during laid-up periodRs. 51,000/- (as determined Above) 5.Towards loss of amenitiesRs. 1,00,000/- (as awarded by the High Court) 6.Towards loss of future incomeRs. 14,68,800/- (as determined Above) 7.Towards future medical expensesRs. 30,000/- (as awarded by the High Court) TotalRs. 19,75,800/- ### Response: 1 ### Explanation: 17. The PW.3, Doctor deposed that the right leg is 90% disabled and is permanently paralysed. The leg is amputated. Apart from this, his face has been deformed and is disabled to the extent of 50% to 60%, due to which he is not in a position to open his mouth fully. Therefore, it can safely be stated that the appellant is 90% permanently disabled to earn any income. The Tribunal and the High Court failed to appreciate the facts and fixed the disability at a lower level of 40% or 50%.18. Admitted, the appellant was about 32 years of age at the time of the accident, therefore, the Tribunal was right in applying the multiplier of 16 to determine the compensation. Once the income is considered at Rs.8,500/- per month it comes to Rs.1,02,000/- per annum, 90% of the same comes to Rs.91,800/-. If the same is multiplied by 16 it comes to Rs.91,800/- x 16 = Rs.14,68,800/-. Therefore, it is proper to award Rs.14,68,800/- towards19. So far as loss of income during the treatment is concerned, the Tribunal has noticed the nature of injuries and treatment taken by the appellant to come to the conclusion that the appellant might not have worked at least for six months. Even if such minimum period for treatment is accepted as six months, the appellant is entitled for a just and proper award of Rs.51,000/- under the head ofSo far as medical expenses and other incidental charges are concerned, the Tribunal appreciated the different evidence and observed asmedical expenses and other incidentalcontended that he has taken treatment in several hospitals. Initially he was taken to Mandya General Hospital. Later in private car he was taken to JSS Hospital, Mysore. On the same day he was taken to Mahaveer Jain Hospital, Bangalore. He was operated on his right leg and discharged for higher treatment. He was admitted in Boring Hospital, Bangalore wherein he was paid Rs.5,000/- . From that hospital also he was discharged. Later he was admitted in St. John Hospital on 2.3.2003. He was operated on his hand, right leg, left leg, stomach. He was indoor patient for 2 months. Later he took treatment in Kempegowda Dental Hospital for mandible and he was indoor patient for 1 week. All his teeth were removed. He lost all teeth and left leg. He has become completely disabled. P.W.7 Doctor Natarajshekar of Kempegowda Hospital deposed that he treated his dental problems stated that on 9.7.2003 to 15.7.2003 he was indoor patient. All teeth were removed, decided to insert entire set. On 10.7.2003 he was operated and again on 4.9.2003 he was operated for 2nd time. In this connection he has produced Ex.P-5 wound certificate issued by St.John Medical Hospital, Bangalore, Ex.P-6 and P-7 is medical bills and Transporting charges. He has produced medical bills worth of Rs.1,85,628/- rounded off to Rs.1,86,000/- and transportation charges worth of Rs.27,230. Ex.P-9 to 16 case sheet, patient record, discharge summary, Ex.P-17 is the case sheet of St.John Medical College Hospital, Bangalore for having taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 2.3.2003 to 28.4.2003 and also taken treatment from 29.3.2003 to 20.4.2003. Others are ex-rays Ex.P-25 is KIMS Hospital records. He further produced Ex.P-26 cash bills worth of Rs.2,590/-. On going through records Ex.P-6 the petitioner has taken into consideration double of hospital bills, which ought to have been reduced, which comes to Rs.1,85,000/- and not 4,83,000/- as calculated. The bills are repeated as item No.8,18,19,34,36,60. The only final bill worth of Rs.73,000/- is shown but he has considered the interval bills also including the final bills it comes to Rs.1,85,628/-. On going through all the medical bills some of them are not supported with prescriptions and not properly explained by the petitioner. Having regard to all the circumstances and treatment taken by him in different hospitals he might have spent for medical expenses. So it is better to consider medical expenses at Rs.1,50,000/-. On perusal of Ex.P-7 transportation charges receipts have been produced, but person who provide vehicle is not mentioned. However he might have spent something for transportation. It is proper to consider Rs.10,000/- for transportation. He was in hospital and taken treatment, he might have spent attendant expenses and special diet, it is found just and proper to award Rs.10,000/- for the same P.W.7 Doctor stated that he has to undergo in future operation of mandible by spending Rs.1,50,000/- for insertion of implant since all the sets removed. X-ray shows fracture of cants of left side. There is permanent disability in the mouth. Considering all these aspects it is found that he requires future medical expenses of Rs.30,000/-. Hence, Petitioner is entitled for compensation under this head is Rs.2,00,000/-.From the evidence on record the following amounts towards different medical bills are undisputed:(1)The amounts paid during the treatment shows as interval bills and final billsRs. 1,86,000/-(2)Cash Bill (Exhibit P-26)Rs. 2,590/-In this background, the High Court and the Tribunal ought to have accepted the amount of Rs.1,86,000/- towards medical bills, apart from transportation charges.

Rajammal And Anr Vs. Mookan @ Peria Perumal Theval & Ors

existence at the time a donation was made its acceptance by the Tahsildar or Deputy Tahsildar later on after the commencement of the Act, (as in the case in hand), by virtue of the deeming provision, the Act shall be deemed to be in existence on the date of the donation. Sub-section (4) had made a similar deeming provision for the grant made in favour of a grantee before the coming into force of the Bhoodan Act.9. Section 24 reads:"Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from the payment of stamp duty an d of encumbrance certificate fee, registration fee or of the fee payable for the attestation of a power of attorney under section 33, sub-section (2), of the Indian Registration Act, 1908 (Central Act XVI of 1908)." (emphasis added).The provision of this section also shows that donations and grants under the Bhoodan Act were exempted from the provisions of the Transfer of Property Act and the Indian Registration Act with retrospective effect.The above considerations leave no doubt at all that the provisions of the Bhoodan Act had retrospective effect and intended to include donations of land by any person to the Bhoodan Yagna made before the commencement of the Bhoodan Act, and such donations were also exempted fro m the relevant provisions of the Transfer of Property Act and the Indian Registration Act with retrospective effect.10. Section 23 made the order of Tahsildar or Deputy Tahsildar under sub-section (4) of Section 17, final and not subject to appeal or revision. An aggrieved party however was not without remedy. Under the proviso of section 23, any person whose interest was affected as a result of the donation to the Bhoodan Yagna, whether before or after the commencement of the Act, might file a suit to set aside the order of the Tahsildar or the Deputy Tahsildar. The plaintiffs in the present suit (appellants before us) filed no such suit.11. Let us now turn to the relevant provisions of the Bhoodan (Amendment) Act of 1964. There was no material amendment to section 16 of the original Act. Only "The State Board" was substituted for "Tahsildar or Deputy Tahsildar". There was also no material amendment to Section 17. "Tahsildar or Deputy Tahsildar" was replaced by Inquiry Officer. Only with the substitution of Inquiry Officer for Tahsildar or Deputy Tahsildar, section 20 and section 23 have been retained. Section 24 as amended is as follows:-"Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from registration and payment of stamp duty and of encumbrance certificate fee."A comparison of the new section 24 with the old section 24 shows that there has been no change in the law so far as registration and stamp duty were concerned.12. Section 11 of the Bhoodan (Amendment) Act of 1964 is new and very important. Clauses (b) and (c) which are material for our purpose need be extracted:"Section 11-Notwithstanding anything contained in any judgment, decree or order of any Court, no donation of any land for the Bhoodan Yagna or for Gramdan and no grant of any such land made or deemed to have been made under the principal Act as in force immediately before the commencement of this Act, shall be deemed to be invalid on the ground only that the donation or the grant of land as aforesaid was not made in accordance with any law relating to transfer of property or registration, and any such donation or grant of land shall, for all purposes, be deemed to be and to have always been validly made and accordingly-(a) .....(b) no suit or other proceeding shall be maintained or continued in any Court for the declaration of title to, or the recovery of possession of, any land donated for the Bhoodan Yagna or for Gramdan on the ground that the donation was not made in accordance with the law relating to transfer of property or registration;(c) no Court shall enforce any decree o r order declaring any donation of land for the Bhoodan Yagna or for Gramdan to be invalid or directing the recovery of possession of any such land by the person who donated it or any other person claiming under him, on ground referred to in clause (b):Provided that..................Provided further that..................Provided also that.....................Explanation.................. .........."Clause (b) of section 11 of the Bhoodan (Amendment) Act puts a bar on the maintenance of a suit or other proceedings in any Court for the declaration of title to, or recovery of possession of, any land donated for the Bhoodan Yagna on the ground that the transfer (donation) was not in accordance with the provisions of the Transfer of Property Act or Indian Registration Act. Clause (c) to section 11 goes one step further and lays down that even if a decree has already been passed in such a suit, no court shall execute a decree in a suit referred to in clause (b).13. It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the Registration Act is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.14. The second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Act itself.

0[ds]Section 23 made the order of Tahsildar or Deputy Tahsildar under sub-section (4) of Section 17, final and not subject to appeal or revision. An aggrieved party however was not without remedy. Under the proviso of section 23, any person whose interest was affected as a result of the donation to the Bhoodan Yagna, whether before or after the commencement of the Act, might file a suit to set aside the order of the Tahsildar or the Deputy Tahsildar. The plaintiffs in the present suit (appellants before us) filed no such suit.11.It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the Registration Act is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.The second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Acttwo are deeming provisions and are a complete answer to the appellants contention. The meaning of the proviso is that although the Bhoodan Act was not in existence at the time a donation was made its acceptance by the Tahsildar or Deputy Tahsildar later on after the commencement of the Act, (as in the case in hand), by virtue of the deeming provision, the Act shall be deemed to be in existence on the date of the donation.(4) had made a similar deeming provision for the grant made in favour of a grantee before the coming into force of the Bhoodan Act.It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the Registration Act is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.e second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Act

### 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: existence at the time a donation was made its acceptance by the Tahsildar or Deputy Tahsildar later on after the commencement of the Act, (as in the case in hand), by virtue of the deeming provision, the Act shall be deemed to be in existence on the date of the donation. Sub-section (4) had made a similar deeming provision for the grant made in favour of a grantee before the coming into force of the Bhoodan Act.9. Section 24 reads:"Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from the payment of stamp duty an d of encumbrance certificate fee, registration fee or of the fee payable for the attestation of a power of attorney under section 33, sub-section (2), of the Indian Registration Act, 1908 (Central Act XVI of 1908)." (emphasis added).The provision of this section also shows that donations and grants under the Bhoodan Act were exempted from the provisions of the Transfer of Property Act and the Indian Registration Act with retrospective effect.The above considerations leave no doubt at all that the provisions of the Bhoodan Act had retrospective effect and intended to include donations of land by any person to the Bhoodan Yagna made before the commencement of the Bhoodan Act, and such donations were also exempted fro m the relevant provisions of the Transfer of Property Act and the Indian Registration Act with retrospective effect.10. Section 23 made the order of Tahsildar or Deputy Tahsildar under sub-section (4) of Section 17, final and not subject to appeal or revision. An aggrieved party however was not without remedy. Under the proviso of section 23, any person whose interest was affected as a result of the donation to the Bhoodan Yagna, whether before or after the commencement of the Act, might file a suit to set aside the order of the Tahsildar or the Deputy Tahsildar. The plaintiffs in the present suit (appellants before us) filed no such suit.11. Let us now turn to the relevant provisions of the Bhoodan (Amendment) Act of 1964. There was no material amendment to section 16 of the original Act. Only "The State Board" was substituted for "Tahsildar or Deputy Tahsildar". There was also no material amendment to Section 17. "Tahsildar or Deputy Tahsildar" was replaced by Inquiry Officer. Only with the substitution of Inquiry Officer for Tahsildar or Deputy Tahsildar, section 20 and section 23 have been retained. Section 24 as amended is as follows:-"Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from registration and payment of stamp duty and of encumbrance certificate fee."A comparison of the new section 24 with the old section 24 shows that there has been no change in the law so far as registration and stamp duty were concerned.12. Section 11 of the Bhoodan (Amendment) Act of 1964 is new and very important. Clauses (b) and (c) which are material for our purpose need be extracted:"Section 11-Notwithstanding anything contained in any judgment, decree or order of any Court, no donation of any land for the Bhoodan Yagna or for Gramdan and no grant of any such land made or deemed to have been made under the principal Act as in force immediately before the commencement of this Act, shall be deemed to be invalid on the ground only that the donation or the grant of land as aforesaid was not made in accordance with any law relating to transfer of property or registration, and any such donation or grant of land shall, for all purposes, be deemed to be and to have always been validly made and accordingly-(a) .....(b) no suit or other proceeding shall be maintained or continued in any Court for the declaration of title to, or the recovery of possession of, any land donated for the Bhoodan Yagna or for Gramdan on the ground that the donation was not made in accordance with the law relating to transfer of property or registration;(c) no Court shall enforce any decree o r order declaring any donation of land for the Bhoodan Yagna or for Gramdan to be invalid or directing the recovery of possession of any such land by the person who donated it or any other person claiming under him, on ground referred to in clause (b):Provided that..................Provided further that..................Provided also that.....................Explanation.................. .........."Clause (b) of section 11 of the Bhoodan (Amendment) Act puts a bar on the maintenance of a suit or other proceedings in any Court for the declaration of title to, or recovery of possession of, any land donated for the Bhoodan Yagna on the ground that the transfer (donation) was not in accordance with the provisions of the Transfer of Property Act or Indian Registration Act. Clause (c) to section 11 goes one step further and lays down that even if a decree has already been passed in such a suit, no court shall execute a decree in a suit referred to in clause (b).13. It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the Registration Act is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.14. The second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Act itself. ### Response: 0 ### Explanation: Section 23 made the order of Tahsildar or Deputy Tahsildar under sub-section (4) of Section 17, final and not subject to appeal or revision. An aggrieved party however was not without remedy. Under the proviso of section 23, any person whose interest was affected as a result of the donation to the Bhoodan Yagna, whether before or after the commencement of the Act, might file a suit to set aside the order of the Tahsildar or the Deputy Tahsildar. The plaintiffs in the present suit (appellants before us) filed no such suit.11.It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the Registration Act is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.The second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Acttwo are deeming provisions and are a complete answer to the appellants contention. The meaning of the proviso is that although the Bhoodan Act was not in existence at the time a donation was made its acceptance by the Tahsildar or Deputy Tahsildar later on after the commencement of the Act, (as in the case in hand), by virtue of the deeming provision, the Act shall be deemed to be in existence on the date of the donation.(4) had made a similar deeming provision for the grant made in favour of a grantee before the coming into force of the Bhoodan Act.It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the Registration Act is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.e second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Act

KERALA STATE ROAD TRANSPORT CORPORATION Vs. BABY P.P

It was held by this Court in U.P. SRTC and another vs. Sanjida Bano and others, reported in (2005) 10 SCC 280, that irrespective of the number of buses and trips undertaken by the STU, the fact that it is plying its vehicles on the notified route precludes others from taking the benefit of the proviso to Section 104 of the Act. The Court held thus:?5.…Whether or not the number of buses and the trips operated by the State transport undertaking were enough to cater to the volume of need of the commuting public, is not germane to the applicability of the proviso. The scheme provides for as many permits as needed being lifted by the State transport undertaking. The State transport undertaking was operating 36 trips on the date of the order of the High Court and is now operating 40 trips, as stated by the learned counsel for the appellants at the Bar. However, the learned Senior Counsel for the respondents has disputed the correctness of this statement and submitted that the Secretary, Regional Transport Authority had found only 25 trips being in operation. Be that as it may, we are not inclined to hold that in spite of the appellant Corporation operating on the route resort can be had to the proviso to Section 104 of the Act for granting temporary permits.?(emphasis supplied)33. Strangely, the Respondent No.1 sought to produce certain documents before the Court, just about two days prior to the final arguments. Such documents contained so called three temporary permits granted in favour of three private stage carriage operators on the notified route subsequent to the scheme. Relying upon such documents, Mr. Basant argued that same concession as has been given to three private stage carriage operators should be given in favour of the respondent no.1 also. These submissions are rightly objected by Mr. Giri taking an exception to the manner in which these documents were sought to be produced two days prior to the final arguments; these documents were not available on the record before the High Court or before the STAT. Since opportunity was not available to the appellant to have its say on the documents, he submitted that the said documents need to be ignored. It is not clear from any of the record that such temporary permits were granted and even if granted whether they have expired or not. Even otherwise there was no opportunity for the appellant to have its say on alleged permits. Hence, we do not propose to consider and comment upon such documents produced by the contesting respondent.34. Mr. R. Basant relied heavily on Punjab Roadways vs. Punjab Sahib Bus & Transport Co., reported in (2010) 5 SCC 235 , to make a claim that temporary permits may be granted even when the STU has applied for a permit. In that case, this Court held as under:?34. The abovementioned provision states where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the STA or the RTA as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. An exception has been carved out in the proviso to Section 104 stating, where no application for permit has been made by the STU in respect of any notified area or notified route in pursuance of an approved scheme, the STA or the RTA, as the case may be, may grant temporary permits to any person in respect of any such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of permit to the STU in respect of that area or route. In our view same is the situation in respect of a case where an STU in spite of grant of permit does not operate the service or surrenders the permit granted or is not utilising the permit. In such a situation it should be deemed that no application for permit has been made by the STU and it is open to the RTA to grant temporary permit if there is a temporary need. By granting regular permits to the private operators the RTA will be upsetting the ratio fixed under the scheme which is legally impermissible.?(emphasis supplied)35. Despite the strong submissions made on behalf of the respondent no. 1, it remains that Punjab Roadways (supra) is distinguishable from the present case on facts. In that case, the scheme of the Punjab Government shared all routes on the national and State highways in a specified ratio between STUs and private stage carriage operators. The relevant authorities as well as the High Court held that regular permits may be granted to private stage carriage operators where the STU is not using its permit. However, this Court took exception to the grant of ?regular? permits as relief, as doing so would upset the ratio contained in the scheme. Temporary permits would not upset the balance and were hence preferable in a situation where the scheme mandated that the routes be divided and utilized in a specific ratio. In the case on hand, there is no requirement of division into specific ratios. We see no reason to apply the findings in that case to the present scenario.36. The contention that the subsequent order of the RTA has remained unquestioned, and the respondent no. 1 is therefore entitled to operate his services on the notified route, cannot be accepted. Since the order of the STAT remanding the matter to the RTA with a direction to the RTA to exercise its power under the proviso to Section 104 of the Act, which was confirmed by the High Court, is held to be bad by us in this appeal, the consequent order of the RTA dated 23.02.2017 also needs to be held illegal. Moreover, we have heard the matter in its entirety and the said contention of respondent no.1, in our view, is too technical.

1[ds]18. Since the Scheme on hand partially excludes private stage carriage operators on the notified route, the same is to be adhered to. It is necessary in the public interest that road transport services on notified routes should be run and operated by the STU to the complete or partial exclusions of private stage carriage operators. In a State where the scheme has been published, subject to such scheme formulated by the State, no private stage carriage operator can operate beyond the stipulations of the scheme. This also applies to applications for temporary permits under the proviso to Section 104 of thethe matter on hand, undisputedly, more than 450 buses of the STU ply everyday on the notified route which pass from Angamaly to Perumbavoor. It is not open for the respondent no.1 to claim that the STU is not running sufficient buses from Palliserry to Perumbavoor via Angamaly. Admittedly, Palliserry to Angamaly is not a notified route. The dispute between the parties, thus, virtually relates to the route between Angamaly to Perumbavoor and not the route between Palliserry to Angamaly.20. Even otherwise it is not disputed that the STU is plying 8 trips from Palliserry to Perumbavoor via Angamaly. Apart from the same, the private sector is operating sufficient number of services from Palliserry to Angamaly. It is brought to the notice of this Court by the STU that the STU may provide more buses if required between Palliserry to Angamaly. Moreover, it is open for the respondent no.1 to seek permission as per law before the concerned authority and ply its buses on theroute. However, when it comes to operating on the notified route, that is, in between Angamaly and Perumbavoor, the respondent no.1 cannot operate its services for more than 5 kms or 5% of its route (whichever is less). Admittedly, part of the respondent no.1?s route measuring 13 kms is between Angamaly and Perumbavoor, and that entire patch of 13 kms overlaps the notified route. The total route length applied for by the respondent no.1 is only 28 kms. The overlap thus, permitted on the notified route (in the case on hand) as per the Scheme could only be 1.4 kms whereas the respondent no.1 wants to overlap by 13 kms, i.e. approximately 50% of his route, which is totally impermissible and the same is rightly objected to by the STU, particularly when the STU is operating 452 buses (amounting to 770 trips) in a day on the said route.From the aforementioned, it is clear that the temporary inconvenience, if any, to the travelling public was to be avoided till the permits were taken by the appellant and vehicles were made to ply on the route by it. Since the appellant is running sufficient number of buses/trips on the notified route, no inconvenience to the public is made out. Private stage carriage operators generally would be attempting to wear a mask to infiltrate into forbidden routes or areas or portions thereof, under the pretext of inconvenience to the travelling public, to sabotage the scheme.25. The STAT impliedly interpreted the proviso to Section 104 of the Act to mean that the competent authority would have the power to grant a temporary permit de hors the scheme. Such interpretation deserves to be rejected, i.e., the interpretation that until the STU puts vehicles on the newly carved out route fusingand notified route, temporary permits may be granted to private stage carriage operators. A new route cannot be introduced by fusing aroute with the notified route to seek a temporary permit on a carved out route. This device is obviously impermissible to enter into a frozen area or route or portion thereof, in excess of the limited permit under the scheme, through a back door. The Scheme is a law by itself and until it is varied according to law, no private stage carriage operator has any right to camouflage any device to obtain the permits. The new route introduced by the respondent no.1 fuses aroute (to an extent of 15 kms) and a notified route (to an extent of 13 kms), totally measuring 28 kms. This is contrary to the approved Scheme, since such newly introduced route by the respondent No.1 overlaps with 13 kms of the notified route, which is prohibited as per the Scheme. There cannot be any dispute that there will not be any scope for grant of any permit in that area or route covered by the Scheme, except what is specifically permitted or provided under the Scheme itself.26. In the matter on hand, the Scheme does not permit private stage carriage operators to overlap more than 5 kms or 5 % (whichever is less) of the route proposed by the private stage carriage operator, and as the respondent no. 1 wants to run services overlapping by 13 kms, the prayer is liable to be rejected.27. Thus, the RTA was justified in rejecting the claim of the respondent no.1 seeking temporary permit on the notified route, since the respondent no.1 has sought a temporary permit for the route which overlaps by 13 kms on the notified route; such overlap is clearly prohibited under the Scheme. Since the STU is running hundreds of bus trips on the part of the notified route i.e. from Angamaly to Perumbavoor, it is not open for the respondent no.1 to seek a temporary permit covering that distance.28. Moreover, overlapping to the extent of 5 kms or 5% of the route of respondent no.1 (whichever is less), is only for purposes of intersection under the Scheme. As the proviso to Section 104 of the Act is also subject to the Scheme, it is not open for any private stage carriage operator including the respondent no.1 to claim a temporary permit for traversing and overlapping with the notified route to the extent of 13 kms. The intersection of the notified route may not, in our view, be the same as traversing and overlapping with the route, because the prohibition under the Scheme must apply to the whole or a part of the notified route, and private stage carriage operators cannot be allowed to traverse the same line in the guise of intersection. In this case, as the stage carriage services of the respondent no.1 are to operate on a notified route to an extent of 13 kms, it cannot be considered an intersection. Intersection means ?to cut across?. It is permissible for any private stage carriage operator, under the Scheme in question, to traverse on a notified route up to the permissible limit as contemplated under the Scheme only for the purpose of cutting across the notified route, and to proceed further on aroute. Only in such a case can the temporary permit be granted.Since it is not a case of intersection as contemplated under Clause 5(c) of the Scheme, and as the overlapping sought by the respondent no.1 is more than both 5 kms or 5% of his total route, the prayer of respondent no.1 must be rejected. However, we hasten to add that (as mentioned supra) Clauses 5(c) and 6 of the Scheme provide that the private stage carriages would be allowed to pick up and drop passengers in between any two places on the route covered by the Scheme, provided that the route of the private stage carriage overlaps the notified route maximum to an extent of 5 kms or 5% of the length of its own route (whichever is less).32. At the cost of repetition, we must observe that the respondent no. 1 does not fall within the proviso to Section 104 of the Act. The appellant has been plying sufficient number of buses/trips on the notified route as a STU. Both parties admit that the appellant is running sufficient number of buses on the notified route. It was held by this Court in U.P. SRTC and another vs. Sanjida Bano and others, reported in (2005) 10 SCC 280, that irrespective of the number of buses and trips undertaken by the STU, the fact that it is plying its vehicles on the notified route precludes others from taking the benefit of the proviso to Section 104 of the Act.Despite the strong submissions made on behalf of the respondent no. 1, it remains that Punjab Roadways (supra) is distinguishable from the present case on facts. In that case, the scheme of the Punjab Government shared all routes on the national and State highways in a specified ratio between STUs and private stage carriage operators. The relevant authorities as well as the High Court held that regular permits may be granted to private stage carriage operators where the STU is not using its permit. However, this Court took exception to the grant of ?regular? permits as relief, as doing so would upset the ratio contained in the scheme. Temporary permits would not upset the balance and were hence preferable in a situation where the scheme mandated that the routes be divided and utilized in a specific ratio. In the case on hand, there is no requirement of division into specific ratios. We see no reason to apply the findings in that case to the present scenario.36. The contention that the subsequent order of the RTA has remained unquestioned, and the respondent no. 1 is therefore entitled to operate his services on the notified route, cannot be accepted. Since the order of the STAT remanding the matter to the RTA with a direction to the RTA to exercise its power under the proviso to Section 104 of the Act, which was confirmed by the High Court, is held to be bad by us in this appeal, the consequent order of the RTA dated 23.02.2017 also needs to be held illegal. Moreover, we have heard the matter in its entirety and the said contention of respondent no.1, in our view, is too technical.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: It was held by this Court in U.P. SRTC and another vs. Sanjida Bano and others, reported in (2005) 10 SCC 280, that irrespective of the number of buses and trips undertaken by the STU, the fact that it is plying its vehicles on the notified route precludes others from taking the benefit of the proviso to Section 104 of the Act. The Court held thus:?5.…Whether or not the number of buses and the trips operated by the State transport undertaking were enough to cater to the volume of need of the commuting public, is not germane to the applicability of the proviso. The scheme provides for as many permits as needed being lifted by the State transport undertaking. The State transport undertaking was operating 36 trips on the date of the order of the High Court and is now operating 40 trips, as stated by the learned counsel for the appellants at the Bar. However, the learned Senior Counsel for the respondents has disputed the correctness of this statement and submitted that the Secretary, Regional Transport Authority had found only 25 trips being in operation. Be that as it may, we are not inclined to hold that in spite of the appellant Corporation operating on the route resort can be had to the proviso to Section 104 of the Act for granting temporary permits.?(emphasis supplied)33. Strangely, the Respondent No.1 sought to produce certain documents before the Court, just about two days prior to the final arguments. Such documents contained so called three temporary permits granted in favour of three private stage carriage operators on the notified route subsequent to the scheme. Relying upon such documents, Mr. Basant argued that same concession as has been given to three private stage carriage operators should be given in favour of the respondent no.1 also. These submissions are rightly objected by Mr. Giri taking an exception to the manner in which these documents were sought to be produced two days prior to the final arguments; these documents were not available on the record before the High Court or before the STAT. Since opportunity was not available to the appellant to have its say on the documents, he submitted that the said documents need to be ignored. It is not clear from any of the record that such temporary permits were granted and even if granted whether they have expired or not. Even otherwise there was no opportunity for the appellant to have its say on alleged permits. Hence, we do not propose to consider and comment upon such documents produced by the contesting respondent.34. Mr. R. Basant relied heavily on Punjab Roadways vs. Punjab Sahib Bus & Transport Co., reported in (2010) 5 SCC 235 , to make a claim that temporary permits may be granted even when the STU has applied for a permit. In that case, this Court held as under:?34. The abovementioned provision states where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the STA or the RTA as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. An exception has been carved out in the proviso to Section 104 stating, where no application for permit has been made by the STU in respect of any notified area or notified route in pursuance of an approved scheme, the STA or the RTA, as the case may be, may grant temporary permits to any person in respect of any such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of permit to the STU in respect of that area or route. In our view same is the situation in respect of a case where an STU in spite of grant of permit does not operate the service or surrenders the permit granted or is not utilising the permit. In such a situation it should be deemed that no application for permit has been made by the STU and it is open to the RTA to grant temporary permit if there is a temporary need. By granting regular permits to the private operators the RTA will be upsetting the ratio fixed under the scheme which is legally impermissible.?(emphasis supplied)35. Despite the strong submissions made on behalf of the respondent no. 1, it remains that Punjab Roadways (supra) is distinguishable from the present case on facts. In that case, the scheme of the Punjab Government shared all routes on the national and State highways in a specified ratio between STUs and private stage carriage operators. The relevant authorities as well as the High Court held that regular permits may be granted to private stage carriage operators where the STU is not using its permit. However, this Court took exception to the grant of ?regular? permits as relief, as doing so would upset the ratio contained in the scheme. Temporary permits would not upset the balance and were hence preferable in a situation where the scheme mandated that the routes be divided and utilized in a specific ratio. In the case on hand, there is no requirement of division into specific ratios. We see no reason to apply the findings in that case to the present scenario.36. The contention that the subsequent order of the RTA has remained unquestioned, and the respondent no. 1 is therefore entitled to operate his services on the notified route, cannot be accepted. Since the order of the STAT remanding the matter to the RTA with a direction to the RTA to exercise its power under the proviso to Section 104 of the Act, which was confirmed by the High Court, is held to be bad by us in this appeal, the consequent order of the RTA dated 23.02.2017 also needs to be held illegal. Moreover, we have heard the matter in its entirety and the said contention of respondent no.1, in our view, is too technical. ### Response: 1 ### Explanation: private stage carriage operator has any right to camouflage any device to obtain the permits. The new route introduced by the respondent no.1 fuses aroute (to an extent of 15 kms) and a notified route (to an extent of 13 kms), totally measuring 28 kms. This is contrary to the approved Scheme, since such newly introduced route by the respondent No.1 overlaps with 13 kms of the notified route, which is prohibited as per the Scheme. There cannot be any dispute that there will not be any scope for grant of any permit in that area or route covered by the Scheme, except what is specifically permitted or provided under the Scheme itself.26. In the matter on hand, the Scheme does not permit private stage carriage operators to overlap more than 5 kms or 5 % (whichever is less) of the route proposed by the private stage carriage operator, and as the respondent no. 1 wants to run services overlapping by 13 kms, the prayer is liable to be rejected.27. Thus, the RTA was justified in rejecting the claim of the respondent no.1 seeking temporary permit on the notified route, since the respondent no.1 has sought a temporary permit for the route which overlaps by 13 kms on the notified route; such overlap is clearly prohibited under the Scheme. Since the STU is running hundreds of bus trips on the part of the notified route i.e. from Angamaly to Perumbavoor, it is not open for the respondent no.1 to seek a temporary permit covering that distance.28. Moreover, overlapping to the extent of 5 kms or 5% of the route of respondent no.1 (whichever is less), is only for purposes of intersection under the Scheme. As the proviso to Section 104 of the Act is also subject to the Scheme, it is not open for any private stage carriage operator including the respondent no.1 to claim a temporary permit for traversing and overlapping with the notified route to the extent of 13 kms. The intersection of the notified route may not, in our view, be the same as traversing and overlapping with the route, because the prohibition under the Scheme must apply to the whole or a part of the notified route, and private stage carriage operators cannot be allowed to traverse the same line in the guise of intersection. In this case, as the stage carriage services of the respondent no.1 are to operate on a notified route to an extent of 13 kms, it cannot be considered an intersection. Intersection means ?to cut across?. It is permissible for any private stage carriage operator, under the Scheme in question, to traverse on a notified route up to the permissible limit as contemplated under the Scheme only for the purpose of cutting across the notified route, and to proceed further on aroute. Only in such a case can the temporary permit be granted.Since it is not a case of intersection as contemplated under Clause 5(c) of the Scheme, and as the overlapping sought by the respondent no.1 is more than both 5 kms or 5% of his total route, the prayer of respondent no.1 must be rejected. However, we hasten to add that (as mentioned supra) Clauses 5(c) and 6 of the Scheme provide that the private stage carriages would be allowed to pick up and drop passengers in between any two places on the route covered by the Scheme, provided that the route of the private stage carriage overlaps the notified route maximum to an extent of 5 kms or 5% of the length of its own route (whichever is less).32. At the cost of repetition, we must observe that the respondent no. 1 does not fall within the proviso to Section 104 of the Act. The appellant has been plying sufficient number of buses/trips on the notified route as a STU. Both parties admit that the appellant is running sufficient number of buses on the notified route. It was held by this Court in U.P. SRTC and another vs. Sanjida Bano and others, reported in (2005) 10 SCC 280, that irrespective of the number of buses and trips undertaken by the STU, the fact that it is plying its vehicles on the notified route precludes others from taking the benefit of the proviso to Section 104 of the Act.Despite the strong submissions made on behalf of the respondent no. 1, it remains that Punjab Roadways (supra) is distinguishable from the present case on facts. In that case, the scheme of the Punjab Government shared all routes on the national and State highways in a specified ratio between STUs and private stage carriage operators. The relevant authorities as well as the High Court held that regular permits may be granted to private stage carriage operators where the STU is not using its permit. However, this Court took exception to the grant of ?regular? permits as relief, as doing so would upset the ratio contained in the scheme. Temporary permits would not upset the balance and were hence preferable in a situation where the scheme mandated that the routes be divided and utilized in a specific ratio. In the case on hand, there is no requirement of division into specific ratios. We see no reason to apply the findings in that case to the present scenario.36. The contention that the subsequent order of the RTA has remained unquestioned, and the respondent no. 1 is therefore entitled to operate his services on the notified route, cannot be accepted. Since the order of the STAT remanding the matter to the RTA with a direction to the RTA to exercise its power under the proviso to Section 104 of the Act, which was confirmed by the High Court, is held to be bad by us in this appeal, the consequent order of the RTA dated 23.02.2017 also needs to be held illegal. Moreover, we have heard the matter in its entirety and the said contention of respondent no.1, in our view, is too technical.

Wipro Products Limited Vs. Union of India

to the petitioners that the petitioners had failed to produce any evidence to establish that the containers were in fact return to them. By letter dated April 28, 1979, copy of which is annexed as Exhibit b to the petition, the Superintendent, Central Excise, informed that the checking gate passes for the period from December 5, 1978 to March 31, 1979 at the time of finalisation of the assessment, it was observed that the petitioners had deducted the price of metal containers from the value of vegetable products. The superintendent informed the petitioners that no evidence was product to establish that the metal containers are durable and returnable. The Superintendent also claimed that the petitioners are not entitled to deduct any amount in respect of packing material and the duty will have to be determined on the basis of the price, including the value of the packing material. After receipt of this latter the petitioners paid the duty, assessed by inclusion of value of value of packing material, from May 7, 1979 under protect. The petitioners challenge the action of the Superintendent, Central Excise in declining the relief sought by the petitioners by excluding the value of packing material, while assessing the duty payable on manufacture of vegetable products. ( 4 ) SHRI Rana, learned counsel appearing on behalf of the petitioners, submitted that the petitioner company had entered into an agreement with the stockists in respect of return of tin containers and in support of the submission reliance is placed on the circular dated a November 1, 1978. The learned counsel submitted that the circular makes it crystal clear that the petitioners had agreed to take back the tin containers in which the vegetable products were sold by refund Rs. 7. 65 per tin provided the container is in good condition. The learned counsel urged that the fact that the containers are durable and returnable is also reflected from paragraph 4 of the return field by Jitendra Chaturvedi, Assistant Collector of Central Excise and Customs, Jalgaon division, and sworn on April 21, 1984. In paragraph 4 of the return it is claimed that as per the data available with the excise authorities the petitioners have sold by many as 80 lakhs containers science 1978 and the containers received back are 4303. The retain claims that the circular issued by the petitioners cannot be claimed to be a term of sale offered to every customer. The return claims that there is no material to indicate that such circular was issued every financial year and therefore the promise to refund Rs. 7. 65 per tin container cannot be treated as a term of sale. It is not possible to accept the claim made in the return. It is difficult to appreciate why circular dated November 1, 1978 is required to be issued every financial year. Once the circular is issued and the stockists and customers are aware that the company willing to refund Rs. 7. 65 on return of the tin container, then it is hardly necessary that such circular should be issued periodically to spell out the term of sale in favor of the petitioners. The observation of the Superintendent of Central Excise in letter dated April 28, 1979 that the company is not produce evidence to establish that the tin containers area durable and returnable also cannot be accepted in view of the fact that in the return it is clearly mentioned that at least 4303 containers were returned. Shri Rana very appropriately relied upon the decision of the Supreme Court reported in 1988 (36) E. L. T. 727 [Mahalakshmi Glass Works (P) Ltd. v. Collector of Central Excise]. The Supreme Court observed. "What Section 4 (4) (d) (i) of the Central Excises and Salt Act, 1944 excludes from computation is the cost of packing which is durable nature is "returnable by the buyer to the assessee". The packing must be one which is retunable by the buyer to the assessee and obviously that must by under an arrangement between the buyer and the assessee. It is not the physical capability of the packing to be returned which is the determining factor because, in that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superfluous. The actual or extent of return has not relevance". What is necessary is that if the buyer choose to return the packing, the seller should be obliged to accept it and refund the stipulated amount. In the present case there was no evidence of the agreement that the cartons and gunny bags were returnable, the cost thereof is not excludible as that of durable and returnable packing. " It is obvious from the decision of the Supreme Court that the actual return or extent of return has no relevance while determining whether the cost packing, which is of a durable nature and is returnable by the buyer, can be excluded while determining assessable value under Section 4 of the Act. Shri Rana submitted that though the petitioners had promised to return Rs. 7. 65 per tin on the customers returning the durable tin containers while computing the amount of packing to be deducted, the actual cost incurred by the petitioners for the tin containers should be taken into consideration. The learned counsel urged that amount of Rs. 7. 65 is determined as a depreciated value of the container and while computing the assessable value the actual cost incurred by the petitioners for securing the tin containers should be borne in mind. The submission is correct and deserves acceptance. The petitioners will have to lead evidence before the Superintendent of central Excise to establish what is the actual value of the tin containers at the time when the tin containers left the factory. The actual value of the tin containers which are durable and returnable, will have to be excluded while computing the assessable value of the vegetable products sold by the petitioners.

1[ds]In paragraph 4 of the return it is claimed that as per the data available with the excise authorities the petitioners have sold by many as 80 lakhs containers science 1978 and the containers received back are 4303. The retain claims that the circular issued by the petitioners cannot be claimed to be a term of sale offered to every customer. The return claims that there is no material to indicate that such circular was issued every financial year and therefore the promise to refund Rs. 7. 65 per tin container cannot be treated as a term of sale. It is not possible to accept the claim made in the return. It is difficult to appreciate why circular dated November 1, 1978 is required to be issued every financial year. Once the circular is issued and the stockists and customers are aware that the company willing to refund Rs. 7. 65 on return of the tin container, then it is hardly necessary that such circular should be issued periodically to spell out the term of sale in favor of the petitioners. The observation of the Superintendent of Central Excise in letter dated April 28, 1979 that the company is not produce evidence to establish that the tin containers area durable and returnable also cannot be accepted in view of the fact that in the return it is clearly mentioned that at least 4303 containers were returned. Shri Rana very appropriately relied upon the decision of the Supreme Court reported in 1988 (36) E. L. T. 727 [Mahalakshmi Glass Works (P) Ltd. v. Collector of Central Excise]. The Supreme Court observed. "What Section 4 (4) (d) (i) of the Central Excises and Salt Act, 1944 excludes from computation is the cost of packing which is durable nature is "returnable by the buyer to the assessee". The packing must be one which is retunable by the buyer to the assessee and obviously that must by under an arrangement between the buyer and the assessee. It is not the physical capability of the packing to be returned which is the determining factor because, in that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superfluous. The actual or extent of return has not relevance". What is necessary is that if the buyer choose to return the packing, the seller should be obliged to accept it and refund the stipulated amount. In the present case there was no evidence of the agreement that the cartons and gunny bags were returnable, the cost thereof is not excludible as that of durable and returnable packing. " It is obvious from the decision of the Supreme Court that the actual return or extent of return has no relevance while determining whether the cost packing, which is of a durable nature and is returnable by the buyer, can be excluded while determining assessable value under Section 4 of the Act. Shri Rana submitted that though the petitioners had promised to return Rs. 7. 65 per tin on the customers returning the durable tin containers while computing the amount of packing to be deducted, the actual cost incurred by the petitioners for the tin containers should be taken into consideration. The learned counsel urged that amount of Rs. 7. 65 is determined as a depreciated value of the container and while computing the assessable value the actual cost incurred by the petitioners for securing the tin containers should be borne in mind. The submission is correct and deserves acceptance. The petitioners will have to lead evidence before the Superintendent of central Excise to establish what is the actual value of the tin containers at the time when the tin containers left the factory. The actual value of the tin containers which are durable and returnable, will have to be excluded while computing the assessable value of the vegetable products sold by the petitioners.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: to the petitioners that the petitioners had failed to produce any evidence to establish that the containers were in fact return to them. By letter dated April 28, 1979, copy of which is annexed as Exhibit b to the petition, the Superintendent, Central Excise, informed that the checking gate passes for the period from December 5, 1978 to March 31, 1979 at the time of finalisation of the assessment, it was observed that the petitioners had deducted the price of metal containers from the value of vegetable products. The superintendent informed the petitioners that no evidence was product to establish that the metal containers are durable and returnable. The Superintendent also claimed that the petitioners are not entitled to deduct any amount in respect of packing material and the duty will have to be determined on the basis of the price, including the value of the packing material. After receipt of this latter the petitioners paid the duty, assessed by inclusion of value of value of packing material, from May 7, 1979 under protect. The petitioners challenge the action of the Superintendent, Central Excise in declining the relief sought by the petitioners by excluding the value of packing material, while assessing the duty payable on manufacture of vegetable products. ( 4 ) SHRI Rana, learned counsel appearing on behalf of the petitioners, submitted that the petitioner company had entered into an agreement with the stockists in respect of return of tin containers and in support of the submission reliance is placed on the circular dated a November 1, 1978. The learned counsel submitted that the circular makes it crystal clear that the petitioners had agreed to take back the tin containers in which the vegetable products were sold by refund Rs. 7. 65 per tin provided the container is in good condition. The learned counsel urged that the fact that the containers are durable and returnable is also reflected from paragraph 4 of the return field by Jitendra Chaturvedi, Assistant Collector of Central Excise and Customs, Jalgaon division, and sworn on April 21, 1984. In paragraph 4 of the return it is claimed that as per the data available with the excise authorities the petitioners have sold by many as 80 lakhs containers science 1978 and the containers received back are 4303. The retain claims that the circular issued by the petitioners cannot be claimed to be a term of sale offered to every customer. The return claims that there is no material to indicate that such circular was issued every financial year and therefore the promise to refund Rs. 7. 65 per tin container cannot be treated as a term of sale. It is not possible to accept the claim made in the return. It is difficult to appreciate why circular dated November 1, 1978 is required to be issued every financial year. Once the circular is issued and the stockists and customers are aware that the company willing to refund Rs. 7. 65 on return of the tin container, then it is hardly necessary that such circular should be issued periodically to spell out the term of sale in favor of the petitioners. The observation of the Superintendent of Central Excise in letter dated April 28, 1979 that the company is not produce evidence to establish that the tin containers area durable and returnable also cannot be accepted in view of the fact that in the return it is clearly mentioned that at least 4303 containers were returned. Shri Rana very appropriately relied upon the decision of the Supreme Court reported in 1988 (36) E. L. T. 727 [Mahalakshmi Glass Works (P) Ltd. v. Collector of Central Excise]. The Supreme Court observed. "What Section 4 (4) (d) (i) of the Central Excises and Salt Act, 1944 excludes from computation is the cost of packing which is durable nature is "returnable by the buyer to the assessee". The packing must be one which is retunable by the buyer to the assessee and obviously that must by under an arrangement between the buyer and the assessee. It is not the physical capability of the packing to be returned which is the determining factor because, in that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superfluous. The actual or extent of return has not relevance". What is necessary is that if the buyer choose to return the packing, the seller should be obliged to accept it and refund the stipulated amount. In the present case there was no evidence of the agreement that the cartons and gunny bags were returnable, the cost thereof is not excludible as that of durable and returnable packing. " It is obvious from the decision of the Supreme Court that the actual return or extent of return has no relevance while determining whether the cost packing, which is of a durable nature and is returnable by the buyer, can be excluded while determining assessable value under Section 4 of the Act. Shri Rana submitted that though the petitioners had promised to return Rs. 7. 65 per tin on the customers returning the durable tin containers while computing the amount of packing to be deducted, the actual cost incurred by the petitioners for the tin containers should be taken into consideration. The learned counsel urged that amount of Rs. 7. 65 is determined as a depreciated value of the container and while computing the assessable value the actual cost incurred by the petitioners for securing the tin containers should be borne in mind. The submission is correct and deserves acceptance. The petitioners will have to lead evidence before the Superintendent of central Excise to establish what is the actual value of the tin containers at the time when the tin containers left the factory. The actual value of the tin containers which are durable and returnable, will have to be excluded while computing the assessable value of the vegetable products sold by the petitioners. ### Response: 1 ### Explanation: In paragraph 4 of the return it is claimed that as per the data available with the excise authorities the petitioners have sold by many as 80 lakhs containers science 1978 and the containers received back are 4303. The retain claims that the circular issued by the petitioners cannot be claimed to be a term of sale offered to every customer. The return claims that there is no material to indicate that such circular was issued every financial year and therefore the promise to refund Rs. 7. 65 per tin container cannot be treated as a term of sale. It is not possible to accept the claim made in the return. It is difficult to appreciate why circular dated November 1, 1978 is required to be issued every financial year. Once the circular is issued and the stockists and customers are aware that the company willing to refund Rs. 7. 65 on return of the tin container, then it is hardly necessary that such circular should be issued periodically to spell out the term of sale in favor of the petitioners. The observation of the Superintendent of Central Excise in letter dated April 28, 1979 that the company is not produce evidence to establish that the tin containers area durable and returnable also cannot be accepted in view of the fact that in the return it is clearly mentioned that at least 4303 containers were returned. Shri Rana very appropriately relied upon the decision of the Supreme Court reported in 1988 (36) E. L. T. 727 [Mahalakshmi Glass Works (P) Ltd. v. Collector of Central Excise]. The Supreme Court observed. "What Section 4 (4) (d) (i) of the Central Excises and Salt Act, 1944 excludes from computation is the cost of packing which is durable nature is "returnable by the buyer to the assessee". The packing must be one which is retunable by the buyer to the assessee and obviously that must by under an arrangement between the buyer and the assessee. It is not the physical capability of the packing to be returned which is the determining factor because, in that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superfluous. The actual or extent of return has not relevance". What is necessary is that if the buyer choose to return the packing, the seller should be obliged to accept it and refund the stipulated amount. In the present case there was no evidence of the agreement that the cartons and gunny bags were returnable, the cost thereof is not excludible as that of durable and returnable packing. " It is obvious from the decision of the Supreme Court that the actual return or extent of return has no relevance while determining whether the cost packing, which is of a durable nature and is returnable by the buyer, can be excluded while determining assessable value under Section 4 of the Act. Shri Rana submitted that though the petitioners had promised to return Rs. 7. 65 per tin on the customers returning the durable tin containers while computing the amount of packing to be deducted, the actual cost incurred by the petitioners for the tin containers should be taken into consideration. The learned counsel urged that amount of Rs. 7. 65 is determined as a depreciated value of the container and while computing the assessable value the actual cost incurred by the petitioners for securing the tin containers should be borne in mind. The submission is correct and deserves acceptance. The petitioners will have to lead evidence before the Superintendent of central Excise to establish what is the actual value of the tin containers at the time when the tin containers left the factory. The actual value of the tin containers which are durable and returnable, will have to be excluded while computing the assessable value of the vegetable products sold by the petitioners.

Fertilizer Corpn. Of India Vs. Sarat Chandra Rath

of the revised pay scale of Rs. 1580-2842 (instead of the old scale of Rs. 915- 1520) and were also paid arrears for the said period on the revised basis. For the period subsequent to the date of their placement in the officers scale the said respondents actually continued in the officers unrevised pay scale of Rs. 960-1610 till they were given the benefit of the revised pay scale of Rs. 2200-3600 with effect from 1st September, 1987 as a result of the aforesaid order dated 18th April, 1991. On the other hand pre 1st January, 1987 Junior Foremen (W) who were already in the officers scale of Rs. 960-1610 as on 31st December, 1986 continued to remain in the same scale as on 1st January, 1987. They were not given the advantage and were only placed in the revised workmens pay scale of Rs. 1580-2842 which was made available to writ petitioners for the period 1st January, 1987 to 31st August 1987. However, when the revised pay scale of Rs. 2200-3600 for the officers was made available vide order dated 18th April, 1991, the same became applicable to them. It was in order to off set this disadvantage that by para 5.1 of the impugned circular a fitment allowance of Rs. 400/- was allowed to such pre 1st January, 1987 Junior Foremen (W). 21. From the aforesaid it is clear that the two categories of Junior Foremen (W) were dealt with by two different sets of rules because as on 1st January, 1987 they were not similarly situate. Whereas the respondents herein were Assistant Foremen, those who were placed in the officers grade prior to 1st January, 1987 were regarded as officers. There could thus be no comparison betweren these two categories of persons. These two categories were unequal and respondents could not, in law, make any grievance if different principles were adopted in the fixation of their respective pay scales.22. The effect of the High Court judgment is that the fixation of pay of post 1st January, 1987 Junior Foremen (W) like the respondents in the revised officers pay scale has been done on the basis of their revised grade of Rs. 1580-2842. On the other hand the fixation of pay of pre 1st January, 1987 Junior Foremen (W) has been done on the basis of their unrevised officers grade of Rs. 960-1610 after giving them a fitment of Rs. 400/-. The direction to grant the additional fitment benefit of Rs. 400/- to the post 1st January, 1987 Junior Foremen (W), whose pay has been revised on the basis of the grade of Rs. 1580-2842, would result in an undue and unjust double advantage being given to the respondents herein. There would, in effect, be a reverse discrimination inasmuch as if the judgment of the High Court is given effect to then the respondents would get more emoluments than their seniors who were placed in the officers scale prior to 1st January, 1987. It has been rightly contended on behalf of the appellants that the High Courts judgment will result in the treatment of unequals as equals, which was clearly not contemplated.23. Apart from the fact that these two classes of employees are different and are governed by different rules, it is open to the State or the appellants to change the conditions of service unilaterally. As observed in the State of West Bengal and others v. Ratan Behari Dey and others, 1994(1) SCT 96(SC) : (1993) 4 SCC 63 at page 65 `` the employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pays scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the court in that behalf. In the present case the rules regarding fixation of pay of the officers and of the workers were different. With effect from 1st January, 1987, therefore, fresh fixation had to take place. Workers and officers belong to two different and distinct classes. The respondents who were not officers as on 1st January,1987 could not 1st January, 1987 could not claim parity with the persons who were in the category of officers on that date. That being so the appellants could fix the pay scale of a worker on his appointment after 1st January, 1987 in the officer class on a principle different than the one which was adopted in revising the pay of an officer who was in position as on 1st January, 1987. Whereas with regard to the respondents it would be a case of initial fixation of their salaries on their placement in the officers grade, in the case of pre 1st January, 1987 Junior Foremen it would be a matter of revision of their salaries in the same grade. It was open to the appellants to follow different principles in these two cases. 24. There is also considerable force in the contention of Sh. V.R. Reddy, learned Additional Solicitor General, appearing for the appellants, that the High Court ought not to have granted reliefs to the respondents which they had not even prayed for inasmuch as relief prayed for in the writ petition was only with regard to the adjustment of the personal pay against the incremental benefits. But as the case had been argued at length on the points decided by the High Court, we need not advert further on this aspect.25. From the aforesaid discussion it follows that para 5.3 of the Office Memorandum dated 18th April, 1991, which contained the principle on the basis of which the pay of the respondents was fixed in the lowest scale of the officers grade, is not invalid and the High Court fell in error in striking it down.

1[ds]19. From the facts enumerated hereinabove it is quite evident that the question of discrimination or violation of Article 14 of the Constitution does not really arise in the present case.20. From the facts stated hereinabove it cannot be disputed that respondents 1 to 23 as on 1st January, 1987 had not acquired the officers grade and were working as Assistant Foremen.From the aforesaid it is clear that the two categories of Junior Foremen (W) were dealt with by two different sets of rules because as on 1st January, 1987 they were not similarly situate. Whereas the respondents herein were Assistant Foremen, those who were placed in the officers grade prior to 1st January, 1987 were regarded as officers. There could thus be no comparison betweren these two categories of persons. These two categories were unequal and respondents could not, in law, make any grievance if different principles were adopted in the fixation of their respective pay scales.22. The effect of the High Court judgment is that the fixation of pay of post 1st January, 1987 Junior Foremen (W) like the respondents in the revised officers pay scale has been done on the basis of their revised grade of Rs. 1580-2842. On the other hand the fixation of pay of pre 1st January, 1987 Junior Foremen (W) has been done on the basis of their unrevised officers grade of Rs. 960-1610 after giving them a fitment of Rs. 400/-. The direction to grant the additional fitment benefit of Rs. 400/- to the post 1st January, 1987 Junior Foremen (W), whose pay has been revised on the basis of the grade of Rs. 1580-2842, would result in an undue and unjust double advantage being given to the respondents herein. There would, in effect, be a reverse discrimination inasmuch as if the judgment of the High Court is given effect to then the respondents would get more emoluments than their seniors who were placed in the officers scale prior to 1st January, 1987. It has been rightly contended on behalf of the appellants that the High Courts judgment will result in the treatment of unequals as equals, which was clearly not contemplated.23. Apart from the fact that these two classes of employees are different and are governed by different rules, it is open to the State or the appellants to change the conditions of service unilaterally.There is also considerable force in the contention of Sh. V.R. Reddy, learned Additional Solicitor General, appearing for the appellants, that the High Court ought not to have granted reliefs to the respondents which they had not even prayed for inasmuch as relief prayed for in the writ petition was only with regard to the adjustment of the personal pay against the incremental benefits. But as the case had been argued at length on the points decided by the High Court, we need not advert further on this aspect.25. From the aforesaid discussion it follows that para 5.3 of the Office Memorandum dated 18th April, 1991, which contained the principle on the basis of which the pay of the respondents was fixed in the lowest scale of the officers grade, is not invalid and the High Court fell in error in striking it

### 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: of the revised pay scale of Rs. 1580-2842 (instead of the old scale of Rs. 915- 1520) and were also paid arrears for the said period on the revised basis. For the period subsequent to the date of their placement in the officers scale the said respondents actually continued in the officers unrevised pay scale of Rs. 960-1610 till they were given the benefit of the revised pay scale of Rs. 2200-3600 with effect from 1st September, 1987 as a result of the aforesaid order dated 18th April, 1991. On the other hand pre 1st January, 1987 Junior Foremen (W) who were already in the officers scale of Rs. 960-1610 as on 31st December, 1986 continued to remain in the same scale as on 1st January, 1987. They were not given the advantage and were only placed in the revised workmens pay scale of Rs. 1580-2842 which was made available to writ petitioners for the period 1st January, 1987 to 31st August 1987. However, when the revised pay scale of Rs. 2200-3600 for the officers was made available vide order dated 18th April, 1991, the same became applicable to them. It was in order to off set this disadvantage that by para 5.1 of the impugned circular a fitment allowance of Rs. 400/- was allowed to such pre 1st January, 1987 Junior Foremen (W). 21. From the aforesaid it is clear that the two categories of Junior Foremen (W) were dealt with by two different sets of rules because as on 1st January, 1987 they were not similarly situate. Whereas the respondents herein were Assistant Foremen, those who were placed in the officers grade prior to 1st January, 1987 were regarded as officers. There could thus be no comparison betweren these two categories of persons. These two categories were unequal and respondents could not, in law, make any grievance if different principles were adopted in the fixation of their respective pay scales.22. The effect of the High Court judgment is that the fixation of pay of post 1st January, 1987 Junior Foremen (W) like the respondents in the revised officers pay scale has been done on the basis of their revised grade of Rs. 1580-2842. On the other hand the fixation of pay of pre 1st January, 1987 Junior Foremen (W) has been done on the basis of their unrevised officers grade of Rs. 960-1610 after giving them a fitment of Rs. 400/-. The direction to grant the additional fitment benefit of Rs. 400/- to the post 1st January, 1987 Junior Foremen (W), whose pay has been revised on the basis of the grade of Rs. 1580-2842, would result in an undue and unjust double advantage being given to the respondents herein. There would, in effect, be a reverse discrimination inasmuch as if the judgment of the High Court is given effect to then the respondents would get more emoluments than their seniors who were placed in the officers scale prior to 1st January, 1987. It has been rightly contended on behalf of the appellants that the High Courts judgment will result in the treatment of unequals as equals, which was clearly not contemplated.23. Apart from the fact that these two classes of employees are different and are governed by different rules, it is open to the State or the appellants to change the conditions of service unilaterally. As observed in the State of West Bengal and others v. Ratan Behari Dey and others, 1994(1) SCT 96(SC) : (1993) 4 SCC 63 at page 65 `` the employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pays scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the court in that behalf. In the present case the rules regarding fixation of pay of the officers and of the workers were different. With effect from 1st January, 1987, therefore, fresh fixation had to take place. Workers and officers belong to two different and distinct classes. The respondents who were not officers as on 1st January,1987 could not 1st January, 1987 could not claim parity with the persons who were in the category of officers on that date. That being so the appellants could fix the pay scale of a worker on his appointment after 1st January, 1987 in the officer class on a principle different than the one which was adopted in revising the pay of an officer who was in position as on 1st January, 1987. Whereas with regard to the respondents it would be a case of initial fixation of their salaries on their placement in the officers grade, in the case of pre 1st January, 1987 Junior Foremen it would be a matter of revision of their salaries in the same grade. It was open to the appellants to follow different principles in these two cases. 24. There is also considerable force in the contention of Sh. V.R. Reddy, learned Additional Solicitor General, appearing for the appellants, that the High Court ought not to have granted reliefs to the respondents which they had not even prayed for inasmuch as relief prayed for in the writ petition was only with regard to the adjustment of the personal pay against the incremental benefits. But as the case had been argued at length on the points decided by the High Court, we need not advert further on this aspect.25. From the aforesaid discussion it follows that para 5.3 of the Office Memorandum dated 18th April, 1991, which contained the principle on the basis of which the pay of the respondents was fixed in the lowest scale of the officers grade, is not invalid and the High Court fell in error in striking it down. ### Response: 1 ### Explanation: 19. From the facts enumerated hereinabove it is quite evident that the question of discrimination or violation of Article 14 of the Constitution does not really arise in the present case.20. From the facts stated hereinabove it cannot be disputed that respondents 1 to 23 as on 1st January, 1987 had not acquired the officers grade and were working as Assistant Foremen.From the aforesaid it is clear that the two categories of Junior Foremen (W) were dealt with by two different sets of rules because as on 1st January, 1987 they were not similarly situate. Whereas the respondents herein were Assistant Foremen, those who were placed in the officers grade prior to 1st January, 1987 were regarded as officers. There could thus be no comparison betweren these two categories of persons. These two categories were unequal and respondents could not, in law, make any grievance if different principles were adopted in the fixation of their respective pay scales.22. The effect of the High Court judgment is that the fixation of pay of post 1st January, 1987 Junior Foremen (W) like the respondents in the revised officers pay scale has been done on the basis of their revised grade of Rs. 1580-2842. On the other hand the fixation of pay of pre 1st January, 1987 Junior Foremen (W) has been done on the basis of their unrevised officers grade of Rs. 960-1610 after giving them a fitment of Rs. 400/-. The direction to grant the additional fitment benefit of Rs. 400/- to the post 1st January, 1987 Junior Foremen (W), whose pay has been revised on the basis of the grade of Rs. 1580-2842, would result in an undue and unjust double advantage being given to the respondents herein. There would, in effect, be a reverse discrimination inasmuch as if the judgment of the High Court is given effect to then the respondents would get more emoluments than their seniors who were placed in the officers scale prior to 1st January, 1987. It has been rightly contended on behalf of the appellants that the High Courts judgment will result in the treatment of unequals as equals, which was clearly not contemplated.23. Apart from the fact that these two classes of employees are different and are governed by different rules, it is open to the State or the appellants to change the conditions of service unilaterally.There is also considerable force in the contention of Sh. V.R. Reddy, learned Additional Solicitor General, appearing for the appellants, that the High Court ought not to have granted reliefs to the respondents which they had not even prayed for inasmuch as relief prayed for in the writ petition was only with regard to the adjustment of the personal pay against the incremental benefits. But as the case had been argued at length on the points decided by the High Court, we need not advert further on this aspect.25. From the aforesaid discussion it follows that para 5.3 of the Office Memorandum dated 18th April, 1991, which contained the principle on the basis of which the pay of the respondents was fixed in the lowest scale of the officers grade, is not invalid and the High Court fell in error in striking it

Delhi Cloth And General Mills Co., Ltd Vs. Shri Rameshwar Dyal And Anr

further ordered that in case the management railed to take him back, they would pay him his full wages with effect from the date he reported for duty.6. Thereupon the appellant-mills filed a writ petition before the High Court. Their main contention before the High Court was two-fold. In the first place it was urged that the tribunal had no jurisdiction to entertain an application under S. 33-A of the Act in the circumstances of this case after the amended sections 33 and 33-A came into force from March 10, 1957. In the alternative it it was contended that the tribunal had no jurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the respondent even before considering the questions raised in the applications under S. 33-A on the merits. The High Court held on the first point that in view of S. 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, No. XXXVI of 1956, the present case would be governed by S. 33 as it was before the amendment and therefore the tribunal would have jurisdiction to entertain the complaint dated May 6, 1957, under S. 33-A of the Act. On the second point, the High Court held that the order of the tribunal granting interim relief was within its jurisdiction and was justified. In consequence, the writ petition was dismissed. Thereupon the appellant-mills applied and was granted a certificate by the High Court to appeal to this Court; and that is how the matter has come up before us.7. The same two points which were raised in the High Court have been urged before us. We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16, 1957, is manifestly erroneous in law and cannot be supported. Apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this Court in The Management, Hotel Imperial v. Hotel Workers Union, AIR 1959 S C 1342) we are of opinion that where the tribunal in dealing with an application under S. 33-A of the Act and the question before it is whether an order of dismissal is against the provisions of S. 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure. It is clear that in case of a complaint under S. 33-A based on dismissal against the provisions of S. 33, the final order which the tribunal can pass in case it is in favour of the workman, would be for reinstatement. That final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal : See Punjab National Bank Ltd. v. All-India Punjab National Bank Employees Federation, AIR 1960 S C 160 where it was held that in an inquiry under S. 33-A, the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of S. 33 by the employer. After such contravention is proved it would still be open to the employer to justify the impugned dismissal on the merits. That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under S. 33-A.Therefore, when a tribunal is considering a complaint under S. 33-A and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. The interim relief ordered in this case was that the workman should be permitted to work: in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under s, 33-A. As was pointed out in Hotel Imperials case, A I R 1959 S C 1342 ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. We therefore allow the appeal, set aside the order of the High Court as well as of the tribunal dated May 16, 1957, granting interim relief.8. Learned counsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside. In the circumstances of this case we do not think that interim relief to the respondent is justified hereafter. As we have pointed above, applications under Ss. 33 and 33-A should be dealt with expeditiously. We trust that the applications dated September 4, 1956, which appears to have been overlooked and of May 6, 1957,will now be dealt with expeditiously and finally disposed of by the tribunal, as all applications under S. 33A should be.

1[ds]7. The same two points which were raised in the High Court have been urged before us. We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16, 1957, is manifestly erroneous in law and cannot be supported. Apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this Court in The Management, Hotel Imperial v. Hotel Workers Union, AIR 1959 S C 1342) we are of opinion that where the tribunal in dealing with an application under S.33A of theAct and the question before it is whether an order of dismissal is against the provisions of S. 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure. It is clear that in case of a complaint under S.based on dismissal against the provisions of S. 33, the final order which the tribunal can pass in case it is in favour of the workman, would be for reinstatement. That final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal : See Punjab National Bank Ltd. v.Punjab National Bank Employees Federation, AIR 1960 S C 160 where it was held that in an inquiry under S.the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of S. 33 by the employer. After such contravention is proved it would still be open to the employer to justify the impugned dismissalon the merits.That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under S.when a tribunal is considering a complaint under S.and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. The interim relief ordered in this case was that the workman should be permitted to work: in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under s,As was pointed out in Hotel Imperials case, A I R 1959 S C 1342 ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. We therefore allow the appeal, set aside the order of the High Court as well as of the tribunal dated May 16, 1957, granting interim relief.Learned counsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside.In the circumstances of this case we do not think that interim relief to the respondent is justified hereafter. As we have pointed above, applications under Ss. 33 and33A should bedealt with expeditiously. We trust that the applications dated September 4, 1956, which appears to have been overlooked and of May 6, 1957,will now be dealt with expeditiously and finally disposed of by the tribunal, as all applications under S.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: further ordered that in case the management railed to take him back, they would pay him his full wages with effect from the date he reported for duty.6. Thereupon the appellant-mills filed a writ petition before the High Court. Their main contention before the High Court was two-fold. In the first place it was urged that the tribunal had no jurisdiction to entertain an application under S. 33-A of the Act in the circumstances of this case after the amended sections 33 and 33-A came into force from March 10, 1957. In the alternative it it was contended that the tribunal had no jurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the respondent even before considering the questions raised in the applications under S. 33-A on the merits. The High Court held on the first point that in view of S. 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, No. XXXVI of 1956, the present case would be governed by S. 33 as it was before the amendment and therefore the tribunal would have jurisdiction to entertain the complaint dated May 6, 1957, under S. 33-A of the Act. On the second point, the High Court held that the order of the tribunal granting interim relief was within its jurisdiction and was justified. In consequence, the writ petition was dismissed. Thereupon the appellant-mills applied and was granted a certificate by the High Court to appeal to this Court; and that is how the matter has come up before us.7. The same two points which were raised in the High Court have been urged before us. We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16, 1957, is manifestly erroneous in law and cannot be supported. Apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this Court in The Management, Hotel Imperial v. Hotel Workers Union, AIR 1959 S C 1342) we are of opinion that where the tribunal in dealing with an application under S. 33-A of the Act and the question before it is whether an order of dismissal is against the provisions of S. 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure. It is clear that in case of a complaint under S. 33-A based on dismissal against the provisions of S. 33, the final order which the tribunal can pass in case it is in favour of the workman, would be for reinstatement. That final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal : See Punjab National Bank Ltd. v. All-India Punjab National Bank Employees Federation, AIR 1960 S C 160 where it was held that in an inquiry under S. 33-A, the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of S. 33 by the employer. After such contravention is proved it would still be open to the employer to justify the impugned dismissal on the merits. That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under S. 33-A.Therefore, when a tribunal is considering a complaint under S. 33-A and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. The interim relief ordered in this case was that the workman should be permitted to work: in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under s, 33-A. As was pointed out in Hotel Imperials case, A I R 1959 S C 1342 ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. We therefore allow the appeal, set aside the order of the High Court as well as of the tribunal dated May 16, 1957, granting interim relief.8. Learned counsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside. In the circumstances of this case we do not think that interim relief to the respondent is justified hereafter. As we have pointed above, applications under Ss. 33 and 33-A should be dealt with expeditiously. We trust that the applications dated September 4, 1956, which appears to have been overlooked and of May 6, 1957,will now be dealt with expeditiously and finally disposed of by the tribunal, as all applications under S. 33A should be. ### Response: 1 ### Explanation: 7. The same two points which were raised in the High Court have been urged before us. We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16, 1957, is manifestly erroneous in law and cannot be supported. Apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this Court in The Management, Hotel Imperial v. Hotel Workers Union, AIR 1959 S C 1342) we are of opinion that where the tribunal in dealing with an application under S.33A of theAct and the question before it is whether an order of dismissal is against the provisions of S. 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure. It is clear that in case of a complaint under S.based on dismissal against the provisions of S. 33, the final order which the tribunal can pass in case it is in favour of the workman, would be for reinstatement. That final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal : See Punjab National Bank Ltd. v.Punjab National Bank Employees Federation, AIR 1960 S C 160 where it was held that in an inquiry under S.the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of S. 33 by the employer. After such contravention is proved it would still be open to the employer to justify the impugned dismissalon the merits.That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under S.when a tribunal is considering a complaint under S.and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. The interim relief ordered in this case was that the workman should be permitted to work: in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under s,As was pointed out in Hotel Imperials case, A I R 1959 S C 1342 ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. We therefore allow the appeal, set aside the order of the High Court as well as of the tribunal dated May 16, 1957, granting interim relief.Learned counsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside.In the circumstances of this case we do not think that interim relief to the respondent is justified hereafter. As we have pointed above, applications under Ss. 33 and33A should bedealt with expeditiously. We trust that the applications dated September 4, 1956, which appears to have been overlooked and of May 6, 1957,will now be dealt with expeditiously and finally disposed of by the tribunal, as all applications under S.

Brooke Bond India Ltd Vs. The Workmen

the settlement; on such construction it was contended that the office bearers of the Union who signed the agreement were not specifically authorised to do so. This construction of Rule 62(2)(b) was rightly rejected by the Tribunal. But neither Rule 58 of the Central Rules nor Rule 62 of the Bombay Rules contains anything to suggest that any officer of a trade union who is entitled to sign a settlement must be deemed to have had the authority to enter into this settlement. The procedure prescribed by either Rule 58 of the Central Rules or Rule 62 of the Bombay Rules presupposes the existence of a valid settlement, and the question in this case is whether there was such a settlement. Another case relied on by the appellant is The Sirsilk Ltd. and others v. Government of Andhra Pradesh and another, [1963-II L.L.J. 647]. The facts of that case are that after the proceedings before the Tribunal had come to an end and the tribunal had sent its award to government, the parties concerned in the dispute came to a settlement. Section17(1) of the Industrial Disputes Act lays down that every award shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit. Section 18(1) makes a settlement arrived at between the employer and the workmen otherwise than in the course of conciliation proceedings binding on the parties to the agreement. Under Section 18(3) an award of a Tribunal on publication shall be binding on all parties to the industrial dispute. In Sirsilk case difficulty was felt in giving effect to the settlement because the proceedings before the Tribunal had ended and the Tribunal had sent its award to the government before the settlement was arrived at. This Court held :"The only way in our view to resolve the possible conflict which would arise between a settlement which is binding under Section 18(1) and an award which may become binding under Section 18(3) on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under Section 18(1) has been arrived at ... In such a situation we are of opinion that the Government ought not to publish the award under Section 17(1) and in cases where Government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under Section 18(1) with respect to the very matters which were the subject-matter of adjudication under the award."11. We think this decision was relied on only to emphasize that a settlement reached between the parties concerned in the dispute must prevail if it is reached at any time before the publication of the award. That is undoubtedly so, but the question before us is different which is, whether in fact a settlement within the meaning of Section 2(p), of the Industrial Disputes Act was reached. Other questions will arise only after it is found that there was such a settlement in existence. Sirsilk does not therefore afford any assistance to the appellant. The Tribunal in support of the view taken by it relied on a decision of the Delhi High Court, in Hindustan Housing Factory Ltd. v. Hindustan Housing Factory Employees Union and others, (1969) Lab I.C. 1450, the High Court held :".... the contention on behalf of the petitioner-company that the fact that the Memorandum of Settlement was in the prescribed form and was signed by one or more of the office-bearers of the Union is by itself sufficient to make the settlement arrived at between the Management of the petitioner-company and the signatories binding on the Union and all its members, is untenable ....The language of S. 18(1) clearly shows that the settlement will be binding only "on the parties to the agreement". The definition of "settlement" in Section2(p) of the Act also states that "settlement" means a settlement arrived at "between the employer and the workmen". So, normally in order that a settlement between the employer and the workmen may be binding on them, it has to be arrived at by agreement between the employer and the workmen. Where the workmen are represented by a recognised Union, the settlement may be arrived at between the employer and the Union. If there is a recognised Union of the workmen and the constitution of the Union provides that any of its office-bearers can enter into a settlement with the Management on behalf of the Union and its members, a settlement may be arrived at between the employer and such office-bearer or bearers. But, where the constitution does not so provide specifically, the office-bearer or bearers who wish to enter into a settlement with the employer should have the necessary authorisation by the executive committee of the Union or by the workmen. A reading of Rule 58 clearly shows that it presupposes the existence of a settlement already arrived at between the employer and the workmen, and it only prescribes the form in which the Memorandum of settlement should be, and by whom it should be signed. It does not deal with the entering into or arriving at a settlement. Therefore, where a settlement is alleged to have been arrived at between an employer and one or more office-bearers of the Union, and the authority of the office-bearers who signed the Memorandum of Settlement to enter into the settlement is challenged or disputed, the said authority or authorisation of the office-bearers who signed the Memorandum of Settlement has to be established as a fact, and it is not enough if the employer merely points out and relies upon the fact that the Memorandum of Settlement was signed by one or more of the office-bearers of the Union".12. In our opinion the above extract from the judgment of the Delhi High Court states correctly the law on the point.13.

0[ds]5. It cannot be disputed that unless the office bearers who signed the agreement were authorised by the executive committee of the union to enter into a settlement or the constitution of the union contained a provision that one or more of its members would be competent to settle a dispute with the management, no agreement between any office bearer of the union and the management can be called a settlement as defined in Section 2(p). There is no provision in the constitution of the Rashtriya Union authorising any office bearer of the union to enter into a settlement with the management. We have referred above to the proceedings of the executive committee. As the Tribunal points out, the resolutions passed by the executive committee do not support the claim that the negotiation committee was empowered to enter into a settlement without seeking ratification from the executive committee. The Tribunal held, in our opinion rightly, that the fact that the agreement was signed by the office bearers of the union does not clinch the matter because the executive committee at no stage had accepted the agreement. In fact no meeting of the executive committee was held before the agreement was signed on March 16, 1978 to consider whether the agreement wasdefinition of "settlement" in Section2(p) of the Act also states that "settlement" means a settlement arrived at "between the employer and the workmen". So, normally in order that a settlement between the employer and the workmen may be binding on them, it has to be arrived at by agreement between the employer and the workmen. Where the workmen are represented by a recognised Union, the settlement may be arrived at between the employer and the Union. If there is a recognised Union of the workmen and the constitution of the Union provides that any of its office-bearers can enter into a settlement with the Management on behalf of the Union and its members, a settlement may be arrived at between the employer and such office-bearer or bearers. But, where the constitution does not so provide specifically, the office-bearer or bearers who wish to enter into a settlement with the employer should have the necessary authorisation by the executive committee of the Union or by the workmen. A reading of Rule 58 clearly shows that it presupposes the existence of a settlement already arrived at between the employer and the workmen, and it only prescribes the form in which the Memorandum of settlement should be, and by whom it should be signed. It does not deal with the entering into or arriving at a settlement. Therefore, where a settlement is alleged to have been arrived at between an employer and one or more office-bearers of the Union, and the authority of the office-bearers who signed the Memorandum of Settlement to enter into the settlement is challenged or disputed, the said authority or authorisation of the office-bearers who signed the Memorandum of Settlement has to be established as a fact, and it is not enough if the employer merely points out and relies upon the fact that the Memorandum of Settlement was signed by one or more of the office-bearers of the Union".In our opinion the above extract from the judgment of the Delhi High Court states correctly the law on the point.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: the settlement; on such construction it was contended that the office bearers of the Union who signed the agreement were not specifically authorised to do so. This construction of Rule 62(2)(b) was rightly rejected by the Tribunal. But neither Rule 58 of the Central Rules nor Rule 62 of the Bombay Rules contains anything to suggest that any officer of a trade union who is entitled to sign a settlement must be deemed to have had the authority to enter into this settlement. The procedure prescribed by either Rule 58 of the Central Rules or Rule 62 of the Bombay Rules presupposes the existence of a valid settlement, and the question in this case is whether there was such a settlement. Another case relied on by the appellant is The Sirsilk Ltd. and others v. Government of Andhra Pradesh and another, [1963-II L.L.J. 647]. The facts of that case are that after the proceedings before the Tribunal had come to an end and the tribunal had sent its award to government, the parties concerned in the dispute came to a settlement. Section17(1) of the Industrial Disputes Act lays down that every award shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit. Section 18(1) makes a settlement arrived at between the employer and the workmen otherwise than in the course of conciliation proceedings binding on the parties to the agreement. Under Section 18(3) an award of a Tribunal on publication shall be binding on all parties to the industrial dispute. In Sirsilk case difficulty was felt in giving effect to the settlement because the proceedings before the Tribunal had ended and the Tribunal had sent its award to the government before the settlement was arrived at. This Court held :"The only way in our view to resolve the possible conflict which would arise between a settlement which is binding under Section 18(1) and an award which may become binding under Section 18(3) on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under Section 18(1) has been arrived at ... In such a situation we are of opinion that the Government ought not to publish the award under Section 17(1) and in cases where Government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under Section 18(1) with respect to the very matters which were the subject-matter of adjudication under the award."11. We think this decision was relied on only to emphasize that a settlement reached between the parties concerned in the dispute must prevail if it is reached at any time before the publication of the award. That is undoubtedly so, but the question before us is different which is, whether in fact a settlement within the meaning of Section 2(p), of the Industrial Disputes Act was reached. Other questions will arise only after it is found that there was such a settlement in existence. Sirsilk does not therefore afford any assistance to the appellant. The Tribunal in support of the view taken by it relied on a decision of the Delhi High Court, in Hindustan Housing Factory Ltd. v. Hindustan Housing Factory Employees Union and others, (1969) Lab I.C. 1450, the High Court held :".... the contention on behalf of the petitioner-company that the fact that the Memorandum of Settlement was in the prescribed form and was signed by one or more of the office-bearers of the Union is by itself sufficient to make the settlement arrived at between the Management of the petitioner-company and the signatories binding on the Union and all its members, is untenable ....The language of S. 18(1) clearly shows that the settlement will be binding only "on the parties to the agreement". The definition of "settlement" in Section2(p) of the Act also states that "settlement" means a settlement arrived at "between the employer and the workmen". So, normally in order that a settlement between the employer and the workmen may be binding on them, it has to be arrived at by agreement between the employer and the workmen. Where the workmen are represented by a recognised Union, the settlement may be arrived at between the employer and the Union. If there is a recognised Union of the workmen and the constitution of the Union provides that any of its office-bearers can enter into a settlement with the Management on behalf of the Union and its members, a settlement may be arrived at between the employer and such office-bearer or bearers. But, where the constitution does not so provide specifically, the office-bearer or bearers who wish to enter into a settlement with the employer should have the necessary authorisation by the executive committee of the Union or by the workmen. A reading of Rule 58 clearly shows that it presupposes the existence of a settlement already arrived at between the employer and the workmen, and it only prescribes the form in which the Memorandum of settlement should be, and by whom it should be signed. It does not deal with the entering into or arriving at a settlement. Therefore, where a settlement is alleged to have been arrived at between an employer and one or more office-bearers of the Union, and the authority of the office-bearers who signed the Memorandum of Settlement to enter into the settlement is challenged or disputed, the said authority or authorisation of the office-bearers who signed the Memorandum of Settlement has to be established as a fact, and it is not enough if the employer merely points out and relies upon the fact that the Memorandum of Settlement was signed by one or more of the office-bearers of the Union".12. In our opinion the above extract from the judgment of the Delhi High Court states correctly the law on the point.13. ### Response: 0 ### Explanation: 5. It cannot be disputed that unless the office bearers who signed the agreement were authorised by the executive committee of the union to enter into a settlement or the constitution of the union contained a provision that one or more of its members would be competent to settle a dispute with the management, no agreement between any office bearer of the union and the management can be called a settlement as defined in Section 2(p). There is no provision in the constitution of the Rashtriya Union authorising any office bearer of the union to enter into a settlement with the management. We have referred above to the proceedings of the executive committee. As the Tribunal points out, the resolutions passed by the executive committee do not support the claim that the negotiation committee was empowered to enter into a settlement without seeking ratification from the executive committee. The Tribunal held, in our opinion rightly, that the fact that the agreement was signed by the office bearers of the union does not clinch the matter because the executive committee at no stage had accepted the agreement. In fact no meeting of the executive committee was held before the agreement was signed on March 16, 1978 to consider whether the agreement wasdefinition of "settlement" in Section2(p) of the Act also states that "settlement" means a settlement arrived at "between the employer and the workmen". So, normally in order that a settlement between the employer and the workmen may be binding on them, it has to be arrived at by agreement between the employer and the workmen. Where the workmen are represented by a recognised Union, the settlement may be arrived at between the employer and the Union. If there is a recognised Union of the workmen and the constitution of the Union provides that any of its office-bearers can enter into a settlement with the Management on behalf of the Union and its members, a settlement may be arrived at between the employer and such office-bearer or bearers. But, where the constitution does not so provide specifically, the office-bearer or bearers who wish to enter into a settlement with the employer should have the necessary authorisation by the executive committee of the Union or by the workmen. A reading of Rule 58 clearly shows that it presupposes the existence of a settlement already arrived at between the employer and the workmen, and it only prescribes the form in which the Memorandum of settlement should be, and by whom it should be signed. It does not deal with the entering into or arriving at a settlement. Therefore, where a settlement is alleged to have been arrived at between an employer and one or more office-bearers of the Union, and the authority of the office-bearers who signed the Memorandum of Settlement to enter into the settlement is challenged or disputed, the said authority or authorisation of the office-bearers who signed the Memorandum of Settlement has to be established as a fact, and it is not enough if the employer merely points out and relies upon the fact that the Memorandum of Settlement was signed by one or more of the office-bearers of the Union".In our opinion the above extract from the judgment of the Delhi High Court states correctly the law on the point.

Desh Raj Gupta Vs. Industrial Tribunal Iv, U.P., Lucknow and Another

of justification of the impugned punishment by fresh, materials could arise only if the management had applied to the court for permission to justify the punishment and, in the absence of such a prayer, the Tribunal did not have the power to call upon the employer to do so. In order to proceed further with the Reference for the above purpose, it was essential to have a pleading in this regard, along with an express prayer by the employer, and the Tribunal was not entitled to adopt an advisory role by informing the employer of its rights, namely the right to adduce additional evidence to substantiate the charges. The learned counsel heavily relied on the decision of this Court in Shankar Chakravarti v. Britannia Biscuit Co. (1978) 3 SCR 1165 : (AIR 1979 SC 1652 )1 which was governed by the Central Act. As rightly urged on behalf of the appellant, a. relevant decision under the Central Act must be held to apply to a case under the U. P. Act. since the provisions of the two Acts are in pari materia. However, the case cited is not an authority for the point urged by the learned counsel and he, therefore, cannot take any aid therefrom. ( 7. ) In the aforementioned case the Tribunal came to the conclusion that the inquiry was conducted in violation of the principles of natural justice and was, therefore, vitiated, and the award was pronounced rejecting the application of the management under S. 33 (2)(b) for approval of the action terminating the service of the employee. The employer challenged the award in a writ case before the Calcutta High Court on the ground that the Tribunal was under a duty to call upon the management to lead evidence in support of the correctness on merits of the order of punishment, which was not done. It was not a case of a prayer having been made by the employer which was rejected. This aspect has been specifically mentioned in the judgment and it was further observed that before the learned single Judge who heard the writ case no plea was raised about any denial of opportunity to the respondent Company "to lead evidence in proof of charges after the domestic inquiry was found to be defective". The writ petition was dismissed by the learned single Judge and the employer Company preferred a Letters Patent Appeal which was allowed by a Division Bench observing that after holding that the domestic inquiry was defective, it was incumbent upon the Tribunal to give an opportunity to the employer to lead evidence to prove the charges and as this was not dope, the award was vitiated in law. This Court, in appeal, disagreed with the Division Bench of the High Court and reversed the judgment. It was held that if an opportunity is sought by the employer to adduce additional evidence to substantiate the charges of misconduct, the Tribunal or the Labour Court, as the case may be, should grant the opportunity. "But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges." It was pointed out that there was neither a pleading in which any claim for adducing additional evidence was made "nor any request was made before the Industrial Tribunal till the proceedings were adjourned for making the Award and till the Award was made". The judgment relied upon does not support the proposition formulated before us that in absence of a prayer the Tribunal is debarred from reminding the employer of his right to adduce additional evidence to substantiate the charges. We do not find any valid ground for accepting the stand of the appellant taken before us. The entire argument of the learned counsel is founded on the decision of this Court in Chakravartis case (AIR 1979 SC 1652 ) which is clearly distinguishable. As has been stated earlier, in that case the Court was not called upon to consider the point as urged before us and the judgment repeatedly made it clear that what was under consideration was whether a duty has been cast in law on the Labour Court or the Tribunal to afford an opportunity to the employer in absence of a request and the question was answered in negative leading to the conclusion that, "... . if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings."( 8. ) Analysing the situation, it appears that by asking the respondent to justify the punishment by adducing additional evidence, the Tribunal merely reminded the employer of his rights and the employer promptly availed of the opportunity. We do not find any illegality in the course adopted which could vitiate the Award. The first point is, therefore, rejected.( 9. ) The second ground urged in support of the appeal appears to be well founded. The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha: (1980) 2 SCR 146 at p. 215: (AIR 1980 SC 1896 at p. 1933), that if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer. The appellant is, therefore, entitled to his salary from 16-8-1976 to 20-7-1980 and the entire amount should be paid by the respondent Bank within a period of three months from today. If the amount is not paid or offered to the appellant as directed, the respondent Bank will be liable to pay interest thereon at the rate of 12 Per Cent per annum for the future period commencing on the date of expiry of three months from today till the same is realised.

1[ds]( 8. ) Analysing the situation, it appears that by asking the respondent to justify the punishment by adducing additional evidence, the Tribunal merely reminded the employer of his rights and the employer promptly availed of the opportunity. We do not find any illegality in the course adopted which could vitiate the Award. The first point is, therefore, rejected.( 9. ) The second ground urged in support of the appeal appears to be well founded. The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha: (1980) 2 SCR 146 at p. 215: (AIR 1980 SC 1896 at p. 1933), that if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer. The appellant is, therefore, entitled to his salary from 16-8-1976 to 20-7-1980 and the entire amount should be paid by the respondent Bank within a period of three months from today. If the amount is not paid or offered to the appellant as directed, the respondent Bank will be liable to pay interest thereon at the rate of 12 Per Cent per annum for the future period commencing on the date of expiry of three months from today till the same is realised.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: of justification of the impugned punishment by fresh, materials could arise only if the management had applied to the court for permission to justify the punishment and, in the absence of such a prayer, the Tribunal did not have the power to call upon the employer to do so. In order to proceed further with the Reference for the above purpose, it was essential to have a pleading in this regard, along with an express prayer by the employer, and the Tribunal was not entitled to adopt an advisory role by informing the employer of its rights, namely the right to adduce additional evidence to substantiate the charges. The learned counsel heavily relied on the decision of this Court in Shankar Chakravarti v. Britannia Biscuit Co. (1978) 3 SCR 1165 : (AIR 1979 SC 1652 )1 which was governed by the Central Act. As rightly urged on behalf of the appellant, a. relevant decision under the Central Act must be held to apply to a case under the U. P. Act. since the provisions of the two Acts are in pari materia. However, the case cited is not an authority for the point urged by the learned counsel and he, therefore, cannot take any aid therefrom. ( 7. ) In the aforementioned case the Tribunal came to the conclusion that the inquiry was conducted in violation of the principles of natural justice and was, therefore, vitiated, and the award was pronounced rejecting the application of the management under S. 33 (2)(b) for approval of the action terminating the service of the employee. The employer challenged the award in a writ case before the Calcutta High Court on the ground that the Tribunal was under a duty to call upon the management to lead evidence in support of the correctness on merits of the order of punishment, which was not done. It was not a case of a prayer having been made by the employer which was rejected. This aspect has been specifically mentioned in the judgment and it was further observed that before the learned single Judge who heard the writ case no plea was raised about any denial of opportunity to the respondent Company "to lead evidence in proof of charges after the domestic inquiry was found to be defective". The writ petition was dismissed by the learned single Judge and the employer Company preferred a Letters Patent Appeal which was allowed by a Division Bench observing that after holding that the domestic inquiry was defective, it was incumbent upon the Tribunal to give an opportunity to the employer to lead evidence to prove the charges and as this was not dope, the award was vitiated in law. This Court, in appeal, disagreed with the Division Bench of the High Court and reversed the judgment. It was held that if an opportunity is sought by the employer to adduce additional evidence to substantiate the charges of misconduct, the Tribunal or the Labour Court, as the case may be, should grant the opportunity. "But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges." It was pointed out that there was neither a pleading in which any claim for adducing additional evidence was made "nor any request was made before the Industrial Tribunal till the proceedings were adjourned for making the Award and till the Award was made". The judgment relied upon does not support the proposition formulated before us that in absence of a prayer the Tribunal is debarred from reminding the employer of his right to adduce additional evidence to substantiate the charges. We do not find any valid ground for accepting the stand of the appellant taken before us. The entire argument of the learned counsel is founded on the decision of this Court in Chakravartis case (AIR 1979 SC 1652 ) which is clearly distinguishable. As has been stated earlier, in that case the Court was not called upon to consider the point as urged before us and the judgment repeatedly made it clear that what was under consideration was whether a duty has been cast in law on the Labour Court or the Tribunal to afford an opportunity to the employer in absence of a request and the question was answered in negative leading to the conclusion that, "... . if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings."( 8. ) Analysing the situation, it appears that by asking the respondent to justify the punishment by adducing additional evidence, the Tribunal merely reminded the employer of his rights and the employer promptly availed of the opportunity. We do not find any illegality in the course adopted which could vitiate the Award. The first point is, therefore, rejected.( 9. ) The second ground urged in support of the appeal appears to be well founded. The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha: (1980) 2 SCR 146 at p. 215: (AIR 1980 SC 1896 at p. 1933), that if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer. The appellant is, therefore, entitled to his salary from 16-8-1976 to 20-7-1980 and the entire amount should be paid by the respondent Bank within a period of three months from today. If the amount is not paid or offered to the appellant as directed, the respondent Bank will be liable to pay interest thereon at the rate of 12 Per Cent per annum for the future period commencing on the date of expiry of three months from today till the same is realised. ### Response: 1 ### Explanation: ( 8. ) Analysing the situation, it appears that by asking the respondent to justify the punishment by adducing additional evidence, the Tribunal merely reminded the employer of his rights and the employer promptly availed of the opportunity. We do not find any illegality in the course adopted which could vitiate the Award. The first point is, therefore, rejected.( 9. ) The second ground urged in support of the appeal appears to be well founded. The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha: (1980) 2 SCR 146 at p. 215: (AIR 1980 SC 1896 at p. 1933), that if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer. The appellant is, therefore, entitled to his salary from 16-8-1976 to 20-7-1980 and the entire amount should be paid by the respondent Bank within a period of three months from today. If the amount is not paid or offered to the appellant as directed, the respondent Bank will be liable to pay interest thereon at the rate of 12 Per Cent per annum for the future period commencing on the date of expiry of three months from today till the same is realised.

Inder Sain Jain Vs. State of Punjab

and also fabricated false accounts. The necessary charges were framed and several witnesses were examined on behalf of the prosecution. The appellant denied the allegation and pleaded that the Excise and Taxation Department raided the premises of the Company at Jullundur on 10-6-1971 and seized goods and that the appellant was made responsible as relation between him and the Company became strained. In his defence, he examined nine witnesses. Most of them were of formal nature. After considering the evidence adduced by the prosecution, the learned First Class Magistrate, Jullundur, convicted the appellant under sections 409 and 477-A, I.P.C. and sentenced him to undergo 1 1/2 years R.I. under section 409, I.P.C. and to pay a fine of Rs. 4, 000/- in default of payment of fine to undergo 9 months R.I. and 1 1/2 years R.I. under Section 477-A, I.P.C. The sentences were directed to run concurrently. These convictions were challenged by the appellant before the Additional Sessions Judge, Jullundur by way of filing an appeal. The learned Sessions Judge relying on the contents of plaint and the written statement in a suit that was filed by the Company against the Firm reached the conclusion that a reasonable doubt had arisen regarding the culpability of the appellant and accordingly acquitted him. The said order of acquittal was challenged before the High Court and by the impugned order, the High Court held that the learned Additional Sessions Judge committed an error in relying on the contents of the pleadings for discarding the evidence of prosecution witnesses and accordingly, allowed the appeal and restored the order of conviction passed by the learned First Class Magistrate. Questioning the same, the present appeal is filed3. The learned counsel for the appellant submits that for fixing the liability of the appellant, the Company has to firmly establish that the appellant has committed the breach of trust and fabricated the accounts and in view of the avernments in the pleadings in the suit between the Company and the Firm, genuine doubt has arisen about the involvement of the appellant about which the learned Sessions Judge gave the benefit of doubt and the High Court erred in reversing the same particularly when two views are possible 4. It is not in dispute that the appellant was working as an Assistant Accountant during the relevant period. The case mainly rested on the documentary evidence consisting of the receipts and the entries. Most of them were not questioned. Ex. P-1 to P-31 are the disputed receipts as per the Firm and Ex. P-1 and P-23 are receipts in other case. The Handwriting Experts opinion establishes that the appellant signed on some of them and also made entries 5. One of the contentions raised on behalf of the appellant is that neither the Company has produced the copies of bills and vouchers etc. to show that the goods were supplied to the said Firm nor the Firm has produced anything about the receipt of the goods on credit. The High Court has considered this aspect and has rightly held that non-production of these documents is not at all relevant for the purpose of the criminal case. However, it is noticed that the Firm as well as the Company have produced which are important. The evidence of P.W. 4 is important in this context 6. In any event, there is voluminous evidence that the appellant was responsible for the accounts and for the amounts received which were entrusted to him7. The learned Sessions Judge while setting aside the order of conviction, mainly relying on the avernments in the pleadings in the civil suit has observed categorically that the prosecution laid the good evidence to prove the signatures on the receipts made by the appellant in token of the payments received by him. Having said so, the learned Sessions Judge proceeded to examine the contents of the pleadings, namely, the plaint filed by the Company and the written statement filed by the Firm. Then he relied on the evidence of two of the defence witnesses who spoke about the contents of the pleadings. It must be noted that the learned Sessions Judge tried to take these avernments as admissions amounts having been received by the appellant. An observation was made that the Firm might have dishonestly managed to take these receipts from the appellant. We are at a loss to know that even if that is true the appellant cannot escape his responsibility when once it is admitted that he was responsible for maintaining the accounts and also accountable to the amounts received. As a matter of fact, avernments in the plaint as spoken by D.W. 8 who was examined and who was an office bearer of the Company is to the effect that the plaintiff, namely, the Company in all the circumstances contends that the possibility cannot be ruled out i.e. that defendant No. 1 did not make payment to defendant No. 2 and the said receipts had been procured by defendant No. 1 in unlawful manner. Defendant No. 2 is no other than the appellant. This avernment by itself does not conclude that the appellant who was also one of the defendants in the suit, was not at all responsible8. For the purpose of the criminal case, what the facts establish is that the appellant was entrusted with the receipts and that the amounts received from the dealers had to be credited and if they are not properly accounted for, then responsibility squarely was on him. To that extent, the prosecution, in the instant case, has established the entrustment as well as making false accounts. As to what happened between him and the Firm would not absolve him from the liability. For all the above reasons, we are of the view that the High Court has rightly held that the learned Sessions Judge was wrong in acquitting the appellant by reversing the order of conviction passed by the trial Court. There are no two possible views in this case

0[ds]7. The learned Sessions Judge while setting aside the order of conviction, mainly relying on the avernments in the pleadings in the civil suit has observed categorically that the prosecution laid the good evidence to prove the signatures on the receipts made by the appellant in token of the payments received by him. Having said so, the learned Sessions Judge proceeded to examine the contents of the pleadings, namely, the plaint filed by the Company and the written statement filed by the Firm. Then he relied on the evidence of two of the defence witnesses who spoke about the contents of the pleadings. It must be noted that the learned Sessions Judge tried to take these avernments as admissions amounts having been received by the appellant. An observation was made that the Firm might have dishonestly managed to take these receipts from the appellant. We are at a loss to know that even if that is true the appellant cannot escape his responsibility when once it is admitted that he was responsible for maintaining the accounts and also accountable to the amounts received. As a matter of fact, avernments in the plaint as spoken by D.W. 8 who was examined and who was an office bearer of the Company is to the effect that the plaintiff, namely, the Company in all the circumstances contends that the possibility cannot be ruled out i.e. that defendant No. 1 did not make payment to defendant No. 2 and the said receipts had been procured by defendant No. 1 in unlawful manner. Defendant No. 2 is no other than the appellant. This avernment by itself does not conclude that the appellant who was also one of the defendants in the suit, was not at all responsible8. For the purpose of the criminal case, what the facts establish is that the appellant was entrusted with the receipts and that the amounts received from the dealers had to be credited and if they are not properly accounted for, then responsibility squarely was on him. To that extent, the prosecution, in the instant case, has established the entrustment as well as making false accounts. As to what happened between him and the Firm would not absolve him from the liability. For all the above reasons, we are of the view that the High Court has rightly held that the learned Sessions Judge was wrong in acquitting the appellant by reversing the order of conviction passed by the trial Court. There are no two possible views in this case

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: and also fabricated false accounts. The necessary charges were framed and several witnesses were examined on behalf of the prosecution. The appellant denied the allegation and pleaded that the Excise and Taxation Department raided the premises of the Company at Jullundur on 10-6-1971 and seized goods and that the appellant was made responsible as relation between him and the Company became strained. In his defence, he examined nine witnesses. Most of them were of formal nature. After considering the evidence adduced by the prosecution, the learned First Class Magistrate, Jullundur, convicted the appellant under sections 409 and 477-A, I.P.C. and sentenced him to undergo 1 1/2 years R.I. under section 409, I.P.C. and to pay a fine of Rs. 4, 000/- in default of payment of fine to undergo 9 months R.I. and 1 1/2 years R.I. under Section 477-A, I.P.C. The sentences were directed to run concurrently. These convictions were challenged by the appellant before the Additional Sessions Judge, Jullundur by way of filing an appeal. The learned Sessions Judge relying on the contents of plaint and the written statement in a suit that was filed by the Company against the Firm reached the conclusion that a reasonable doubt had arisen regarding the culpability of the appellant and accordingly acquitted him. The said order of acquittal was challenged before the High Court and by the impugned order, the High Court held that the learned Additional Sessions Judge committed an error in relying on the contents of the pleadings for discarding the evidence of prosecution witnesses and accordingly, allowed the appeal and restored the order of conviction passed by the learned First Class Magistrate. Questioning the same, the present appeal is filed3. The learned counsel for the appellant submits that for fixing the liability of the appellant, the Company has to firmly establish that the appellant has committed the breach of trust and fabricated the accounts and in view of the avernments in the pleadings in the suit between the Company and the Firm, genuine doubt has arisen about the involvement of the appellant about which the learned Sessions Judge gave the benefit of doubt and the High Court erred in reversing the same particularly when two views are possible 4. It is not in dispute that the appellant was working as an Assistant Accountant during the relevant period. The case mainly rested on the documentary evidence consisting of the receipts and the entries. Most of them were not questioned. Ex. P-1 to P-31 are the disputed receipts as per the Firm and Ex. P-1 and P-23 are receipts in other case. The Handwriting Experts opinion establishes that the appellant signed on some of them and also made entries 5. One of the contentions raised on behalf of the appellant is that neither the Company has produced the copies of bills and vouchers etc. to show that the goods were supplied to the said Firm nor the Firm has produced anything about the receipt of the goods on credit. The High Court has considered this aspect and has rightly held that non-production of these documents is not at all relevant for the purpose of the criminal case. However, it is noticed that the Firm as well as the Company have produced which are important. The evidence of P.W. 4 is important in this context 6. In any event, there is voluminous evidence that the appellant was responsible for the accounts and for the amounts received which were entrusted to him7. The learned Sessions Judge while setting aside the order of conviction, mainly relying on the avernments in the pleadings in the civil suit has observed categorically that the prosecution laid the good evidence to prove the signatures on the receipts made by the appellant in token of the payments received by him. Having said so, the learned Sessions Judge proceeded to examine the contents of the pleadings, namely, the plaint filed by the Company and the written statement filed by the Firm. Then he relied on the evidence of two of the defence witnesses who spoke about the contents of the pleadings. It must be noted that the learned Sessions Judge tried to take these avernments as admissions amounts having been received by the appellant. An observation was made that the Firm might have dishonestly managed to take these receipts from the appellant. We are at a loss to know that even if that is true the appellant cannot escape his responsibility when once it is admitted that he was responsible for maintaining the accounts and also accountable to the amounts received. As a matter of fact, avernments in the plaint as spoken by D.W. 8 who was examined and who was an office bearer of the Company is to the effect that the plaintiff, namely, the Company in all the circumstances contends that the possibility cannot be ruled out i.e. that defendant No. 1 did not make payment to defendant No. 2 and the said receipts had been procured by defendant No. 1 in unlawful manner. Defendant No. 2 is no other than the appellant. This avernment by itself does not conclude that the appellant who was also one of the defendants in the suit, was not at all responsible8. For the purpose of the criminal case, what the facts establish is that the appellant was entrusted with the receipts and that the amounts received from the dealers had to be credited and if they are not properly accounted for, then responsibility squarely was on him. To that extent, the prosecution, in the instant case, has established the entrustment as well as making false accounts. As to what happened between him and the Firm would not absolve him from the liability. For all the above reasons, we are of the view that the High Court has rightly held that the learned Sessions Judge was wrong in acquitting the appellant by reversing the order of conviction passed by the trial Court. There are no two possible views in this case ### Response: 0 ### Explanation: 7. The learned Sessions Judge while setting aside the order of conviction, mainly relying on the avernments in the pleadings in the civil suit has observed categorically that the prosecution laid the good evidence to prove the signatures on the receipts made by the appellant in token of the payments received by him. Having said so, the learned Sessions Judge proceeded to examine the contents of the pleadings, namely, the plaint filed by the Company and the written statement filed by the Firm. Then he relied on the evidence of two of the defence witnesses who spoke about the contents of the pleadings. It must be noted that the learned Sessions Judge tried to take these avernments as admissions amounts having been received by the appellant. An observation was made that the Firm might have dishonestly managed to take these receipts from the appellant. We are at a loss to know that even if that is true the appellant cannot escape his responsibility when once it is admitted that he was responsible for maintaining the accounts and also accountable to the amounts received. As a matter of fact, avernments in the plaint as spoken by D.W. 8 who was examined and who was an office bearer of the Company is to the effect that the plaintiff, namely, the Company in all the circumstances contends that the possibility cannot be ruled out i.e. that defendant No. 1 did not make payment to defendant No. 2 and the said receipts had been procured by defendant No. 1 in unlawful manner. Defendant No. 2 is no other than the appellant. This avernment by itself does not conclude that the appellant who was also one of the defendants in the suit, was not at all responsible8. For the purpose of the criminal case, what the facts establish is that the appellant was entrusted with the receipts and that the amounts received from the dealers had to be credited and if they are not properly accounted for, then responsibility squarely was on him. To that extent, the prosecution, in the instant case, has established the entrustment as well as making false accounts. As to what happened between him and the Firm would not absolve him from the liability. For all the above reasons, we are of the view that the High Court has rightly held that the learned Sessions Judge was wrong in acquitting the appellant by reversing the order of conviction passed by the trial Court. There are no two possible views in this case

Ramchandra Shankar Deodhar & Ors Vs. The State Of Maharashtra & Ors

the efficiency of the police force of these ranks and is designed with that object" On this reasoning the Court negatived the constitutional challenge to the validity of the system of promotion. 17. It will be seen from this analysis of the reasoning of the decision in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ) that far from negativing the contention of the petitioners, it goes a long way towards supporting it. In Ram Sarans case the cadre of Sub-Inspectors was a range cadre and promotion to that cadre in each range was made on the basis of select list of approved Head Constables from that particular range. This mode of promotion which confined promotions from Head Constables to Sub-Inspectors within the range was upheld by this Court because it was calculated to make available the advantage of local knowledge in a post where such local knowledge would be useful in promoting the interest of administrative efficiency of the police force. But the basic feature underlying this mode of promotion was, and that is vital to the understanding of the true ratio of this decision, that in respect of promotion to the range cadre of Sub-Inspectors all the Head Constables in the rangewere eligible for being considered and promotion to such range cadre was made on the basis of rangewise selection list prepared by taking into account the relative merits ofall the Head Constables in the range. Every Head Constable in the range had, therefore, equal opportunity of promotion to the range cadre of Sub-Inspectors. Here in the present case, however, as we have already pointed out above, the procedure adopted by the State Government provided for promotion to the State cadre of Deputy Collectors, not on the basis of State wise select list, but on the basis of divisional select lists of Mamlatdars. This is a very vital point on which the mode of promotion in the present case differed from that in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ). If the cadre of Deputy Collectors had been a divisional cadre, there would have been no objection in providing that the promotion to that cadre shall be divisionwise on the basis of divisional select lists. Then the analogy in Ram Sarans case, would have been complete. But here the cadre of Deputy Collectors was admittedly a State cadre and not a divisional cadre and divisionwise promotion to such cadre on the basis of divisional select lists could not, therefore, be justified on the ratio of the decision in Ram Sarans case.It may be noticed that in Ram Sarans case, in regard to promotion to the State cadre of Inspectors, the procedure followed was to have a Statewise select list of approved Sub-Inspectors from all over the State and to make promotion to the State cadre of Inspectors on the basis of such Statewise select list. The promotion to the State cadre of Inspectors was not made rangewise on the basis of separate select lists of Sub-Inspectors of each range. If that had been done, and upheld by this Court, the argument of the respondents would have been almost unassailable. But the promotion to the State cadre of Inspectors was on a Statewise basis. The ratio of the decision in Ram Sarans case, does not, therefore, support the contention that promotion to a State cadre can be made on the basis of divisional select lists. On the contrary, it suggests that if the cadre is a divisional cadre, there can be divisionwise promotion on the basis of divisional select lists, but if it is a State cadre, promotion must be on Statewide basis so that every officer in the State has equal opportunity of promotion to the State cadre. Ram Sarans case, therefore, impliedly supports the view which we have taken on a priori reasoning. The respondents faintly attempted to argue that in the present case there was an intermediate cadre of officiating Deputy Collectors between the cadre of Mamlatdars and the cadre of Deputy Collectors and promotion from the cadre of Mamlatdars lay to the cadre of officiating Deputy Collectors and it was from the cadre of officiating Deputy Collectors that one could obtain promotion to the cadre of Deputy Collectors. The cadre of officiating Deputy Collectors was a divisional cadre, and therefore, promotion to it was divisionwise on the basis of divisional select lists, while the cadre of Deputy Collectors was a State cadre and hence promotion to it was Statewide on the basis of the combined seniority list of all officiating Deputy Collectors in the State. This was in accord with the pattern of promotion in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ) and was, therefore, valid. This contention of the respondents is without force. The premise on which it is founded is incorrect. It is wholly contradicted by the Rules of 30th July, 1959 which are admittedly statutory rules. These Rules provide that appointment to 50% of the posts of Deputy Collectors shall be made by" promotion of suitable. Mamlatdars". The promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of officiating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory effect,it can ever be contended that promotion to the cadre of Depty Collectors was not from the cadre of Mamlatdars but from the so-called cadre of officiating Deputy Collectors.Of course it is true that a Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order providing for the creation of such an intermediate cadre of officiating Deputy Collectors.

1[ds]Here, as admitted by the State Government in paragraph 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not been crystallised to the prejudice of the petitioners. No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if the correct legal position, as finally determined, so requires. We were also told by the learned counsel for the petitioners, and that was not controverted by the learned counsel appearing on behalf of the State Government, that even if the petition were allowed and the reliefs claimed by the petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/Tehsildar;the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned that role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely of the jujune ground of laches, delay or the likeThis contention is also without force, and for three very good reasons.In the first place, it is difficult to see how the petitioners could have applied for review of the judgment of the Bombay High Court in Kapoors case. The petitioners were not persons directly and immediately affected by the judgment and it could not be said that they were necessary parties to the petition who should have been heard before the judgment was given, as was the case in AIR 1963 SC 1909 . The petitioners had, therefore, no locus to apply for review of that judgment. Secondly the subject matter of the present petition is, barring only one question which is common, namely, the question as to the validity of the second proviso to rule 1 of the Rules of 30th July, 1959, wholly different from that of the petition in Kapoors case, and asking for review of the judgment in Kapoors case would be no remedy at all so far as the reliefs claimed in the present petition are concerned.Lastly, the remedy by way of review of a judgment given in another case in which the petitioners are not parties can hardly be said to be an adequate alternative legal remedy available to the petitionersThose who are already promoted according to the impugned procedure and whose position vis-a-vis the petitioners would be likely to be affected by the invalidation of such procedure are before the Court as parties to the petition. Only those Mamlatdars/Tehsildars are not made parties to the petition who are not promoted as officiating Deputy Collectors or who are, even on the basis of the promotions made under the impugned procedure junior to the petitioners. But these Mamlatdars/Tehsildars are not necessary parties to the petition, as they would not be adversely affected vis-a-vis the petitioners even if the impugned procedure were held to be invalid. All those who are necessary parties are before the Court and there is, therefore, no impediment in the way of the Court proceeding to decide the questions raised for its determinationWe fail to see how either of the two Government Resolutions dated 21st November, 1941 and 29th July, 1963 comes into the picture in determining the seniority of the petitioners qua other allocated Mamlatdars-Tehsildars as on 1st November, 1956. The inter se seniority of the Tehsildars and Mamlatdars allocated from the former States of Hyderabad, Madhya Pradesh, Bombay, Saurahstra and Kutch to the reorganised State of Bombay as on 1st November, 1956 would be governed by Rules 7, 8 and 9 of the Rules of 1957, and neither the Government Resolution dated 21st November, 1941 nor the Government Resolution dated 29th July, 1963 would have any application. Prayer II of the petition must accordingly be rejectedSo far as the question of validity of the second proviso to R. 1 of the Rules of 30th July, 1959 is concerned, there can be no doubt that the Bombay High Court was right in declaring it to be invalid. It can hardly be disputed that both the directly recruited Mamlatdars as well as the promotee Mamlatdars from one class. They are both known by the same designation. They have same scales of pay. They discharge the same functions. The posts held by them are interchangeable. There is nothing to show that the two groups are kept apart. Both are merged together in the same Class. It is not competent to the Government thereafter to discriminate between directly recruited Mamlatdars and promotee Mamlatdars in the matter of further promotion to the posts of Deputy Collector. That would be violative of Art. 16 of the Constitution. This is abundantly clear from the decisions of this Court in Mervyn Continho v. Collector of Customs, Bombay, (1966) 3 SCR 600 = (AIR 1967 SC 52 ) and S. H. Pandit v. The State of Gujarat, AIR 1972 SC 252 = (1972 Lab IC 155).In fact S. M. Pandits case is directly in point. The facts of the present case are almost indistinguishable from S. M. Pandits case. The second proviso to Rule 1 of the Rules of 30th July, 1959 must consequently be held to be bad as being in conflict with Art. 16 of the ConstitutionIn fact we find legislative recognition of the constitution of divisional cadres of Mamlatdars in the Rules of 19th November, 1959 which are admittedly statutory rules made under the proviso to Article 309 of the Constitution. The proviso to Rule 1 proceeds on the basis that the cadre of Mamlatdars is a divisional cadre and in reference to each divisional cadre, goes on to provide that one half of the vacancies shall be filled by nomination and one half by promotion, except in case of divisional cadre of Nagpur division where this provision would not apply until after all persons recruited as Naib Tehsildars are either promoted as Mamlatdars or rejected as not to be so promoted. There can, therefore, be no doubt that right from 1st November, 1956 the cadre of Mamlatdars was a divisional cadre and not a State cadre. It is equally clear from the Government Resolution dated 1st November, 1956 as well as the affidavits that the cadre of Deputy Collectors was a State cadreThe procedure followed for the purpose of preparing the combined seniority list was as follows: In the first place "deemed dates of continuous officiation were given to the officiating Deputy Collectors from each division with a view to ensuring that their inter se ranking in the divisional select list was not affected by the fact that an officer lower in rank in the divisional select list might have been officiating as Deputy Collector for a longer period than another in higher rank. This was done by providing that the officer who was highest in the rank in the divisional select list should be given the date of continuous officiation of the officer who had the longest period of officiation as Deputy Collector and the officer next to him in rank should be given the date of continuous officiation of the officer who had officiated next longest as Deputy Collector and so on till the dates of continuous officiation of all officers were adjusted so as to reflect their inter se seniority in the divisional select list. Thus, if A, B and C were officiating Deputy Collectors in a division having 1st January, 1960, 1st July, 1960 and 1st January, 1961 respectively as their dates of continuous officiation and in the divisional select list their ranking was first C. second B and last A, their deemed dates of continuous officiation would be 1st January, 1960 for C, 1st July, 1960 for B and 1st January, 1961 for A. Then on the basis of the deemed dates of continuous officiation given to the officiating Deputy Collectors in the each division, a combined Statewise seniority list of officiating Deputy Collectors was prepared and confirmations in the cadre of Deputy Collectors were made in accordance with the seniority in such combined Statewise seniority list. This was the procedure followed by the State Government and it has to meet the challenge of Art. 16 of the Constitution15.Now, it is clear that this procedure suffers from a serious infirmity in that it provides for promotions to the State cadre of Deputy Collectors to be made on the basis of divisional select lists. That clearly amounts to denail of equality of opportunity to Mamlatdars in the State in the matter of promotion to the cadre of Deputy Collectors.If a Mamlatdard aspires to be promoted to the cadre of Deputy Collectors which is the next higher cadre of promotion for him, he has to be promoted first as officiating Deputy Collector. It is only after he is promoted as officiating Deputy Collector that he can become eligible to be confirmed in the cadre of Deputy Collectors. But, in order to be promoted as officiating Deputy Collector, he has to wait until a vacancy occurs in the post of Deputy Collector in his division. Even if he is senior to a Mamlatdar in another division and more suitable, he cannot be promoted to officiate in a vacancy which arises in the other division. His opportunity for promotion is limited to a vacancy in his own division. The consequence is that if a vacancy in the post of Deputy Collector arises earlier in one division, a Mamlatdar in the select list of that division would get promoted as officiating Deputy Collectorearlier than a Mamlatdar in another division where a vacancy in the post of Deputy Collector arises later and, subject to the operation of the rule of deemed dates of continuous officiation, that would mean that the former would gain entry in the cadre of Deputy Collectors earlier than the latter, even though the former may be junior and less suitable than the latter.The entry in the cadre of Deputy Collectors is thus made to depend not on the assessment of the relative merits of a Mamlatdar vis-a-vis the other Mamlatdars in the State, but on the fortuitous circumstances as to when a vacancy in the post of Deputy Collector arises in the division to which the Mamlatdar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is a State cadre and for promotion to such State cadre every Mamlatdar must have equal opportunity to be considered. Where promotion is made by selection on the basis of merit-cum-seniority, every Mamlatdar should be able to enter the lists; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors through which every Mamlatdar should be equally entitled to enter, provided he is selected on the application of the principles of merit-cum-seniority. There cannot be six doors of entry, one door available exclusively for the Mamlatdars of each division. That is bound to create inequality of opportunity in the matter of promotion. It is true that confirmations in the cadre of Deputy Collectors are made on the basis of combined seniority list of officiating Deputy Collectors, but that does not cure the infirmity in the mode of promotionThe giving of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamlatdars in each division taken as a separate unit, but it does not seek to adjust the seniority of the approved Mamlatdars in all the divisions taken as a whole on the basis of assessment of their relative merits.It does not, therefore, eliminate the inequality of treatment which inheres at the initial stage of promotion as officiating Deputy Collectors. The vice on inequality of opportunity continues to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must, therefore, be held to be violative of Art. 16 of the ConstitutionThe promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of officiating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory effect,it can ever be contended that promotion to the cadre of Depty Collectors was not from the cadre of Mamlatdars but from the so-called cadre of officiating Deputy Collectors.Of course it is true that a Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order providing for the creation of such an intermediate cadre of officiating Deputy Collectors19. Before we part with this case we may add a paragraph by way of epilogue. We find in the course of our judicial experience, and we notice this fact with some apprehension that members of public services in alarmingly large numbers resort to legal remedies in courts of law for agitating their grievances in regard to service matters. This phenomenon is symptomatic of a sense of injustice and subversive of that undivided and devoted attention of official duties which is so essential for efficient and any dynamic functioning of the Government. It can, therefore, hardly be overemphasised that there is great need for simplifying and streamlining service rules and giving them statutory shape so as to promote contentment among the services by extending the areas of equal treatment and imparting stability to conditions of service. It is not desirable that the fortunes of such a vital and strategic instrument of Government as the public services should be left to be governed by mere departmental resolutions and executive instructions. These cannot take the place of statutory rules which alone can impart stability and security and ensure observance of the rule of law. Legal rules must govern the recruitment and conditions of public servants so that there is no arbitrariness or inequality in State action in regard to them and the rule of law is not eroded. And such rules should preferably be framed without avoidable delay and after consultation with groups which apprehend discriminatory treatment as that would go a long way to produce a sense of contentment and satisfaction. We make these observations not with a view to casting any reflection on the administration but to highlight a problem which has come to our notice quite often, in the hope that it will help appreciate the social dimensions of the problem and the damage to public interest which may be likely to result if the problem is not promptly and satisfactorily resolved.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: the efficiency of the police force of these ranks and is designed with that object" On this reasoning the Court negatived the constitutional challenge to the validity of the system of promotion. 17. It will be seen from this analysis of the reasoning of the decision in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ) that far from negativing the contention of the petitioners, it goes a long way towards supporting it. In Ram Sarans case the cadre of Sub-Inspectors was a range cadre and promotion to that cadre in each range was made on the basis of select list of approved Head Constables from that particular range. This mode of promotion which confined promotions from Head Constables to Sub-Inspectors within the range was upheld by this Court because it was calculated to make available the advantage of local knowledge in a post where such local knowledge would be useful in promoting the interest of administrative efficiency of the police force. But the basic feature underlying this mode of promotion was, and that is vital to the understanding of the true ratio of this decision, that in respect of promotion to the range cadre of Sub-Inspectors all the Head Constables in the rangewere eligible for being considered and promotion to such range cadre was made on the basis of rangewise selection list prepared by taking into account the relative merits ofall the Head Constables in the range. Every Head Constable in the range had, therefore, equal opportunity of promotion to the range cadre of Sub-Inspectors. Here in the present case, however, as we have already pointed out above, the procedure adopted by the State Government provided for promotion to the State cadre of Deputy Collectors, not on the basis of State wise select list, but on the basis of divisional select lists of Mamlatdars. This is a very vital point on which the mode of promotion in the present case differed from that in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ). If the cadre of Deputy Collectors had been a divisional cadre, there would have been no objection in providing that the promotion to that cadre shall be divisionwise on the basis of divisional select lists. Then the analogy in Ram Sarans case, would have been complete. But here the cadre of Deputy Collectors was admittedly a State cadre and not a divisional cadre and divisionwise promotion to such cadre on the basis of divisional select lists could not, therefore, be justified on the ratio of the decision in Ram Sarans case.It may be noticed that in Ram Sarans case, in regard to promotion to the State cadre of Inspectors, the procedure followed was to have a Statewise select list of approved Sub-Inspectors from all over the State and to make promotion to the State cadre of Inspectors on the basis of such Statewise select list. The promotion to the State cadre of Inspectors was not made rangewise on the basis of separate select lists of Sub-Inspectors of each range. If that had been done, and upheld by this Court, the argument of the respondents would have been almost unassailable. But the promotion to the State cadre of Inspectors was on a Statewise basis. The ratio of the decision in Ram Sarans case, does not, therefore, support the contention that promotion to a State cadre can be made on the basis of divisional select lists. On the contrary, it suggests that if the cadre is a divisional cadre, there can be divisionwise promotion on the basis of divisional select lists, but if it is a State cadre, promotion must be on Statewide basis so that every officer in the State has equal opportunity of promotion to the State cadre. Ram Sarans case, therefore, impliedly supports the view which we have taken on a priori reasoning. The respondents faintly attempted to argue that in the present case there was an intermediate cadre of officiating Deputy Collectors between the cadre of Mamlatdars and the cadre of Deputy Collectors and promotion from the cadre of Mamlatdars lay to the cadre of officiating Deputy Collectors and it was from the cadre of officiating Deputy Collectors that one could obtain promotion to the cadre of Deputy Collectors. The cadre of officiating Deputy Collectors was a divisional cadre, and therefore, promotion to it was divisionwise on the basis of divisional select lists, while the cadre of Deputy Collectors was a State cadre and hence promotion to it was Statewide on the basis of the combined seniority list of all officiating Deputy Collectors in the State. This was in accord with the pattern of promotion in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ) and was, therefore, valid. This contention of the respondents is without force. The premise on which it is founded is incorrect. It is wholly contradicted by the Rules of 30th July, 1959 which are admittedly statutory rules. These Rules provide that appointment to 50% of the posts of Deputy Collectors shall be made by" promotion of suitable. Mamlatdars". The promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of officiating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory effect,it can ever be contended that promotion to the cadre of Depty Collectors was not from the cadre of Mamlatdars but from the so-called cadre of officiating Deputy Collectors.Of course it is true that a Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order providing for the creation of such an intermediate cadre of officiating Deputy Collectors. ### Response: 1 ### Explanation: be promoted as officiating Deputy Collector, he has to wait until a vacancy occurs in the post of Deputy Collector in his division. Even if he is senior to a Mamlatdar in another division and more suitable, he cannot be promoted to officiate in a vacancy which arises in the other division. His opportunity for promotion is limited to a vacancy in his own division. The consequence is that if a vacancy in the post of Deputy Collector arises earlier in one division, a Mamlatdar in the select list of that division would get promoted as officiating Deputy Collectorearlier than a Mamlatdar in another division where a vacancy in the post of Deputy Collector arises later and, subject to the operation of the rule of deemed dates of continuous officiation, that would mean that the former would gain entry in the cadre of Deputy Collectors earlier than the latter, even though the former may be junior and less suitable than the latter.The entry in the cadre of Deputy Collectors is thus made to depend not on the assessment of the relative merits of a Mamlatdar vis-a-vis the other Mamlatdars in the State, but on the fortuitous circumstances as to when a vacancy in the post of Deputy Collector arises in the division to which the Mamlatdar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is a State cadre and for promotion to such State cadre every Mamlatdar must have equal opportunity to be considered. Where promotion is made by selection on the basis of merit-cum-seniority, every Mamlatdar should be able to enter the lists; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors through which every Mamlatdar should be equally entitled to enter, provided he is selected on the application of the principles of merit-cum-seniority. There cannot be six doors of entry, one door available exclusively for the Mamlatdars of each division. That is bound to create inequality of opportunity in the matter of promotion. It is true that confirmations in the cadre of Deputy Collectors are made on the basis of combined seniority list of officiating Deputy Collectors, but that does not cure the infirmity in the mode of promotionThe giving of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamlatdars in each division taken as a separate unit, but it does not seek to adjust the seniority of the approved Mamlatdars in all the divisions taken as a whole on the basis of assessment of their relative merits.It does not, therefore, eliminate the inequality of treatment which inheres at the initial stage of promotion as officiating Deputy Collectors. The vice on inequality of opportunity continues to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must, therefore, be held to be violative of Art. 16 of the ConstitutionThe promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of officiating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory effect,it can ever be contended that promotion to the cadre of Depty Collectors was not from the cadre of Mamlatdars but from the so-called cadre of officiating Deputy Collectors.Of course it is true that a Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order providing for the creation of such an intermediate cadre of officiating Deputy Collectors19. Before we part with this case we may add a paragraph by way of epilogue. We find in the course of our judicial experience, and we notice this fact with some apprehension that members of public services in alarmingly large numbers resort to legal remedies in courts of law for agitating their grievances in regard to service matters. This phenomenon is symptomatic of a sense of injustice and subversive of that undivided and devoted attention of official duties which is so essential for efficient and any dynamic functioning of the Government. It can, therefore, hardly be overemphasised that there is great need for simplifying and streamlining service rules and giving them statutory shape so as to promote contentment among the services by extending the areas of equal treatment and imparting stability to conditions of service. It is not desirable that the fortunes of such a vital and strategic instrument of Government as the public services should be left to be governed by mere departmental resolutions and executive instructions. These cannot take the place of statutory rules which alone can impart stability and security and ensure observance of the rule of law. Legal rules must govern the recruitment and conditions of public servants so that there is no arbitrariness or inequality in State action in regard to them and the rule of law is not eroded. And such rules should preferably be framed without avoidable delay and after consultation with groups which apprehend discriminatory treatment as that would go a long way to produce a sense of contentment and satisfaction. We make these observations not with a view to casting any reflection on the administration but to highlight a problem which has come to our notice quite often, in the hope that it will help appreciate the social dimensions of the problem and the damage to public interest which may be likely to result if the problem is not promptly and satisfactorily resolved.

U.P. State Co-Operative Land Development Bank Limited Vs. Chandra Bhan Dubey And Ors

lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares ? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the States power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta and others v. Union of India and others, 1987(1) SCC 395." 23. A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju, AIR 1990 A.P. 171 was considering the question whether a writ petition lay against a cooperative society and if it does, in what circumstances. After examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a `State within the meaning of Article 12 even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a `person, or an `authority, within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. 24. In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to bye-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226. 25. We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent.

1[ds]20. We also find from the Service Rules that the Managing Director and Chief General Manager of the appellant are officials of the State sent on deputation to the appellant. These two officers are at the helm of the affairs of the appellant. It is difficult to imagine a situation where a Government sends one of its employees on deputation to head a body or institution not controlled by that Government even though the employee may be paid out of the funds of that body or institution unless there is specific provision of law so entitling the Government. We also find that Service Rules have been framed under the statute and those Rules have the approval of a statutory body. Exercise of power of dismissal by the appellant has to be in accordance with the statutory regulations and with the approval of the statutory body. In Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another, 1975(1) SCC 421, a Constitution Bench of this Court held that Regulations being framed under statutory provisions would have the force of law.The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decision of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when body or authority, decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. In Rohtas Industries Ltd. and Another v. Rohtas Industries Staff Union of others, 1976(2) SCC 82 it was submitted before the Constitution Bench that an award under Section 10A of the Industrial Disputes Act, 1947 savours of a private arbitration and was not amenable to correction under Article 226 of the Constitution.In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines andlimitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed tothe normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226.We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares ? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the States power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta and others v. Union of India and others, 1987(1) SCC 395." 23. A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju, AIR 1990 A.P. 171 was considering the question whether a writ petition lay against a cooperative society and if it does, in what circumstances. After examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a `State within the meaning of Article 12 even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a `person, or an `authority, within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. 24. In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to bye-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226. 25. We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent. ### Response: 1 ### Explanation: 20. We also find from the Service Rules that the Managing Director and Chief General Manager of the appellant are officials of the State sent on deputation to the appellant. These two officers are at the helm of the affairs of the appellant. It is difficult to imagine a situation where a Government sends one of its employees on deputation to head a body or institution not controlled by that Government even though the employee may be paid out of the funds of that body or institution unless there is specific provision of law so entitling the Government. We also find that Service Rules have been framed under the statute and those Rules have the approval of a statutory body. Exercise of power of dismissal by the appellant has to be in accordance with the statutory regulations and with the approval of the statutory body. In Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another, 1975(1) SCC 421, a Constitution Bench of this Court held that Regulations being framed under statutory provisions would have the force of law.The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decision of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when body or authority, decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. In Rohtas Industries Ltd. and Another v. Rohtas Industries Staff Union of others, 1976(2) SCC 82 it was submitted before the Constitution Bench that an award under Section 10A of the Industrial Disputes Act, 1947 savours of a private arbitration and was not amenable to correction under Article 226 of the Constitution.In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines andlimitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed tothe normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226.We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent.

KUNJAN SADANA Vs. MAHESH KUMAR

of Delhi, in MAC Appeal No.479 of 2009 wherein the High Court has partly allowed the appeal and consequently enhanced the amount of compensation from Rs 3,72,620/- to Rs 5,02,620/-. The appellants have filed this appeal, seeking further enhancement of the compensation. 4. The appellants are the widowed mother and the younger brother (a minor) of the deceased. The deceased namely, Shri Yitesh Sadana alias Prince, a bachelor, aged 19 years, succumbed to injuries that he sustained in a motor vehicle accident that occurred on 18.04.2007, which was caused due to the negligence of the driver of a bus, bearing registration No DL-1PA-4403. It is admitted that the offending vehicle was insured with New India Assurance Co Ltd, the third respondent herein, for third party risk. As mentioned above, the claim petition was allowed in part, by the Tribunal by Award dated 06.06.2009. Thereafter, the appeal filed by the appellants was partly allowed by the High Court. 5. It is contended by the learned counsel for the appellants that the deceased was aged 19 years, therefore, the multiplier applicable for this age group is 18. However, the Tribunal and the High Court have adopted the multiplier 15, on the basis of the age of the mother of the deceased. In addition, it is also submitted that the High Court failed to consider the future prospects, while awarding the compensation. The learned counsel appearing for the insurer has sought to justify the impugned judgment and order herein. 6. Summary of the compensation awarded by the Tribunal: - table 7. While calculating the loss of dependency at Rs. 3,52,620/-, the Tribunal considered the income of the deceased at Rs. 3,918/- per month. The age of the mother i.e. 42 years was considered, in order to apply the multiplier 15. In addition, as the deceased was a bachelor, the Tribunal has reduced 50% of his salary in lieu of his personal expenses. The High Court had enhanced the award to Rs. 5,02,610/-. 8. The High Court while enhancing the compensation, did not consider the future prospects of the deceased. The material on record makes it evident that the deceased was self-employed. The Constitution Bench of this Court in National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 , has considered the issue in relation to future prospects, while granting the compensation. It was held as under:- 59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (emphasis supplied) 9. In the instant case, as the deceased was aged 19 years, an additional 40% of the established income must be added while computation of the compensation. In addition, 50% of the said amount has to be deducted in lieu of his personal expenses, that he would have incurred to maintain himself as a bachelor, had he been alive. 10. Further, the High Court applied the multiplier at 15, as it took the age of the mother into consideration, and not that of the deceased. A three-Judge Bench of this Court, in Royal Sundaram Alliance Insurance Company Limited v. Mandala Yadagari Goud and Others (2019) 5 SCC 554 , held that even if the deceased is a bachelor, his age has to be taken into account to adopt a multiplier. The question for consideration in this case was as under: The only legal issue canvassed before us in these matters, which are in the nature of cross-appeals, is that in the case of a motor accident where there is death of a person, who is a bachelor, whether the age of the deceased or the age of the dependents would be taken into account for calculating the multiplier. This question was answered in the following terms: 12. We are convinced that there is no need to once again take up this issue settled by the aforesaid judgments of three-Judge Benches and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents. 11. The Constitution Bench in Pranay Sethi (supra) has also awarded compensation under the conventional heads as under: - 59.8 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 12. We are of the view that the High Court has rightly determined monthly salary of the deceased at Rs. 3,918. In addition, 40% of the actual salary income of the deceased has to be added towards the future prospects of the deceased, as his age was less than 40 years. Therefore, the gross income of the deceased must be calculated as: a. Before Deducting the personal living expenses: Rs. 3,918 + (40% of the monthly income i.e Rs. 1567/-) = Rs. 5,485/- Since the deceased was a bachelor, 50% of his gross income must be deducted towards personal living expenses which must be calculated as: b. Rs.5,485 – (50% of 5485) = Rs. 2,743/- Thus, the compensation payable to the claimants towards loss of dependency is Rs. 5,92,488/-(Rs.2,743 x 12 x 18 = Rs. 5,92,488/-). In addition, the claimants are also entitled for a sum of Rs.70,000/- under the conventional heads. Thus, the total compensation payable to the claimants comes to Rs. 6,62,448/-. 13. The amount of Rs. 5,02,620/- awarded by the High Court, has to be deducted from the aforesaid amount, therefore, the balance compensation payable to the claimants comes to Rs. 1,59,868/-, which is rounded off to Rs. 1,60,000/-.

1[ds]8. The High Court while enhancing the compensation, did not consider the future prospects of the deceased. The material on record makes it evident that the deceased was self-employed. The Constitution Bench of this Court in National Insurance Company Limited v. Pranay Sethi and Others(2017) 16 SCC 680 , has considered the issue in relation to future prospects, while granting the compensation. It was held as under:-59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component9. In the instant case, as the deceased was aged 19 years, an additional 40% of the established income must be added while computation of the compensation. In addition, 50% of the said amount has to be deducted in lieu of his personal expenses, that he would have incurred to maintain himself as a bachelor, had he been alive10. Further, the High Court applied the multiplier at 15, as it took the age of the mother into consideration, and not that of the deceased. A three-Judge Bench of this Court, in Royal Sundaram Alliance Insurance Company Limited v. Mandala Yadagari Goud and Others(2019) 5 SCC 554 , held that even if the deceased is a bachelor, his age has to be taken into account to adopt a multiplier.11. The Constitution Bench in Pranay Sethi (supra) has also awarded compensation under the conventional heads as under: -59.8 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years12. We are of the view that the High Court has rightly determined monthly salary of the deceased at Rs. 3,918. In addition, 40% of the actual salary income of the deceased has to be added towards the future prospects of the deceased, as his age was less than 40 years. Therefore, the gross income of the deceased must be calculated as:a. Before Deducting the personal living expenses:Rs. 3,918 + (40% of the monthly income i.e Rs. 1567/-) = Rs. 5,485/Since the deceased was a bachelor, 50% of his gross income must be deducted towards personal living expenses which must be calculated as:b. Rs.5,485 – (50% of 5485) = Rs. 2,743/Thus, the compensation payable to the claimants towards loss of dependency is Rs. 5,92,488/-(Rs.2,743 x 12 x 18 = Rs. 5,92,488/-). In addition, the claimants are also entitled for a sum of Rs.70,000/- under the conventional heads. Thus, the total compensation payable to the claimants comes to Rs. 6,62,448/-13. The amount of Rs. 5,02,620/- awarded by the High Court, has to be deducted from the aforesaid amount, therefore, the balance compensation payable to the claimants comes to Rs. 1,59,868/-, which is rounded off to Rs. 1,60,000/-In addition, 50% of the said amount has to be deducted in lieu of his personal expenses, that he would have incurred to maintain himself as a bachelor, had he been

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: of Delhi, in MAC Appeal No.479 of 2009 wherein the High Court has partly allowed the appeal and consequently enhanced the amount of compensation from Rs 3,72,620/- to Rs 5,02,620/-. The appellants have filed this appeal, seeking further enhancement of the compensation. 4. The appellants are the widowed mother and the younger brother (a minor) of the deceased. The deceased namely, Shri Yitesh Sadana alias Prince, a bachelor, aged 19 years, succumbed to injuries that he sustained in a motor vehicle accident that occurred on 18.04.2007, which was caused due to the negligence of the driver of a bus, bearing registration No DL-1PA-4403. It is admitted that the offending vehicle was insured with New India Assurance Co Ltd, the third respondent herein, for third party risk. As mentioned above, the claim petition was allowed in part, by the Tribunal by Award dated 06.06.2009. Thereafter, the appeal filed by the appellants was partly allowed by the High Court. 5. It is contended by the learned counsel for the appellants that the deceased was aged 19 years, therefore, the multiplier applicable for this age group is 18. However, the Tribunal and the High Court have adopted the multiplier 15, on the basis of the age of the mother of the deceased. In addition, it is also submitted that the High Court failed to consider the future prospects, while awarding the compensation. The learned counsel appearing for the insurer has sought to justify the impugned judgment and order herein. 6. Summary of the compensation awarded by the Tribunal: - table 7. While calculating the loss of dependency at Rs. 3,52,620/-, the Tribunal considered the income of the deceased at Rs. 3,918/- per month. The age of the mother i.e. 42 years was considered, in order to apply the multiplier 15. In addition, as the deceased was a bachelor, the Tribunal has reduced 50% of his salary in lieu of his personal expenses. The High Court had enhanced the award to Rs. 5,02,610/-. 8. The High Court while enhancing the compensation, did not consider the future prospects of the deceased. The material on record makes it evident that the deceased was self-employed. The Constitution Bench of this Court in National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 , has considered the issue in relation to future prospects, while granting the compensation. It was held as under:- 59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (emphasis supplied) 9. In the instant case, as the deceased was aged 19 years, an additional 40% of the established income must be added while computation of the compensation. In addition, 50% of the said amount has to be deducted in lieu of his personal expenses, that he would have incurred to maintain himself as a bachelor, had he been alive. 10. Further, the High Court applied the multiplier at 15, as it took the age of the mother into consideration, and not that of the deceased. A three-Judge Bench of this Court, in Royal Sundaram Alliance Insurance Company Limited v. Mandala Yadagari Goud and Others (2019) 5 SCC 554 , held that even if the deceased is a bachelor, his age has to be taken into account to adopt a multiplier. The question for consideration in this case was as under: The only legal issue canvassed before us in these matters, which are in the nature of cross-appeals, is that in the case of a motor accident where there is death of a person, who is a bachelor, whether the age of the deceased or the age of the dependents would be taken into account for calculating the multiplier. This question was answered in the following terms: 12. We are convinced that there is no need to once again take up this issue settled by the aforesaid judgments of three-Judge Benches and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents. 11. The Constitution Bench in Pranay Sethi (supra) has also awarded compensation under the conventional heads as under: - 59.8 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 12. We are of the view that the High Court has rightly determined monthly salary of the deceased at Rs. 3,918. In addition, 40% of the actual salary income of the deceased has to be added towards the future prospects of the deceased, as his age was less than 40 years. Therefore, the gross income of the deceased must be calculated as: a. Before Deducting the personal living expenses: Rs. 3,918 + (40% of the monthly income i.e Rs. 1567/-) = Rs. 5,485/- Since the deceased was a bachelor, 50% of his gross income must be deducted towards personal living expenses which must be calculated as: b. Rs.5,485 – (50% of 5485) = Rs. 2,743/- Thus, the compensation payable to the claimants towards loss of dependency is Rs. 5,92,488/-(Rs.2,743 x 12 x 18 = Rs. 5,92,488/-). In addition, the claimants are also entitled for a sum of Rs.70,000/- under the conventional heads. Thus, the total compensation payable to the claimants comes to Rs. 6,62,448/-. 13. The amount of Rs. 5,02,620/- awarded by the High Court, has to be deducted from the aforesaid amount, therefore, the balance compensation payable to the claimants comes to Rs. 1,59,868/-, which is rounded off to Rs. 1,60,000/-. ### Response: 1 ### Explanation: 8. The High Court while enhancing the compensation, did not consider the future prospects of the deceased. The material on record makes it evident that the deceased was self-employed. The Constitution Bench of this Court in National Insurance Company Limited v. Pranay Sethi and Others(2017) 16 SCC 680 , has considered the issue in relation to future prospects, while granting the compensation. It was held as under:-59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component9. In the instant case, as the deceased was aged 19 years, an additional 40% of the established income must be added while computation of the compensation. In addition, 50% of the said amount has to be deducted in lieu of his personal expenses, that he would have incurred to maintain himself as a bachelor, had he been alive10. Further, the High Court applied the multiplier at 15, as it took the age of the mother into consideration, and not that of the deceased. A three-Judge Bench of this Court, in Royal Sundaram Alliance Insurance Company Limited v. Mandala Yadagari Goud and Others(2019) 5 SCC 554 , held that even if the deceased is a bachelor, his age has to be taken into account to adopt a multiplier.11. The Constitution Bench in Pranay Sethi (supra) has also awarded compensation under the conventional heads as under: -59.8 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years12. We are of the view that the High Court has rightly determined monthly salary of the deceased at Rs. 3,918. In addition, 40% of the actual salary income of the deceased has to be added towards the future prospects of the deceased, as his age was less than 40 years. Therefore, the gross income of the deceased must be calculated as:a. Before Deducting the personal living expenses:Rs. 3,918 + (40% of the monthly income i.e Rs. 1567/-) = Rs. 5,485/Since the deceased was a bachelor, 50% of his gross income must be deducted towards personal living expenses which must be calculated as:b. Rs.5,485 – (50% of 5485) = Rs. 2,743/Thus, the compensation payable to the claimants towards loss of dependency is Rs. 5,92,488/-(Rs.2,743 x 12 x 18 = Rs. 5,92,488/-). In addition, the claimants are also entitled for a sum of Rs.70,000/- under the conventional heads. Thus, the total compensation payable to the claimants comes to Rs. 6,62,448/-13. The amount of Rs. 5,02,620/- awarded by the High Court, has to be deducted from the aforesaid amount, therefore, the balance compensation payable to the claimants comes to Rs. 1,59,868/-, which is rounded off to Rs. 1,60,000/-In addition, 50% of the said amount has to be deducted in lieu of his personal expenses, that he would have incurred to maintain himself as a bachelor, had he been

The Special Land Acquisition Officer, Bangalore Vs. T. Adinarayan Setty

of the enquiry before them when they imported these considerations into the question of valuation.We further think that the High Court committed an error of principle in arriving at the figure Rs. 13-8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the relevant time.It is not disputed that the function of the court in awarding compensation under the Act is to ascertain in the market value of the land at the date of the notification under S. 4 (1) and the methods of valuation may be (1) opinion of experts, the (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors. There were altogether seven transactions of alienation made y the respondent. One was a gift which must necessarily be excluded. The earliest of the sales was in favour of Munirathnam which was made on May 15, 1945. Another was made on July 18, 1945 This was in favour of Venugopal who was the husband of a grand-daughter of the respondent. Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August 1945. The notification under S. 4 of the Land Acquisition Act was made on October 4, 1945. What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price therefrom. The learned Judges gave no sufficient reason why two of the transactions were left out. In one part of their Judgment they said :"The evidence discloses that the appellant has effected four sales about a couple of months prior to the date of preliminary notification and the rates secured by him are Rs. 12,15,14 and 7-8 which on calculation give an average of Rs. 12-2 per sq. yard" . Why the transaction of 15th May 1945 which was at a rate of Rs. 6-8 per sq. yard only was left out it is difficult to understand. Similarly, the transaction of 18th July 1945 was at the rate of Rs. 10 per sq. yard. That also was left out. We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court. If all the six transactions of sale are taken into consideration the average rate comes to about its. 10-13 per sq. yard only. Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average. Having arrived at an average of Rs.12-2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12-2. Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13-8. No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference. It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions. It is difficult to understand why it should be utilised again for arriving at the market value of the land in question. We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only. Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (Ex. II). The respondent had therein said :"Hence, under the standing orders compensation has to be paid at rates for building land in the neighbourhood. This rate ranges from Rs.10 to Rs. 12, an average of Rs. 10 a sq. yard, as could be verified from entries in the local sub-Registrars Office and Bangalore City Municipal Office. At any rate, I myself have sold in the course of this year some six sites out of the land proposed to be acquired for rates ranging from Rs. 7 to Rs.15 or on an average of Rs. 10 per sq. yard. At this rate the compensation amounts will be Rs. 5,12,430 and adding the statutory allowance of Rs. 76,860 at 15 per cent on the compensation amount on account of the compulsory nature of the acquisition, the total cost at the land will be Rs. 5,89,290 or nearly six lakhs of rupees." The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 per sq. yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme. It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard. It is worthy of note that the six transactions to which the respondent referred were sales of small building sites. It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed. 10. We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land, in question should be Rs. 11 per sq. yard.

1[ds]6. In view of the facts of this case and the opinion which we have formed after hearing learned counsel for both parties, we do not think it necessary to make any final pronouncement as to the practice which this Court should adopt in a valuation case where two courts have differed. We are content to proceed in this case on the footing that we should not interfere unless there is something to show, not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied7. We are satisfied that there is no error of principle or otherwise in the findings of the High Court as to the first two points urged in support of the appeal. As to the construction of the building for which a compensation of Rs. 7,000 has been awarded, the clear finding of the High Court is that it was constructed prior to the preliminary notification. It has been further stated before us that the building is in actual occupation of the medical department. Learned counsel for the appellant has taken us through the evidence on the question of construction of the house and the application for a licence for building the said house which was made by the respondent to the Bangalore Municipality. We are unable to hold that that evidence has the effect of displacing the clear finding of the High Court8. As to the low-lying land, we consider that the High Court has given very good reasons for its finding. Admittedly, the area of the low-lying land (halla) is about 3,000 sq. yards. The Land Acquisition Officer valued it at Rs. 3 per sq. yard. A sum of Rs. 15,000 has been deducted from the compensation payable to the respondent on the ground that that amount will be required for filling up the low-lying land and converting it into building sites. Therefore; the position is that the respondent has not only been made to part with 3,000 sq. yards of land at Rs. 3 per sq. yard, but he has also been made to pay Rs. 15,000 for filling up the land. If these two figures are added, even then the market value of the land comes to about Rs. 8 per sq. yard. This is so even if we do not follow the method adopted by the High Court that the sum of Rs. 15,000 for 3,000 sq. yards gives an average of Rs. 5 per sq. yard and that amount should be deducted from the rate of Rs. 13-B per sq. yard fixed as the proper compensation for the remaining land. We are of the opinion that on the materials before us the value per sq. yard fixed by the High Court for the low-lying land is fully justified even on adoption of the method suggested by learned counsel for the appellant. Learned counsel for the respondent has referred us to the circumstance that some of the sales of building sites which the respondent had made appertained to the low-lying land and he has further emphasised the circumstance that just opposite the low-lying land which is at the eastern end of the entire area, some houses had been built. We have taken these circumstances into consideration, but do not think that the conclusion which learned counsel for the respondent wishes us to draw follows therefrom. First of all, it is by no means clear that the sales of the building sites at the low rate of Rs. 6-8 or thereabout appertained to the low-lying land only, and, secondly, the mere circumstance that some buildings have been made on land opposite the low-lying lands but on the other side of the road, does not necessarily mean that the low-lying lands are as valuable as the other land in the area. We are therefore of the view that the compensation fixed by the High Court for the low-lying land is not vitiated by and error of the kind which will justify our interference with it9. We now proceed to consider the third and main point urged on behalf of the appellant, namely, the rate of 13-8 per sq. yard for the other land in the area. Learned counsel for the appellant has submitted before us that the High Court has committed two fundamental errors in arriving at this finding.Furthermore, the High Court has been influenced by extraneous considerations such as the purpose for which the land was acquired, the report of certain medical authorities as to the unsuitability of the land for the purpose for which it was acquired, and the delay in putting the land to the use for which it was acquired. We agree with learned counsel for the appellant that these were extraneous considerations which had no bearing on the question of valuation and the learned Judges of the High Court misdirected themselves as to the scope of the enquiry before them when they imported these considerations into the question of valuation.We further think that the High Court committed an error of principle in arriving at the figure Rs. 13-8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the relevant time.It is not disputed that the function of the court in awarding compensation under the Act is to ascertain in the market value of the land at the date of the notification under S. 4 (1) and the methods of valuation may be (1) opinion of experts, the (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors. There were altogether seven transactions of alienation made y the respondent. One was a gift which must necessarily be excluded. The earliest of the sales was in favour of Munirathnam which was made on May 15, 1945. Another was made on July 18, 1945 This was in favour of Venugopal who was the husband of a grand-daughter of the respondent. Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August 1945. The notification under S. 4 of the Land Acquisition Act was made on October 4, 1945Why the transaction of 15th May 1945 which was at a rate of Rs. 6-8 per sq. yard only was left out it is difficult to understand. Similarly, the transaction of 18th July 1945 was at the rate of Rs. 10 per sq. yard. That also was left out. We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court. If all the six transactions of sale are taken into consideration the average rate comes to about its. 10-13 per sq. yard only. Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average. Having arrived at an average of Rs.12-2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12-2. Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13-8. No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference. It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions. It is difficult to understand why it should be utilised again for arriving at the market value of the land in question. We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only. Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (Ex. II).The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 per sq. yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme. It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard. It is worthy of note that the six transactions to which the respondent referred were sales of small building sites. It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed10. We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land, in question should be Rs. 11 per sq. yard.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: of the enquiry before them when they imported these considerations into the question of valuation.We further think that the High Court committed an error of principle in arriving at the figure Rs. 13-8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the relevant time.It is not disputed that the function of the court in awarding compensation under the Act is to ascertain in the market value of the land at the date of the notification under S. 4 (1) and the methods of valuation may be (1) opinion of experts, the (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors. There were altogether seven transactions of alienation made y the respondent. One was a gift which must necessarily be excluded. The earliest of the sales was in favour of Munirathnam which was made on May 15, 1945. Another was made on July 18, 1945 This was in favour of Venugopal who was the husband of a grand-daughter of the respondent. Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August 1945. The notification under S. 4 of the Land Acquisition Act was made on October 4, 1945. What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price therefrom. The learned Judges gave no sufficient reason why two of the transactions were left out. In one part of their Judgment they said :"The evidence discloses that the appellant has effected four sales about a couple of months prior to the date of preliminary notification and the rates secured by him are Rs. 12,15,14 and 7-8 which on calculation give an average of Rs. 12-2 per sq. yard" . Why the transaction of 15th May 1945 which was at a rate of Rs. 6-8 per sq. yard only was left out it is difficult to understand. Similarly, the transaction of 18th July 1945 was at the rate of Rs. 10 per sq. yard. That also was left out. We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court. If all the six transactions of sale are taken into consideration the average rate comes to about its. 10-13 per sq. yard only. Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average. Having arrived at an average of Rs.12-2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12-2. Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13-8. No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference. It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions. It is difficult to understand why it should be utilised again for arriving at the market value of the land in question. We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only. Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (Ex. II). The respondent had therein said :"Hence, under the standing orders compensation has to be paid at rates for building land in the neighbourhood. This rate ranges from Rs.10 to Rs. 12, an average of Rs. 10 a sq. yard, as could be verified from entries in the local sub-Registrars Office and Bangalore City Municipal Office. At any rate, I myself have sold in the course of this year some six sites out of the land proposed to be acquired for rates ranging from Rs. 7 to Rs.15 or on an average of Rs. 10 per sq. yard. At this rate the compensation amounts will be Rs. 5,12,430 and adding the statutory allowance of Rs. 76,860 at 15 per cent on the compensation amount on account of the compulsory nature of the acquisition, the total cost at the land will be Rs. 5,89,290 or nearly six lakhs of rupees." The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 per sq. yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme. It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard. It is worthy of note that the six transactions to which the respondent referred were sales of small building sites. It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed. 10. We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land, in question should be Rs. 11 per sq. yard. ### Response: 1 ### Explanation: it is by no means clear that the sales of the building sites at the low rate of Rs. 6-8 or thereabout appertained to the low-lying land only, and, secondly, the mere circumstance that some buildings have been made on land opposite the low-lying lands but on the other side of the road, does not necessarily mean that the low-lying lands are as valuable as the other land in the area. We are therefore of the view that the compensation fixed by the High Court for the low-lying land is not vitiated by and error of the kind which will justify our interference with it9. We now proceed to consider the third and main point urged on behalf of the appellant, namely, the rate of 13-8 per sq. yard for the other land in the area. Learned counsel for the appellant has submitted before us that the High Court has committed two fundamental errors in arriving at this finding.Furthermore, the High Court has been influenced by extraneous considerations such as the purpose for which the land was acquired, the report of certain medical authorities as to the unsuitability of the land for the purpose for which it was acquired, and the delay in putting the land to the use for which it was acquired. We agree with learned counsel for the appellant that these were extraneous considerations which had no bearing on the question of valuation and the learned Judges of the High Court misdirected themselves as to the scope of the enquiry before them when they imported these considerations into the question of valuation.We further think that the High Court committed an error of principle in arriving at the figure Rs. 13-8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the relevant time.It is not disputed that the function of the court in awarding compensation under the Act is to ascertain in the market value of the land at the date of the notification under S. 4 (1) and the methods of valuation may be (1) opinion of experts, the (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors. There were altogether seven transactions of alienation made y the respondent. One was a gift which must necessarily be excluded. The earliest of the sales was in favour of Munirathnam which was made on May 15, 1945. Another was made on July 18, 1945 This was in favour of Venugopal who was the husband of a grand-daughter of the respondent. Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August 1945. The notification under S. 4 of the Land Acquisition Act was made on October 4, 1945Why the transaction of 15th May 1945 which was at a rate of Rs. 6-8 per sq. yard only was left out it is difficult to understand. Similarly, the transaction of 18th July 1945 was at the rate of Rs. 10 per sq. yard. That also was left out. We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court. If all the six transactions of sale are taken into consideration the average rate comes to about its. 10-13 per sq. yard only. Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average. Having arrived at an average of Rs.12-2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12-2. Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13-8. No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference. It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions. It is difficult to understand why it should be utilised again for arriving at the market value of the land in question. We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only. Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (Ex. II).The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 per sq. yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme. It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard. It is worthy of note that the six transactions to which the respondent referred were sales of small building sites. It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed10. We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land, in question should be Rs. 11 per sq. yard.

MS. X Vs. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND ANOTHER

circumstances in which she was left with no option but to resign. The petitioner thereafter had also pursued a writ petition before this Court. Thereafter, she had participated in the proceedings before the JIC and after the JIC expressed its opinion, that it would be in the interest of justice that she should be re-instated in service, she made a representation to the MP High Court, for re-instatement in service. After the said representation was rejected, she has immediately approached this Court in the present matter. We therefore find that the petitioner cannot be denied the reliefs on the so- called grounds of delay and laches. 90. That leaves us with the last submission of the learned Solicitor General, that if we hold the resignation in the present case to be actuated by coercion, it will have far- reaching implications and will open floodgates to the similarly situated Judicial Officers. Another submission made is that, if a decision of the Full Court of the MP High Court is interfered with, it will stigmatize the entire Institution and have catastrophic effects. 91. We find the said submissions to be totally uncalled for. At the outset, we have clarified that we are only examining the correctness and otherwise of the order of transfer, the rejection of the representations and the question as to whether the resignation in the facts of the present case, could be construed to be voluntary or not. We have not at all gone into the question, regarding the correctness or otherwise of the decisions of the Full Court of the MP High Court with regard to the rejection of the petitioners representation. As already discussed hereinabove, there might be reasons and factors which might have weighed with the Full Court of the MP High Court for taking such a decision. At the cost of repetition, we reiterate that we have full respect for the authority of the Full Court to arrive at such a decision. As such, there is no question of stigmatizing the Full Court of the MP High Court. It is a different matter, that if the suggestions made by this Court on more than one occasion would have been accepted, the exercise of examining the factual scenario, could have been avoided. In any case, we have restricted our inquiry only to the facts, which we found necessary to decide the present case. We have refrained ourselves from going into the details of the findings of the JIC, so as to protect the dignity of all concerned. We have refrained ourselves from mentioning a single name in our judgment. 92. In that view of the matter, the contention of the learned Solicitor General with regard to stigmatizing the MP High Court is without substance. 93. Insofar as the contention, that if this Court holds the resignation in the present case to be coercive, it will have far- reaching effects on the administration of judiciary is concerned, the same is also without substance. It will be apposite to refer to the following observations made by this Court in the case of Union of India and Others v. Dhanwanti Devi and Others (1996) 6 SCC 44 : 9. …….. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found…… It could thus be seen that this Court has held that a decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. 94. This Court in the case of The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 has succinctly observed thus: 7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. It has been held that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

1[ds]29. Before we consider the rival submissions, we clarify that we are not examining the correctness or otherwise of the decisions of the Full Court of the MP High Court dated 11th January 2018 and 15th February 2019. We are conscious of the fact that the scope of judicial review of a decision of the Full Court of a High Court is extremely narrow and we cannot sit in an appeal over the decision of the Full Court of a High Court. There could be various factors and reasons which could have weighed with the Full Court of the MP High Court while rejecting the representation made by the petitioner in its resolutions dated 11th January 2018 and 15th February 2019. We have full respect for the authority of the Full Court of the MP High Court to arrive at such a decision.31. Though, the issue directly involved in the present petition is only the issue No. (iii), we find that it will be necessary to consider issue Nos. (i) and (ii) inasmuch as our findings on the said issues will have a direct bearing on the finding on issue No. (iii).32. We further clarify that we are examining the present matter purely considering it as a lis between an employee and an employer, without in any way being influenced by the fact that one of the parties to the lis is the MP High Court on the administrative side, and the other one a Judicial Officer. We are of the considered view that the legal principles, which would govern the dispute between an employer who is a State and an employee, will have to be equally applied in the present case, irrespective of the fact that one of the parties is a High Court and the other one is a Judicial Officer.33. Though, arguments have been advanced before us with regard to constructive discharge and the reliance is placed on the judgments of Courts in United Kingdom and United States, we do not find it necessary to go into that issue. We are of the considered view that the law as enunciated by this Court with regard to scope of judicial review of a State action, would squarely cover the issue.35. No doubt that the JIC, in its Report dated 15th December 2017, has come to a clear finding that the transfer of the petitioner was in contravention of the Transfer Policy laid down by the MP High Court and as such, was irregular. The JIC has also come to a finding that the representations made by the petitioner were not appropriately considered by the MP High Court. The JIC further came to a finding that Justice A had interfered with the transfer of the petitioner and also had a role to play in the rejection of her representations. The JIC has also come to a finding that the basis of the petitioners transfer was the complaint dated 3rd July 2014, made by the then D & SJ, Gwalior. The JIC further found that though, it was the stand of the MP High Court that the transfer of the petitioner was on administrative grounds in view of the provisions of Clause 22 of the Transfer Policy, the same was not established. The JIC has further come to a finding that the circumstances became unbearable for the petitioner, resulting in her resignation from service.39. No doubt that the said Transfer Policy is only a set of Guidelines for internal administration of the District Judiciary issued by the MP High Court. However, while exercising its functions on the administrative side, the MP High Court would also be a State within the meaning of Article 12 of the Constitution of India. We may gainfully refer to the following observations made by this Court in the case of Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 :8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non- arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.9. In Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 All ER 935 (HL)] the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. The impugned action was upheld as reasonable, made on due consideration of all relevant factors including the legitimate expectation of the applicant, wherein the considerations of national security were found to outweigh that which otherwise would have been the reasonable expectation of the applicant. Lord Scarman pointed out that the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. Again in Preston, in re [1985 AC 835 : (1985) 2 All ER 327] it was stated by Lord Scarman that the principle of fairness has an important place in the law of judicial review and unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4 SCC 602 : (1980) 1 SCR 459 ] which holds that court should interfere where discretionary power is not exercised reasonably and in good faith.40. It could thus be seen that this Court has held that mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right. It is further held that the failure to consider and give due weight to it may render the decision arbitrary. It has been held that the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant. It has been held that a bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. It has been held that the principle of fairness has an important place in the law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith.From the perusal of the Transfer Policy, it is clear that total 3 weeks period is provided between the date of the receipt of the representation and the decision thereon. However, in the present case, within two days from the submission of the representation, the Transfer Committee rejected the same without considering sub-clause (a) of Clause 9 of the Transfer Policy. It is a different matter that inviting comments from the District Judge would have been just a formality, inasmuch as the transfer was effected on his complaint itself.49. The matter does not end here. On rejection of her first representation, the petitioner addressed her second representation, requesting that she be posted at any of the four cities mentioned in the said representation so that her daughter could continue with her education. However, the then RG made an endorsement that the said representation is on similar ground as mentioned in the earlier representation dated 9th July 2014, which has already been rejected. The Transfer Committee endorsed that in view of the order already passed in the earlier representation dated 9th July 2014, no further reconsideration is to be made. Both the representations of the petitioner are made with different requests. Whereas the first representation requests for her retention at Gwalior for a period of 8 months so that her daughter could continue with her education at Gwalior; in the second representation, she had requested to be posted at either of the 4 places, where her daughter could continue with her education. However, the second representation was rejected on the ground that the earlier representation made on similar ground also stands rejected.50. The petitioner had a legitimate expectation in view of Clause 10 of the Transfer Policy to have her case considered for posting at any of the 4 places in the event her request for retention at the then present posting was not considered and as such, she made the second representation. We are at pains to say that the rejection of the second representation depicts total non-application of mind by the then RG as well as the then Judge of the Transfer Committee of the MP High Court. The proposal of the then RG was made in a casual manner and accepted by the then Judge on the Transfer Committee in a mechanical manner.51. The transfer is sought to be justified in view of Clause 22 of the Transfer Policy. One of the grounds on which the transfer could be made in mid-term, is that the performance of such Judicial Officer is found to be below the norms prescribed. The same is admittedly not available in the present case. The petitioners performance in the assessment made by the then D & SJ, Gwalior on 15th January 2014 for the assessment year 2013, has been found to be very good. That leaves us with the second ground available under Clause 22 of the Transfer Policy, that a transfer can be made if the grounds exist for initiating an inquiry against such a Judicial Officer. The same is also not the case here.However, in the case of the petitioner, the petitioner was directly transferred from Gwalior, which is Category A city to Sidhi, which is Category C city. The 4 cities which have been mentioned by the petitioner in her second representation are B Category cities. Coupled with the admission that the transfer of the petitioner was effected on the basis of the complaint made by the then D & SJ, Gwalior, it is difficult to accept the contention on behalf of the MP High Court that the transfer of the petitioner was made in the public interest or in the interest of the administration.The perusal of the said transfer order would reveal that in many cases, the Judicial Officers who were either on deputation or ex-cadre posts, have been brought in main stream. It is also found that many of the Judicial Officers covered by the said transfer order were posted at the same place inasmuch as from the posting on deputation, they have been brought in the main stream. In any case, it is not pointed out as to whether the said Judicial Officers were also facing the same difficulty, as was being faced by the petitioner. It is also not brought on record as to whether those Judicial Officers had made any representation and their representations were rejected in an identical manner.54. At this juncture, we may refer to the following observations made by this Court in the case of Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others (1991) 1 SCC 212 :33. No doubt, it is true, as indicated by us earlier, that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 to prove the assertion. However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia case [(1989) 3 SCC 293] to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. As indicated by Diplock, L.J., in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935] the power of judicial review is limited to the grounds of illegality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of irrationality is obvious.55. It could thus be seen that this Court has held that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove the assertion. It has been further held that where no plausible reason or principle is indicated nor is it discernible and the impugned State action appears to be arbitrary, the initial burden to prove the arbitrariness is discharged, thereby shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The limited scope of judicial review is only to satisfy that the State action is not vitiated by the vice of arbitrariness and no more. It is equally settled that it is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate. It has been held that the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case.56. We have no hesitation in holding that the petitioner has established that her transfer order was in contravention of the Transfer Policy and that the rejection of her two representations, in addition of being contrary to the Transfer Policy, were also arbitrary. As such, the petitioner has discharged her burden and the onus is shifted on the respondent No.1 to show that the petitioners transfer order was fair and reasonable in the facts and circumstances of the case. We find that the respondent No.1 has utterly failed to discharge its burden. On the contrary, the admissions made before the JIC by the then Judge on the Transfer Committee clearly show that the transfer was made solely on the basis of the complaint made by the then D & SJ, Gwalior without verifying the veracity thereof. Not only this, but it is evident that the then Judge had not looked into the annexures attached with the representation, which included the fee receipts etc. of the petitioners daughter.57. We may gainfully refer to the following observations made by this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and Others (2010) 9 SCC 437 :25. The State is under obligation to act fairly without ill will or malice — in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207 ] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49 ] , State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941 ] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .)26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of India v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005 SCC (L&S) 1150].)58. It is trite that the State is under the obligation to act fairly without ill will or malice — in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others.59. No doubt that it is strenuously argued on behalf of the petitioner that the transfer order is mala fide and issued at the instance of Justice A, we do not find it necessary to go into that aspect of the matter.62. At the cost of repetition, we may say that though it is the case of the respondent No.1 that the transfer order of the petitioner dated 8th July 2014, was on the ground of administrative exigencies, the material placed on record and particularly, the depositions of the then Judge on the Transfer Committee and the then RG, would clearly show that it was on the basis of the complaint made by the then D & SJ, Gwalior. It is a different aspect that the JIC had come to a specific finding of fact, that the evidence on record clearly shows that Justice A had a role to play in the transfer of the petitioner and the rejection of her two representations. We are therefore of the considered view that the transfer order dated 8th July 2014, would squarely be covered by malice in law inasmuch as it was passed without taking into consideration the Guidelines provided in the Transfer Policy but on the basis of unverified allegations made in the complaint made by the then D & SJ, Gwalior.64. It could be seen that as per Clause 9 of the Transfer Policy, the petitioner is entitled to make a representation to the MP High Court for retaining her at the same posting, and for posting at alternate places of her choice in view of Clause 10 of the Transfer Policy. When the Transfer Policy provides for making a representation, the petitioner had a legitimate expectation that the said representation would be considered in accordance with it. Consideration of representation is not a formality. We are not saying for a moment that prior to rejection of the petitioners representations, she should have been heard or that the reasons ought to have been communicated for such rejection. However, the least that is expected is that the representation is considered in the right earnest. When the Transfer Policy provides for a ground on which the representation is to be made, then the least that is expected is that the matter should be considered in reference to the provisions made in the Transfer Policy. In her first representation, the petitioner had specifically contended that she should be retained at Gwalior on the ground of her daughters education. There was a legitimate expectation that the respondent No.1 ought to have considered as to whether her case fits in Clause 9(a) of the Transfer Policy. The petitioner was entitled for consideration of her case on the ground that her daughter was to appear in the final year of Board Examination. The petitioner had specifically stated that her daughter was also undergoing FIITJEE coaching. She had further clearly stated that after her daughter completes the academic year, she was willing to abide by the transfer order. However, in the noting of the then RG, it was mentioned that it is gathered that adequate educational facilities including CBSE School are available at Sidhi. It is further stated that the Transfer Committee, in its meeting held on 7th July 2014, had recommended the transfer of the petitioner on administrative grounds after considering the request of the then D & SJ, Gwalior with regard to conduct and behaviour of the petitioner. On the said proposal, the then Judge on the Transfer Committee had directed the representation of the petitioner to be rejected. As such, it could be seen that the respondent No. 1 had not at all taken into consideration as to whether the petitioners case was required to be considered under Clause 9(a) of the Transfer Policy or not.65. Insofar as the second representation dated 11th July 2014 is concerned, the petitioner had specifically stated that since her daughter was preparing for Board and Competitive Exams and also taking FIITJEE coaching, she may be transferred to such places as Sehore, Raisen, Dewas or Ujjain, where her daughter could continue with her education. It could thus be seen that, whereas in the first representation, the petitioner had sought retention at Gwalior, in the second representation, she had requested for posting at any of the 4 places as aforesaid. However, the then RG made an endorsement on the file on 14th July 2014 to the effect that the said representation was made almost on identical grounds as were made in the first representation, which was already rejected on 11th July 2014. The then Judge on the Transfer Committee made an endorsement that in view of the order dated 11th July 2014 already passed in the earlier representation, no further reconsideration is to be made. It can thus be seen that though the second representation of the petitioner dated 11th July 2014 is with a request to post her at any of the 4 alternate places, the noting that the representation on identical grounds had already been rejected, is factually incorrect. Whereas the first representation of the petitioner was for retention at Gwalior, the second one was for a posting at alternate place, where her daughter could continue with her education. In view of Clause 10 of the Transfer Policy, the petitioner had a legitimate expectation of being considered for an alternate posting, in case her prayer for retention was not to be considered.66. It could thus be seen that the respondent No.1 has failed to take into consideration the factors, which were required to be considered, while deciding the representation of the petitioner and had taken into consideration the factors which were not relevant. The then Judge on the Transfer Committee, in his deposition before the JIC, had clearly admitted that he had not gone into the annexures, which were attached with the representation of the petitioner. Non- consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India. We, therefore, find that the rejection of the representations of the petitioner dated 9th July 2014 and 11th July 2014, would also not stand the scrutiny of law.72. For considering as to whether the resignation in the present matter could be construed as voluntary or not, the resignation cannot be considered in isolation, but all the attendant circumstances will have to be taken into consideration.79. The petitioner was a Judicial Officer and a mother too. The Judicial Officer in her must have been battling with the mother in her. On one hand, was her career as a Judicial Officer; on the other hand, was the possibility of her daughters educational prospects and career coming into jeopardy, if she shifted to the place of posting at Sidhi. A possibility of her mind engrossed with a feeling, that she was subjected to injustice by the very Institution of Judiciary, cannot be ruled away. What was she asking for? A retention at Gwalior for a period of 8 months till her daughter completes her Class 12th. In the alternative, posting at any of the 4 cities, which were admittedly in Category B, where her daughter could have better education facilities, and where the vacancies existed.80. Denial of her legitimate expectation could have led to desperation, exasperation and frustration. The frustration of the petitioner is evident from the language used by her in her resignation letter. She stated that as she had been transferred to Sidhi in the mid-academic session of her daughters Class 12th, it had mostly affected the crucial stage of career of her daughter. She stated that therefore, she was left with no other option but to resign from her post. It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother.81. Reaction of a person to a particular situation would depend from person to person. No two individuals can be expected to respond identically to a same situation. It is quite possible that some other person in the petitioners place, would have chosen to pursue ones own career without bothering about the daughters education and prospects of good career.83. It will be apposite to refer to the following observations of this Court in the case of Dr. Prabha Atri v. State of U.P. and Others (2003) 1 SCC 701 :7. The only question that mainly requires to be considered is as to whether the letter dated 9-1- 1999 could be construed to mean or amounted to a letter of resignation or merely an expression of her intention to resign, if her claims in respect of the alleged lapse are not viewed favourably. Rule 9 of the Hospital Service Rules provided for resignation or abandonment of service by an employee. It is stated therein that a permanent employee is required to give three months notice of resignation in writing to the appointing authority or three months salary in lieu of notice and that he/she may be required to serve the period for such notice. In case of non-compliance with the above, the employee concerned is not only liable to pay an amount equal to three months salary but such amount shall be realizable from the dues, if any, of the employee lying with the hospital. In Words and Phrases (Permanent Edn.) Vol. 37, at p. 476, it is found stated that:To constitute a resignation, it must be unconditional and with an intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. It is to give back, to give up in a formal manner, an office.At p. 474 of the very same book, it is found stated: Statements by clubs President and corresponding Secretary that they would resign, if constant bickering among members did not cease, constituted merely threatened offers, not tenders, of their resignations. It is also stated therein that A resignation of a public office to be effective must be made with an intention of relinquishing the office accompanied by an act of relinquishment. In the ordinary dictionary sense, the word resignation was considered to mean the spontaneous relinquishment of ones own right, as conveyed by the maxim: Resignatio est juris proprii spontanea refutatio (Blacks Law Dictionary, 6th Edn.). In Corpus Juris Secundum, Vol. 77, p. 311, it is found stated:It has been said that resignation is a term of legal art, having legal connotations which describe certain legal results. It is characteristically, the voluntary surrender of a position by the one resigning, made freely and not under duress and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession or position.8. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this Court had an occasion to consider the nature and character of a letter written by one of the petitioners in that case who after stating in the letter that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him andas such, after showing so much patience in the matter, I am sorry to decide that I should resign from the membership of the Faculty in protest against such a treatment and against the discrimination and victimization shown to me by the Head of the Division in the allotment of students of 1968 and 1969 batches and departmental candidates. (SCC p. 172, para 34)In that context, this Court observed that the callous and heartless attitude of the Academic Council in seizing an opportunity to get rid of him by treating the said letter to be a letter of resignation when really he was all along making representations seeking justice to him and out of exasperation the said person wrote that letter stating that the only honourable course left open to him was to resign rather than suffer (SCC p. 173, para 34).In Moti Ram v. Param Dev [(1993) 2 SCC 725] this Court observed as hereunder: (SCC pp. 735-36, para 16)16. As pointed out by this Court, resignation means the spontaneous relinquishment of ones own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. (See: Union of India v. Gopal Chandra Misra [(1978) 2 SCC 301 : 1978 SCC (L&S) 303] .) If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.9. In traversing the contention on behalf of the appellant that the letter in question dated 9-1-1999 could not be construed as a letter of resignation, on behalf of the respondent hospital authorities it is strenuously contended that such a letter coming from the appellant in the teeth of suspension order and proposed domestic enquiry expressing a desire to tender resignation and that too with immediate effect, cannot but be a resignation outright and simpliciter to avoid facing disciplinary proceedings and that, therefore, the competent authority acted well within its rights in treating it to be a resignation and accepting the same forthwith and as a consequence thereof, directing further not to proceed with the domestic enquiry already ordered. Finally, it has been submitted that if this Court is pleased to interfere in the matter the right of the hospital authorities to pursue the disciplinary action already initiated from the stage at which it stood on the date of acceptance of the resignation should not be jeopardized and liberty may be granted in this regard.10. We have carefully considered the submissions of the learned counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9-1-1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to sever her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a resignation, it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9-1- 1999 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her so-called resignation. The words with immediate effect in the said letter could not be given undue importance dehors the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the letter written by the appellant on 9-1-1999. Consequently, it appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated 9-1- 1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the writ petition.84. The facts in the above case are somewhat similar to the present case. The present case is also not a case where it is required to consider as to whether the relinquishment envisaged under the Rules and Conditions of Service, is unilateral or bilateral in character. In the present case also, the words with immediate effect in the resignation letter could not be given undue importance, dehors the context, tenor of language used therein, indicating the circumstances in which it was written. The resignation letter in the present case, as has already been discussed hereinabove, appears to be on account of exasperation and frustration actuated by a thought, that injustice was being meted out to her by the very Institution of Judiciary.85. We further find that the breakneck speed at which the events have taken place in the present matter, gives rise to a suspicion, that there is something more than which meets the eye. On 3rd July 2014, the then D & SJ, Gwalior, who appears to have joined the service a short while ago, addressed a complaint to the then RG. The said D & SJ, Gwalior, in his deposition before the JIC, has clearly admitted that the instances mentioned in the complaint, were not within his personal knowledge, but were on the basis of the complaints made to him by other Judicial Officers. He further admitted that the complaints were with regard to the period, which was before his joining as D & SJ, Gwalior. He further admitted that there were no written complaints by the Judicial Officers and that he had proceeded to write the complaint on the basis of their oral complaints. Within days of the said complaint being made, on 7th July 2014, the Transfer Committee decided to transfer the petitioner from Gwalior to Sidhi. The transfer order was issued on 8th July 2014. The petitioner made a representation on the very next day i.e. 9th July 2014, and the same was rejected within two days i.e. 11th July 2014. On 11th July 2014, the petitioner made another representation. However, that also did not find favour with respondent No. 1 and was rejected on 14th July 2014, on the ground that the earlier representation on identical grounds was already rejected. It is to be noted that 12th July 2014 was a second Saturday, 13th July 2014 was a Sunday and on the very next working day i.e. 14th July 2014, her second representation was rejected. On 15th July 2014, the petitioner tendered her resignation. On the next day i.e. 16th July 2014, the MP High Court with the recommendation for acceptance of the same, forwarded it to respondent No.2. On the very next day i.e. 17th July 2014, respondent No. 2 accepted the same.87. We are therefore of the considered view that in the peculiar facts and circumstances of the case, the petitioners resignation dated 15th July 2014, could not be construed to be voluntary. In any case, immediately in a fortnight, on 1st August 2014, the petitioner had made a representation to Honble the President of India as well as the Chief Justice of India, with a copy to the Chief Justice of the MP High Court for reconsideration of the circumstances under which, she was left with no option but to resign. Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative.In this regard, it is to be noted that the petitioner was initially appointed on probation for a period of two years on 1st August 2011. Her probation was completed on 1st August 2013. Admittedly, there has been no order extending the period of probation of the petitioner from 1st August 2013 onwards. On the contrary, she was assigned with various additional duties in the year 2013. Not only this, but her assessment for the assessment year 2013, during which, she would be deemed to be confirmed, was very good. We therefore find that the said contention is nothing but an after-thought.89. Insofar as the contention with regard to delay is concerned, we find no merit in the said contention also. Immediately after the petitioner resigned on 15th July 2014, she made a representation to Honble the President of India as well as the Chief Justice of India, with a copy to the Chief Justice of the MP High Court, requesting to reconsider the circumstances in which she was left with no option but to resign. The petitioner thereafter had also pursued a writ petition before this Court. Thereafter, she had participated in the proceedings before the JIC and after the JIC expressed its opinion, that it would be in the interest of justice that she should be re-instated in service, she made a representation to the MP High Court, for re-instatement in service. After the said representation was rejected, she has immediately approached this Court in the present matter. We therefore find that the petitioner cannot be denied the reliefs on the so- called grounds of delay and laches.91. We find the said submissions to be totally uncalled for. At the outset, we have clarified that we are only examining the correctness and otherwise of the order of transfer, the rejection of the representations and the question as to whether the resignation in the facts of the present case, could be construed to be voluntary or not. We have not at all gone into the question, regarding the correctness or otherwise of the decisions of the Full Court of the MP High Court with regard to the rejection of the petitioners representation. As already discussed hereinabove, there might be reasons and factors which might have weighed with the Full Court of the MP High Court for taking such a decision. At the cost of repetition, we reiterate that we have full respect for the authority of the Full Court to arrive at such a decision. As such, there is no question of stigmatizing the Full Court of the MP High Court. It is a different matter, that if the suggestions made by this Court on more than one occasion would have been accepted, the exercise of examining the factual scenario, could have been avoided. In any case, we have restricted our inquiry only to the facts, which we found necessary to decide the present case. We have refrained ourselves from going into the details of the findings of the JIC, so as to protect the dignity of all concerned. We have refrained ourselves from mentioning a single name in our judgment.92. In that view of the matter, the contention of the learned Solicitor General with regard to stigmatizing the MP High Court is without substance.93. Insofar as the contention, that if this Court holds the resignation in the present case to be coercive, it will have far- reaching effects on the administration of judiciary is concerned, the same is also without substance. It will be apposite to refer to the following observations made by this Court in the case of Union of India and Others v. Dhanwanti Devi and Others (1996) 6 SCC 44 :9. …….. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found……It could thus be seen that this Court has held that a decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.94. This Court in the case of The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 has succinctly observed thus:7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. It has been held that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: circumstances in which she was left with no option but to resign. The petitioner thereafter had also pursued a writ petition before this Court. Thereafter, she had participated in the proceedings before the JIC and after the JIC expressed its opinion, that it would be in the interest of justice that she should be re-instated in service, she made a representation to the MP High Court, for re-instatement in service. After the said representation was rejected, she has immediately approached this Court in the present matter. We therefore find that the petitioner cannot be denied the reliefs on the so- called grounds of delay and laches. 90. That leaves us with the last submission of the learned Solicitor General, that if we hold the resignation in the present case to be actuated by coercion, it will have far- reaching implications and will open floodgates to the similarly situated Judicial Officers. Another submission made is that, if a decision of the Full Court of the MP High Court is interfered with, it will stigmatize the entire Institution and have catastrophic effects. 91. We find the said submissions to be totally uncalled for. At the outset, we have clarified that we are only examining the correctness and otherwise of the order of transfer, the rejection of the representations and the question as to whether the resignation in the facts of the present case, could be construed to be voluntary or not. We have not at all gone into the question, regarding the correctness or otherwise of the decisions of the Full Court of the MP High Court with regard to the rejection of the petitioners representation. As already discussed hereinabove, there might be reasons and factors which might have weighed with the Full Court of the MP High Court for taking such a decision. At the cost of repetition, we reiterate that we have full respect for the authority of the Full Court to arrive at such a decision. As such, there is no question of stigmatizing the Full Court of the MP High Court. It is a different matter, that if the suggestions made by this Court on more than one occasion would have been accepted, the exercise of examining the factual scenario, could have been avoided. In any case, we have restricted our inquiry only to the facts, which we found necessary to decide the present case. We have refrained ourselves from going into the details of the findings of the JIC, so as to protect the dignity of all concerned. We have refrained ourselves from mentioning a single name in our judgment. 92. In that view of the matter, the contention of the learned Solicitor General with regard to stigmatizing the MP High Court is without substance. 93. Insofar as the contention, that if this Court holds the resignation in the present case to be coercive, it will have far- reaching effects on the administration of judiciary is concerned, the same is also without substance. It will be apposite to refer to the following observations made by this Court in the case of Union of India and Others v. Dhanwanti Devi and Others (1996) 6 SCC 44 : 9. …….. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found…… It could thus be seen that this Court has held that a decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. 94. This Court in the case of The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 has succinctly observed thus: 7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. It has been held that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. ### Response: 1 ### Explanation: deemed to be confirmed, was very good. We therefore find that the said contention is nothing but an after-thought.89. Insofar as the contention with regard to delay is concerned, we find no merit in the said contention also. Immediately after the petitioner resigned on 15th July 2014, she made a representation to Honble the President of India as well as the Chief Justice of India, with a copy to the Chief Justice of the MP High Court, requesting to reconsider the circumstances in which she was left with no option but to resign. The petitioner thereafter had also pursued a writ petition before this Court. Thereafter, she had participated in the proceedings before the JIC and after the JIC expressed its opinion, that it would be in the interest of justice that she should be re-instated in service, she made a representation to the MP High Court, for re-instatement in service. After the said representation was rejected, she has immediately approached this Court in the present matter. We therefore find that the petitioner cannot be denied the reliefs on the so- called grounds of delay and laches.91. We find the said submissions to be totally uncalled for. At the outset, we have clarified that we are only examining the correctness and otherwise of the order of transfer, the rejection of the representations and the question as to whether the resignation in the facts of the present case, could be construed to be voluntary or not. We have not at all gone into the question, regarding the correctness or otherwise of the decisions of the Full Court of the MP High Court with regard to the rejection of the petitioners representation. As already discussed hereinabove, there might be reasons and factors which might have weighed with the Full Court of the MP High Court for taking such a decision. At the cost of repetition, we reiterate that we have full respect for the authority of the Full Court to arrive at such a decision. As such, there is no question of stigmatizing the Full Court of the MP High Court. It is a different matter, that if the suggestions made by this Court on more than one occasion would have been accepted, the exercise of examining the factual scenario, could have been avoided. In any case, we have restricted our inquiry only to the facts, which we found necessary to decide the present case. We have refrained ourselves from going into the details of the findings of the JIC, so as to protect the dignity of all concerned. We have refrained ourselves from mentioning a single name in our judgment.92. In that view of the matter, the contention of the learned Solicitor General with regard to stigmatizing the MP High Court is without substance.93. Insofar as the contention, that if this Court holds the resignation in the present case to be coercive, it will have far- reaching effects on the administration of judiciary is concerned, the same is also without substance. It will be apposite to refer to the following observations made by this Court in the case of Union of India and Others v. Dhanwanti Devi and Others (1996) 6 SCC 44 :9. …….. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found……It could thus be seen that this Court has held that a decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.94. This Court in the case of The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 has succinctly observed thus:7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. It has been held that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

Raj Steel & Ors. Etc. Etc Vs. State Of A.P. & Anr. Etc. Etc

are sold independently, the packing material is liable to tax on its own footing. Whether a transaction for sale of packing material is an independent transaction will depend upon several factors, some of them being: 1. The packing material is a commodity having its own identity and is separately classified in the Schedule; 2. There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content; 3. The packing is capable of being reused after the contents have been consumed; 4. The packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing; 5. The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product In one case, Punjab Distilling Industries Ltd. v. CIT (1959 Supp 1 SCR 683 : AIR 1959 SC 346 : (1959) 35 ITR 519 ), where the bottles were sold by the assessee under a buy-back scheme, the security deposit for the return of the bottles was held to be merely in the nature of an incentive to the buyer to return the bottles. 10. Turning to Section 6-C of the Act, it seems to envisage a case where it is the goods which are sold and there is no actual sale of the packing material. The section provides by legal fiction that the packing material shall be deemed to have been sold along with the goods. In other words, although there is no sale of the packing material, it will be deemed that there is such a sale. In that event, the section declares, the tax will be leviable on such deemed sale of the packing material at the rate of tax applicable to the sale of the goods themselves. It is difficult to comprehend the need for such a provision. It can at best be regarded as a provision by way of clarification of an existing legal situation. If the transaction is one of sale of the goods only, clearly all that can be taxed in fact is the sale of the goods, and the rate to be applied must be read in the case of such goods. It may be that the price of the goods is determined upon a consideration of several components, including the value of the packing material, but nonetheless the price is the price of the goods. It is not open to anyone to say that the value of the different components which have entered into a determination of the price of the goods should be analysed and separated, in order that different rates of tax should be applied according to the character of the component (for example, packing material). What Section 6-C intends to lay down is that even upon such analysis the rate of tax to be applied to the component will be the rate applied to the goods themselves. And that is for the simple reason that it is the price of the goods alone which constitutes the transaction between the dealer and the purchaser. No matter what may be the component which enters into such price, the parties understand between them that the purchaser is paying the price of the goods. Section 6-C merely clarified and explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the same rate must be applied to the packing material as is applicable to the goods themselves. We find it difficult to accept the contention of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under Section 6-C, when in fact there was no such sale of packing material and it is only by legal fiction, and for a limited purpose, that such sale can be contemplated. In the circumstances, no question arises of Section 6-C being constitutionally discriminatory, and therefore invalid. 11. In the appeals before us, we find that the High Court has proceeded on the assumption that the transactions are covered by trade practice and having regard to the nature of the goods it has inferred that what is charged is the price of the bottled beer or of cement packed in gunny bags, and reference has also been made to the Excise Law and the Cement Control Order requiring that the liquor or the cement, as the case may be, must be sold in bottles or in gunny bags respectively. We are constrained to observe that no attempt has been made by the tax authorities to ascertain the facts of each case and to determine what were the actual ingredients of the contract and the intention of the parties. Assumptions have been made when what was required was a detailed investigation into the facts. We have indicated earlier the several possibilities which are open in cases of this kind, and how the ultimate conclusion can be vitally affected by the tests to be applied. Because of the lack of adequate and clear factual material, the High Court also was compelled to proceed on the basis of generalised statements and broad assumptions. We are unable, in the circumstances, to hold that the cases can be regarded as disposed of finally. It is regrettable but the cases must go back for proper findings on facts to be ascertained on fuller investigation. 12. In the circumstances, the appeals are allowed, the impugned judgment and order of the High Court in the several cases are set aside and the cases are remanded to the High Court for further consideration and disposal in the light of the observation made by us.

1[ds]11. In the appeals before us, we find that the High Court has proceeded on the assumption that the transactions are covered by trade practice and having regard to the nature of the goods it has inferred that what is charged is the price of the bottled beer or of cement packed in gunny bags, and reference has also been made to the Excise Law and the Cement Control Order requiring that the liquor or the cement, as the case may be, must be sold in bottles or in gunny bags respectively. We are constrained to observe that no attempt has been made by the tax authorities to ascertain the facts of each case and to determine what were the actual ingredients of the contract and the intention of the parties. Assumptions have been made when what was required was a detailed investigation into the facts. We have indicated earlier the several possibilities which are open in cases of this kind, and how the ultimate conclusion can be vitally affected by the tests to be applied. Because of the lack of adequate and clear factual material, the High Court also was compelled to proceed on the basis of generalised statements and broad assumptions. We are unable, in the circumstances, to hold that the cases can be regarded as disposed of finally. It is regrettable but the cases must go back for proper findings on facts to be ascertained on fuller investigation12. In the circumstances, the appeals are allowed, the impugned judgment and order of the High Court in the several cases are set aside and the cases are remanded to the High Court for further consideration and disposal in the light of the observation made by us. In the case of the writ petitions before us, the assessing authority will allow the dealer to show cause and thereafter upon evidence led before it determine the matter. There is no order as to costs9. It is, therefore, perfectly plain that the issue as to whether the packing material has been sold or merely transferred without consideration depends on the contract between the parties. The fact that the packing is of insignificant value in relation to the value of the contents may imply that there was no intention to sell the packing, but where any packing material is of significant value it may imply an intention to sell the packing material. In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently, the packing material is liable to tax on its own footing. Whether a transaction for sale of packing material is an independent transaction will depend upon several factors, some of them being1. The packing material is a commodity having its own identity and is separately classified in the Schedule;2. There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content;3. The packing is capable of being reused after the contents have been consumed;4. The packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing;5. The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product10. Turning to SectionC of the Act, it seems to envisage a case where it is the goods which are sold and there is no actual sale of the packing material. The section provides by legal fiction that the packing material shall be deemed to have been sold along with the goods. In other words, although there is no sale of the packing material, it will be deemed that there is such a sale. In that event, the section declares, the tax will be leviable on such deemed sale of the packing material at the rate of tax applicable to the sale of the goods themselves. It is difficult to comprehend the need for such a provision. It can at best be regarded as a provision by way of clarification of an existing legal situation. If the transaction is one of sale of the goods only, clearly all that can be taxed in fact is the sale of the goods, and the rate to be applied must be read in the case of such goods. It may be that the price of the goods is determined upon a consideration of several components, including the value of the packing material, but nonetheless the price is the price of the goods. It is not open to anyone to say that the value of the different components which have entered into a determination of the price of the goods should be analysed and separated, in order that different rates of tax should be applied according to the character of the component (for example, packing material). What SectionC intends to lay down is that even upon such analysis the rate of tax to be applied to the component will be the rate applied to the goods themselves. And that is for the simple reason that it is the price of the goods alone which constitutes the transaction between the dealer and the purchaser. No matter what may be the component which enters into such price, the parties understand between them that the purchaser is paying the price of the goods. SectionC merely clarified and explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the same rate must be applied to the packing material as is applicable to the goods themselves. We find it difficult to accept the contention of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under Section, when in fact there was no such sale of packing material and it is only by legal fiction, and for a limited purpose, that such sale can be contemplated. In the circumstances, no question arises of SectionC being constitutionally discriminatory, and therefore invalid

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: are sold independently, the packing material is liable to tax on its own footing. Whether a transaction for sale of packing material is an independent transaction will depend upon several factors, some of them being: 1. The packing material is a commodity having its own identity and is separately classified in the Schedule; 2. There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content; 3. The packing is capable of being reused after the contents have been consumed; 4. The packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing; 5. The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product In one case, Punjab Distilling Industries Ltd. v. CIT (1959 Supp 1 SCR 683 : AIR 1959 SC 346 : (1959) 35 ITR 519 ), where the bottles were sold by the assessee under a buy-back scheme, the security deposit for the return of the bottles was held to be merely in the nature of an incentive to the buyer to return the bottles. 10. Turning to Section 6-C of the Act, it seems to envisage a case where it is the goods which are sold and there is no actual sale of the packing material. The section provides by legal fiction that the packing material shall be deemed to have been sold along with the goods. In other words, although there is no sale of the packing material, it will be deemed that there is such a sale. In that event, the section declares, the tax will be leviable on such deemed sale of the packing material at the rate of tax applicable to the sale of the goods themselves. It is difficult to comprehend the need for such a provision. It can at best be regarded as a provision by way of clarification of an existing legal situation. If the transaction is one of sale of the goods only, clearly all that can be taxed in fact is the sale of the goods, and the rate to be applied must be read in the case of such goods. It may be that the price of the goods is determined upon a consideration of several components, including the value of the packing material, but nonetheless the price is the price of the goods. It is not open to anyone to say that the value of the different components which have entered into a determination of the price of the goods should be analysed and separated, in order that different rates of tax should be applied according to the character of the component (for example, packing material). What Section 6-C intends to lay down is that even upon such analysis the rate of tax to be applied to the component will be the rate applied to the goods themselves. And that is for the simple reason that it is the price of the goods alone which constitutes the transaction between the dealer and the purchaser. No matter what may be the component which enters into such price, the parties understand between them that the purchaser is paying the price of the goods. Section 6-C merely clarified and explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the same rate must be applied to the packing material as is applicable to the goods themselves. We find it difficult to accept the contention of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under Section 6-C, when in fact there was no such sale of packing material and it is only by legal fiction, and for a limited purpose, that such sale can be contemplated. In the circumstances, no question arises of Section 6-C being constitutionally discriminatory, and therefore invalid. 11. In the appeals before us, we find that the High Court has proceeded on the assumption that the transactions are covered by trade practice and having regard to the nature of the goods it has inferred that what is charged is the price of the bottled beer or of cement packed in gunny bags, and reference has also been made to the Excise Law and the Cement Control Order requiring that the liquor or the cement, as the case may be, must be sold in bottles or in gunny bags respectively. We are constrained to observe that no attempt has been made by the tax authorities to ascertain the facts of each case and to determine what were the actual ingredients of the contract and the intention of the parties. Assumptions have been made when what was required was a detailed investigation into the facts. We have indicated earlier the several possibilities which are open in cases of this kind, and how the ultimate conclusion can be vitally affected by the tests to be applied. Because of the lack of adequate and clear factual material, the High Court also was compelled to proceed on the basis of generalised statements and broad assumptions. We are unable, in the circumstances, to hold that the cases can be regarded as disposed of finally. It is regrettable but the cases must go back for proper findings on facts to be ascertained on fuller investigation. 12. In the circumstances, the appeals are allowed, the impugned judgment and order of the High Court in the several cases are set aside and the cases are remanded to the High Court for further consideration and disposal in the light of the observation made by us. ### Response: 1 ### Explanation: reference has also been made to the Excise Law and the Cement Control Order requiring that the liquor or the cement, as the case may be, must be sold in bottles or in gunny bags respectively. We are constrained to observe that no attempt has been made by the tax authorities to ascertain the facts of each case and to determine what were the actual ingredients of the contract and the intention of the parties. Assumptions have been made when what was required was a detailed investigation into the facts. We have indicated earlier the several possibilities which are open in cases of this kind, and how the ultimate conclusion can be vitally affected by the tests to be applied. Because of the lack of adequate and clear factual material, the High Court also was compelled to proceed on the basis of generalised statements and broad assumptions. We are unable, in the circumstances, to hold that the cases can be regarded as disposed of finally. It is regrettable but the cases must go back for proper findings on facts to be ascertained on fuller investigation12. In the circumstances, the appeals are allowed, the impugned judgment and order of the High Court in the several cases are set aside and the cases are remanded to the High Court for further consideration and disposal in the light of the observation made by us. In the case of the writ petitions before us, the assessing authority will allow the dealer to show cause and thereafter upon evidence led before it determine the matter. There is no order as to costs9. It is, therefore, perfectly plain that the issue as to whether the packing material has been sold or merely transferred without consideration depends on the contract between the parties. The fact that the packing is of insignificant value in relation to the value of the contents may imply that there was no intention to sell the packing, but where any packing material is of significant value it may imply an intention to sell the packing material. In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently, the packing material is liable to tax on its own footing. Whether a transaction for sale of packing material is an independent transaction will depend upon several factors, some of them being1. The packing material is a commodity having its own identity and is separately classified in the Schedule;2. There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content;3. The packing is capable of being reused after the contents have been consumed;4. The packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing;5. The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product10. Turning to SectionC of the Act, it seems to envisage a case where it is the goods which are sold and there is no actual sale of the packing material. The section provides by legal fiction that the packing material shall be deemed to have been sold along with the goods. In other words, although there is no sale of the packing material, it will be deemed that there is such a sale. In that event, the section declares, the tax will be leviable on such deemed sale of the packing material at the rate of tax applicable to the sale of the goods themselves. It is difficult to comprehend the need for such a provision. It can at best be regarded as a provision by way of clarification of an existing legal situation. If the transaction is one of sale of the goods only, clearly all that can be taxed in fact is the sale of the goods, and the rate to be applied must be read in the case of such goods. It may be that the price of the goods is determined upon a consideration of several components, including the value of the packing material, but nonetheless the price is the price of the goods. It is not open to anyone to say that the value of the different components which have entered into a determination of the price of the goods should be analysed and separated, in order that different rates of tax should be applied according to the character of the component (for example, packing material). What SectionC intends to lay down is that even upon such analysis the rate of tax to be applied to the component will be the rate applied to the goods themselves. And that is for the simple reason that it is the price of the goods alone which constitutes the transaction between the dealer and the purchaser. No matter what may be the component which enters into such price, the parties understand between them that the purchaser is paying the price of the goods. SectionC merely clarified and explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the same rate must be applied to the packing material as is applicable to the goods themselves. We find it difficult to accept the contention of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under Section, when in fact there was no such sale of packing material and it is only by legal fiction, and for a limited purpose, that such sale can be contemplated. In the circumstances, no question arises of SectionC being constitutionally discriminatory, and therefore invalid

Cawnpore Tannery Limited, Kanpur Vs. S. Guha & Others

award by preferring an appeal before the Labour Appellate Tribunal. This appeal, however, failed, because the Appellate Tribunal agreed with the findings recorded by the original Tribunal. It is this decision of the Labour Appellant Tribunal which has given rise to the present appeal by special leave.3. Mr. Sen for the appellant has urged before us three points. He contends that there was and could be no industrial dispute between the appellant and the respondents in regard to the retrenchment of Mr. Guha, because Mr. Guha had been retrenched as long ago as May 1951, and had ceased to be the workman of the appellant. In our opinion, there is no substance in this contention. Even after Mr. Guha was retrenched, it would have been open to the Union of which Mr. Guha was a member to raise a dispute about his non-employment. The definition of the term "workman even prior to its amendment in 1956 would have included a person like Mr. Guha whose services were terminated. This position is now made perfectly clear by the present definition of "workmen" which includes a person who had been dismissed, discharged or retrenched. Besides, the definition of the term "industrial dispute" is wide enough to justify the Union of which Mr. Guha as well as the propriety of the appellants conduct in not giving him an opportunity to be re-employed when an occasion for the employment when an occasion for the employment of an additional clerk arose. That is the view taken by the Labour Appellate Tribunal and we are not satisfied that the said conclusion is erroneous in law so as to justify our interference.4. Then Mr. Sen argues that though under S. 25-H of the Industrial Disputes Act the principle has now been statutorily recognised that a retrenched workman must be given an opportunity of re-employment when the employer has to employ an additional hand, at the relevant time this provision was not in the statute book and it was erroneous in law to have virtually given effect to the said statutory provision retrospectively. In our opinion, this argument is misconceived. Even before 25-H was added to the Act industrial adjudication generally recognised the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus, it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fairplay and justice, vide Shri Vishuddananda Saraswathi Hospital v. Their Employees, 1949-1 Lab LJ 111: (IT-West Bengal); Kilburn and Co. and MacNeill and Co. v. Their Employees, 1950-2 Lab LJ 125 (IT-West Bengal) and Sri Annapurna Mil1s v. Certain Workmen, (1953) 1 Lab LJ 43 (L..A.T.I. All).It is true that in the case of Annapurna Mills the discharge of the workmen was the result of the fact that the employer had closed his business and it was held that with improvement in circumstances if the employer re-opened his business it was necessary that he should take back in his employment his old employees. It would be noticed that the principle which was applied to the case of an employer who re-opened his business which had been closed by him is substantially the same principle which requires the employer to give an opportunity to his retrenched workman when he has occasion to engage another servant. That is why the Labour appellate Tribunal has observed that the principle now statutorily recognised by Section 25-H was, before the Act was amended, recognised by industrial adjudicators in dealing with such question. Therefore, we do not think that Mr. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law.5. It is then urged that the principle of industrial adjudication on which the respondents rely cannot require the appellant to offer to Mr. Guha a job unless the said job belongs to the same category to which Mr. Guha belonged. On principle, Mr. Sen may be right in assuming that the offer would be conditioned by the consideration of the category to which the retrenched employee belonged. But in the present case on the finding of the Tribunal below, there is no room for contending that Mr. Guha has been asked to be taken in a category other than the one to which he originally belonged. It is true that under his earlier assignment Mr. Guha was described as an Assistant Store Keeper, but it has been found by the Tribunals below that he was doing a substantial amount of clerical work and subsequent appointments made by the employer were made in the clerical cadre. Therefore, all that the Tribunals have required the appellant to do is to re-employ Mr. Guha in the clerical cadre. We do not think that his order can be challenged on the ground that it is not justified by the principle of industrial adjudication in regard to retrenched workmen.6. Mr. Sen then attempted to contend that the Tribunals might have held that the appointment of the three clerks subsequently introduced by the appellant in his establishment may be wrong, but he contends that it was not right that the Tribunals should have made an order directing the appellant to re-employ Mr. Guha. He points out that the record shows that there are some other persons whom the appellant had discharged and considerations may arise as to which of the discharged persons should be given the first opportunity of re-employment. We do not think it is open to Mr. Sen to raise this contention for the first time before this Court. This contention is based on certain facts none of which was pointedly brought to the notice of the Tribunal below, and Mr. Sen has fairly conceded that this aspect of the matter was not argued before them either.

0[ds]3. Mr. Sen for the appellant has urged before us three points. He contends that there was and could be no industrial dispute between the appellant and the respondents in regard to the retrenchment of Mr. Guha, because Mr. Guha had been retrenched as long ago as May 1951, and had ceased to be the workman of the appellant.In our opinion, there is no substance in this contention. Even after Mr. Guha was retrenched, it would have been open to the Union of which Mr. Guha was a member to raise a dispute about hisThe definition of the term "workman even prior to its amendment in 1956 would have included a person like Mr. Guha whose services were terminated. This position is now made perfectly clear by the present definition of "workmen" which includes a person who had been dismissed, discharged or retrenched. Besides, the definition of the term "industrial dispute" is wide enough to justify the Union of which Mr. Guha as well as the propriety of the appellants conduct in not giving him an opportunity to bewhen an occasion for the employment when an occasion for the employment of an additional clerk arose. That is the view taken by the Labour Appellate Tribunal and we are not satisfied that the said conclusion is erroneous in law so as to justify our interference.4.Then Mr. Sen argues that though under S.of the Industrial Disputes Act the principle has now been statutorily recognised that a retrenched workman must be given an opportunity ofwhen the employer has to employ an additional hand, at the relevant time this provision was not in the statute book and it was erroneous in law to have virtually given effect to the said statutory provision retrospectively.In our opinion, this argument is misconceived. Even beforewas added to the Act industrial adjudication generally recognised the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus, it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fairplay and justice, vide Shri Vishuddananda Saraswathi Hospital v. Their Employees,Lab LJ 111:Bengal); Kilburn and Co. and MacNeill and Co. v. Their Employees,Lab LJ 125Bengal) and Sri Annapurna Mil1s v. Certain Workmen, (1953) 1 Lab LJ 43 (L..A.T.I. All).It is true that in the case of Annapurna Mills the discharge of the workmen was the result of the fact that the employer had closed his business and it was held that with improvement in circumstances if the employerhis business it was necessary that he should take back in his employment his old employees. It would be noticed that the principle which was applied to the case of an employer whohis business which had been closed by him is substantially the same principle which requires the employer to give an opportunity to his retrenched workman when he has occasion to engage another servant. That is why the Labour appellate Tribunal has observed that the principle now statutorily recognised by Sectionwas, before the Act was amended, recognised by industrial adjudicators in dealing with such question. Therefore, we do not think that Mr. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law.5.It is then urged that the principle of industrial adjudication on which the respondents rely cannot require the appellant to offer to Mr. Guha a job unless the said job belongs to the same category to which Mr. Guha belonged.On principle, Mr. Sen may be right in assuming that the offer would be conditioned by the consideration of the category to which the retrenched employee belonged. But in the present case on the finding of the Tribunal below, there is no room for contending that Mr. Guha has been asked to be taken in a category other than the one to which he originally belonged. It is true that under his earlier assignment Mr. Guha was described as an Assistant Store Keeper, but it has been found by the Tribunals below that he was doing a substantial amount of clerical work and subsequent appointments made by the employer were made in the clerical cadre. Therefore, all that the Tribunals have required the appellant to do is toMr. Guha in the clerical cadre. We do not think that his order can be challenged on the ground that it is not justified by the principle of industrial adjudication in regard to retrenched workmen.6.Mr. Sen then attempted to contend that the Tribunals might have held that the appointment of the three clerks subsequently introduced by the appellant in his establishment may be wrong, but he contends that it was not right that the Tribunals should have made an order directing the appellant to. Guha. He points out that the record shows that there are some other persons whom the appellant had discharged and considerations may arise as to which of the discharged persons should be given the first opportunity ofWe do not think it is open to Mr. Sen to raise this contention for the first time before this Court. This contention is based on certain facts none of which was pointedly brought to the notice of the Tribunal below, and Mr. Sen has fairly conceded that this aspect of the matter was not argued before them either.

### 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: award by preferring an appeal before the Labour Appellate Tribunal. This appeal, however, failed, because the Appellate Tribunal agreed with the findings recorded by the original Tribunal. It is this decision of the Labour Appellant Tribunal which has given rise to the present appeal by special leave.3. Mr. Sen for the appellant has urged before us three points. He contends that there was and could be no industrial dispute between the appellant and the respondents in regard to the retrenchment of Mr. Guha, because Mr. Guha had been retrenched as long ago as May 1951, and had ceased to be the workman of the appellant. In our opinion, there is no substance in this contention. Even after Mr. Guha was retrenched, it would have been open to the Union of which Mr. Guha was a member to raise a dispute about his non-employment. The definition of the term "workman even prior to its amendment in 1956 would have included a person like Mr. Guha whose services were terminated. This position is now made perfectly clear by the present definition of "workmen" which includes a person who had been dismissed, discharged or retrenched. Besides, the definition of the term "industrial dispute" is wide enough to justify the Union of which Mr. Guha as well as the propriety of the appellants conduct in not giving him an opportunity to be re-employed when an occasion for the employment when an occasion for the employment of an additional clerk arose. That is the view taken by the Labour Appellate Tribunal and we are not satisfied that the said conclusion is erroneous in law so as to justify our interference.4. Then Mr. Sen argues that though under S. 25-H of the Industrial Disputes Act the principle has now been statutorily recognised that a retrenched workman must be given an opportunity of re-employment when the employer has to employ an additional hand, at the relevant time this provision was not in the statute book and it was erroneous in law to have virtually given effect to the said statutory provision retrospectively. In our opinion, this argument is misconceived. Even before 25-H was added to the Act industrial adjudication generally recognised the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus, it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fairplay and justice, vide Shri Vishuddananda Saraswathi Hospital v. Their Employees, 1949-1 Lab LJ 111: (IT-West Bengal); Kilburn and Co. and MacNeill and Co. v. Their Employees, 1950-2 Lab LJ 125 (IT-West Bengal) and Sri Annapurna Mil1s v. Certain Workmen, (1953) 1 Lab LJ 43 (L..A.T.I. All).It is true that in the case of Annapurna Mills the discharge of the workmen was the result of the fact that the employer had closed his business and it was held that with improvement in circumstances if the employer re-opened his business it was necessary that he should take back in his employment his old employees. It would be noticed that the principle which was applied to the case of an employer who re-opened his business which had been closed by him is substantially the same principle which requires the employer to give an opportunity to his retrenched workman when he has occasion to engage another servant. That is why the Labour appellate Tribunal has observed that the principle now statutorily recognised by Section 25-H was, before the Act was amended, recognised by industrial adjudicators in dealing with such question. Therefore, we do not think that Mr. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law.5. It is then urged that the principle of industrial adjudication on which the respondents rely cannot require the appellant to offer to Mr. Guha a job unless the said job belongs to the same category to which Mr. Guha belonged. On principle, Mr. Sen may be right in assuming that the offer would be conditioned by the consideration of the category to which the retrenched employee belonged. But in the present case on the finding of the Tribunal below, there is no room for contending that Mr. Guha has been asked to be taken in a category other than the one to which he originally belonged. It is true that under his earlier assignment Mr. Guha was described as an Assistant Store Keeper, but it has been found by the Tribunals below that he was doing a substantial amount of clerical work and subsequent appointments made by the employer were made in the clerical cadre. Therefore, all that the Tribunals have required the appellant to do is to re-employ Mr. Guha in the clerical cadre. We do not think that his order can be challenged on the ground that it is not justified by the principle of industrial adjudication in regard to retrenched workmen.6. Mr. Sen then attempted to contend that the Tribunals might have held that the appointment of the three clerks subsequently introduced by the appellant in his establishment may be wrong, but he contends that it was not right that the Tribunals should have made an order directing the appellant to re-employ Mr. Guha. He points out that the record shows that there are some other persons whom the appellant had discharged and considerations may arise as to which of the discharged persons should be given the first opportunity of re-employment. We do not think it is open to Mr. Sen to raise this contention for the first time before this Court. This contention is based on certain facts none of which was pointedly brought to the notice of the Tribunal below, and Mr. Sen has fairly conceded that this aspect of the matter was not argued before them either. ### Response: 0 ### Explanation: 3. Mr. Sen for the appellant has urged before us three points. He contends that there was and could be no industrial dispute between the appellant and the respondents in regard to the retrenchment of Mr. Guha, because Mr. Guha had been retrenched as long ago as May 1951, and had ceased to be the workman of the appellant.In our opinion, there is no substance in this contention. Even after Mr. Guha was retrenched, it would have been open to the Union of which Mr. Guha was a member to raise a dispute about hisThe definition of the term "workman even prior to its amendment in 1956 would have included a person like Mr. Guha whose services were terminated. This position is now made perfectly clear by the present definition of "workmen" which includes a person who had been dismissed, discharged or retrenched. Besides, the definition of the term "industrial dispute" is wide enough to justify the Union of which Mr. Guha as well as the propriety of the appellants conduct in not giving him an opportunity to bewhen an occasion for the employment when an occasion for the employment of an additional clerk arose. That is the view taken by the Labour Appellate Tribunal and we are not satisfied that the said conclusion is erroneous in law so as to justify our interference.4.Then Mr. Sen argues that though under S.of the Industrial Disputes Act the principle has now been statutorily recognised that a retrenched workman must be given an opportunity ofwhen the employer has to employ an additional hand, at the relevant time this provision was not in the statute book and it was erroneous in law to have virtually given effect to the said statutory provision retrospectively.In our opinion, this argument is misconceived. Even beforewas added to the Act industrial adjudication generally recognised the principle that if an employer retrenched the services of an employee on the ground that the employee in question had become surplus, it was necessary that whenever the employer had occasion to employ another hand the retrenched workman should be given an opportunity to join service. This principle was regarded as of general application in industrial adjudication on the ground that it was based on considerations of fairplay and justice, vide Shri Vishuddananda Saraswathi Hospital v. Their Employees,Lab LJ 111:Bengal); Kilburn and Co. and MacNeill and Co. v. Their Employees,Lab LJ 125Bengal) and Sri Annapurna Mil1s v. Certain Workmen, (1953) 1 Lab LJ 43 (L..A.T.I. All).It is true that in the case of Annapurna Mills the discharge of the workmen was the result of the fact that the employer had closed his business and it was held that with improvement in circumstances if the employerhis business it was necessary that he should take back in his employment his old employees. It would be noticed that the principle which was applied to the case of an employer whohis business which had been closed by him is substantially the same principle which requires the employer to give an opportunity to his retrenched workman when he has occasion to engage another servant. That is why the Labour appellate Tribunal has observed that the principle now statutorily recognised by Sectionwas, before the Act was amended, recognised by industrial adjudicators in dealing with such question. Therefore, we do not think that Mr. Sen is justified in contending that the order passed in the present proceedings against the appellant is contrary to industrial law.5.It is then urged that the principle of industrial adjudication on which the respondents rely cannot require the appellant to offer to Mr. Guha a job unless the said job belongs to the same category to which Mr. Guha belonged.On principle, Mr. Sen may be right in assuming that the offer would be conditioned by the consideration of the category to which the retrenched employee belonged. But in the present case on the finding of the Tribunal below, there is no room for contending that Mr. Guha has been asked to be taken in a category other than the one to which he originally belonged. It is true that under his earlier assignment Mr. Guha was described as an Assistant Store Keeper, but it has been found by the Tribunals below that he was doing a substantial amount of clerical work and subsequent appointments made by the employer were made in the clerical cadre. Therefore, all that the Tribunals have required the appellant to do is toMr. Guha in the clerical cadre. We do not think that his order can be challenged on the ground that it is not justified by the principle of industrial adjudication in regard to retrenched workmen.6.Mr. Sen then attempted to contend that the Tribunals might have held that the appointment of the three clerks subsequently introduced by the appellant in his establishment may be wrong, but he contends that it was not right that the Tribunals should have made an order directing the appellant to. Guha. He points out that the record shows that there are some other persons whom the appellant had discharged and considerations may arise as to which of the discharged persons should be given the first opportunity ofWe do not think it is open to Mr. Sen to raise this contention for the first time before this Court. This contention is based on certain facts none of which was pointedly brought to the notice of the Tribunal below, and Mr. Sen has fairly conceded that this aspect of the matter was not argued before them either.

U.P. State Electricity Board Vs. Banaras Electric Light and Power Co. Ltd

D.P. Mohapatra, J.The controversy raised in these appeals relates to the validity of appointment of arbitrator by the Banaras Electric Light and Power Company Ltd. (for short `the company), respondent herein. The High Court of Calcutta having upheld the appointment made by the company and extended the time of submission of award, repelling the objections raised by the U.P. State Electricity Board (for short `the Board), the Board filed these appeals assailing the judgment of the High Court. 2. The short resume of the facts of the case relevant for the purpose of determination of the controversy may be stated thus : The appellant Board, in exercise of its power under Section 6(1) of the Indian Electricity Act, 1910 (for short `1910 Act) purchased the undertaking of the respondent company. Certain disputes having arisen regarding the mode of assessment of the purchase money to be paid by the Board to the company, the company appointed an arbitrator purportedly under Section 52 of the 1910 Act. The objection raised by the Board against such appointment was based on the amendments introduced in the 1910 Act by the Indian Electricity (U.P. Amendment and Validation) Act, 1976 (for short `the Amendment and Validation Act). It was the contention of the Board that in view of the specific provisions made in Section 7-A(6) of the 1910 Act the Special Officer appointed by the Govt. of Uttar Pradesh alone has the jurisdiction to assess the net amount payable to the Company as purchase money. The Special Officer was to make the assessment in accordance with the provisions in Section 7-AA of the Amendment and Validation Act. It was the further contention of the Board that in view of such specific statutory provisions in the Amendment and Validation Act, it was not open to the company to appoint the arbitrator under Section 52 of the 1910 Act. It may be relevant to state here that the core controversy between the parties was whether the purchase price payable to the company was to be assessed on the basis of market value of the undertaking on the date of take-over as contended by the company or the assessment was to be made on the basis of book-value of the undertaking as it was contended by Board. 3. A Division Bench of the Calcutta High Court in the case of U.P. State Electricity Board v. Upper Jamuna Valley Electricity Company Ltd. and Ors., AIR 1988 Calcutta 336, had declared the Amendment and Validating Acts as unconstitutional being discriminatory and violative of Articles 19(1)(f), 31 and 14. The High Court had held that the price had to be paid as per market value prevailing on the date of taking over the undertaking. 4. When the writ petitions giving rise to the present appeals came up before the Court, learned Single Judge following the aforementioned decision of the Division Bench held, inter alia that since it was held by the Division Bench that the provisions of the Amendment and Validation Act were unconstitutional; the contention raised on behalf of the Board that the Special Officer appointed by the State Government has the exclusive jurisdiction to determine the purchase money could not be accepted. Consequentially, the learned single Judge held that Section 52 of the 1910 Act was applicable in the case and no exception could be taken to the appointment of arbitrator by the company. Accordingly, the learned single Judge disposed of the writ petitions giving option to the Board to exercise its right to appoint its arbitrator failing which the arbitrator appointed by the company will proceed with the reference as the sole arbitrator and publish his award. The judgment of the learned single Judge is under challenge in these appeals. 5. The question regarding validity of the provisions of the Amendment and Validation Act has been set at rest by a bench of three learned Judges of this Court in the case of State of Uttar Pradesh v. Agra Electric Supply Co. Ltd. and Ors., 2000(3) RCR(Civil) 322 (SC) : (2000) 6 SCC 481 , and State of Uttar Pradesh v. Banaras Electric Light and Power Co. Ltd. and Ors., (2000) 6 SCC 488 , in which this Court, placing reliance on the judgment of the Constitution Bench in Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 , upheld the validity of the Act/Ordinance and the judgment of the Calcutta High Court was set aside. Similar view was taken by this Court in Maharashtra SEB v. Thana Electric Supply Co., (1989) 3 SCC 616 and Vellore Electric Corporation Ltd. v. State of Tamil Nadu, (1989) 4 SCC 138. 6. In view of the decisions rendered by this Court in the afore-mentioned cases, the judgment of the Division Bench of the Calcutta High Court in the case of U.P. State Electricity Board v. Upper Jamuna Valley Electricity Company Ltd. and Ors. (supra) has to be held to be no longer good law and consequentially the judgment under challenge in which the learned single Judge followed the said decision cannot be sustained. The resultant position is that the Special Officer appointed by the State Government is the only competent authority to assess the amount of purchase money to be paid by the Board to the Company and such assessment is to be made on the book-value of the undertaking. The Arbitrator appointed by the Company has no authority to undertake such exercise. The Award, if any, passed by such Arbitrator is non-est. It was stated by learned counsel for both the parties in course of hearing of the case before us that in the meantime the Special Officer appointed by the State Government has already made the assessment of the purchase money to be paid by the Board to the company and has passed his order; therefore, the controversy raised in these appeals has lost its relevance.

1[ds]6. In view of the decisions rendered by this Court in thecases, the judgment of the Division Bench of the Calcutta High Court in the case of U.P. State Electricity Board v. Upper Jamuna Valley Electricity Company Ltd. and Ors. (supra) has to be held to be no longer good law and consequentially the judgment under challenge in which the learned single Judge followed the said decision cannot be sustained. The resultant position is that the Special Officer appointed by the State Government is the only competent authority to assess the amount of purchase money to be paid by the Board to the Company and such assessment is to be made on theof the undertaking. The Arbitrator appointed by the Company has no authority to undertake such exercise. The Award, if any, passed by such Arbitrator isIt was stated by learned counsel for both the parties in course of hearing of the case before us that in the meantime the Special Officer appointed by the State Government has already made the assessment of the purchase money to be paid by the Board to the company and has passed his order; therefore, the controversy raised in these appeals has lost its relevance.

### 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: D.P. Mohapatra, J.The controversy raised in these appeals relates to the validity of appointment of arbitrator by the Banaras Electric Light and Power Company Ltd. (for short `the company), respondent herein. The High Court of Calcutta having upheld the appointment made by the company and extended the time of submission of award, repelling the objections raised by the U.P. State Electricity Board (for short `the Board), the Board filed these appeals assailing the judgment of the High Court. 2. The short resume of the facts of the case relevant for the purpose of determination of the controversy may be stated thus : The appellant Board, in exercise of its power under Section 6(1) of the Indian Electricity Act, 1910 (for short `1910 Act) purchased the undertaking of the respondent company. Certain disputes having arisen regarding the mode of assessment of the purchase money to be paid by the Board to the company, the company appointed an arbitrator purportedly under Section 52 of the 1910 Act. The objection raised by the Board against such appointment was based on the amendments introduced in the 1910 Act by the Indian Electricity (U.P. Amendment and Validation) Act, 1976 (for short `the Amendment and Validation Act). It was the contention of the Board that in view of the specific provisions made in Section 7-A(6) of the 1910 Act the Special Officer appointed by the Govt. of Uttar Pradesh alone has the jurisdiction to assess the net amount payable to the Company as purchase money. The Special Officer was to make the assessment in accordance with the provisions in Section 7-AA of the Amendment and Validation Act. It was the further contention of the Board that in view of such specific statutory provisions in the Amendment and Validation Act, it was not open to the company to appoint the arbitrator under Section 52 of the 1910 Act. It may be relevant to state here that the core controversy between the parties was whether the purchase price payable to the company was to be assessed on the basis of market value of the undertaking on the date of take-over as contended by the company or the assessment was to be made on the basis of book-value of the undertaking as it was contended by Board. 3. A Division Bench of the Calcutta High Court in the case of U.P. State Electricity Board v. Upper Jamuna Valley Electricity Company Ltd. and Ors., AIR 1988 Calcutta 336, had declared the Amendment and Validating Acts as unconstitutional being discriminatory and violative of Articles 19(1)(f), 31 and 14. The High Court had held that the price had to be paid as per market value prevailing on the date of taking over the undertaking. 4. When the writ petitions giving rise to the present appeals came up before the Court, learned Single Judge following the aforementioned decision of the Division Bench held, inter alia that since it was held by the Division Bench that the provisions of the Amendment and Validation Act were unconstitutional; the contention raised on behalf of the Board that the Special Officer appointed by the State Government has the exclusive jurisdiction to determine the purchase money could not be accepted. Consequentially, the learned single Judge held that Section 52 of the 1910 Act was applicable in the case and no exception could be taken to the appointment of arbitrator by the company. Accordingly, the learned single Judge disposed of the writ petitions giving option to the Board to exercise its right to appoint its arbitrator failing which the arbitrator appointed by the company will proceed with the reference as the sole arbitrator and publish his award. The judgment of the learned single Judge is under challenge in these appeals. 5. The question regarding validity of the provisions of the Amendment and Validation Act has been set at rest by a bench of three learned Judges of this Court in the case of State of Uttar Pradesh v. Agra Electric Supply Co. Ltd. and Ors., 2000(3) RCR(Civil) 322 (SC) : (2000) 6 SCC 481 , and State of Uttar Pradesh v. Banaras Electric Light and Power Co. Ltd. and Ors., (2000) 6 SCC 488 , in which this Court, placing reliance on the judgment of the Constitution Bench in Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 , upheld the validity of the Act/Ordinance and the judgment of the Calcutta High Court was set aside. Similar view was taken by this Court in Maharashtra SEB v. Thana Electric Supply Co., (1989) 3 SCC 616 and Vellore Electric Corporation Ltd. v. State of Tamil Nadu, (1989) 4 SCC 138. 6. In view of the decisions rendered by this Court in the afore-mentioned cases, the judgment of the Division Bench of the Calcutta High Court in the case of U.P. State Electricity Board v. Upper Jamuna Valley Electricity Company Ltd. and Ors. (supra) has to be held to be no longer good law and consequentially the judgment under challenge in which the learned single Judge followed the said decision cannot be sustained. The resultant position is that the Special Officer appointed by the State Government is the only competent authority to assess the amount of purchase money to be paid by the Board to the Company and such assessment is to be made on the book-value of the undertaking. The Arbitrator appointed by the Company has no authority to undertake such exercise. The Award, if any, passed by such Arbitrator is non-est. It was stated by learned counsel for both the parties in course of hearing of the case before us that in the meantime the Special Officer appointed by the State Government has already made the assessment of the purchase money to be paid by the Board to the company and has passed his order; therefore, the controversy raised in these appeals has lost its relevance. ### Response: 1 ### Explanation: 6. In view of the decisions rendered by this Court in thecases, the judgment of the Division Bench of the Calcutta High Court in the case of U.P. State Electricity Board v. Upper Jamuna Valley Electricity Company Ltd. and Ors. (supra) has to be held to be no longer good law and consequentially the judgment under challenge in which the learned single Judge followed the said decision cannot be sustained. The resultant position is that the Special Officer appointed by the State Government is the only competent authority to assess the amount of purchase money to be paid by the Board to the Company and such assessment is to be made on theof the undertaking. The Arbitrator appointed by the Company has no authority to undertake such exercise. The Award, if any, passed by such Arbitrator isIt was stated by learned counsel for both the parties in course of hearing of the case before us that in the meantime the Special Officer appointed by the State Government has already made the assessment of the purchase money to be paid by the Board to the company and has passed his order; therefore, the controversy raised in these appeals has lost its relevance.

PRATAP MEHTA Vs. SUNIL GUPTA

must stand dismissed with costs.? 31. The above decision in no manner support the case of the appellant rather it reiterates that the High Court under Articles 226 and 227 can interfere with an arbitrary order passed by an authority. The next judgment relied by the appellant is Constitution Bench judgment of this Court in Syed Yakoob (supra). This Court had elaborately considered the scope of Article 226 of the Constitution in the aforesaid case. This Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. It was further held that jurisdiction of High Court under Article 226 to issue a writ of certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court. 32. The findings of the fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. There cannot be any dispute to the above propositions laid down by the Constitution Bench of this Court. However, in the same judgment, in paragraph 8, following was laid down by this Court:- ?8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record……………………..? 33. Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition. 34. Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case. 35. Another judgment relied by the appellant is P. Kasilingam Vs. P.S.G. College of Technology, AIR 1981 SC 789 . In the said case, this Court was dealing with a question regarding effectiveness of resignation and consequence of withdrawal of resignation before the effective date. The said case has no application in the present case. Last case relied by the appellant is V.S. Krishnan and others Vs. Westfort Hi-tech Hospital Ltd. and Others, (2008) 3 SCC 363. In the above case, the Court held that when there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. In paragraph 29, following has been held:- ?29. Section 172 as well as Section 53 emphasised ?giving notice?. We have already adverted to how notice should be given for AGM as per Section 172(2) and Sections 53(1) and (2) of the Act. In view of the fact that the Company has placed materials to substantiate that notices, in terms of the above provisions, were given, as rightly pointed out by learned Senior Counsel for the contesting respondents, statutory presumption under Section 53 will apply though the said act is rebuttable. In view of the fact that there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. The High Court, on verification of those materials, has concluded that ?postal receipt with post office seal was produced to show that notice was sent to all shareholders by certificate of posting in the correct address as per the report?.?

0[ds]18. A conjoint reading of the aforesaid Rules indicate that for holding election of a member of Bar Council of India to be elected by State Bar Council, notice and agenda has to be issued by the Secretary of the State Bar Council, which is a statutory requirement. There is no issue between the parties regarding the fact that agenda dated 09.06.2014 was issued for the meeting of the members of the State Bar Council on 29.06.2014 including the agenda for electing a member from the State Bar Council to the Bar Council of India as noticed above. Minutes of the meeting dated 29.06.2014 has been brought on the record in Civil Appeal Nos. 8174-8177 of 2018 as Annexure A4. A perusal of the proceeding indicates that all 25 elected members and learned Advocate General, who is Ex-officio member was present and meeting started at 11.00 am and by 12.00 noon, the election of the Chairman was completed. The Minutes record that for greeting the newly elected Chairman and to see-off learned Advocate General, the proceeding of the meeting were stayed/adjourned and thereafter again the meeting started in presence of members for election of rest of the office bearers and members of the Committees.It is clear from the aforesaid that notices dated 16.07.2014 and 19.07.2014 were issued not for convening any adjourned meeting rather special meeting was convened to consider two set of letters given by members of the Council requesting for convening a meeting for holding elections of office bearers and the members of different Committees including representative to Bar Council of India and for considering no confidence motion against the Chairman of the State Bar Council. In the notice dated 16.07.2014 as well as notice dated 19.07.2014, the subject of special meeting was thus for disposal of letters received by the members of the Council. It is to be noted that the minutes of the proceeding dated 29.06.2014 has recorded and signed by Chairman containing the election of not only the Chairman rather election of other office bearers and different representatives, which is clear from the proceedings brought on the record by Bar Council of India itself as Annexure A4. It is a well established principle that minutes of the proceeding signed by the Chairman are prima facie evidence of proceeding and decisions recorded therein are deemed to be valid until contrary is proved.Thus, the letters issued by the members on 29.06.2014 and 13.07.2014 raised a dispute containing allegations disputing minutes of the proceeding of the meeting dated 29.06.2014. Thus, it was a disputed matter as to what actually happened on 29.06.2014, i.e. as to whether the election of other office bearers and representatives were validly completed on 29.06.2014 or after the election of the Chairman, the meeting was adjourned. This dispute was to be resolved in the special meeting dated 02.08.2014, which was clearly indicated by notice dated 16.07.2014 and 19.07.2014 as indicated above. The issue of agenda alongwith the notice is requirement of a valid meeting and it is only in context of adjourned meeting that no fresh agenda need to be issued. The notices dated 16.07.2014 and 19.07.2014 having not contained any agenda and the meeting also not being described as adjourned meeting, issuance of agenda for the meeting was necessary. Issuance of an agenda, if any election was to be conducted on 02.08.2014 was necessary.We, thus, do not find any infirmity in the view of the High Court - both of learned Single Judge as well as the Division Bench that no election could have been conducted on 02.08.2014 for electing member to the Bar Council of India from the State Bar Council. Further, the election of the member to the Bar Council of India is statutorily regulated by Bar Council of India Rules and Rule 7 require notice by the Secretary of the State Council fixing a date for the election of the member to the Council. The notices dated 16.07.2014 and 19.07.2014 cannot be read as notice as required under Rule 7 for holding election of a member to the Bar Council of India from the State Bar Council, hence, the conduct of election of a member as a representative from State Bar Council to Bar Council of India in the meeting dated 02.08.2014 cannot be said to be in conformity with Rule 7 of Bar Council of India Rules. The High Court was, thus, clearly right in its view that election of Shri Pratap Mehta on 02.08.2014 as member of the Bar Council of India was not a valid election. The learned Single Judge having already taken a view that election dated 29.06.2014 electing Shri Sunil Gupta as the representative to the Bar Council of India was not a valid election, which issue was not, however, agitated either by the State Council or by Shri Sunil Gupta, there is no need to ponder over the above election. Both the elections dated 29.06.2014 and 02.08.2014 to elect a member in the Bar Council of India having been held to be invalid, the High Court was right in issuing directions for conducting a fresh election to elect a member in the Bar Council of India, which was necessary and just.Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition.Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case.

### 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: must stand dismissed with costs.? 31. The above decision in no manner support the case of the appellant rather it reiterates that the High Court under Articles 226 and 227 can interfere with an arbitrary order passed by an authority. The next judgment relied by the appellant is Constitution Bench judgment of this Court in Syed Yakoob (supra). This Court had elaborately considered the scope of Article 226 of the Constitution in the aforesaid case. This Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. It was further held that jurisdiction of High Court under Article 226 to issue a writ of certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court. 32. The findings of the fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. There cannot be any dispute to the above propositions laid down by the Constitution Bench of this Court. However, in the same judgment, in paragraph 8, following was laid down by this Court:- ?8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record……………………..? 33. Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition. 34. Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case. 35. Another judgment relied by the appellant is P. Kasilingam Vs. P.S.G. College of Technology, AIR 1981 SC 789 . In the said case, this Court was dealing with a question regarding effectiveness of resignation and consequence of withdrawal of resignation before the effective date. The said case has no application in the present case. Last case relied by the appellant is V.S. Krishnan and others Vs. Westfort Hi-tech Hospital Ltd. and Others, (2008) 3 SCC 363. In the above case, the Court held that when there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. In paragraph 29, following has been held:- ?29. Section 172 as well as Section 53 emphasised ?giving notice?. We have already adverted to how notice should be given for AGM as per Section 172(2) and Sections 53(1) and (2) of the Act. In view of the fact that the Company has placed materials to substantiate that notices, in terms of the above provisions, were given, as rightly pointed out by learned Senior Counsel for the contesting respondents, statutory presumption under Section 53 will apply though the said act is rebuttable. In view of the fact that there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. The High Court, on verification of those materials, has concluded that ?postal receipt with post office seal was produced to show that notice was sent to all shareholders by certificate of posting in the correct address as per the report?.? ### Response: 0 ### Explanation: at 11.00 am and by 12.00 noon, the election of the Chairman was completed. The Minutes record that for greeting the newly elected Chairman and to see-off learned Advocate General, the proceeding of the meeting were stayed/adjourned and thereafter again the meeting started in presence of members for election of rest of the office bearers and members of the Committees.It is clear from the aforesaid that notices dated 16.07.2014 and 19.07.2014 were issued not for convening any adjourned meeting rather special meeting was convened to consider two set of letters given by members of the Council requesting for convening a meeting for holding elections of office bearers and the members of different Committees including representative to Bar Council of India and for considering no confidence motion against the Chairman of the State Bar Council. In the notice dated 16.07.2014 as well as notice dated 19.07.2014, the subject of special meeting was thus for disposal of letters received by the members of the Council. It is to be noted that the minutes of the proceeding dated 29.06.2014 has recorded and signed by Chairman containing the election of not only the Chairman rather election of other office bearers and different representatives, which is clear from the proceedings brought on the record by Bar Council of India itself as Annexure A4. It is a well established principle that minutes of the proceeding signed by the Chairman are prima facie evidence of proceeding and decisions recorded therein are deemed to be valid until contrary is proved.Thus, the letters issued by the members on 29.06.2014 and 13.07.2014 raised a dispute containing allegations disputing minutes of the proceeding of the meeting dated 29.06.2014. Thus, it was a disputed matter as to what actually happened on 29.06.2014, i.e. as to whether the election of other office bearers and representatives were validly completed on 29.06.2014 or after the election of the Chairman, the meeting was adjourned. This dispute was to be resolved in the special meeting dated 02.08.2014, which was clearly indicated by notice dated 16.07.2014 and 19.07.2014 as indicated above. The issue of agenda alongwith the notice is requirement of a valid meeting and it is only in context of adjourned meeting that no fresh agenda need to be issued. The notices dated 16.07.2014 and 19.07.2014 having not contained any agenda and the meeting also not being described as adjourned meeting, issuance of agenda for the meeting was necessary. Issuance of an agenda, if any election was to be conducted on 02.08.2014 was necessary.We, thus, do not find any infirmity in the view of the High Court - both of learned Single Judge as well as the Division Bench that no election could have been conducted on 02.08.2014 for electing member to the Bar Council of India from the State Bar Council. Further, the election of the member to the Bar Council of India is statutorily regulated by Bar Council of India Rules and Rule 7 require notice by the Secretary of the State Council fixing a date for the election of the member to the Council. The notices dated 16.07.2014 and 19.07.2014 cannot be read as notice as required under Rule 7 for holding election of a member to the Bar Council of India from the State Bar Council, hence, the conduct of election of a member as a representative from State Bar Council to Bar Council of India in the meeting dated 02.08.2014 cannot be said to be in conformity with Rule 7 of Bar Council of India Rules. The High Court was, thus, clearly right in its view that election of Shri Pratap Mehta on 02.08.2014 as member of the Bar Council of India was not a valid election. The learned Single Judge having already taken a view that election dated 29.06.2014 electing Shri Sunil Gupta as the representative to the Bar Council of India was not a valid election, which issue was not, however, agitated either by the State Council or by Shri Sunil Gupta, there is no need to ponder over the above election. Both the elections dated 29.06.2014 and 02.08.2014 to elect a member in the Bar Council of India having been held to be invalid, the High Court was right in issuing directions for conducting a fresh election to elect a member in the Bar Council of India, which was necessary and just.Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition.Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case.

Uttamchand Vs. S.M. Lalwani

by a roof irrespective of the purpose for which it is used and let, is a building within the meaning of the Act".The learned Judge has also remarked that so to construe the Act would bring within its operation all factories and mills which are invariably located in buildings. The question in each case would be what is the dominant part of the demise and what is the purpose for which the building was constructed and let out. In that case, the learned Judge was dealing with the question as to whether the lease before the Court was a building lease within the meaning of the Madras Act 25 of 1949. Mr. Iyengar contends that in construing the lease before us, we must apply the test of the dominant intention of the parties. In our opinion, this contention is well-founded, and so, we must determine the character of the lease by asking ourselves as to what was the dominant intention of the parties in executing the document.11. As we have already noticed, S. 3 (a) (y) (3) takes within the definition of accommodation any building or part of a building, including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. There can be no doubt that the fittings of the machinery in the present case cannot be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to which S. 3(a) (y) (3) refers are obviously fittings made in the building to afford incidental amenities for the person occupying the building. That being so, it is clear that the fittings in question do not fall under S. 3(a) (y) (3). If the fittings in question had attracted the provisions of S. 3(a) (y) (3) there would have been no difficulty in holding that the lease is in respect of accommodation as defined by the said provision.12. What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not alter the character of the transaction. This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a Mill, of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a lease in respect of an accommodation as defined by S. 3 (a) (y) (3).The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies.13. It appears that the Rent Controlling Authority as well as the District Judge were impressed by the plea raised by the appellant before them that if a Mill like the Dal Millwith which we are concerned was intended to be exempted from the operation of the Act, S. 2(1) would have expressly provided for such exemption. We have already noticed that S. 2 (1) (d), for instance, expressly exempts places of entertainment herein prescribed. Similarly, cls. (a), (b) and (c) of S. 2(1) make other exemptions. The argument was that since a Mill which is situated in a building is not expressly exempted by S. 2, it would be unreasonable to hold that the lease in the present case is not a lease in respect of an accommodation as defined by S. 3(a) (y)(3). In our opinion, there is no substance in this contention. The fact that a Mill situated in a building is not expressly exempted by S. 2(1) would hardly make any difference, because no lease can attract the provisions of the Act unless it is shown that it is in respect of accommodation as defined by S. 3(a) and that must inevitably take us to the question as to whether the present lease falls under S. 3 (a) (y) (3). If the answer to this question is in the negative, it makes no difference at all, because if the lease is not in respect of accommodation, it is hardly necessary to enquire whether it has been exempted from the operation of the Act.

0[ds]11. As we have already noticed, S. 3 (a) (y) (3) takes within the definition of accommodation any building or part of a building, including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. There can be no doubt that the fittings of the machinery in the present case cannot be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to which S. 3(a) (y) (3) refers are obviously fittings made in the building to afford incidental amenities for the person occupying the building. That being so, it is clear that the fittings in question do not fall under S. 3(a) (y) (3). If the fittings in question had attracted the provisions of S. 3(a) (y) (3) there would have been no difficulty in holding that the lease is in respect of accommodation as defined by the said provision.12. What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is theof the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not alter the character of the transaction. This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a Mill, of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a lease in respect of an accommodation as defined by S. 3 (a) (y) (3).The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies.13. It appears that the Rent Controlling Authority as well as the District Judge were impressed by the plea raised by the appellant before them that if a Mill like the Dal Millwith which we are concerned was intended to be exempted from the operation of the Act, S. 2(1) would have expressly provided for such exemption. We have already noticed that S. 2 (1) (d), for instance, expressly exempts places of entertainment herein prescribed. Similarly, cls. (a), (b) and (c) of S. 2(1) make other exemptions. Theargument was that since a Mill which is situated in a building is not expressly exempted by S. 2, it would be unreasonable to hold that the lease in the present case is not a lease in respect of an accommodation as defined by S. 3(a) (y)(3).In our opinion, there is no substance in this contention. The fact that a Mill situated in a building is not expressly exempted by S. 2(1) would hardly make any difference, because no lease can attract the provisions of the Act unless it is shown that it is in respect of accommodation as defined by S. 3(a) and that must inevitably take us to the question as to whether the present lease falls under S. 3 (a) (y) (3). If the answer to this question is in the negative, it makes no difference at all, because if the lease is not in respect of accommodation, it is hardly necessary to enquire whether it has been exempted from the operation of the Act.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: by a roof irrespective of the purpose for which it is used and let, is a building within the meaning of the Act".The learned Judge has also remarked that so to construe the Act would bring within its operation all factories and mills which are invariably located in buildings. The question in each case would be what is the dominant part of the demise and what is the purpose for which the building was constructed and let out. In that case, the learned Judge was dealing with the question as to whether the lease before the Court was a building lease within the meaning of the Madras Act 25 of 1949. Mr. Iyengar contends that in construing the lease before us, we must apply the test of the dominant intention of the parties. In our opinion, this contention is well-founded, and so, we must determine the character of the lease by asking ourselves as to what was the dominant intention of the parties in executing the document.11. As we have already noticed, S. 3 (a) (y) (3) takes within the definition of accommodation any building or part of a building, including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. There can be no doubt that the fittings of the machinery in the present case cannot be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to which S. 3(a) (y) (3) refers are obviously fittings made in the building to afford incidental amenities for the person occupying the building. That being so, it is clear that the fittings in question do not fall under S. 3(a) (y) (3). If the fittings in question had attracted the provisions of S. 3(a) (y) (3) there would have been no difficulty in holding that the lease is in respect of accommodation as defined by the said provision.12. What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not alter the character of the transaction. This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a Mill, of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a lease in respect of an accommodation as defined by S. 3 (a) (y) (3).The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies.13. It appears that the Rent Controlling Authority as well as the District Judge were impressed by the plea raised by the appellant before them that if a Mill like the Dal Millwith which we are concerned was intended to be exempted from the operation of the Act, S. 2(1) would have expressly provided for such exemption. We have already noticed that S. 2 (1) (d), for instance, expressly exempts places of entertainment herein prescribed. Similarly, cls. (a), (b) and (c) of S. 2(1) make other exemptions. The argument was that since a Mill which is situated in a building is not expressly exempted by S. 2, it would be unreasonable to hold that the lease in the present case is not a lease in respect of an accommodation as defined by S. 3(a) (y)(3). In our opinion, there is no substance in this contention. The fact that a Mill situated in a building is not expressly exempted by S. 2(1) would hardly make any difference, because no lease can attract the provisions of the Act unless it is shown that it is in respect of accommodation as defined by S. 3(a) and that must inevitably take us to the question as to whether the present lease falls under S. 3 (a) (y) (3). If the answer to this question is in the negative, it makes no difference at all, because if the lease is not in respect of accommodation, it is hardly necessary to enquire whether it has been exempted from the operation of the Act. ### Response: 0 ### Explanation: 11. As we have already noticed, S. 3 (a) (y) (3) takes within the definition of accommodation any building or part of a building, including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. There can be no doubt that the fittings of the machinery in the present case cannot be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to which S. 3(a) (y) (3) refers are obviously fittings made in the building to afford incidental amenities for the person occupying the building. That being so, it is clear that the fittings in question do not fall under S. 3(a) (y) (3). If the fittings in question had attracted the provisions of S. 3(a) (y) (3) there would have been no difficulty in holding that the lease is in respect of accommodation as defined by the said provision.12. What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is theof the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not alter the character of the transaction. This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a Mill, of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a lease in respect of an accommodation as defined by S. 3 (a) (y) (3).The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies.13. It appears that the Rent Controlling Authority as well as the District Judge were impressed by the plea raised by the appellant before them that if a Mill like the Dal Millwith which we are concerned was intended to be exempted from the operation of the Act, S. 2(1) would have expressly provided for such exemption. We have already noticed that S. 2 (1) (d), for instance, expressly exempts places of entertainment herein prescribed. Similarly, cls. (a), (b) and (c) of S. 2(1) make other exemptions. Theargument was that since a Mill which is situated in a building is not expressly exempted by S. 2, it would be unreasonable to hold that the lease in the present case is not a lease in respect of an accommodation as defined by S. 3(a) (y)(3).In our opinion, there is no substance in this contention. The fact that a Mill situated in a building is not expressly exempted by S. 2(1) would hardly make any difference, because no lease can attract the provisions of the Act unless it is shown that it is in respect of accommodation as defined by S. 3(a) and that must inevitably take us to the question as to whether the present lease falls under S. 3 (a) (y) (3). If the answer to this question is in the negative, it makes no difference at all, because if the lease is not in respect of accommodation, it is hardly necessary to enquire whether it has been exempted from the operation of the Act.

Commissioner of Agricultural Income Tax, U.P Vs. M. L. Bagla (And Others Cases)

of the two lessees as income of an association of individuals. That order of the Commissioner was confirmed by the Board of Agricultural Income-tax, U.P. The following question was then referred by the Board to the High Court " Whether, on the facts and in the circumstances of the case, the two owners can be assessed as an association of individuals on the income of the entire area under their joint cultivation ? "The same was answered by the High Court of Allahabad in the negative. These appeals are preferred by special leave against the judgments recording the answers.2. Section 3 of the U.P. Agricultural Income-tax Act provides for the levy of tax on the agricultural income on the previous year of every person. By section 2(11), a person is defined as meaning an individual or association of individuals owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another, either as owner, trustee, receiver, manager, administrator or executor or in any capacity recognised by law, and includes an undivided Hindu family, firm or company, but does not include a local authority. In the view of the Board of Agricultural Income-tax, because there was common management and common account of the receipts and expenditure, and the net income was divided, the lands were held by an association of individuals, and the income thereof was liable to be assessed as income of an association of individualsThe High Court examined the argument in three branches. First, whether there was an association of individuals ; secondly, whether the association of individuals held property ; and, thirdly, whether the land was held in any of the capacities mentioned in the definition of the expression " person " in section 2(11) of the U. P. Agricultural Income-tax Act. The High Court held on the first branch, that there was an association of persons, on the second, that there was a holding of land by an association of men, and, on the third, that the land was not held by the association as owner, trustee, receiver, manager, administrator or executor, or in any other capacity recognised by law, as partnership, company or local authority, and, on that ground, answered the question in the negative. 3. We may assume in these appeals that because they appointed a common manager for the four years assessment in question, and the manager maintained a common account of income and expenditure and divided the net profits, there was an association of individuals. But the fact that the two lessees constitute even qua land an " association of individuals " does not make them persons holding property jointly. Tax may be levied against a group of persons under section 3 of the Act as an association of individuals only if the income accrues to an association of individuals owning or holding property. It is common ground that the land was not owned by the association of individuals. The Board of Agricultural Income-tax held that an association of individuals was holding property. The High Court, agreeing with the view, observed that the association of individuals holding property was liable to tax only if it held the lands as an owner, trustee, receiver, manager, administrator or executor or in any other capacity recognized by lawIn reaching the conclusion that the two lessees were holding land as an association of individuals, the High Court observed :" The established facts here are that the two individuals jointly allowed the common manager to cultivate their lands and derive profits from them. They pooled their lands and got them cultivated as if they belonged to only one of them. The manager made no distinction between one piece of land and another piece of land ; he managed them jointly. Only at the time of distribution of the profits he took into consideration the fact that one owned 316.3 acres and the other 326.1 acres. By pooling their lands together they eliminated the distinction between one holding 316.2 acres and the other holding 326.1 acres ; each allowed the other to hold the land belonging to him. "4. In our view, these observations of the High Court are not supported by the findings recorded by the Board of Agricultural Income-tax. The only facts found by the Board are that the lessees had appointed a common manager, that common accounts were maintained, and that the net profits, after deducting from the receipts, expenditure for management of the lands under the two leases, were divided. In our view, the conclusion recorded by the High Court that the lessees as an association of individuals were holding land cannot be justified. It is, in the circumstances, unnecessary to consider the third question on which the High Court recorded a conclusion against the State, viz., whether the land must be held in any of the capacities mentioned in the definition, namely, as owner, trustee, receiver, manager, administrator or executor or any other capacity recognised by law. 5. Dr. Singhvi, appearing on behalf of the Commissioner of Agricultural Income-tax, submitted that in any event it was open to the tax authorities to bring to tax under the Agricultural Income-tax Act, the income in the hands of the manager, because he was holding the property on behalf of the two persons, but no attempt was made to assess and bring to tax the income in the hands of the manager. The tax officer did not assess the manager ; he assessed the two individual lessees, and the only question was whether the individual lessees constituted themselves into an association of individuals, holding propertyOn the view we have taken, the two lessees cannot be regarded, even granting that they constituted themselves as an association of individuals, as an association of individuals holding property for the purpose of the definition given in section 2(11) of the U.P. Agricultural Income-tax Act. On that ground, the answer recorded by the High Court must be confirmed, though on different grounds.6.

0[ds]In our view, these observations of the High Court are not supported by the findings recorded by the Board of AgriculturalThe only facts found by the Board are that the lessees had appointed a common manager, that common accounts were maintained, and that the net profits, after deducting from the receipts, expenditure for management of the lands under the two leases, were divided. In our view, the conclusion recorded by the High Court that the lessees as an association of individuals were holding land cannot be justified. It is, in the circumstances, unnecessary to consider the third question on which the High Court recorded a conclusion against the State, viz., whether the land must be held in any of the capacities mentioned in the definition, namely, as owner, trustee, receiver, manager, administrator or executor or any other capacity recognised bytax officer did not assess the manager ; he assessed the two individual lessees, and the only question was whether the individual lessees constituted themselves into an association of individuals, holding propertyOn the view we have taken, the two lessees cannot be regarded, even granting that they constituted themselves as an association of individuals, as an association of individuals holding property for the purpose of the definition given in section 2(11) of the U.P. AgriculturalAct. On that ground, the answer recorded by the High Court must be confirmed, though on different grounds

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: of the two lessees as income of an association of individuals. That order of the Commissioner was confirmed by the Board of Agricultural Income-tax, U.P. The following question was then referred by the Board to the High Court " Whether, on the facts and in the circumstances of the case, the two owners can be assessed as an association of individuals on the income of the entire area under their joint cultivation ? "The same was answered by the High Court of Allahabad in the negative. These appeals are preferred by special leave against the judgments recording the answers.2. Section 3 of the U.P. Agricultural Income-tax Act provides for the levy of tax on the agricultural income on the previous year of every person. By section 2(11), a person is defined as meaning an individual or association of individuals owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another, either as owner, trustee, receiver, manager, administrator or executor or in any capacity recognised by law, and includes an undivided Hindu family, firm or company, but does not include a local authority. In the view of the Board of Agricultural Income-tax, because there was common management and common account of the receipts and expenditure, and the net income was divided, the lands were held by an association of individuals, and the income thereof was liable to be assessed as income of an association of individualsThe High Court examined the argument in three branches. First, whether there was an association of individuals ; secondly, whether the association of individuals held property ; and, thirdly, whether the land was held in any of the capacities mentioned in the definition of the expression " person " in section 2(11) of the U. P. Agricultural Income-tax Act. The High Court held on the first branch, that there was an association of persons, on the second, that there was a holding of land by an association of men, and, on the third, that the land was not held by the association as owner, trustee, receiver, manager, administrator or executor, or in any other capacity recognised by law, as partnership, company or local authority, and, on that ground, answered the question in the negative. 3. We may assume in these appeals that because they appointed a common manager for the four years assessment in question, and the manager maintained a common account of income and expenditure and divided the net profits, there was an association of individuals. But the fact that the two lessees constitute even qua land an " association of individuals " does not make them persons holding property jointly. Tax may be levied against a group of persons under section 3 of the Act as an association of individuals only if the income accrues to an association of individuals owning or holding property. It is common ground that the land was not owned by the association of individuals. The Board of Agricultural Income-tax held that an association of individuals was holding property. The High Court, agreeing with the view, observed that the association of individuals holding property was liable to tax only if it held the lands as an owner, trustee, receiver, manager, administrator or executor or in any other capacity recognized by lawIn reaching the conclusion that the two lessees were holding land as an association of individuals, the High Court observed :" The established facts here are that the two individuals jointly allowed the common manager to cultivate their lands and derive profits from them. They pooled their lands and got them cultivated as if they belonged to only one of them. The manager made no distinction between one piece of land and another piece of land ; he managed them jointly. Only at the time of distribution of the profits he took into consideration the fact that one owned 316.3 acres and the other 326.1 acres. By pooling their lands together they eliminated the distinction between one holding 316.2 acres and the other holding 326.1 acres ; each allowed the other to hold the land belonging to him. "4. In our view, these observations of the High Court are not supported by the findings recorded by the Board of Agricultural Income-tax. The only facts found by the Board are that the lessees had appointed a common manager, that common accounts were maintained, and that the net profits, after deducting from the receipts, expenditure for management of the lands under the two leases, were divided. In our view, the conclusion recorded by the High Court that the lessees as an association of individuals were holding land cannot be justified. It is, in the circumstances, unnecessary to consider the third question on which the High Court recorded a conclusion against the State, viz., whether the land must be held in any of the capacities mentioned in the definition, namely, as owner, trustee, receiver, manager, administrator or executor or any other capacity recognised by law. 5. Dr. Singhvi, appearing on behalf of the Commissioner of Agricultural Income-tax, submitted that in any event it was open to the tax authorities to bring to tax under the Agricultural Income-tax Act, the income in the hands of the manager, because he was holding the property on behalf of the two persons, but no attempt was made to assess and bring to tax the income in the hands of the manager. The tax officer did not assess the manager ; he assessed the two individual lessees, and the only question was whether the individual lessees constituted themselves into an association of individuals, holding propertyOn the view we have taken, the two lessees cannot be regarded, even granting that they constituted themselves as an association of individuals, as an association of individuals holding property for the purpose of the definition given in section 2(11) of the U.P. Agricultural Income-tax Act. On that ground, the answer recorded by the High Court must be confirmed, though on different grounds.6. ### Response: 0 ### Explanation: In our view, these observations of the High Court are not supported by the findings recorded by the Board of AgriculturalThe only facts found by the Board are that the lessees had appointed a common manager, that common accounts were maintained, and that the net profits, after deducting from the receipts, expenditure for management of the lands under the two leases, were divided. In our view, the conclusion recorded by the High Court that the lessees as an association of individuals were holding land cannot be justified. It is, in the circumstances, unnecessary to consider the third question on which the High Court recorded a conclusion against the State, viz., whether the land must be held in any of the capacities mentioned in the definition, namely, as owner, trustee, receiver, manager, administrator or executor or any other capacity recognised bytax officer did not assess the manager ; he assessed the two individual lessees, and the only question was whether the individual lessees constituted themselves into an association of individuals, holding propertyOn the view we have taken, the two lessees cannot be regarded, even granting that they constituted themselves as an association of individuals, as an association of individuals holding property for the purpose of the definition given in section 2(11) of the U.P. AgriculturalAct. On that ground, the answer recorded by the High Court must be confirmed, though on different grounds

Kolhapur Sugar Mills, Limited Vs. S Syed Taki Bilgrami

the purpose of deciding the point which we are not considering. Sri narayanaswami draw our attention to a decision of a Full Bench of our High Court in the case of bai Kokllabai v. Keshavlal Mangaldas and Co. [43 B. L. R. 985 at 990], but the facts of that case were so clear that we do not think it necessary to discuss what is laid down in that case. Suffice it to say that Sir John Beaumont in his judgment (at p. 990) stated that the question which arose before him under S. 12 (1) of the Workmens Compensation Act, 1923, was a pure question of fact, and he proceeded to decide the same on the basis of the business of the particular principal in that case, as he has stated in clear terms in his judgment. The real question which we must, therefore, consider is what has been the practice followed by the petitioner-company in the matter of harvesting and carting of sugarcane from the fields of private cultivators. Reference may be made in this connection to the statements contained in Para. 5 of the petition itself which make it clear that, at any rate, ever since the surplus lands of the petitioner-company were taken away under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, the petitioner-company had to procure its requirements of sugarcane, for keeping its mills going from private cultivators. What is more important, however, is the admission that appears in the affidavit of the said Hajarnis which was filed in the reference in the industrial court on behalf of the petitioner-company, in Para. 5 of which there is a categorical statement that the procedure adopted by the company in procuring its sugarcane supply from cultivators has been the same "from the very beginning. " It is also an admitted position that the petitioner-company entered into long-term contracts for periods of seven years for that purpose. These admitted facts leave no room for doubt whatsoever that the work in question was work which was ordinarily part of the undertaking of the petitioner-company, and we hold accordingly. In view of these conclusions at which we have arrived, the questions which were formulated by Sri narayanaswami in the form of propositions (1), (2) and (3) stated at the beginning of this judgment must all be decided against the petitioner-company and it must be held that the contractors and their teams of workers, who were engaged in the harvesting and transport of sugarcane to the mills of the petitioner-company from the lands of private cultivators, were employees of the petitioner-company, that the petitioner-company was their employer, and that those operations are included within the industry of manufacture of sugar and its by products, by virtue of the notification dated 4 October, 1952. In that view of the matter, the further contention of Sri Narayanaswami that the Bombay Industrial Relations Act had no application to the matter and that the industrial court had no jurisdiction to deal with the reference before it, must also stand rejected.( 18 ) THE only other question that survives for our consideration is the one that was formulated as proposition (4) by Sri Narayanaswami at the outset of his arguments in the case, which is based on Para. 12 (g) of the petition. Sri Narayanaswami has made it clear in the course of his arguments before us that his contention with regard to the same is that wages are being paid to harvesters and cartmen by the petitioner-company at a composite rate per metric tonne for harvesting and carting as stated in annexure F to the petition and, though that point does not appear clearly in Para. 12 (g) or any other part of the petition, it has been the contention of Sri narayanaswami before us that the industrial court should not have proceeded to split the fixing of wages as between harvesting and carting operations. Sri Narayanaswami has also contended that the industrial court fell into a further error in thereafter proceeding to apply the koyta system to harvesting operations. The argument of Sri Narayanaswami on this point was that, in doing so, the industrial court has deviated from the demands of respondent 2 union, in so far as the statement of claim filed before it only sought to demand daily wage at the rate payable to unskilled employees of the petitioner-company, whereas the award proceeded to fix the daily wage for harvesters engaged in the operations in question according to the koyta system which, the petitioner-company has contended, was never followed by it. A koyta consists of a team of one man and two women assisting him. It is, no doubt, true that the president of the industrial court has, in Para. 12 of his award, proceeded to fix the wages for harvesters engaged in operations on the lands of private cultivators from whom the petitioner-company obtained its supply of sugarcane according to the koyta system. It has not been disputed by Sri Kulkarni on behalf of respondent 2 union that that system is not the system followed by the petitioner-company but what Sri Kulkarni has argued is that that is a mere matter of, what may be called, description or local terminology, and that it makes no difference whatsoever to the substance of the matter. It is common ground that the wage board has fixed a minimum wage of rs. 114 per month for unskilled workers, as stated in the award itself. The president of the industrial court has given a 50 per cent rise in the wages earned by a koyta "whether daily-rated or piece-rated. " There is no material whatsoever placed before us on behalf of the petitioner-company to show that, in fixing wages on that basis separately for harvesters and for cartmen instead of fixing a composite wage for them as in annexure F to the petition, and then proceeding to fix wages for harvesters according to the koyta system, any prejudice has been caused to the petitioner-company.

0[ds]( 13 ) HAVING analysed the three questions that arise for our determination, we will proceed to consider each one of them in the order mentioned above. As far as the first question mentioned by us in the preceding paragraph is concerned, it was sought to be contended by Sri narayanaswami that the connexion which is required for the purpose of Clause (ii) of the said notification dated 4 October, 1952 must be a physical connection with theny, or, in other words, that there should be some physical contiguity or proximity with theny. Sri Narayanaswami further argued that, in order to constitute such connection, the operations in question must be carried on, on premises owned by theand, in fact that was the entire backbone of the argument which Sri Narayanaswami has submitted before us in this case. We have no hesitation in rejecting both these contentions of Sri Narayanaswami as neither physical connection nor unity of ownership is what is required by the said notification dated 4 October, 1952, by which alone, in the ultimate analysis, this question must be decided. In our opinion, what is the nature of the connexion that is required by Clause (ii) of the said notification must depend on a construction of the plain language of the notification itself. It is in the light of its language that we must proceed to consider with what are the agricultural or industrial operations which are mentioned in Clause (ii) of the said notification, required to be connected. In our opinion, the answer to that question, which appears from the very language of the said clause, is, that the connexion that should be established must be with the manufacture of sugar and itswhich is what is referred to as "the said manufacture" in that clause. Obtaining raw materials is a vital and essential part of the business aspect of any industry, and, in the present case, it is obvious that unless thecould obtain sugarcane it could not crush it or manufacture sugar therefrom. It may be mentioned that difficulties have arisen in procuring sugarcane as a result of the bringing into force of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as well as by the emergence of thesector in the industry. Thehas, therefore, in order to ensure the regular supply of sugarcane to keep its mills going, entered into certain arrangements with private cultivators, the sugarcane grown on its own land of only 79 acres being barely sufficient to constitute one and a half days crushing requirements of its own mills. Copy translations of those agreements have been annexed to the affidavit of Bhalchandra Mahadev Hajarnis is dated 19 January, 1966 filed on behalf of thein the proceedings in the reference before the industrial court. It is pertinent to note that the form which the arrangements effected in that behalf by thetook was that in the first instance, it entered into aarrangement for seven years which was to be carried out by means of annual agreements to be executed each year, stating therein the area of cane cultivation on the lands, the date when the plantation was done, the quantum of cane planted and other details in regard to that particular year. Thealso entered into direct agreements with contractors for the harvesting and transport of sugarcane byfrom the lands of private cultivators to its own mills. Aof such an agreement is annexed to the said affidavit of Hajarnis and marked ex. I. In the view which we take of the matter, it is unnecessary for us to refer to the various clauses or provisions of the said agreements in detail, but suffice it to say that the procedure which thefollowed by means of those agreements for the purpose of procuring sugarcane from the lands of private cultivators shows that there was a nexus or connection between the harvesting and transport of sugarcane from the lands of those private cultivators and the manufacture of sugar and its by products by theReference may also be made in this connection to the statements contained in Paras. 7, 8, 9, and 10 of the affidavit of Shivappa Pirappa Chougula dated 23 November, 1965 filed on behalf of respondent 2 union in the course of the proceedings in the industrial court. In Para. 7 of the said affidavit, it has been stated that the contractor has to complete the work of harvesting and transport of cane according to the instructions issued by the cane development department of thethrough its harvesting mukadam, and this statement contained in Para. 7 of the affidavit of Chougula has been admitted in Para. 9 of the affidavit of Bhalchandra Mahadev hajarnis filed in reply to the same in those very proceedings, to which affidavit we have already had occasion to refer earlier in this judgment. In Paras. 8, 9 and 10 of the affidavit of the said chougula, it has further been stated that the complete operation of harvesting and transport of sugarcane is organized by theas also the allocation of vehicles for that purpose. It is further stated that the allocation of harvesting teams in the respective fields is decided by thethat the operation of harvesting is supervised by the harvesting mukadam of thewho have to ensure that the cane is properly dressed before loading,and that thesuperstructure of the supervisory staff which controls the complete operation of harvesting and transport is that of theitself, the contractors only serving the purpose of agencies to collect workers for the work of harvesting and transport, which it would be difficult for the company to get done departmentally. These statements are also not denied in the affidavit filed by Hajarnis in reply to the same, and, in fact, it is expressly admitted as true, in Para. 11 of the affidavit of the said Hajarnis, that the companys supervisory staff supervises the work of harvesting and carting of sugarcane so as to see that the work in the season may not be upset and the continuity of the supply of sugarcane maintained for the smooth working of the factory for all 24 hours. In this connexion Sri Kulkarni has relied upon a decision of a Special Bench of this Court in the case of Koynabai v. Bombay municipal Corporation [40 B. L. R. 12] but we do not think it is necessary to refer to that decision which is of no assistance for the purpose of deciding the question which we are now considering.( 14 ) SRI Kulkarni has made it quite clear that it is unnecessary for him to rely on the last part of that clause which is comprised in the words "or with the growing of sugarcane on the said farms," and we must therefore not take into account that part of Clause (ii) which we have indicated with the letter (d ). Of the possible permutations and combinations that could arise on a analysis of the said clause, we are therefore, left only with two, namely, that the manufacture of sugar and its by products includes all agricultural operations connected with that manufacture, and also includes all industrial operations connected with that manufacture. As a matter of construction, there can be no doubt that the words "on the said farms" which occur at the end of clause (ii) cannot govern either of those operations. So construed, the manufacture of sugar and its by products, which would include them even if those would so include them even if those operations are carried out on lands of others and not on the lands of the manufacturer himself, and that is quite clear from the fact that the notification has been expressly drafted in that manner. As a matter of construction of the plain language of the said notification, we, therefore, hold that harvesting and carting operations carried on for the purpose of procuring sugarcane for themills were "connected with" the manufacture of sugar and its by products therein, and the more fact that they were not carried out on theown lands makes no difference in the matter. (16 ) IT may be mentioned that the word "industry" has been defined in S. 3 (19) of the Act as already stated earlier in this judgment. The expression "the above industry" in the note to the notification dated 4 October, 1952 must, by reference to the context, include the relevant portions of Clause (ii) of that notification to which we have already referred, namely, "all agricultural operations connected with the manufacture of sugar and its by products, and all industrial operations connected with the manufacture of sugar and its by products. Sri Kulkarni sought to rely on both parts of the concluding portion of the said note. He contended that the case of the contractor and his teams of workers was covered not only by the words "engaged in that industry," but also by the words "engaged by an employer engaged in that industry," in so far as thehad sought to enter into direct agreements with the contractors and their teams of workers, aof one of which is to be found annexed as annexure I to the affidavit of the said Hajarnis already referred to earlier. These two parts of the concluding portion of the said note are, however, expressed in the alternative, and, in the view that we take of the matter, namely, that the case of the contractors and their teams of workers falls within the first alternative regarding persons who are engaged in the industry, it is not necessary for us to consider the second alternative. The second alternative would involve consideration of the question as to whether the contracts in the form of annexure I to the affidavit of Hajarnis, which were entered into by thewith the contractors and their teams of workers, were direct contracts as between principal and principal, as Sri Kulkarni has contended, or whether theentered into those contracts merely for the purpose of assisting the cultivators in carrying out their obligations to supply sugarcane as Sri Narayanaswami has contended, and were merely acting as the agents of the cultivators themselves. Turning to the first alternative in the concluding portion of the note, it is significant that the antithesis is between the words "engaged in" without anything more to qualify those words, and the words "engaged by an employer engaged in that industry. " In our opinion, this antithesis shows that the words "engaged in" that industry should be construed to apply, no matter by whom the employee has been engaged. In that view of the matter, the contractors and teams of workers would be a "part of the industry" within the note to the notification, dated 4 October, 1952, and we hold accordingly. Sri Kulkarni has, in support of the contentions of respondent 2 union on this point, cited the decisions in the cases of K. Ramaswami Mudaliar v. Poongavanam [1953I L. L. J. 735 at 737] and Associated Cement Companies, Ltd. v. Their workmen [1960I L. L. J. 1 at 11], but we think it unnecessary to deal with those authorities because they refer to different statutes. We are concerned in the present case with the interpretation of the notification dated 4 October, 1952 which creates, what may be called, a statutory nexus, making the operations in question part of the industry with which we are concerned in the present case. Moreover, as Sri Kulkarni has rightly contended, in Para. 11 of the affidavit of the said Hajarnis filed on behalf of theitself, it has been stated in unambiguous terms that the harvesting and carting of sugarcane from the lands of private cultivators for the purpose of ensuring continuity of the supply of sugarcane to the mills of the"is very essential" during the crushing season for the purpose of the smooth working of the said mills for all 24 hours. This would also show that those operations are part, and indeed a very essential part, of the undertaking of theWe, therefore, hold that the harvesting and transport operations carried on for the purpose of procuring sugarcane from the lands of private cultivators are part of the undertaking of thewithin the terms of S. 3 (14) (e) of the Bombay Industrial relations Act, 1946.( 17 ) IN order to constitute thean employer within the terms of the definition in S. 3 (14) (e) of the Bombay Industrial Relations Act, 1946, it is, however, further necessary to show that the contractors were engaged by thefor work which was "ordinarily" part of the undertaking, the term "undertaking" meaning the petitioner concern. In this connection it is pertinent to note that the said definition does not use the expression "ordinary part of the undertaking," but uses the expression "ordinarily part of the undertaking. " this in our opinion, makes a difference as far as the intendment of that definition is concerned. A deference to the Oxford English Dictionary shows that one of the primary meanings of the word "ordinarily" is, "according to settled method; as a matter of regular practice or occurrence. " The practice or the method or the system followed by thein so far as the work of harvesting and carting sugarcane from the fields of private cultivators is concerned, therefore, becomes material for the purpose of deciding the point which we are not considering. Sri narayanaswami draw our attention to a decision of a Full Bench of our High Court in the case of bai Kokllabai v. Keshavlal Mangaldas and Co. [43 B. L. R. 985 at 990], but the facts of that case were so clear that we do not think it necessary to discuss what is laid down in that case. Suffice it to say that Sir John Beaumont in his judgment (at p. 990) stated that the question which arose before him under S. 12 (1) of the Workmens Compensation Act, 1923, was a pure question of fact, and he proceeded to decide the same on the basis of the business of the particular principal in that case, as he has stated in clear terms in his judgment. The real question which we must, therefore, consider is what has been the practice followed by thein the matter of harvesting and carting of sugarcane from the fields of private cultivators. Reference may be made in this connection to the statements contained in Para. 5 of the petition itself which make it clear that, at any rate, ever since the surplus lands of thewere taken away under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, thehad to procure its requirements of sugarcane, for keeping its mills going from private cultivators. What is more important, however, is the admission that appears in the affidavit of the said Hajarnis which was filed in the reference in the industrial court on behalf of thein Para. 5 of which there is a categorical statement that the procedure adopted by the company in procuring its sugarcane supply from cultivators has been the same "from the very beginning. " It is also an admitted position that theerm contracts for periods of seven years for that purpose. These admitted facts leave no room for doubt whatsoever that the work in question was work which was ordinarily part of the undertaking of theand we hold accordingly. In view of these conclusions at which we have arrived, the questions which were formulated by Sri narayanaswami in the form of propositions (1), (2) and (3) stated at the beginning of this judgment must all be decided against theand it must be held that the contractors and their teams of workers, who were engaged in the harvesting and transport of sugarcane to the mills of thefrom the lands of private cultivators, were employees of theany was their employer, and that those operations are included within the industry of manufacture of sugar and its by products, by virtue of the notification dated 4 October, 1952. In that view of the matter, the further contention of Sri Narayanaswami that the Bombay Industrial Relations Act had no application to the matterand that theindustrial court had no jurisdiction to deal with the reference before it, must also standNarayanaswami has made it clear in the course of his arguments before us that his contention with regard to the same is that wages are being paid to harvesters and cartmen by theat a composite rate per metric tonne for harvesting and carting as stated in annexure F to the petition and, though that point does not appear clearly in Para. 12 (g) or any other part of the petition, it has been the contention of Sri narayanaswami before us that the industrial court should not have proceeded to split the fixing of wages as between harvesting and carting operations. Sri Narayanaswami has also contended that the industrial court fell into a further error in thereafter proceeding to apply the koyta system to harvesting operations. The argument of Sri Narayanaswami on this point was that, in doing so, the industrial court has deviated from the demands of respondent 2 union, in so far as the statement of claim filed before it only sought to demand daily wage at the rate payable to unskilled employees of thewhereas the award proceeded to fix the daily wage for harvesters engaged in the operations in question according to the koyta system which, thehas contended, was never followed by it. A koyta consists of a team of one man and two women assisting him. It is, no doubt, true that the president of the industrial court has, in Para. 12 of his award, proceeded to fix the wages for harvesters engaged in operations on the lands of private cultivators from whom theobtained its supply of sugarcane according to the koyta system. It has not been disputed by Sri Kulkarni on behalf of respondent 2 union that that system is not the system followed by thebut what Sri Kulkarni has argued is that that is a mere matter of, what may be called, description or local terminology, and that it makes no difference whatsoever to the substance of the matter. It is common ground that the wage board has fixed a minimum wage of rs. 114 per month for unskilled workers, as stated in the award itself. The president of the industrial court has given a 50 per cent rise in the wages earned by a koyta "whetherd. " There is no material whatsoever placed before us on behalf of theto show that, in fixing wages on that basis separately for harvesters and for cartmen instead of fixing a composite wage for them as in annexure F to the petition, and then proceeding to fix wages for harvesters according to the koyta system, any prejudice has been caused to the

### 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: the purpose of deciding the point which we are not considering. Sri narayanaswami draw our attention to a decision of a Full Bench of our High Court in the case of bai Kokllabai v. Keshavlal Mangaldas and Co. [43 B. L. R. 985 at 990], but the facts of that case were so clear that we do not think it necessary to discuss what is laid down in that case. Suffice it to say that Sir John Beaumont in his judgment (at p. 990) stated that the question which arose before him under S. 12 (1) of the Workmens Compensation Act, 1923, was a pure question of fact, and he proceeded to decide the same on the basis of the business of the particular principal in that case, as he has stated in clear terms in his judgment. The real question which we must, therefore, consider is what has been the practice followed by the petitioner-company in the matter of harvesting and carting of sugarcane from the fields of private cultivators. Reference may be made in this connection to the statements contained in Para. 5 of the petition itself which make it clear that, at any rate, ever since the surplus lands of the petitioner-company were taken away under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, the petitioner-company had to procure its requirements of sugarcane, for keeping its mills going from private cultivators. What is more important, however, is the admission that appears in the affidavit of the said Hajarnis which was filed in the reference in the industrial court on behalf of the petitioner-company, in Para. 5 of which there is a categorical statement that the procedure adopted by the company in procuring its sugarcane supply from cultivators has been the same "from the very beginning. " It is also an admitted position that the petitioner-company entered into long-term contracts for periods of seven years for that purpose. These admitted facts leave no room for doubt whatsoever that the work in question was work which was ordinarily part of the undertaking of the petitioner-company, and we hold accordingly. In view of these conclusions at which we have arrived, the questions which were formulated by Sri narayanaswami in the form of propositions (1), (2) and (3) stated at the beginning of this judgment must all be decided against the petitioner-company and it must be held that the contractors and their teams of workers, who were engaged in the harvesting and transport of sugarcane to the mills of the petitioner-company from the lands of private cultivators, were employees of the petitioner-company, that the petitioner-company was their employer, and that those operations are included within the industry of manufacture of sugar and its by products, by virtue of the notification dated 4 October, 1952. In that view of the matter, the further contention of Sri Narayanaswami that the Bombay Industrial Relations Act had no application to the matter and that the industrial court had no jurisdiction to deal with the reference before it, must also stand rejected.( 18 ) THE only other question that survives for our consideration is the one that was formulated as proposition (4) by Sri Narayanaswami at the outset of his arguments in the case, which is based on Para. 12 (g) of the petition. Sri Narayanaswami has made it clear in the course of his arguments before us that his contention with regard to the same is that wages are being paid to harvesters and cartmen by the petitioner-company at a composite rate per metric tonne for harvesting and carting as stated in annexure F to the petition and, though that point does not appear clearly in Para. 12 (g) or any other part of the petition, it has been the contention of Sri narayanaswami before us that the industrial court should not have proceeded to split the fixing of wages as between harvesting and carting operations. Sri Narayanaswami has also contended that the industrial court fell into a further error in thereafter proceeding to apply the koyta system to harvesting operations. The argument of Sri Narayanaswami on this point was that, in doing so, the industrial court has deviated from the demands of respondent 2 union, in so far as the statement of claim filed before it only sought to demand daily wage at the rate payable to unskilled employees of the petitioner-company, whereas the award proceeded to fix the daily wage for harvesters engaged in the operations in question according to the koyta system which, the petitioner-company has contended, was never followed by it. A koyta consists of a team of one man and two women assisting him. It is, no doubt, true that the president of the industrial court has, in Para. 12 of his award, proceeded to fix the wages for harvesters engaged in operations on the lands of private cultivators from whom the petitioner-company obtained its supply of sugarcane according to the koyta system. It has not been disputed by Sri Kulkarni on behalf of respondent 2 union that that system is not the system followed by the petitioner-company but what Sri Kulkarni has argued is that that is a mere matter of, what may be called, description or local terminology, and that it makes no difference whatsoever to the substance of the matter. It is common ground that the wage board has fixed a minimum wage of rs. 114 per month for unskilled workers, as stated in the award itself. The president of the industrial court has given a 50 per cent rise in the wages earned by a koyta "whether daily-rated or piece-rated. " There is no material whatsoever placed before us on behalf of the petitioner-company to show that, in fixing wages on that basis separately for harvesters and for cartmen instead of fixing a composite wage for them as in annexure F to the petition, and then proceeding to fix wages for harvesters according to the koyta system, any prejudice has been caused to the petitioner-company. ### Response: 0 ### Explanation: the undertaking. " this in our opinion, makes a difference as far as the intendment of that definition is concerned. A deference to the Oxford English Dictionary shows that one of the primary meanings of the word "ordinarily" is, "according to settled method; as a matter of regular practice or occurrence. " The practice or the method or the system followed by thein so far as the work of harvesting and carting sugarcane from the fields of private cultivators is concerned, therefore, becomes material for the purpose of deciding the point which we are not considering. Sri narayanaswami draw our attention to a decision of a Full Bench of our High Court in the case of bai Kokllabai v. Keshavlal Mangaldas and Co. [43 B. L. R. 985 at 990], but the facts of that case were so clear that we do not think it necessary to discuss what is laid down in that case. Suffice it to say that Sir John Beaumont in his judgment (at p. 990) stated that the question which arose before him under S. 12 (1) of the Workmens Compensation Act, 1923, was a pure question of fact, and he proceeded to decide the same on the basis of the business of the particular principal in that case, as he has stated in clear terms in his judgment. The real question which we must, therefore, consider is what has been the practice followed by thein the matter of harvesting and carting of sugarcane from the fields of private cultivators. Reference may be made in this connection to the statements contained in Para. 5 of the petition itself which make it clear that, at any rate, ever since the surplus lands of thewere taken away under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, thehad to procure its requirements of sugarcane, for keeping its mills going from private cultivators. What is more important, however, is the admission that appears in the affidavit of the said Hajarnis which was filed in the reference in the industrial court on behalf of thein Para. 5 of which there is a categorical statement that the procedure adopted by the company in procuring its sugarcane supply from cultivators has been the same "from the very beginning. " It is also an admitted position that theerm contracts for periods of seven years for that purpose. These admitted facts leave no room for doubt whatsoever that the work in question was work which was ordinarily part of the undertaking of theand we hold accordingly. In view of these conclusions at which we have arrived, the questions which were formulated by Sri narayanaswami in the form of propositions (1), (2) and (3) stated at the beginning of this judgment must all be decided against theand it must be held that the contractors and their teams of workers, who were engaged in the harvesting and transport of sugarcane to the mills of thefrom the lands of private cultivators, were employees of theany was their employer, and that those operations are included within the industry of manufacture of sugar and its by products, by virtue of the notification dated 4 October, 1952. In that view of the matter, the further contention of Sri Narayanaswami that the Bombay Industrial Relations Act had no application to the matterand that theindustrial court had no jurisdiction to deal with the reference before it, must also standNarayanaswami has made it clear in the course of his arguments before us that his contention with regard to the same is that wages are being paid to harvesters and cartmen by theat a composite rate per metric tonne for harvesting and carting as stated in annexure F to the petition and, though that point does not appear clearly in Para. 12 (g) or any other part of the petition, it has been the contention of Sri narayanaswami before us that the industrial court should not have proceeded to split the fixing of wages as between harvesting and carting operations. Sri Narayanaswami has also contended that the industrial court fell into a further error in thereafter proceeding to apply the koyta system to harvesting operations. The argument of Sri Narayanaswami on this point was that, in doing so, the industrial court has deviated from the demands of respondent 2 union, in so far as the statement of claim filed before it only sought to demand daily wage at the rate payable to unskilled employees of thewhereas the award proceeded to fix the daily wage for harvesters engaged in the operations in question according to the koyta system which, thehas contended, was never followed by it. A koyta consists of a team of one man and two women assisting him. It is, no doubt, true that the president of the industrial court has, in Para. 12 of his award, proceeded to fix the wages for harvesters engaged in operations on the lands of private cultivators from whom theobtained its supply of sugarcane according to the koyta system. It has not been disputed by Sri Kulkarni on behalf of respondent 2 union that that system is not the system followed by thebut what Sri Kulkarni has argued is that that is a mere matter of, what may be called, description or local terminology, and that it makes no difference whatsoever to the substance of the matter. It is common ground that the wage board has fixed a minimum wage of rs. 114 per month for unskilled workers, as stated in the award itself. The president of the industrial court has given a 50 per cent rise in the wages earned by a koyta "whetherd. " There is no material whatsoever placed before us on behalf of theto show that, in fixing wages on that basis separately for harvesters and for cartmen instead of fixing a composite wage for them as in annexure F to the petition, and then proceeding to fix wages for harvesters according to the koyta system, any prejudice has been caused to the

Commissioner Of Income-Tax Vs. Patel Brothers & Co. Ltd, Etc. Etc

& Sons v. CIT of the Allahabad High Court which has been referred and followed in subsequent decisions of other High Courts taking the view in favour of the Revenue. In this line of cases are the decisions of the High Courts of Punjab and Haryana, Patna and Kerala. The other line of cases wherein the view taken is in favour of the assessee are the decisions of the high Courts of Gujarat, Andhra Pradesh, Madhya Pradesh, Rajasthan and karnataka. The main decision of the Gujarat High Court is CIT v. Patel Brothers & Co. Ltd. which has been referred and followed in the later decisions in that line16. We would first deal with the decision of the Allahabad High Court - Brij Raman Dass & Sons v. CIT - which is under appeal in Civil Appeal No. 1850 of 1975 and the decision of the Gujarat High Court - CIT v. Patel Bros & Co. Ltd. - which is under appeal in Civil Appeals Nos. 1455-57 of 1976. In Brij Raman Dass & Sons it was held that sub-section (2-A) of Section 37 is not an independent provision but is a proviso to sub-section (1) of Section 37 since the expenditure falling under sub-section (2-A) must necessarily come within sub-section (1). Thereafter, while considering the meaning of entertainment in this context, it was held as under: (All ER p. 544) "... What we have to see is as to what is the meaning of the word entertainment for purposes of Section 37(2-A) of the Act. In the Income Tax Act, this word has not been defined and we will have to give it its general meaning. An entertainment expenditure would, in our opinion, include all expenditures incurred in connection with business on the entertainment of customer and constituents. The entertainment may consist of providing refreshments as in this case or it may consist of providing some other sort of entertainmentIn Bentleys, Stokes & Lowless v. Beeson (H.M. Inspector of Taxes) a firm of solicitors incurred expenses in entertaining clients. The entertainment consisted of providing lunch to the clients. It was held that expenditure was incurred wholly and exclusively for purposes of business and was an allowable deduction. The same is the position in the instant case. The petitioner has been providing to its customers refreshments and this constitutes an expenditure in the nature of entertainment expenditure. The entire expenditure would have been allowed but for the amendment introduced by Section 37(2-A) which restricts the allowance of such an expenditure to a maximum limit of Rs 5000." There is no more discussion on the point in this decision 17. On the other hand, the Gujarat High Court in Patel Brothers & Co. Ltd. took a different view. In this decision, certain broad tests or guidelines have also been indicated to determine the nature of expenses allowed as entertainment expenses. In our opinion, that exercise is unnecessary since the broad test indicated by us is the only thing which can safely be indicated and the determination of the question in each case is one of fact. The conclusion on the basis of the finding of fact recorded therein was stated thus: (ITR p. 442) "... The Tribunal has agreed with the Appellate Assistant Commissioner who has found that it was customary for the assessee due to very long-established tradition that farmers who came to deliver the goods, i.e., cotton, groundnuts, rice, pulses, were given meals from the kitchen run by the assessee and if the assessee failed to give this normal courtesy, it apprehended that the farmers might offer their produce to other competitors in the field of the assessee and the assessee would lose the goods. The Appellate Assistant Commissioner has also found that the expenditure was for serving ordinary meals to the employees as well as to the farmer customers and they were not such which entertained or amused the guests since the assessee provided/served meals as a bare necessity of the business. In that view of the matter, therefore, these references must be rejected and we answer the questions referred to us in the negative and against the Commissioner, ...." * This conclusion of the Gujarat High Court on the finding of fact recorded by the Tribunal is consistent with the view we have taken and, therefore, we uphold the same for the reasons given by us which are sufficient to sustain the ultimate view. We may observe that the wide observations and the elaborate guidelines given in the Gujarat decision which are in excess of the broad test indicated by us and not necessary to support the conclusion, are unnecessary for the decision and, therefore, affirmance of the conclusion reached in the Gujarat decision should not be construed as an affirmance of the wide observations therein18. We may now refer to the decision of the Delhi High Court in CIT v. Rajasthan Mercantile Co. Ltd. The true effect of Explanation 2 added in sub-section (2-A) of Section 37 of the Act has been correctly understood therein as under: (ITR p. 416) "The declaration and the clarification involved in Explanation 2, are only for the purposes of assessments with effect from April 1, 1976. This provision widens the concept of entertainment expenditure by including in its scope such of the expenditures which are otherwise traditionally understood as routine business expenditures incurred in connection with business-hospitality. Therefore, the widened meaning cannot be extended to past period when the amended Explanation 2 was not in operation." * We approve the above view which accords with the construction made by us of the provision19. In this view we have taken, the contrary view of the Allahabad High Court in Brij Raman Dass & Sons cannot be accepted to be correct and so also the decisions of the different High Courts which have taken the same view. Accordingly, the decision of the Allahabad High Court and the other decisions of different High Courts taking that view are to be treated as overruled

1[ds]14. In our opinion, the construction we have made of the provision as it existed during the relevant period flows not merely from the language of the provision but also matches with the object thereof. It means that the expenditure incurred by the assessees in providing ordinary meals to the outstation customers according to the established business practice, was a permissible deduction in spite of sub-section (2-A) of Section 37, to which the assessees were entitled in the computation of their total income for the purpose of payment of tax under the Income Tax Act, 1961 during the relevant period prior to 1-4-197615. We shall now refer briefly to the conflicting decisions of the several High Courts on the point. Amongst the decisions in favour of the Revenue is Brij Raman Dass & Sons v. CIT of the Allahabad High Court which has been referred and followed in subsequent decisions of other High Courts taking the view in favour of the Revenue. In this line of cases are the decisions of the High Courts of Punjab and Haryana, Patna and Kerala. The other line of cases wherein the view taken is in favour of the assessee are the decisions of the high Courts of Gujarat, Andhra Pradesh, Madhya Pradesh, Rajasthan and karnataka. The main decision of the Gujarat High Court is CIT v. Patel Brothers & Co. Ltd. which has been referred and followed in the later decisions in that lineWe would first deal with the decision of the Allahabad High Court - Brij Raman Dass & Sons v. CIT - which is under appeal in Civil Appeal No. 1850 of 1975 and the decision of the Gujarat High Court - CIT v. Patel Bros & Co. Ltd. - which is under appeal in Civil Appeals Nos. 1455-57 of 1976. In Brij Raman Dass & Sons it was held that sub-section (2-A) of Section 37 is not an independent provision but is a proviso to sub-section (1) of Section 37 since the expenditure falling under sub-section (2-A) must necessarily come within sub-sectionthe other hand, the Gujarat High Court in Patel Brothers & Co. Ltd. took a different view. In this decision, certain broad tests or guidelines have also been indicated to determine the nature of expenses allowed as entertainment expenses. In our opinion, that exercise is unnecessary since the broad test indicated by us is the only thing which can safely be indicated and the determination of the question in each case is one ofconclusion of the Gujarat High Court on the finding of fact recorded by the Tribunal is consistent with the view we have taken and, therefore, we uphold the same for the reasons given by us which are sufficient to sustain the ultimate view. We may observe that the wide observations and the elaborate guidelines given in the Gujarat decision which are in excess of the broad test indicated by us and not necessary to support the conclusion, are unnecessary for the decision and, therefore, affirmance of the conclusion reached in the Gujarat decision should not be construed as an affirmance of the wide observations therein18. We may now refer to the decision of the Delhi High Court in CIT v. Rajasthan Mercantile Co. Ltd. The true effect of Explanation 2 added in sub-section (2-A) of Section 37 of theapprove the above view which accords with the construction made by us of the provision19. In this view we have taken, the contrary view of the Allahabad High Court in Brij Raman Dass & Sons cannot be accepted to be correct and so also the decisions of the different High Courts which have taken the same view. Accordingly, the decision of the Allahabad High Court and the other decisions of different High Courts taking that view are to be treated as overruled

### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: & Sons v. CIT of the Allahabad High Court which has been referred and followed in subsequent decisions of other High Courts taking the view in favour of the Revenue. In this line of cases are the decisions of the High Courts of Punjab and Haryana, Patna and Kerala. The other line of cases wherein the view taken is in favour of the assessee are the decisions of the high Courts of Gujarat, Andhra Pradesh, Madhya Pradesh, Rajasthan and karnataka. The main decision of the Gujarat High Court is CIT v. Patel Brothers & Co. Ltd. which has been referred and followed in the later decisions in that line16. We would first deal with the decision of the Allahabad High Court - Brij Raman Dass & Sons v. CIT - which is under appeal in Civil Appeal No. 1850 of 1975 and the decision of the Gujarat High Court - CIT v. Patel Bros & Co. Ltd. - which is under appeal in Civil Appeals Nos. 1455-57 of 1976. In Brij Raman Dass & Sons it was held that sub-section (2-A) of Section 37 is not an independent provision but is a proviso to sub-section (1) of Section 37 since the expenditure falling under sub-section (2-A) must necessarily come within sub-section (1). Thereafter, while considering the meaning of entertainment in this context, it was held as under: (All ER p. 544) "... What we have to see is as to what is the meaning of the word entertainment for purposes of Section 37(2-A) of the Act. In the Income Tax Act, this word has not been defined and we will have to give it its general meaning. An entertainment expenditure would, in our opinion, include all expenditures incurred in connection with business on the entertainment of customer and constituents. The entertainment may consist of providing refreshments as in this case or it may consist of providing some other sort of entertainmentIn Bentleys, Stokes & Lowless v. Beeson (H.M. Inspector of Taxes) a firm of solicitors incurred expenses in entertaining clients. The entertainment consisted of providing lunch to the clients. It was held that expenditure was incurred wholly and exclusively for purposes of business and was an allowable deduction. The same is the position in the instant case. The petitioner has been providing to its customers refreshments and this constitutes an expenditure in the nature of entertainment expenditure. The entire expenditure would have been allowed but for the amendment introduced by Section 37(2-A) which restricts the allowance of such an expenditure to a maximum limit of Rs 5000." There is no more discussion on the point in this decision 17. On the other hand, the Gujarat High Court in Patel Brothers & Co. Ltd. took a different view. In this decision, certain broad tests or guidelines have also been indicated to determine the nature of expenses allowed as entertainment expenses. In our opinion, that exercise is unnecessary since the broad test indicated by us is the only thing which can safely be indicated and the determination of the question in each case is one of fact. The conclusion on the basis of the finding of fact recorded therein was stated thus: (ITR p. 442) "... The Tribunal has agreed with the Appellate Assistant Commissioner who has found that it was customary for the assessee due to very long-established tradition that farmers who came to deliver the goods, i.e., cotton, groundnuts, rice, pulses, were given meals from the kitchen run by the assessee and if the assessee failed to give this normal courtesy, it apprehended that the farmers might offer their produce to other competitors in the field of the assessee and the assessee would lose the goods. The Appellate Assistant Commissioner has also found that the expenditure was for serving ordinary meals to the employees as well as to the farmer customers and they were not such which entertained or amused the guests since the assessee provided/served meals as a bare necessity of the business. In that view of the matter, therefore, these references must be rejected and we answer the questions referred to us in the negative and against the Commissioner, ...." * This conclusion of the Gujarat High Court on the finding of fact recorded by the Tribunal is consistent with the view we have taken and, therefore, we uphold the same for the reasons given by us which are sufficient to sustain the ultimate view. We may observe that the wide observations and the elaborate guidelines given in the Gujarat decision which are in excess of the broad test indicated by us and not necessary to support the conclusion, are unnecessary for the decision and, therefore, affirmance of the conclusion reached in the Gujarat decision should not be construed as an affirmance of the wide observations therein18. We may now refer to the decision of the Delhi High Court in CIT v. Rajasthan Mercantile Co. Ltd. The true effect of Explanation 2 added in sub-section (2-A) of Section 37 of the Act has been correctly understood therein as under: (ITR p. 416) "The declaration and the clarification involved in Explanation 2, are only for the purposes of assessments with effect from April 1, 1976. This provision widens the concept of entertainment expenditure by including in its scope such of the expenditures which are otherwise traditionally understood as routine business expenditures incurred in connection with business-hospitality. Therefore, the widened meaning cannot be extended to past period when the amended Explanation 2 was not in operation." * We approve the above view which accords with the construction made by us of the provision19. In this view we have taken, the contrary view of the Allahabad High Court in Brij Raman Dass & Sons cannot be accepted to be correct and so also the decisions of the different High Courts which have taken the same view. Accordingly, the decision of the Allahabad High Court and the other decisions of different High Courts taking that view are to be treated as overruled ### Response: 1 ### Explanation: 14. In our opinion, the construction we have made of the provision as it existed during the relevant period flows not merely from the language of the provision but also matches with the object thereof. It means that the expenditure incurred by the assessees in providing ordinary meals to the outstation customers according to the established business practice, was a permissible deduction in spite of sub-section (2-A) of Section 37, to which the assessees were entitled in the computation of their total income for the purpose of payment of tax under the Income Tax Act, 1961 during the relevant period prior to 1-4-197615. We shall now refer briefly to the conflicting decisions of the several High Courts on the point. Amongst the decisions in favour of the Revenue is Brij Raman Dass & Sons v. CIT of the Allahabad High Court which has been referred and followed in subsequent decisions of other High Courts taking the view in favour of the Revenue. In this line of cases are the decisions of the High Courts of Punjab and Haryana, Patna and Kerala. The other line of cases wherein the view taken is in favour of the assessee are the decisions of the high Courts of Gujarat, Andhra Pradesh, Madhya Pradesh, Rajasthan and karnataka. The main decision of the Gujarat High Court is CIT v. Patel Brothers & Co. Ltd. which has been referred and followed in the later decisions in that lineWe would first deal with the decision of the Allahabad High Court - Brij Raman Dass & Sons v. CIT - which is under appeal in Civil Appeal No. 1850 of 1975 and the decision of the Gujarat High Court - CIT v. Patel Bros & Co. Ltd. - which is under appeal in Civil Appeals Nos. 1455-57 of 1976. In Brij Raman Dass & Sons it was held that sub-section (2-A) of Section 37 is not an independent provision but is a proviso to sub-section (1) of Section 37 since the expenditure falling under sub-section (2-A) must necessarily come within sub-sectionthe other hand, the Gujarat High Court in Patel Brothers & Co. Ltd. took a different view. In this decision, certain broad tests or guidelines have also been indicated to determine the nature of expenses allowed as entertainment expenses. In our opinion, that exercise is unnecessary since the broad test indicated by us is the only thing which can safely be indicated and the determination of the question in each case is one ofconclusion of the Gujarat High Court on the finding of fact recorded by the Tribunal is consistent with the view we have taken and, therefore, we uphold the same for the reasons given by us which are sufficient to sustain the ultimate view. We may observe that the wide observations and the elaborate guidelines given in the Gujarat decision which are in excess of the broad test indicated by us and not necessary to support the conclusion, are unnecessary for the decision and, therefore, affirmance of the conclusion reached in the Gujarat decision should not be construed as an affirmance of the wide observations therein18. We may now refer to the decision of the Delhi High Court in CIT v. Rajasthan Mercantile Co. Ltd. The true effect of Explanation 2 added in sub-section (2-A) of Section 37 of theapprove the above view which accords with the construction made by us of the provision19. In this view we have taken, the contrary view of the Allahabad High Court in Brij Raman Dass & Sons cannot be accepted to be correct and so also the decisions of the different High Courts which have taken the same view. Accordingly, the decision of the Allahabad High Court and the other decisions of different High Courts taking that view are to be treated as overruled

Rangammal Vs. Kuppuswami & Another

she was a minor before this property could be included in the suit for partition between the brothers excluding the 2nd defendant/appellant Rangammal and the consequence of not doing so or delay in this regard, obviously will have to be attributed to the plaintiff/respondent. 28. Thus, the High Court fell into a clear error when it observed that the suit was barred by limitation as it had been filed after 31 years of the execution of the sale deed which on the face of it is factually incorrect. The High Court has clearly erred while recording so, as it seems to have missed that the suit had not been filed by the appellant herein but she was merely contesting the suit as the 2nd defendant by getting herself impleaded in the partition suit when it came to her knowledge that the property which is in her occupation and possession has also been included in the schedule in the suit for partition between plaintiff/respondent No.1 herein-Kuppuswamy and the 1st defendant/respondent No.2 herein-Andivelu and when she received the copy of the plaint, execution of the alleged sale deed way back in 1951 was disclosed to her for the first time. Hence, there was no cause of action for her to file a suit challenging the alleged sale deed as knowledge of the same cannot be attributed to her in this regard as she asserted actual physical possession on her share. 29. The appellant who claimed to be in occupation and peaceful possession of her share to the extent of half which is situated on the eastern side of the schedule property, had no reason to file a suit assailing the sale deed when she was in actual physical possession of her share and suddenly out of the blue, a partition suit was filed by the plaintiff/respondent No.1 wherein the property of the appellant also was included in the schedule of the partition suit which was to be partitioned between the two brothers by metes and bounds by setting a cooked up story that the appellants share, who belonged to an altogether different branch of the family, had been given away by her de facto guardian Kumara Naicker by executing a sale deed in favour of the respondents predecessor way back on 24.2.1951 when the appellant admittedly was a minor. 30. We are, therefore, constrained to partly set aside the judgment and order of the High Court in so far as the share of the appellant Rangammal is concerned and consequently the decree passed by the trial court, upheld by the first appellate court and the High Court which had been illegally decreed including the share of the appellant -Rangammal which had not devolved on the family of the plaintiff/respondent No.1 and defendant No.1/respondent No.2, but was claimed on the basis of a sale deed which could not be proved either by evidence or law, is fit to be set aside. 31. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone elses property meaning thereby disputed property is included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiffs joint family in regard to which decree for partition is sought. 32. However, we make it clear that the decree which has been passed by the trial court in so far as partition between plaintiff/respondent No.1 and defendant No.1/respondent No.2 is concerned, shall remain in tact but the said decree shall exclude the property which had fallen into the share of appellant-Rangammal but was claimed to have been transferred to the branch of the plaintiff and 1st defendant-respondents herein vide sale deed dated 24.2.1951 The trial court being the court of District Munsif, Palani, accordingly shall modify the decree passed in O.S. No.255 of 1982 by excluding the share of the appellant -Rangammal claimed on the basis of the sale deed dated 24.2.1951. Thereafter, if the decree is put to execution, the executing court shall ensure that such portion of the property which is in occupation of Rangammal which was alleged to have been sold vide sale deed dated 24.2.1951, shall not be put into execution while partitioning the remaining property between the plaintiff- Kuppuswami and 1st defendant -Andivelu - respondent No.2. 33. Thus, this appeal in so far as the claim of the appellant- Rangammal to the extent of half of the share in the schedule to the suit property, situated on the eastern portion is concerned, stands allowed with a token cost which is quantified at rupees twenty five thousand as we are of the view that the appellant who was in actual physical and peaceful possession of her property which she had inherited from her deceased parents, was unnecessarily dragged into this litigation at the instance of the plaintiff- Kuppuswami who filed a partition suit which was apparently collusive in nature as it included the share of a third party to which the plaintiff and 1st defendants family had no clear title. Under the facts and circumstance of the instant case, it was clearly a compulsion on the part of the appellant/Tmt. Rangammal to contest the collusive suit for decades Kwasting time, energy and expense over a litigation which was started by the plaintiff clearly with an oblique motive and evil design. Hence the cost shall be paid by the respondent No.1-Kuppuswami to the appellant- Rangammal as indicated above. 34.

1[ds]whole case out of which this appeal arises had been practically made a mess by missing the basic principle that the suit should be decided on the basis of the pleading of the contesting parties after which Section 101 of The Evidence Act would come into play in order to determine on whom the burden falls for proving the issues which have been determined26. We further fail to comprehend as to how the basic case pleaded by the plaintiff had been misconstrued and the burden of discharge of genuineness, veracity and legal efficacy of the sale deed dated 24.2.1951 was shifted on the appellant-Rangammal clearly missing that it is the plaintiffs/respondent No.1 case who was bent upon to include Rangammals property also for partition by relying upon the story of execution of sale deed when the partition suit was between the two brothers who were plaintiff- Kuppuswami and defendant No.1-AndiveluThus, the High Court fell into a clear error when it observed that the suit was barred by limitation as it had been filed after 31 years of the execution of the sale deed which on the face of it is factually incorrect. The High Court has clearly erred while recording so, as it seems to have missed that the suit had not been filed by the appellant herein but she was merely contesting the suit as the 2nd defendant by getting herself impleaded in the partition suit when it came to her knowledge that the property which is in her occupation and possession has also been included in the schedule in the suit for partition between plaintiff/respondent No.1 herein-Kuppuswamy and the 1st defendant/respondent No.2 herein-Andivelu and when she received the copy of the plaint, execution of the alleged sale deed way back in 1951 was disclosed to her for the first time. Hence, there was no cause of action for her to file a suit challenging the alleged sale deed as knowledge of the same cannot be attributed to her in this regard as she asserted actual physical possession on her shareThus, this appeal in so far as the claim of the appellant- Rangammal to the extent of half of the share in the schedule to the suit property, situated on the eastern portion is concerned, stands allowed with a token cost which is quantified at rupees twenty five thousand as we are of the view that the appellant who was in actual physical and peaceful possession of her property which she had inherited from her deceased parents, was unnecessarily dragged into this litigation at the instance of the plaintiff- Kuppuswami who filed a partition suit which was apparently collusive in nature as it included the share of a third party to which the plaintiff and 1st defendants family had no clear title. Under the facts and circumstance of the instant case, it was clearly a compulsion on the part of the appellant/Tmt. Rangammal to contest the collusive suit for decades Kwasting time, energy and expense over a litigation which was started by the plaintiff clearly with an oblique motive and evil design. Hence the cost shall be paid by the respondent No.1-Kuppuswami to the appellant- Rangammal as indicated above.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: she was a minor before this property could be included in the suit for partition between the brothers excluding the 2nd defendant/appellant Rangammal and the consequence of not doing so or delay in this regard, obviously will have to be attributed to the plaintiff/respondent. 28. Thus, the High Court fell into a clear error when it observed that the suit was barred by limitation as it had been filed after 31 years of the execution of the sale deed which on the face of it is factually incorrect. The High Court has clearly erred while recording so, as it seems to have missed that the suit had not been filed by the appellant herein but she was merely contesting the suit as the 2nd defendant by getting herself impleaded in the partition suit when it came to her knowledge that the property which is in her occupation and possession has also been included in the schedule in the suit for partition between plaintiff/respondent No.1 herein-Kuppuswamy and the 1st defendant/respondent No.2 herein-Andivelu and when she received the copy of the plaint, execution of the alleged sale deed way back in 1951 was disclosed to her for the first time. Hence, there was no cause of action for her to file a suit challenging the alleged sale deed as knowledge of the same cannot be attributed to her in this regard as she asserted actual physical possession on her share. 29. The appellant who claimed to be in occupation and peaceful possession of her share to the extent of half which is situated on the eastern side of the schedule property, had no reason to file a suit assailing the sale deed when she was in actual physical possession of her share and suddenly out of the blue, a partition suit was filed by the plaintiff/respondent No.1 wherein the property of the appellant also was included in the schedule of the partition suit which was to be partitioned between the two brothers by metes and bounds by setting a cooked up story that the appellants share, who belonged to an altogether different branch of the family, had been given away by her de facto guardian Kumara Naicker by executing a sale deed in favour of the respondents predecessor way back on 24.2.1951 when the appellant admittedly was a minor. 30. We are, therefore, constrained to partly set aside the judgment and order of the High Court in so far as the share of the appellant Rangammal is concerned and consequently the decree passed by the trial court, upheld by the first appellate court and the High Court which had been illegally decreed including the share of the appellant -Rangammal which had not devolved on the family of the plaintiff/respondent No.1 and defendant No.1/respondent No.2, but was claimed on the basis of a sale deed which could not be proved either by evidence or law, is fit to be set aside. 31. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone elses property meaning thereby disputed property is included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiffs joint family in regard to which decree for partition is sought. 32. However, we make it clear that the decree which has been passed by the trial court in so far as partition between plaintiff/respondent No.1 and defendant No.1/respondent No.2 is concerned, shall remain in tact but the said decree shall exclude the property which had fallen into the share of appellant-Rangammal but was claimed to have been transferred to the branch of the plaintiff and 1st defendant-respondents herein vide sale deed dated 24.2.1951 The trial court being the court of District Munsif, Palani, accordingly shall modify the decree passed in O.S. No.255 of 1982 by excluding the share of the appellant -Rangammal claimed on the basis of the sale deed dated 24.2.1951. Thereafter, if the decree is put to execution, the executing court shall ensure that such portion of the property which is in occupation of Rangammal which was alleged to have been sold vide sale deed dated 24.2.1951, shall not be put into execution while partitioning the remaining property between the plaintiff- Kuppuswami and 1st defendant -Andivelu - respondent No.2. 33. Thus, this appeal in so far as the claim of the appellant- Rangammal to the extent of half of the share in the schedule to the suit property, situated on the eastern portion is concerned, stands allowed with a token cost which is quantified at rupees twenty five thousand as we are of the view that the appellant who was in actual physical and peaceful possession of her property which she had inherited from her deceased parents, was unnecessarily dragged into this litigation at the instance of the plaintiff- Kuppuswami who filed a partition suit which was apparently collusive in nature as it included the share of a third party to which the plaintiff and 1st defendants family had no clear title. Under the facts and circumstance of the instant case, it was clearly a compulsion on the part of the appellant/Tmt. Rangammal to contest the collusive suit for decades Kwasting time, energy and expense over a litigation which was started by the plaintiff clearly with an oblique motive and evil design. Hence the cost shall be paid by the respondent No.1-Kuppuswami to the appellant- Rangammal as indicated above. 34. ### Response: 1 ### Explanation: whole case out of which this appeal arises had been practically made a mess by missing the basic principle that the suit should be decided on the basis of the pleading of the contesting parties after which Section 101 of The Evidence Act would come into play in order to determine on whom the burden falls for proving the issues which have been determined26. We further fail to comprehend as to how the basic case pleaded by the plaintiff had been misconstrued and the burden of discharge of genuineness, veracity and legal efficacy of the sale deed dated 24.2.1951 was shifted on the appellant-Rangammal clearly missing that it is the plaintiffs/respondent No.1 case who was bent upon to include Rangammals property also for partition by relying upon the story of execution of sale deed when the partition suit was between the two brothers who were plaintiff- Kuppuswami and defendant No.1-AndiveluThus, the High Court fell into a clear error when it observed that the suit was barred by limitation as it had been filed after 31 years of the execution of the sale deed which on the face of it is factually incorrect. The High Court has clearly erred while recording so, as it seems to have missed that the suit had not been filed by the appellant herein but she was merely contesting the suit as the 2nd defendant by getting herself impleaded in the partition suit when it came to her knowledge that the property which is in her occupation and possession has also been included in the schedule in the suit for partition between plaintiff/respondent No.1 herein-Kuppuswamy and the 1st defendant/respondent No.2 herein-Andivelu and when she received the copy of the plaint, execution of the alleged sale deed way back in 1951 was disclosed to her for the first time. Hence, there was no cause of action for her to file a suit challenging the alleged sale deed as knowledge of the same cannot be attributed to her in this regard as she asserted actual physical possession on her shareThus, this appeal in so far as the claim of the appellant- Rangammal to the extent of half of the share in the schedule to the suit property, situated on the eastern portion is concerned, stands allowed with a token cost which is quantified at rupees twenty five thousand as we are of the view that the appellant who was in actual physical and peaceful possession of her property which she had inherited from her deceased parents, was unnecessarily dragged into this litigation at the instance of the plaintiff- Kuppuswami who filed a partition suit which was apparently collusive in nature as it included the share of a third party to which the plaintiff and 1st defendants family had no clear title. Under the facts and circumstance of the instant case, it was clearly a compulsion on the part of the appellant/Tmt. Rangammal to contest the collusive suit for decades Kwasting time, energy and expense over a litigation which was started by the plaintiff clearly with an oblique motive and evil design. Hence the cost shall be paid by the respondent No.1-Kuppuswami to the appellant- Rangammal as indicated above.

Rupinder Singh Sodhi And Another Vs. Union Of India And Others

CHANDRACHUD, C.J. 1. By these writ petitions, the petitioners, some of whom are practising lawyers and some Members of the Parliament, ask for an appropriate writ directing the State of Haryana and the State of Uttar Pradesh to remove all obstructions on the highways and to allow unhindered and unintercepted the use of highways railways and airways without making any discrimination against the Akali Sikhs on the ground of religion. Stated briefly, the case of the petitioners is that in the recent past, a movement was set afoot in the State of Punjab consequent upon certain demands made by the members of the Akali Party and as a result of that movement, large scale arrests of Sikhs were effected, bordering on harassment and persecution. It would appear that a declaration was made by certain Akali leaders that a Morcha would be taken to Delhi on November 19, 1982 which coincides with the inauguration of the Asiad games. Apprehending that the Morcha will interfere with the holding of the games, the border States, particularly Haryana and Uttar Pradesh, appear to have taken certain measures to intercept the movement of Akalis across the border on to Delhi with a view to ensuring that the proposed Morcha is not staged in the manner feared and the Asiad not disrupted. 2. Mr. Hardev Singh who appears on behalf of the petitioners argues that highways are dedicated to the public and are meant for their use for passing and repassing. Therefore, he argues, no obstruction can be placed t hereon which will impede the free flow of traffic, any such obstruction being per se unlawful. Having given our anxious consideration to the submissions made by Mr. Hardev Singh, we agree that no one is entitled to barricade a highway so as to prevent members of the public from using it while they are on their lawful business in the pursuit of normal avocations of life. But the police, whose duty it is to enforce law and order in the wake of threatened mass agitations which are reasonably likely to lead to breach of public peace, are entitled in the discharge of that duty to impose reasonable restraints on the physical movement of members of the public in order to the protection of public property and the avoidance of needless inconvenience to other citizens in their lawful pursuits. But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification. They must be minimal and cannot exceed the Constraints of the particular situation, either in nature or in duration. Above all they cannot be used as engines of oppression, persecution, harassment or the like. The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and order.We feel uneasy and concerned to hear that policemen of certain States have violated the norms of decency in their dealing with the situation arising out of the Akali-Asiad tangle. We assume for lack of better evidence that the grievance made by the petitioners before us is more the offspring of a natural feeling of resentment at being stopped and searched than of any substantial invasion of their personal freedom. If and when there is proof of latter, Courts may have to step in and stop the excesses. But the rule of law a requires that no person shall be subjected to harsh, uncivilised or discriminatory treatment even when the objective is the securing of the paramount exigencies of law and order. Therefore, no Sikh can be allowed to be so treated if our Constitution has to have any meaning and effect. 3. We believe it not to be true that any Chie f Minister has made a public declaration that police officers who will treat the Akali Sikhs harshly will be dealt with lightly. It is incredible that any highly placed person in his senses can possibly make such a Statement, with the kind of pressure of public opinion and the press which, fortunately, we have in our country to-day. 4. There does not appear to be any executive order in existence, in writing at any rate, authorising the police to barricade any highway or to subject every Sikh in motion to physical restraint. But in an appropriate case, a presumption may well be drawn as to the existence of such an order if it is found that the police are generally pacting systematically according to a set and uniform pattern or are otherwise engaged in a large scale operation of any similar or mister kind.

1[ds]Having given our anxious consideration to the submissions made by Mr. Hardev Singh, we agree that no one is entitled to barricade a highway so as to prevent members of the public from using it while they are on their lawful business in the pursuit of normal avocations of life. But the police, whose duty it is to enforce law and order in the wake of threatened mass agitations which are reasonably likely to lead to breach of public peace, are entitled in the discharge of that duty to impose reasonable restraints on the physical movement of members of the public in order to the protection of public property and the avoidance of needless inconvenience to other citizens in their lawful pursuits. But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification. They must be minimal and cannot exceed the Constraints of the particular situation, either in nature or in duration. Above all they cannot be used as engines of oppression, persecution, harassment or the like. The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and order.We feel uneasy and concerned to hear that policemen of certain States have violated the norms of decency in their dealing with the situation arising out of the Akali-Asiad tangle. We assume for lack of better evidence that the grievance made by the petitioners before us is more the offspring of a natural feeling of resentment at being stopped and searched than of any substantial invasion of their personal freedom. If and when there is proof of latter, Courts may have to step in and stop the excesses. But the rule of law a requires that no person shall be subjected to harsh, uncivilised or discriminatory treatment even when the objective is the securing of the paramount exigencies of law and order. Therefore, no Sikh can be allowed to be so treated if our Constitution has to have any meaning and effectWe believe it not to be true that any Chie f Minister has made a public declaration that police officers who will treat the Akali Sikhs harshly will be dealt with lightly. It is incredible that any highly placed person in his senses can possibly make such a Statement, with the kind of pressure of public opinion and the press which, fortunately, we have in our country to-dayThere does not appear to be any executive order in existence, in writing at any rate, authorising the police to barricade any highway or to subject every Sikh in motion to physical restraint. But in an appropriate case, a presumption may well be drawn as to the existence of such an order if it is found that the police are generally pacting systematically according to a set and uniform pattern or are otherwise engaged in a large scale operation of any similar or mister kind.

### 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: CHANDRACHUD, C.J. 1. By these writ petitions, the petitioners, some of whom are practising lawyers and some Members of the Parliament, ask for an appropriate writ directing the State of Haryana and the State of Uttar Pradesh to remove all obstructions on the highways and to allow unhindered and unintercepted the use of highways railways and airways without making any discrimination against the Akali Sikhs on the ground of religion. Stated briefly, the case of the petitioners is that in the recent past, a movement was set afoot in the State of Punjab consequent upon certain demands made by the members of the Akali Party and as a result of that movement, large scale arrests of Sikhs were effected, bordering on harassment and persecution. It would appear that a declaration was made by certain Akali leaders that a Morcha would be taken to Delhi on November 19, 1982 which coincides with the inauguration of the Asiad games. Apprehending that the Morcha will interfere with the holding of the games, the border States, particularly Haryana and Uttar Pradesh, appear to have taken certain measures to intercept the movement of Akalis across the border on to Delhi with a view to ensuring that the proposed Morcha is not staged in the manner feared and the Asiad not disrupted. 2. Mr. Hardev Singh who appears on behalf of the petitioners argues that highways are dedicated to the public and are meant for their use for passing and repassing. Therefore, he argues, no obstruction can be placed t hereon which will impede the free flow of traffic, any such obstruction being per se unlawful. Having given our anxious consideration to the submissions made by Mr. Hardev Singh, we agree that no one is entitled to barricade a highway so as to prevent members of the public from using it while they are on their lawful business in the pursuit of normal avocations of life. But the police, whose duty it is to enforce law and order in the wake of threatened mass agitations which are reasonably likely to lead to breach of public peace, are entitled in the discharge of that duty to impose reasonable restraints on the physical movement of members of the public in order to the protection of public property and the avoidance of needless inconvenience to other citizens in their lawful pursuits. But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification. They must be minimal and cannot exceed the Constraints of the particular situation, either in nature or in duration. Above all they cannot be used as engines of oppression, persecution, harassment or the like. The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and order.We feel uneasy and concerned to hear that policemen of certain States have violated the norms of decency in their dealing with the situation arising out of the Akali-Asiad tangle. We assume for lack of better evidence that the grievance made by the petitioners before us is more the offspring of a natural feeling of resentment at being stopped and searched than of any substantial invasion of their personal freedom. If and when there is proof of latter, Courts may have to step in and stop the excesses. But the rule of law a requires that no person shall be subjected to harsh, uncivilised or discriminatory treatment even when the objective is the securing of the paramount exigencies of law and order. Therefore, no Sikh can be allowed to be so treated if our Constitution has to have any meaning and effect. 3. We believe it not to be true that any Chie f Minister has made a public declaration that police officers who will treat the Akali Sikhs harshly will be dealt with lightly. It is incredible that any highly placed person in his senses can possibly make such a Statement, with the kind of pressure of public opinion and the press which, fortunately, we have in our country to-day. 4. There does not appear to be any executive order in existence, in writing at any rate, authorising the police to barricade any highway or to subject every Sikh in motion to physical restraint. But in an appropriate case, a presumption may well be drawn as to the existence of such an order if it is found that the police are generally pacting systematically according to a set and uniform pattern or are otherwise engaged in a large scale operation of any similar or mister kind. ### Response: 1 ### Explanation: Having given our anxious consideration to the submissions made by Mr. Hardev Singh, we agree that no one is entitled to barricade a highway so as to prevent members of the public from using it while they are on their lawful business in the pursuit of normal avocations of life. But the police, whose duty it is to enforce law and order in the wake of threatened mass agitations which are reasonably likely to lead to breach of public peace, are entitled in the discharge of that duty to impose reasonable restraints on the physical movement of members of the public in order to the protection of public property and the avoidance of needless inconvenience to other citizens in their lawful pursuits. But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification. They must be minimal and cannot exceed the Constraints of the particular situation, either in nature or in duration. Above all they cannot be used as engines of oppression, persecution, harassment or the like. The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and order.We feel uneasy and concerned to hear that policemen of certain States have violated the norms of decency in their dealing with the situation arising out of the Akali-Asiad tangle. We assume for lack of better evidence that the grievance made by the petitioners before us is more the offspring of a natural feeling of resentment at being stopped and searched than of any substantial invasion of their personal freedom. If and when there is proof of latter, Courts may have to step in and stop the excesses. But the rule of law a requires that no person shall be subjected to harsh, uncivilised or discriminatory treatment even when the objective is the securing of the paramount exigencies of law and order. Therefore, no Sikh can be allowed to be so treated if our Constitution has to have any meaning and effectWe believe it not to be true that any Chie f Minister has made a public declaration that police officers who will treat the Akali Sikhs harshly will be dealt with lightly. It is incredible that any highly placed person in his senses can possibly make such a Statement, with the kind of pressure of public opinion and the press which, fortunately, we have in our country to-dayThere does not appear to be any executive order in existence, in writing at any rate, authorising the police to barricade any highway or to subject every Sikh in motion to physical restraint. But in an appropriate case, a presumption may well be drawn as to the existence of such an order if it is found that the police are generally pacting systematically according to a set and uniform pattern or are otherwise engaged in a large scale operation of any similar or mister kind.

Srish Chandra Sen (Deceased) And Others Vs. The Commissioner Of Income-Tax, West Bengal

to land revenue. Similarly, the decision of this Court in The Collector of Bombay v. Nusserwanji Rattanji Mistri, 1955-1 SCR 1311 : (S) AIR 1955 SC 298 ), where on the acquisition of some Foras lands held under Foras Land Act (Bombay Act, VI of 1851) the Foras tenure was declared to have come to an end and on the same lands being resold by Government as freehold, they were declared not to be subject to assessment to which they were previously subject, is not very helpful.17. There do not appear to be any rules prior to 1875, which were framed under the Land Acquisition Act of 1870 (Act X of 1870) and which are to be found in the Calcutta Gazette of July 7, 1875, p. 818. If there were, they have not been brought to our notice. But a practice similar to the rules seems to have obtained under section XXVI of the Act of 1857. That Act also did not contain any provision for making rules, as are to be found in the subsequent Acts for compulsory acquisition of land. In the absence of any statutory law or rules, we must take the facts to be that after acquisition the Panchannagram Estate was given abatement of land revenue and the demand for land revenue was transferred to the land acquired and granted to the Justices. At that stage, the liability to assessment remained, and it was that liability which was redeemed by a down payment.18. We next consider the effect of redemption. Learned counsel for the appellant contends that redemption in this connection means that by a single payment, the liability for periodical payments is saved but the assessment on the land remains uncancelled. He has cited Whartons Law Lexicon to show the meaning of the word "redemption", which is "commutation or the substitution of one lump payment for a succession of annual ones: e.g. See the Land Tax and the Tithe Redemption Acts and many other statutes". Redemption is the act of redeeming which in its ordinary meaning is equal to bringing off a charge or obligation by payment. To what extent this redemption freed the land or its holder from the obligation depends not so much upon what the obligation was before redemption as what remained of that obligation after it. Here, the payment itself was meant to be "an immediate payment of one sum equal in value to the revenue redeemed" (vide the Resolution of Government dated October 17, 1861).By the down payment, the entire land revenue to be recovered from that land was redeemed. The payment was equal to the capitalised value of the land revenue. When such a payment took place, it cannot be said that the assessment for land revenue remained. The land was freed from that assessment as completely as if there was no assessment. Thenceforward, the land would be classed as revenue-free, in fact and in law. In The Land-Law of Bengal (Tagore Law Lectures, 1895) p. 81, S. C. Mitra described these revenue-free lands as follows:"There is another class of revenue-free lands which comes within these rules laid down in the Registration and Tenancy Acts, namely, lands of which Government has, in consideration of the payment of a capitalised sum, granted proprietary title free in perpetuity from any demand of land-revenue."19. That this is what had happened here is quite apparent from the conveyance by the Secretary of State vesting the land in the Justices. It is significant that there is no mention of the payment of Rs. 7,728-13-8, nor of the assessability of the lands to land revenue. On the other hand, the deed of conveyance merely reaffirmed the position, which existed before by stating:"....to hold the said pieces of land, hereditaments and premises intended to be conveyed with the appurtenances except as aforesaid unto the said Justices of the Peace for the Town of Calcutta and their successors for ever free and clear and for ever discharged from all Government land revenue whatever or any payment or charge in the nature thereof."There can be no doubt that the land revenue was for ever extinguished and the land became free from land revenue assessment in perpetuity. It cannot thereafter be said that the land was still assessed to land revenue.20. Mr. Mitra made a great effort to construe the operative part quoted above with the aid of the recital in the deed, where it was stated:"........but free and discharged from all payment of land revenue, land tax and all and every tax or imposition in the nature of revenue derivable from land payable to Government..........".He drew attention to the word `payment, and contended that what was saved was payment of land revenue. He argued that in case of ambiguity it was permissible to construe the operative portion of a deed in the light of the recitals, and cited Halsburys Laws of England, Vol. XI, p. 421, para, 680 Gwyn v. Neath Canal Co., (1868) 3 Ex 209 and Orr v. Mitchell, 1893 AC 238 at p. 254. It there was any ambiguity in the operative portion of the deed, we may have taken the aid of the recitals. But there is no ambiguity in the deed. The history of redemption is a matter of record, and it is plain that Government was accepting a down payment and freeing land from land revenue. This is precisely what was done, and the result of the down payment is set out with great clarity in the deed itself, and it is that there was no land revenue assessed on or demandable from that land. In fact, no demand or payment or charge in the nature of land revenue could ever be made on it. In view of this, it is, in our judgment, quite satisfactorily established that this land was not assessed to land revenue and the income from it did not fall within Sec. 2(1)(a) of the Income-tax Act. The answer given by the High Court was thus correct.

0[ds]It is an admitted fact that by payment of a lump sum the liability to pay land revenue was redeemed and no land revenue was demanded or was ever demandable from the Justices or their assigns in perpetuity. The contention of the assessee is that this redemption saved the Justices from the liability for payment but did not affect the assessability of the land to revenue under Regulation I of 1793. Unless, it is contended, there was a cancellation of the assessment, as is to be found in the Land Tax and Tithe Redemption Acts in England, the liability must be deemed to continue and land would still be assessed to land revenue for purposes of section 2(1)(a) of the Indian Income-tax Act.In the High Court, the matter was examined from three different points of view. The first was the effect of acquisition of the land by Government upon the continued assessability of the land to land revenue. The learned Chief Justice held that by the acquisition the assessment ceased to subsist. The second was the effect of the redemption of land revenue by the Justices by a lump sum payment. The learned Chief Justice was of opinion that it had the effect of cancelling the assessment. The last was the effect of the grant free from land revenue, about which the learned Chief Justice was of opinion that it freed the land from assessment to land revenue. Sarkar, J. agreed as to the first, but expressed doubts about the second and third propositions. According to the learned Judge, the acceptance of a lump sum payment in lieu of recurring annual payments was more a matter of agreement than a cancellation of assessment to land revenue.12. The matter has been argued before us from the same points of view; but Mr. Mitra has added an argument about the interpretation to be placed on the conveyance by the Secretary of State which, according to him, only freed the Justices from `payment of the assessed land revenue but did not cancel the assessment.13. No Act of Legislature bearing upon the power of Government to accept a lump sum payment in lieu of the annual demands for land revenue has been brought to our notice. Counsel admitted that they were unable to find any such legislative provision. We have thus to proceed, as did the High Court, without having before us the authority of a legislative enactment. The only materials to which reference was made are: an extract from the explanatory notes in the Revenue Roll of the Touzi which shows that an abatement of land revenue pro tanto was granted to the proprietor of Panchannagram Estate, and a despatch from the Secretary of State for India (Lord Stanley) - No. 2 (Revenue) dated December 31, 1858 - recommending redemption of land revenue by an immediate payment of a sum of equivalent value, together with a Resolution of Government (Home Department No. 3264 (Rev) dated October 17, 1861) on permission to redeem the existing land revenue by the immediate payment of one sum equal in value to the revenue redeemed. By the resolution, it was provided that such redemption would be limited to 10 per cent of the total revenue in the Collectorate and the price to be paid was to be fixed at 20 years purchase of the existing assessment. It may be mentioned that in Despatch No. 14 dated July 9, 1862, the Secretary of State for India (Sir Charles Wood) did not agree with the earlier policy, but did not cancelis precisely what was done, and the result of the down payment is set out with great clarity in the deed itself, and it is that there was no land revenue assessed on or demandable from that land. In fact, no demand or payment or charge in the nature of land revenue could ever be made on it. In view of this, it is, in our judgment, quite satisfactorily established that this land was not assessed to land revenue and the income from it did not fall within Sec. 2(1)(a) of the Income-tax Act. The answer given by the High Court was thus correct.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: to land revenue. Similarly, the decision of this Court in The Collector of Bombay v. Nusserwanji Rattanji Mistri, 1955-1 SCR 1311 : (S) AIR 1955 SC 298 ), where on the acquisition of some Foras lands held under Foras Land Act (Bombay Act, VI of 1851) the Foras tenure was declared to have come to an end and on the same lands being resold by Government as freehold, they were declared not to be subject to assessment to which they were previously subject, is not very helpful.17. There do not appear to be any rules prior to 1875, which were framed under the Land Acquisition Act of 1870 (Act X of 1870) and which are to be found in the Calcutta Gazette of July 7, 1875, p. 818. If there were, they have not been brought to our notice. But a practice similar to the rules seems to have obtained under section XXVI of the Act of 1857. That Act also did not contain any provision for making rules, as are to be found in the subsequent Acts for compulsory acquisition of land. In the absence of any statutory law or rules, we must take the facts to be that after acquisition the Panchannagram Estate was given abatement of land revenue and the demand for land revenue was transferred to the land acquired and granted to the Justices. At that stage, the liability to assessment remained, and it was that liability which was redeemed by a down payment.18. We next consider the effect of redemption. Learned counsel for the appellant contends that redemption in this connection means that by a single payment, the liability for periodical payments is saved but the assessment on the land remains uncancelled. He has cited Whartons Law Lexicon to show the meaning of the word "redemption", which is "commutation or the substitution of one lump payment for a succession of annual ones: e.g. See the Land Tax and the Tithe Redemption Acts and many other statutes". Redemption is the act of redeeming which in its ordinary meaning is equal to bringing off a charge or obligation by payment. To what extent this redemption freed the land or its holder from the obligation depends not so much upon what the obligation was before redemption as what remained of that obligation after it. Here, the payment itself was meant to be "an immediate payment of one sum equal in value to the revenue redeemed" (vide the Resolution of Government dated October 17, 1861).By the down payment, the entire land revenue to be recovered from that land was redeemed. The payment was equal to the capitalised value of the land revenue. When such a payment took place, it cannot be said that the assessment for land revenue remained. The land was freed from that assessment as completely as if there was no assessment. Thenceforward, the land would be classed as revenue-free, in fact and in law. In The Land-Law of Bengal (Tagore Law Lectures, 1895) p. 81, S. C. Mitra described these revenue-free lands as follows:"There is another class of revenue-free lands which comes within these rules laid down in the Registration and Tenancy Acts, namely, lands of which Government has, in consideration of the payment of a capitalised sum, granted proprietary title free in perpetuity from any demand of land-revenue."19. That this is what had happened here is quite apparent from the conveyance by the Secretary of State vesting the land in the Justices. It is significant that there is no mention of the payment of Rs. 7,728-13-8, nor of the assessability of the lands to land revenue. On the other hand, the deed of conveyance merely reaffirmed the position, which existed before by stating:"....to hold the said pieces of land, hereditaments and premises intended to be conveyed with the appurtenances except as aforesaid unto the said Justices of the Peace for the Town of Calcutta and their successors for ever free and clear and for ever discharged from all Government land revenue whatever or any payment or charge in the nature thereof."There can be no doubt that the land revenue was for ever extinguished and the land became free from land revenue assessment in perpetuity. It cannot thereafter be said that the land was still assessed to land revenue.20. Mr. Mitra made a great effort to construe the operative part quoted above with the aid of the recital in the deed, where it was stated:"........but free and discharged from all payment of land revenue, land tax and all and every tax or imposition in the nature of revenue derivable from land payable to Government..........".He drew attention to the word `payment, and contended that what was saved was payment of land revenue. He argued that in case of ambiguity it was permissible to construe the operative portion of a deed in the light of the recitals, and cited Halsburys Laws of England, Vol. XI, p. 421, para, 680 Gwyn v. Neath Canal Co., (1868) 3 Ex 209 and Orr v. Mitchell, 1893 AC 238 at p. 254. It there was any ambiguity in the operative portion of the deed, we may have taken the aid of the recitals. But there is no ambiguity in the deed. The history of redemption is a matter of record, and it is plain that Government was accepting a down payment and freeing land from land revenue. This is precisely what was done, and the result of the down payment is set out with great clarity in the deed itself, and it is that there was no land revenue assessed on or demandable from that land. In fact, no demand or payment or charge in the nature of land revenue could ever be made on it. In view of this, it is, in our judgment, quite satisfactorily established that this land was not assessed to land revenue and the income from it did not fall within Sec. 2(1)(a) of the Income-tax Act. The answer given by the High Court was thus correct. ### Response: 0 ### Explanation: It is an admitted fact that by payment of a lump sum the liability to pay land revenue was redeemed and no land revenue was demanded or was ever demandable from the Justices or their assigns in perpetuity. The contention of the assessee is that this redemption saved the Justices from the liability for payment but did not affect the assessability of the land to revenue under Regulation I of 1793. Unless, it is contended, there was a cancellation of the assessment, as is to be found in the Land Tax and Tithe Redemption Acts in England, the liability must be deemed to continue and land would still be assessed to land revenue for purposes of section 2(1)(a) of the Indian Income-tax Act.In the High Court, the matter was examined from three different points of view. The first was the effect of acquisition of the land by Government upon the continued assessability of the land to land revenue. The learned Chief Justice held that by the acquisition the assessment ceased to subsist. The second was the effect of the redemption of land revenue by the Justices by a lump sum payment. The learned Chief Justice was of opinion that it had the effect of cancelling the assessment. The last was the effect of the grant free from land revenue, about which the learned Chief Justice was of opinion that it freed the land from assessment to land revenue. Sarkar, J. agreed as to the first, but expressed doubts about the second and third propositions. According to the learned Judge, the acceptance of a lump sum payment in lieu of recurring annual payments was more a matter of agreement than a cancellation of assessment to land revenue.12. The matter has been argued before us from the same points of view; but Mr. Mitra has added an argument about the interpretation to be placed on the conveyance by the Secretary of State which, according to him, only freed the Justices from `payment of the assessed land revenue but did not cancel the assessment.13. No Act of Legislature bearing upon the power of Government to accept a lump sum payment in lieu of the annual demands for land revenue has been brought to our notice. Counsel admitted that they were unable to find any such legislative provision. We have thus to proceed, as did the High Court, without having before us the authority of a legislative enactment. The only materials to which reference was made are: an extract from the explanatory notes in the Revenue Roll of the Touzi which shows that an abatement of land revenue pro tanto was granted to the proprietor of Panchannagram Estate, and a despatch from the Secretary of State for India (Lord Stanley) - No. 2 (Revenue) dated December 31, 1858 - recommending redemption of land revenue by an immediate payment of a sum of equivalent value, together with a Resolution of Government (Home Department No. 3264 (Rev) dated October 17, 1861) on permission to redeem the existing land revenue by the immediate payment of one sum equal in value to the revenue redeemed. By the resolution, it was provided that such redemption would be limited to 10 per cent of the total revenue in the Collectorate and the price to be paid was to be fixed at 20 years purchase of the existing assessment. It may be mentioned that in Despatch No. 14 dated July 9, 1862, the Secretary of State for India (Sir Charles Wood) did not agree with the earlier policy, but did not cancelis precisely what was done, and the result of the down payment is set out with great clarity in the deed itself, and it is that there was no land revenue assessed on or demandable from that land. In fact, no demand or payment or charge in the nature of land revenue could ever be made on it. In view of this, it is, in our judgment, quite satisfactorily established that this land was not assessed to land revenue and the income from it did not fall within Sec. 2(1)(a) of the Income-tax Act. The answer given by the High Court was thus correct.

Graphite India Ltd Vs. Durgapur Projects Ltd

came, viz., test of prejudice or the rest of fail hearing as it may be called." 24. In Rajendra Singh v. State of M.P. & others, 1996(5) SCC 460 this Court again affirmed that even a mandatory provision which is in the interest of the party can be waived by the party himself but if it is in public interest, it cannot be waived. 25. A person to whom sanction has been granted under Section 28 of the Electricity Act cannot exercise all the powers of a licensee under that Act. The powers to be exercised by holder of sanction are specifically mentioned under the Act. Reference may be made to Section 29 of the Electricity Act. Under that Act, the local authority my, by order in writing, confer and impose upon any person, who has obtained the sanction of the State Government under Section 28 to engage in the business of supplying energy, to the public, all or any of the powers and liabilities of a licensee under Sections 12 to 19, and the provisions of the said sections shall thereupon apply as if such person were a licensee under Part II of the Act. It is, thus, apparent that a sanction holder under Section 28 of the Electricity Act cannot be equated with a licensee under Part II of that Act.26. Under Section 57 of the Supply Act the Sixth Schedule is applicable to a licensee. This Schedule has been made applicable to a sanction holder under the terms of the sanction. Third proviso to the Sixth Schedule provides that the licensee shall not enhance the charges for the supply of electricity until after the expiry of a notice in writing of not less than sixty clear days of his intention to so enhance the charges, given by him to the State Government and to the State Electricity Board. In the present case, when we are considering the applicability of the Sixth Schedule to the sanction holder, it is not the case that any notice was required to be given to the WBSEB. Why notice is required to be given to the State Government can be seen from the fact that the State Government or the State Electricity Board could constitute a rating committee to examine the licensees charges for the supply of electricity and to make recommendations in that behalf to the State Government. What are the consequences of the recommendations of the rating committee find mention in Section 57A and in the Sixth Schedule. There is no question of any approval to be given by the State Government to the licensee. When notice of enhancement of charges is given in the case of sanction holder under the terms of the sanction approval of the State Government is required. We have seen above, approval from the State Government can be retrospective. The bar in the proviso is only to the extent that enhanced charges may not be levied till after the expiry of sixty days notice to the Government. It is not that the State Government is required to grant its approval within 60 days period. As far as sanction holder is concerned, requirement of notice and approval by the State Government are not statutory conditions. These are contractual and could be varied or waived by the State Government. Conditions have been imposed by the State Government and not by virtue of any statute. It would, therefore, appear to us that the requirement of sixty days notice to the State Government is not mandatory in its counter affidavit dated January 10, 1992 filed in the first writ petition, the State Government took the stand that the DPL before enhancing the tariff with effect from April 3, 1991 did not comply with the necessary formalities as required under the Supply Act read with the Government Order No. 4520 (Power) dated August 28, 1964. Graphite was not informed of the said hike which came into force w.e.f. April 8, 1991. However, in the supplementary affidavit filed by the DPL subsequently it was stated that the Government of West Bengal by their letter dated April 27, 1992 duly approved the enhancement of tariff w.e.f. April 8, 1991. In the letter dated February 9, 1991 to the State Government, the DPL mentioned that the tariff was last revised for all categories of consumers w.e.f. August 1, 1988 and thereafter the cost of operation of maintenance of power plant has increased considerably. The revenue derived by the company from the existing tariff has been found to be quite inadequate to absorb spiraling cost and expenses. The State Government is also informed that by its order dated January 31, 1991, it had approved revision in tariff by the WBSEB w.e.f. March 1, 1991 and WBSEB has published a notification in the press announcing revision in their rates and charges. It was further pointed out that the State Government by its letter dated August 29, 1986 had directed the DPLs power tariff should be fixed in line with that of the WBSEB for the purpose of uniformity. In the letter seeking tariff revision for the year 1993-94, details were given as to how revision in tariff has been necessitated. As noted above graphite has failed to show as to how it could be said that charges enhanced by the DPL exceed the amount of reasonable return as required under clause (1) of the Sixth Schedule. It is certainly, a relevant consideration for the DPL to fix its tariff in line with the WBSEB for the purpose of uniformity and as Mr. Reddy put it for capping unless it is shown that tariff revision has contravened the provisions of the Sixth Schedule. State Government has not insisted of notice being less than 60 days. No prejudice is shown to have been causes to Graphite on the ground that notice period fell short Â? by two days. In the circumstances of the case requirement of 60 days notice does not appear to us to be mandatory.

0[ds]26. Under Section 57 of the Supply Act the Sixth Schedule is applicable to a licensee. This Schedule has been made applicable to a sanction holder under the terms of the sanction. Third proviso to the Sixth Schedule provides that the licensee shall not enhance the charges for the supply of electricity until after the expiry of a notice in writing of not less than sixty clear days of his intention to so enhance the charges, given by him to the State Government and to the State Electricity Board. In the present case, when we are considering the applicability of the Sixth Schedule to the sanction holder, it is not the case that any notice was required to be given to the WBSEB. Why notice is required to be given to the State Government can be seen from the fact that the State Government or the State Electricity Board could constitute a rating committee to examine the licensees charges for the supply of electricity and to make recommendations in that behalf to the State Government. What are the consequences of the recommendations of the rating committee find mention in Section 57A and in the Sixth Schedule. There is no question of any approval to be given by the State Government to the licensee. When notice of enhancement of charges is given in the case of sanction holder under the terms of the sanction approval of the State Government is required. We have seen above, approval from the State Government can be retrospective. The bar in the proviso is only to the extent that enhanced charges may not be levied till after the expiry of sixty days notice to the Government. It is not that the State Government is required to grant its approval within 60 days period. As far as sanction holder is concerned, requirement of notice and approval by the State Government are not statutory conditions. These are contractual and could be varied or waived by the State Government. Conditions have been imposed by the State Government and not by virtue of any statute. It would, therefore, appear to us that the requirement of sixty days notice to the State Government is not mandatory in its counter affidavit dated January 10, 1992 filed in the first writ petition, the State Government took the stand that the DPL before enhancing the tariff with effect from April 3, 1991 did not comply with the necessary formalities as required under the Supply Act read with the Government Order No. 4520 (Power) dated August 28, 1964. Graphite was not informed of the said hike which came into force w.e.f. April 8, 1991. However, in the supplementary affidavit filed by the DPL subsequently it was stated that the Government of West Bengal by their letter dated April 27, 1992 duly approved the enhancement of tariff w.e.f. April 8, 1991. In the letter dated February 9, 1991 to the State Government, the DPL mentioned that the tariff was last revised for all categories of consumers w.e.f. August 1, 1988 and thereafter the cost of operation of maintenance of power plant has increased considerably. The revenue derived by the company from the existing tariff has been found to be quite inadequate to absorb spiraling cost and expenses. The State Government is also informed that by its order dated January 31, 1991, it had approved revision in tariff by the WBSEB w.e.f. March 1, 1991 and WBSEB has published a notification in the press announcing revision in their rates and charges. It was further pointed out that the State Government by its letter dated August 29, 1986 had directed the DPLs power tariff should be fixed in line with that of the WBSEB for the purpose of uniformity. In the letter seeking tariff revision for the year 1993-94, details were given as to how revision in tariff has been necessitated. As noted above graphite has failed to show as to how it could be said that charges enhanced by the DPL exceed the amount of reasonable return as required under clause (1) of the Sixth Schedule. It is certainly, a relevant consideration for the DPL to fix its tariff in line with the WBSEB for the purpose of uniformity and as Mr. Reddy put it for capping unless it is shown that tariff revision has contravened the provisions of the Sixth Schedule. State Government has not insisted of notice being less than 60 days. No prejudice is shown to have been causes to Graphite on the ground that notice period fell short Â? by two days. In the circumstances of the case requirement of 60 days notice does not appear to us to be mandatory.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: came, viz., test of prejudice or the rest of fail hearing as it may be called." 24. In Rajendra Singh v. State of M.P. & others, 1996(5) SCC 460 this Court again affirmed that even a mandatory provision which is in the interest of the party can be waived by the party himself but if it is in public interest, it cannot be waived. 25. A person to whom sanction has been granted under Section 28 of the Electricity Act cannot exercise all the powers of a licensee under that Act. The powers to be exercised by holder of sanction are specifically mentioned under the Act. Reference may be made to Section 29 of the Electricity Act. Under that Act, the local authority my, by order in writing, confer and impose upon any person, who has obtained the sanction of the State Government under Section 28 to engage in the business of supplying energy, to the public, all or any of the powers and liabilities of a licensee under Sections 12 to 19, and the provisions of the said sections shall thereupon apply as if such person were a licensee under Part II of the Act. It is, thus, apparent that a sanction holder under Section 28 of the Electricity Act cannot be equated with a licensee under Part II of that Act.26. Under Section 57 of the Supply Act the Sixth Schedule is applicable to a licensee. This Schedule has been made applicable to a sanction holder under the terms of the sanction. Third proviso to the Sixth Schedule provides that the licensee shall not enhance the charges for the supply of electricity until after the expiry of a notice in writing of not less than sixty clear days of his intention to so enhance the charges, given by him to the State Government and to the State Electricity Board. In the present case, when we are considering the applicability of the Sixth Schedule to the sanction holder, it is not the case that any notice was required to be given to the WBSEB. Why notice is required to be given to the State Government can be seen from the fact that the State Government or the State Electricity Board could constitute a rating committee to examine the licensees charges for the supply of electricity and to make recommendations in that behalf to the State Government. What are the consequences of the recommendations of the rating committee find mention in Section 57A and in the Sixth Schedule. There is no question of any approval to be given by the State Government to the licensee. When notice of enhancement of charges is given in the case of sanction holder under the terms of the sanction approval of the State Government is required. We have seen above, approval from the State Government can be retrospective. The bar in the proviso is only to the extent that enhanced charges may not be levied till after the expiry of sixty days notice to the Government. It is not that the State Government is required to grant its approval within 60 days period. As far as sanction holder is concerned, requirement of notice and approval by the State Government are not statutory conditions. These are contractual and could be varied or waived by the State Government. Conditions have been imposed by the State Government and not by virtue of any statute. It would, therefore, appear to us that the requirement of sixty days notice to the State Government is not mandatory in its counter affidavit dated January 10, 1992 filed in the first writ petition, the State Government took the stand that the DPL before enhancing the tariff with effect from April 3, 1991 did not comply with the necessary formalities as required under the Supply Act read with the Government Order No. 4520 (Power) dated August 28, 1964. Graphite was not informed of the said hike which came into force w.e.f. April 8, 1991. However, in the supplementary affidavit filed by the DPL subsequently it was stated that the Government of West Bengal by their letter dated April 27, 1992 duly approved the enhancement of tariff w.e.f. April 8, 1991. In the letter dated February 9, 1991 to the State Government, the DPL mentioned that the tariff was last revised for all categories of consumers w.e.f. August 1, 1988 and thereafter the cost of operation of maintenance of power plant has increased considerably. The revenue derived by the company from the existing tariff has been found to be quite inadequate to absorb spiraling cost and expenses. The State Government is also informed that by its order dated January 31, 1991, it had approved revision in tariff by the WBSEB w.e.f. March 1, 1991 and WBSEB has published a notification in the press announcing revision in their rates and charges. It was further pointed out that the State Government by its letter dated August 29, 1986 had directed the DPLs power tariff should be fixed in line with that of the WBSEB for the purpose of uniformity. In the letter seeking tariff revision for the year 1993-94, details were given as to how revision in tariff has been necessitated. As noted above graphite has failed to show as to how it could be said that charges enhanced by the DPL exceed the amount of reasonable return as required under clause (1) of the Sixth Schedule. It is certainly, a relevant consideration for the DPL to fix its tariff in line with the WBSEB for the purpose of uniformity and as Mr. Reddy put it for capping unless it is shown that tariff revision has contravened the provisions of the Sixth Schedule. State Government has not insisted of notice being less than 60 days. No prejudice is shown to have been causes to Graphite on the ground that notice period fell short Â? by two days. In the circumstances of the case requirement of 60 days notice does not appear to us to be mandatory. ### Response: 0 ### Explanation: 26. Under Section 57 of the Supply Act the Sixth Schedule is applicable to a licensee. This Schedule has been made applicable to a sanction holder under the terms of the sanction. Third proviso to the Sixth Schedule provides that the licensee shall not enhance the charges for the supply of electricity until after the expiry of a notice in writing of not less than sixty clear days of his intention to so enhance the charges, given by him to the State Government and to the State Electricity Board. In the present case, when we are considering the applicability of the Sixth Schedule to the sanction holder, it is not the case that any notice was required to be given to the WBSEB. Why notice is required to be given to the State Government can be seen from the fact that the State Government or the State Electricity Board could constitute a rating committee to examine the licensees charges for the supply of electricity and to make recommendations in that behalf to the State Government. What are the consequences of the recommendations of the rating committee find mention in Section 57A and in the Sixth Schedule. There is no question of any approval to be given by the State Government to the licensee. When notice of enhancement of charges is given in the case of sanction holder under the terms of the sanction approval of the State Government is required. We have seen above, approval from the State Government can be retrospective. The bar in the proviso is only to the extent that enhanced charges may not be levied till after the expiry of sixty days notice to the Government. It is not that the State Government is required to grant its approval within 60 days period. As far as sanction holder is concerned, requirement of notice and approval by the State Government are not statutory conditions. These are contractual and could be varied or waived by the State Government. Conditions have been imposed by the State Government and not by virtue of any statute. It would, therefore, appear to us that the requirement of sixty days notice to the State Government is not mandatory in its counter affidavit dated January 10, 1992 filed in the first writ petition, the State Government took the stand that the DPL before enhancing the tariff with effect from April 3, 1991 did not comply with the necessary formalities as required under the Supply Act read with the Government Order No. 4520 (Power) dated August 28, 1964. Graphite was not informed of the said hike which came into force w.e.f. April 8, 1991. However, in the supplementary affidavit filed by the DPL subsequently it was stated that the Government of West Bengal by their letter dated April 27, 1992 duly approved the enhancement of tariff w.e.f. April 8, 1991. In the letter dated February 9, 1991 to the State Government, the DPL mentioned that the tariff was last revised for all categories of consumers w.e.f. August 1, 1988 and thereafter the cost of operation of maintenance of power plant has increased considerably. The revenue derived by the company from the existing tariff has been found to be quite inadequate to absorb spiraling cost and expenses. The State Government is also informed that by its order dated January 31, 1991, it had approved revision in tariff by the WBSEB w.e.f. March 1, 1991 and WBSEB has published a notification in the press announcing revision in their rates and charges. It was further pointed out that the State Government by its letter dated August 29, 1986 had directed the DPLs power tariff should be fixed in line with that of the WBSEB for the purpose of uniformity. In the letter seeking tariff revision for the year 1993-94, details were given as to how revision in tariff has been necessitated. As noted above graphite has failed to show as to how it could be said that charges enhanced by the DPL exceed the amount of reasonable return as required under clause (1) of the Sixth Schedule. It is certainly, a relevant consideration for the DPL to fix its tariff in line with the WBSEB for the purpose of uniformity and as Mr. Reddy put it for capping unless it is shown that tariff revision has contravened the provisions of the Sixth Schedule. State Government has not insisted of notice being less than 60 days. No prejudice is shown to have been causes to Graphite on the ground that notice period fell short Â? by two days. In the circumstances of the case requirement of 60 days notice does not appear to us to be mandatory.

State Of Mysore Vs. C. R. Seshadri & Ors

the criterion for promotion is one of seniority-cum-merit, comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioners eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted.3. Counsel for the State made reasonable efforts to help the Court with the relevant rule but his clients co-operation was not forthcoming. We direct the appellant to apply to the first respondent the same rule of promotion as was applied to Venkataraman and to be fair enough not to act adversely without giving him an opportunity. In the light of the States reluctance to produce the rule we almost think the High Court order is substantially just. Even so, it is for the Government to promote with retrospective effect. We, therefore, set aside the second part of the High Courts order in the judicial hope that justice will be done to the petitioner.4. The pragmatic limitation on judicial power we have set is not novel but traditional, as is evident from the two recent rulings of this Court - both rendered in appeals from the Mysore High Court - where probably judicial promotion of executive officers was perhaps not viewed as an avoidable encroachment.5. In State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 (366) = (AIR 1968 SC 1113 ) Bachawat J., speaking for the Court, held in a case where the promotion of an officer was involved that the proper direction should be that the State Government should "consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959......The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959." The Court concluded in that case thus:"We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the post of senior statistical assistants on the relevant dates when officers junior to them were promoted, and if so what consequential monetary benefits should be allowed to them."6. Similarly, in State of Mysore v. P. N. Nanjundiah, (1969) 3 SCC 633 (637) = (AIR 1969 NSC 38) Ramaswami, J., speaking for the Court, dealt with a service dispute and while agreeing with the substantive conclusion of the High Court modified the order in so far as the promotion was ordered by the Court. The learned Judge observed:"The argument was stressed on behalf of the appellants that in any event the High Court was not right in issuing a writ of mandamus "directing the appellants to promote respondent No.1 as Overseer with effect from February 1, 1961 and as Supervisor with effect from April 1, 1963 and to give him all consequential benefits". In our opinion there is justification for this argument. It has been pointed out by this Court in the State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 = (AIR 1968 SC 1113 ) that in matters of this description the high Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. in the present case we are informed that both respondent No.1 and respondent No.2 have been promoted as overseers after the filing of the writ petition. In the circumstances we consider that proper course is to issue a direction to the appellants to consider whether the respondent No.1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority as between respondent No.1 and respondent No.2 and what consequential benefits should be allowed to respondent No.1".We respectfully agree with the guideline furnished by these two decisions which fortify the view we have taken.7. While we agree that the High Court has not impelled by a right judicial instinct to undo injustice to an individual, we feel that a perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant.Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document.8. The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance of the petitioners claim and what was a service issue has now been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the peculiary expectation of the superannuated public servant - not unusual in government - we direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his due - if so found - on or before April 15, 1974. The governments inexplicable indifference is not placing before the Court the relevant rule regarding promotion to the post of Deputy Secretary merits the order that the appellant pay the costs of the petitioner first respondent, for, the wages of winners sloth is denial of costs, and something more.

0[ds]We direct the appellant to apply to the first respondent the same rule of promotion as was applied to Venkataraman and to be fair enough not to act adversely without giving him an opportunity. In the light of the States reluctance to produce the rule we almost think the High Court order is substantially just. Even so, it is for the Government to promote with retrospective effect. We, therefore, set aside the second part of the High Courts order in the judicial hope that justice will be done to the petitioner.The State of Mysore, appellant before us, has raised two contentions, the first being the more material but less meritorious and the second secondary butcounsel for the appellant has fairly and rightly conceded the legitimacy of this claim. Indeed, the State Government had accepted the petitioners right based on the equivalence of the post of Private Secretary and of Assistant Secretary but the Central Government did not agree, and when confronted in Court with overwhelming proof pleaded apologetically that they were not in possession of the full facts when rejecting the petitioners seniority plea. We affirm that the first respondent is entitled to court his service from October 27, 1946 for fixation in the gradation list.2. Flowing from this finding is the direction by the High Court to give the petitioner notional promotion as Deputy Secretary with effect from the date on which one R. Venkataraman, next below him, secured such promotion and for payment of the excess salary accruing to him on that footing. This part of the judgment is attacked as beyond the power of the Court. We see the soundless of this submission. In our constitutional scheme, a broaddivision exists. The power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. What has been done here is in excess of its jurisdiction. Assuming the petitioners seniority over Venkataraman, how can the Court say that the former would have been for certain promoted? Basically, it is in Governments discretionary power, fairly exercised, to promote a Government servant. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand ifis the rule, as in thedecisions cited before us, promotion is probelmatical. In the absence of positive proof of the relevant service rules, it is hazardous to assume that by efflux of time the petitioner would have spiralled up to December Secretaryship. How could we speculate in retrospect what the rule was and whether the petitioner would have been selected on merit, and on the strength of such dubious hypothesis direct retroactive promotion and back pay? The frontiers of judicial power cannot be stretched thus far. The proper direction can only be that Government willthe case of the petitioner afresh for purposes of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, Government will, except for the strongest reason, grant the benefit of promotion with effect from the date Venkataraman became Deputy Secretary. Nothing has been suggested against the petitioner in his career to disentitle him to promotion and we have no doubt Government will give him his meed. However, if the criterion for promotion is one ofcomparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioners eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted.The pragmatic limitation on judicial power we have set is not novel but traditional, as is evident from the two recent rulings of this Courtboth rendered in appeals from the Mysore High Courtwhere probably judicial promotion of executive officers was perhaps not viewed as an avoidable encroachment.5. In State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 (366) = (AIR 1968 SC 1113 ) Bachawat J., speaking for the Court, held in a case where the promotion of an officer was involved that the proper direction should be that the State Government should "consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959......The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959." The Court concluded in that casedirect the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the post of senior statistical assistants on the relevant dates when officers junior to them were promoted, and if so what consequential monetary benefits should be allowed to them.Similarly, in State of Mysore v. P. N. Nanjundiah, (1969) 3 SCC 633 (637) = (AIR 1969 NSC 38) Ramaswami, J., speaking for the Court, dealt with a service dispute and while agreeing with the substantive conclusion of the High Court modified the order in so far as the promotion was ordered by the Court. The learned Judgeargument was stressed on behalf of the appellants that in any event the High Court was not right in issuing a writ of mandamus "directing the appellants to promote respondent No.1 as Overseer with effect from February 1, 1961 and as Supervisor with effect from April 1, 1963 and to give him all consequential benefits". In our opinion there is justification for this argument. It has been pointed out by this Court in the State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 = (AIR 1968 SC 1113 ) that in matters of this description the high Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. in the present case we are informed that both respondent No.1 and respondent No.2 have been promoted as overseers after the filing of the writ petition. In the circumstances we consider that proper course is to issue a direction to the appellants to consider whether the respondent No.1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority as between respondent No.1 and respondent No.2 and what consequential benefits should be allowed to respondentrespectfully agree with the guideline furnished by these two decisions which fortify the view we have taken.7. While we agree that the High Court has not impelled by a right judicial instinct to undo injustice to an individual, we feel that a perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant.Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document.8. The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance of the petitioners claim and what was a service issue has now been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the peculiary expectation of the superannuated public servantnot unusual in governmentwe direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his dueif so foundon or before April 15, 1974. The governments inexplicable indifference is not placing before the Court the relevant rule regarding promotion to the post of Deputy Secretary merits the order that the appellant pay the costs of the petitioner first respondent, for, the wages of winners sloth is denial of costs, and something more.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: the criterion for promotion is one of seniority-cum-merit, comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioners eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted.3. Counsel for the State made reasonable efforts to help the Court with the relevant rule but his clients co-operation was not forthcoming. We direct the appellant to apply to the first respondent the same rule of promotion as was applied to Venkataraman and to be fair enough not to act adversely without giving him an opportunity. In the light of the States reluctance to produce the rule we almost think the High Court order is substantially just. Even so, it is for the Government to promote with retrospective effect. We, therefore, set aside the second part of the High Courts order in the judicial hope that justice will be done to the petitioner.4. The pragmatic limitation on judicial power we have set is not novel but traditional, as is evident from the two recent rulings of this Court - both rendered in appeals from the Mysore High Court - where probably judicial promotion of executive officers was perhaps not viewed as an avoidable encroachment.5. In State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 (366) = (AIR 1968 SC 1113 ) Bachawat J., speaking for the Court, held in a case where the promotion of an officer was involved that the proper direction should be that the State Government should "consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959......The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959." The Court concluded in that case thus:"We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the post of senior statistical assistants on the relevant dates when officers junior to them were promoted, and if so what consequential monetary benefits should be allowed to them."6. Similarly, in State of Mysore v. P. N. Nanjundiah, (1969) 3 SCC 633 (637) = (AIR 1969 NSC 38) Ramaswami, J., speaking for the Court, dealt with a service dispute and while agreeing with the substantive conclusion of the High Court modified the order in so far as the promotion was ordered by the Court. The learned Judge observed:"The argument was stressed on behalf of the appellants that in any event the High Court was not right in issuing a writ of mandamus "directing the appellants to promote respondent No.1 as Overseer with effect from February 1, 1961 and as Supervisor with effect from April 1, 1963 and to give him all consequential benefits". In our opinion there is justification for this argument. It has been pointed out by this Court in the State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 = (AIR 1968 SC 1113 ) that in matters of this description the high Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. in the present case we are informed that both respondent No.1 and respondent No.2 have been promoted as overseers after the filing of the writ petition. In the circumstances we consider that proper course is to issue a direction to the appellants to consider whether the respondent No.1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority as between respondent No.1 and respondent No.2 and what consequential benefits should be allowed to respondent No.1".We respectfully agree with the guideline furnished by these two decisions which fortify the view we have taken.7. While we agree that the High Court has not impelled by a right judicial instinct to undo injustice to an individual, we feel that a perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant.Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document.8. The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance of the petitioners claim and what was a service issue has now been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the peculiary expectation of the superannuated public servant - not unusual in government - we direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his due - if so found - on or before April 15, 1974. The governments inexplicable indifference is not placing before the Court the relevant rule regarding promotion to the post of Deputy Secretary merits the order that the appellant pay the costs of the petitioner first respondent, for, the wages of winners sloth is denial of costs, and something more. ### Response: 0 ### Explanation: spiralled up to December Secretaryship. How could we speculate in retrospect what the rule was and whether the petitioner would have been selected on merit, and on the strength of such dubious hypothesis direct retroactive promotion and back pay? The frontiers of judicial power cannot be stretched thus far. The proper direction can only be that Government willthe case of the petitioner afresh for purposes of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, Government will, except for the strongest reason, grant the benefit of promotion with effect from the date Venkataraman became Deputy Secretary. Nothing has been suggested against the petitioner in his career to disentitle him to promotion and we have no doubt Government will give him his meed. However, if the criterion for promotion is one ofcomparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioners eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted.The pragmatic limitation on judicial power we have set is not novel but traditional, as is evident from the two recent rulings of this Courtboth rendered in appeals from the Mysore High Courtwhere probably judicial promotion of executive officers was perhaps not viewed as an avoidable encroachment.5. In State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 (366) = (AIR 1968 SC 1113 ) Bachawat J., speaking for the Court, held in a case where the promotion of an officer was involved that the proper direction should be that the State Government should "consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959......The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959." The Court concluded in that casedirect the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the post of senior statistical assistants on the relevant dates when officers junior to them were promoted, and if so what consequential monetary benefits should be allowed to them.Similarly, in State of Mysore v. P. N. Nanjundiah, (1969) 3 SCC 633 (637) = (AIR 1969 NSC 38) Ramaswami, J., speaking for the Court, dealt with a service dispute and while agreeing with the substantive conclusion of the High Court modified the order in so far as the promotion was ordered by the Court. The learned Judgeargument was stressed on behalf of the appellants that in any event the High Court was not right in issuing a writ of mandamus "directing the appellants to promote respondent No.1 as Overseer with effect from February 1, 1961 and as Supervisor with effect from April 1, 1963 and to give him all consequential benefits". In our opinion there is justification for this argument. It has been pointed out by this Court in the State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 = (AIR 1968 SC 1113 ) that in matters of this description the high Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. in the present case we are informed that both respondent No.1 and respondent No.2 have been promoted as overseers after the filing of the writ petition. In the circumstances we consider that proper course is to issue a direction to the appellants to consider whether the respondent No.1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority as between respondent No.1 and respondent No.2 and what consequential benefits should be allowed to respondentrespectfully agree with the guideline furnished by these two decisions which fortify the view we have taken.7. While we agree that the High Court has not impelled by a right judicial instinct to undo injustice to an individual, we feel that a perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant.Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document.8. The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance of the petitioners claim and what was a service issue has now been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the peculiary expectation of the superannuated public servantnot unusual in governmentwe direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his dueif so foundon or before April 15, 1974. The governments inexplicable indifference is not placing before the Court the relevant rule regarding promotion to the post of Deputy Secretary merits the order that the appellant pay the costs of the petitioner first respondent, for, the wages of winners sloth is denial of costs, and something more.

K.M. Shivakumar Vs. H.V. Vijayaraghavan & Another

Leave granted. These appeals by special leave arise out of a contempt proceedings filed by H.V. Vijayaraghavan, respondent No.1 herein, for alleged violation of the order of the High Court dated 18.11.2005 which is in the following terms: "Having regard to the nature of the grievance made by the petitioners in the petition, we are of the view that they should prosecute their objections before the authorities concerned and the proceedings should be allowed to continue. We are not inclined to interfere with the preliminary notification at this stage. Consequently, the writ petition is dismissed. We, however, give liberty to the petitioners to file further objections, if any, before the competent authority within the next thee weeks and if such objections are filed, the said authority shall consider the same along with the objections already filed in accordance with law and proceed in the matter thereafter. No costs." Allegedly, pursuant to or in furtherance of the said order, number of representations and objections were filed by the said H.V. Vijayaraghavan and another person for dropping the land acquisition proceedings. On the plea that the said representations and objections had not been disposed of, a contempt petition was filed. The High Court issued notice against respondent No.8 - K.M. Shivakumar in the contempt petition, who is the petitioner in SLP(C) No.7565/2007. The High Court, however, opined that charges should be framed as against K.M. Shivakumar. It is stated at the Bar that during the pendency of the contempt application, however, the said purported representations and objections of H.V. Vijayaraghavan and others were disposed of on 2.2.2007 by Special Land Acquisition Officer. This Court stayed further proceedings in the contempt matter where after the State purportedly decided to withdraw the land acquisition proceedings. In the said contempt proceedings before the High Court, Nandi Infrastructure Corridor Enterprises Ltd. ("the Company" for short) had filed an application for being impleaded as a party. As the said application was dismissed on 5.4.2007, a Special Leave Petition was filed before this Court which was marked as SLP(C) No. 7567/2007. Both the SLPs i.e. SLP(C) Nos. 7565/2007 & 7567/2007, were taken up together for preliminary hearing and this Court on 30.4.2007 passed the following order: "Issue notice.Mr. Raghavendra S. Srivatsa, learned counsel accepts notice.Two weeks time is granted for filing counter affidavit. Till further order, further proceedings in the contempt matter shall remain stayed."It, however, appears that H.V. Vijayaraghavan and another person in the meantime, having regard to the order passed on their representations by the State of Karnataka, sought to withdraw the contempt application wherefor an application was filed before us. The said application was marked as I.A. No.6/2007. In the said I.A., it was directed: "An application has been filed for withdrawal of the contempt petition pending before the High Court.This Court has granted the stay of further proceedings. In view of the fact that the contempt petition is pending before the High Court, we are of the opinion that the interest of justice would be sub served if the interim stay granted by this Court is vacated with liberty to the applicant herein to file an appropriate application for withdrawal of the contempt petition before the High Court.I.A. No.6 is disposed of accordingly."However, when an application for withdrawal of the contempt petition was moved before the High Court, it was of the opinion that this Court should clarify the two orders passed by it and directed the applicant to seek clarification from this Court. Pursuant to the said observation, this application for clarification has been filed. Mr. Raghavendra S. Srivatsa, learned counsel appearing on behalf of the respondents would submit that keeping in view the fact that the order dated 18.11.2005 stands complied, his client does not intend to proceed in the matter and therefore this Court should clarify that the High Court would be at liberty to pass appropriate order on the application for withdrawal of the contempt proceedings. Mr. R.F. Nariman and Mr. Dushyant Dave, learned senior counsel appearing on behalf of the Company, on the other hand, would submit that the authorities of the State of Karnataka have been passing orders de-notifying the lands from the acquisition proceedings taking shelter under the contempt proceedings, which in view of the earlier judgments passed by this Court should be held to be impermissible. It is not in dispute that the Company has filed a separate writ petition challenging the de-notification of the lands before the High Court which is still pending. Our attention in this connection has also been drawn to an order dated 27.2.2007 passed by this Court in C.A. No.1113/2007 wherein the Company has been held to be a party in the contempt proceeding.

1[ds]Our attention in this connection has also been drawn to an order dated 27.2.2007 passed by this Court in C.A. No.1113/2007 wherein the Company has been held to be a party in the contempt proceeding.

### 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: Leave granted. These appeals by special leave arise out of a contempt proceedings filed by H.V. Vijayaraghavan, respondent No.1 herein, for alleged violation of the order of the High Court dated 18.11.2005 which is in the following terms: "Having regard to the nature of the grievance made by the petitioners in the petition, we are of the view that they should prosecute their objections before the authorities concerned and the proceedings should be allowed to continue. We are not inclined to interfere with the preliminary notification at this stage. Consequently, the writ petition is dismissed. We, however, give liberty to the petitioners to file further objections, if any, before the competent authority within the next thee weeks and if such objections are filed, the said authority shall consider the same along with the objections already filed in accordance with law and proceed in the matter thereafter. No costs." Allegedly, pursuant to or in furtherance of the said order, number of representations and objections were filed by the said H.V. Vijayaraghavan and another person for dropping the land acquisition proceedings. On the plea that the said representations and objections had not been disposed of, a contempt petition was filed. The High Court issued notice against respondent No.8 - K.M. Shivakumar in the contempt petition, who is the petitioner in SLP(C) No.7565/2007. The High Court, however, opined that charges should be framed as against K.M. Shivakumar. It is stated at the Bar that during the pendency of the contempt application, however, the said purported representations and objections of H.V. Vijayaraghavan and others were disposed of on 2.2.2007 by Special Land Acquisition Officer. This Court stayed further proceedings in the contempt matter where after the State purportedly decided to withdraw the land acquisition proceedings. In the said contempt proceedings before the High Court, Nandi Infrastructure Corridor Enterprises Ltd. ("the Company" for short) had filed an application for being impleaded as a party. As the said application was dismissed on 5.4.2007, a Special Leave Petition was filed before this Court which was marked as SLP(C) No. 7567/2007. Both the SLPs i.e. SLP(C) Nos. 7565/2007 & 7567/2007, were taken up together for preliminary hearing and this Court on 30.4.2007 passed the following order: "Issue notice.Mr. Raghavendra S. Srivatsa, learned counsel accepts notice.Two weeks time is granted for filing counter affidavit. Till further order, further proceedings in the contempt matter shall remain stayed."It, however, appears that H.V. Vijayaraghavan and another person in the meantime, having regard to the order passed on their representations by the State of Karnataka, sought to withdraw the contempt application wherefor an application was filed before us. The said application was marked as I.A. No.6/2007. In the said I.A., it was directed: "An application has been filed for withdrawal of the contempt petition pending before the High Court.This Court has granted the stay of further proceedings. In view of the fact that the contempt petition is pending before the High Court, we are of the opinion that the interest of justice would be sub served if the interim stay granted by this Court is vacated with liberty to the applicant herein to file an appropriate application for withdrawal of the contempt petition before the High Court.I.A. No.6 is disposed of accordingly."However, when an application for withdrawal of the contempt petition was moved before the High Court, it was of the opinion that this Court should clarify the two orders passed by it and directed the applicant to seek clarification from this Court. Pursuant to the said observation, this application for clarification has been filed. Mr. Raghavendra S. Srivatsa, learned counsel appearing on behalf of the respondents would submit that keeping in view the fact that the order dated 18.11.2005 stands complied, his client does not intend to proceed in the matter and therefore this Court should clarify that the High Court would be at liberty to pass appropriate order on the application for withdrawal of the contempt proceedings. Mr. R.F. Nariman and Mr. Dushyant Dave, learned senior counsel appearing on behalf of the Company, on the other hand, would submit that the authorities of the State of Karnataka have been passing orders de-notifying the lands from the acquisition proceedings taking shelter under the contempt proceedings, which in view of the earlier judgments passed by this Court should be held to be impermissible. It is not in dispute that the Company has filed a separate writ petition challenging the de-notification of the lands before the High Court which is still pending. Our attention in this connection has also been drawn to an order dated 27.2.2007 passed by this Court in C.A. No.1113/2007 wherein the Company has been held to be a party in the contempt proceeding. ### Response: 1 ### Explanation: Our attention in this connection has also been drawn to an order dated 27.2.2007 passed by this Court in C.A. No.1113/2007 wherein the Company has been held to be a party in the contempt proceeding.

Commissioner of Customs & Central Excise, Nagpur Vs. M/s. Ispat Industries Ltd

transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyers account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with the Valuation Rules.In the present case, we find that most of the orders placed with the respondent assessee were by the various government authorities. One such order i.e. order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier, namely, the assessee. As per the “terms of payment” clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of the Sale of Goods Act, the property in goods was transferred at that time only. Section 19 reads as under:“19. Property passes when intended to pass. —(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.(3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.”These are clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in Escorts JCB Ltd. [(2003) 1 SCC 281 : (2002) 146 ELT 31 ] Obviously the exact principle laid down in the judgment has not been appreciated by CESTAT.” [at paras 12 - 15] 32. It will be seen that this is a decision distinguishing the Escorts JCB’s case on facts. It was found that goods were to be delivered only at the place of the buyer and the price of the goods was inclusive of transportation charges. As transit damage on the assessee’s account would imply that till the goods reached their destination, ownership in the goods remained with the supplier, namely, the assessee, freight charges would have to be added as a component of excise duty. Further, as per the terms of the payment clause contained in the procurement order, payment was only to be made after receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory gate of the assessee. Also, this Court’s attention was not drawn to Section 4 as originally enacted and as amended to demonstrate that the buyer’s premises cannot, in law, be “a place of removal” under the said Section.33. As has been seen in the present case all prices were “ex-works”, like the facts in Escorts JCB’s case. Goods were cleared from the factory on payment of the appropriate sales tax by the assessee itself, thereby indicating that it had sold the goods manufactured by it at the factory gate. Sales were made against Letters of Credit and bank discounting facilities, sometimes in advance. Invoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer. On facts, therefore, it is clear that Roofit’s judgment is wholly distinguishable. Similarly in Commissioner Central Excise, Mumbai-III v. M/s. Emco Ltd, this Court re-stated its decision in the Roofit Industries’ case but remanded the case to the Tribunal to determine whether on facts the factory gate of the assessee was the place of removal of excisable goods. This case again is wholly distinguishable on facts on the same lines as the Roofit Industries case. 34. In the view of the law that we have taken as well as the facts detailed above, the statement made by Shri S.P. Dahiwade pales into insignificance as has been correctly held by the Tribunal.

0[ds]17. It is clear, therefore, that as a matter of law with effect from the Amendment Act of 28.9.1996, the place of removal only has reference to places from which the manufacturer is to sell goods manufactured by him, and can, in no circumstances, have reference to the place of delivery which may, on facts, be then our view, Section 4 has to be read as a whole. Under Section 4(1)(a), the normal price is the price at which goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and price is the sole consideration for sale. Therefore, the normal price is the price at theat the place ofBefore the amendment, the place of removal was only the factory or any other place or premises where the excisable goods were produced or manufactured or a warehouse or any other place or premises where any excisable goods have been permitted to be deposited without payment of duty. Thus, the price would be the price at that place. By the amendment provisoto Section 4(1)(a) has been added. Under Sectionwhere the price of the goods is different for different places of removal, each such price was deemed to be the normal price of such goods in relation toThus, if the place of removal was the factory, then the price would be the normal price at the factory. If the place of removal was some other place like a depot or the premises of a consignment agent and the price was different then that different price would be the price. It is because the newly added provisoto Section 4(1)(a) was now providing for different prices at different places of removal that the definition of the termhad to be enlarged. Thus the amendment was not negativing the judgments of this Court. If that had been the intention it would have been specifically provided that even where price was the same/uniform all over the country, the cost of transportation was to be added.Thus in cases where the price remains uniform or constant all over the country, it does not follow that value for the purpose of excise changes merely because the definition of the termis extended. The normal price remains the price at the time of delivery andat the place ofremoval. In cases of equalised freight it remains the same as per the judgments of this Court set out hereinabove. In our view, the amendments have made no difference to the earlier position as settled by this Court. In this view of the matter, we are unable to uphold the judgments of the Tribunal. They are accordingly set aside. The appeals are allowed with consequential relief. There shall be no order as to[paras 5 tothe present case, we find that most of the orders placed with the respondent assessee were by the various government authorities. One such order i.e. order datedplaced by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be deliveredat the place ofthe buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier, namely, the assessee. As per theclause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee butat the place ofthe buyer on the delivery of the goods in question. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of the Sale of Goods Act, the property in goods was transferred at that timeare clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in Escorts JCB Ltd. [(2003) 1 SCC 281 : (2002) 146 ELT 31 ] Obviously the exact principle laid down in the judgment has not been appreciated by[at paras 12It will be seen that this is a decision distinguishing the Escortscase on facts. It was found that goods were to be delivered onlyat the place ofthe buyer and the price of the goods was inclusive of transportation charges. As transit damage on theaccount would imply that till the goods reached their destination, ownership in the goods remained with the supplier, namely, the assessee, freight charges would have to be added as a component of excise duty. Further, as per the terms of the payment clause contained in the procurement order, payment was only to be made after receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory gate of the assessee. Also, thisattention was not drawn to Section 4 as originally enacted and as amended to demonstrate that thepremises cannot, in law, beunder the said Section.33. As has been seen in the present case all prices werelike the facts in Escortscase. Goods were cleared from the factory on payment of the appropriate sales tax by the assessee itself, thereby indicating that it had sold the goods manufactured by it at the factory gate. Sales were made against Letters of Credit and bank discounting facilities, sometimes in advance. Invoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer. On facts, therefore, it is clear thatjudgment is wholly distinguishable. Similarly in Commissioner Central Excise,v. M/s. Emco Ltd, this Courtits decision in the Roofitcase but remanded the case to the Tribunal to determine whether on facts the factory gate of the assessee was the place of removal of excisable goods. This case again is wholly distinguishable on facts on the same lines as the Roofit Industries case.In the view of the law that we have taken as well as the facts detailed above, the statement made by Shri S.P. Dahiwade pales into insignificance as has been correctly held by the Tribunal.

### 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: transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyers account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with the Valuation Rules.In the present case, we find that most of the orders placed with the respondent assessee were by the various government authorities. One such order i.e. order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier, namely, the assessee. As per the “terms of payment” clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of the Sale of Goods Act, the property in goods was transferred at that time only. Section 19 reads as under:“19. Property passes when intended to pass. —(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.(3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.”These are clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in Escorts JCB Ltd. [(2003) 1 SCC 281 : (2002) 146 ELT 31 ] Obviously the exact principle laid down in the judgment has not been appreciated by CESTAT.” [at paras 12 - 15] 32. It will be seen that this is a decision distinguishing the Escorts JCB’s case on facts. It was found that goods were to be delivered only at the place of the buyer and the price of the goods was inclusive of transportation charges. As transit damage on the assessee’s account would imply that till the goods reached their destination, ownership in the goods remained with the supplier, namely, the assessee, freight charges would have to be added as a component of excise duty. Further, as per the terms of the payment clause contained in the procurement order, payment was only to be made after receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory gate of the assessee. Also, this Court’s attention was not drawn to Section 4 as originally enacted and as amended to demonstrate that the buyer’s premises cannot, in law, be “a place of removal” under the said Section.33. As has been seen in the present case all prices were “ex-works”, like the facts in Escorts JCB’s case. Goods were cleared from the factory on payment of the appropriate sales tax by the assessee itself, thereby indicating that it had sold the goods manufactured by it at the factory gate. Sales were made against Letters of Credit and bank discounting facilities, sometimes in advance. Invoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer. On facts, therefore, it is clear that Roofit’s judgment is wholly distinguishable. Similarly in Commissioner Central Excise, Mumbai-III v. M/s. Emco Ltd, this Court re-stated its decision in the Roofit Industries’ case but remanded the case to the Tribunal to determine whether on facts the factory gate of the assessee was the place of removal of excisable goods. This case again is wholly distinguishable on facts on the same lines as the Roofit Industries case. 34. In the view of the law that we have taken as well as the facts detailed above, the statement made by Shri S.P. Dahiwade pales into insignificance as has been correctly held by the Tribunal. ### Response: 0 ### Explanation: normal price of such goods in relation toThus, if the place of removal was the factory, then the price would be the normal price at the factory. If the place of removal was some other place like a depot or the premises of a consignment agent and the price was different then that different price would be the price. It is because the newly added provisoto Section 4(1)(a) was now providing for different prices at different places of removal that the definition of the termhad to be enlarged. Thus the amendment was not negativing the judgments of this Court. If that had been the intention it would have been specifically provided that even where price was the same/uniform all over the country, the cost of transportation was to be added.Thus in cases where the price remains uniform or constant all over the country, it does not follow that value for the purpose of excise changes merely because the definition of the termis extended. The normal price remains the price at the time of delivery andat the place ofremoval. In cases of equalised freight it remains the same as per the judgments of this Court set out hereinabove. In our view, the amendments have made no difference to the earlier position as settled by this Court. In this view of the matter, we are unable to uphold the judgments of the Tribunal. They are accordingly set aside. The appeals are allowed with consequential relief. There shall be no order as to[paras 5 tothe present case, we find that most of the orders placed with the respondent assessee were by the various government authorities. One such order i.e. order datedplaced by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be deliveredat the place ofthe buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier, namely, the assessee. As per theclause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee butat the place ofthe buyer on the delivery of the goods in question. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of the Sale of Goods Act, the property in goods was transferred at that timeare clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in Escorts JCB Ltd. [(2003) 1 SCC 281 : (2002) 146 ELT 31 ] Obviously the exact principle laid down in the judgment has not been appreciated by[at paras 12It will be seen that this is a decision distinguishing the Escortscase on facts. It was found that goods were to be delivered onlyat the place ofthe buyer and the price of the goods was inclusive of transportation charges. As transit damage on theaccount would imply that till the goods reached their destination, ownership in the goods remained with the supplier, namely, the assessee, freight charges would have to be added as a component of excise duty. Further, as per the terms of the payment clause contained in the procurement order, payment was only to be made after receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory gate of the assessee. Also, thisattention was not drawn to Section 4 as originally enacted and as amended to demonstrate that thepremises cannot, in law, beunder the said Section.33. As has been seen in the present case all prices werelike the facts in Escortscase. Goods were cleared from the factory on payment of the appropriate sales tax by the assessee itself, thereby indicating that it had sold the goods manufactured by it at the factory gate. Sales were made against Letters of Credit and bank discounting facilities, sometimes in advance. Invoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer. On facts, therefore, it is clear thatjudgment is wholly distinguishable. Similarly in Commissioner Central Excise,v. M/s. Emco Ltd, this Courtits decision in the Roofitcase but remanded the case to the Tribunal to determine whether on facts the factory gate of the assessee was the place of removal of excisable goods. This case again is wholly distinguishable on facts on the same lines as the Roofit Industries case.In the view of the law that we have taken as well as the facts detailed above, the statement made by Shri S.P. Dahiwade pales into insignificance as has been correctly held by the Tribunal.

HARDEV SINGH & ORS Vs. PRESCRIBED AUTHORITY, KASHIPUR & ANR

case of Escorts Farms Ltd., Previously Known As M/S. Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumaon Division, Nainital, U.P. And Ors. (2004) 4 SCC 281 , and has been answered as under :- 33. The Statement of Objects and Reasons for amending Section 2 of the Govt. Grants Act, 1895 by UP Amendment Act of 1960 makes it clear that the State Legislature intended to apply only the provisions of Land Reforms Act and Ceiling Act to the lands held by persons under the Govt. Grants Act. The statements of objects and reasons read thus:- Provisions of Section 2 of the Government Grants (UP Amendment) Act, 1959, have the effect of saving a grant of an agricultural lease by or on behalf of the Government from the operation not only on the Acts mentioned therein, but also of any other law, including the law for imposition of ceiling on land holdings, that might be made in future. There is also an apprehension that the result of the wordings of section 2 may be to undo the vesting of estates of government grantees under section 4 of the UP Zamindari Abolition and Land Reforms Act, 1950. With a view, therefore, to remove any such apprehension and to put the UP Imposition of Ceiling on Land Holdings Bill, 1959, when enacted, beyond the purview of the Government Grants Acts, this Bill is being introduced. Vide UP Gazette Extraordinary, dated February 3, 1960. 34. Land Reforms Act, 1950 being saved by sub-section (3) of Section 2 of Govt. Grants Act is applicable to the govt. grants. Under Section 18 (l)(c) of Land Reforms Act, a govt. grantee holding land rent-free was allowed to retain possession of the land as Bhumidhar. Section 18 of the Land Reforms Act with clause (c) in sub-section (1) reads thus:- Section 18. Settlement of certain lands with intermediaries or cultivators as Bhumidar - (1) Subject to the provisions of Sections 10,15,16 and 17, all lands - (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary grove. (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by - i) an occupancy tenant, Possessing the ii) a hereditary tenant, right to transfer iii) a tenant on Patta the holding by sale Dawami or Istamrari referred to in Section 17, (e) held by a grove holder. On the dale immediately preceding the date of vesting shall be deemed to be sell led by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder] as the case may be, who shall, subject to the provisions of this Act. be entitled to take or retain possession as a bhumidhar thereof. 35. As seen above, proviso below sub-section (3) of Section 2, of Govt. Grants (UP Amendment) Act makes applicable Ceiling Act to the land held by a grantee under the Govt. Grant. It has already been noted that a Govt. Grantee or a lessee is covered within the definition of tenure holder given in under clause (17) read with clause (9) of Ceiling Act and the definition of person in Section 4 (33) of the UP General Clauses Act. Thus conjointly reading the provisions of the Ceiling Act and the Land Reforms Act, the grantee of land from the government is a holder of land in the status of a Bhumidhar and the land can be subjected to ceiling limit. To the lands held by the company, which is grantee of the Govt., the provisions of Ceiling Act would be attracted. Such grantee being a lessee from Government has no right to transfer the land without permission of the Government. It can grant leases or sub-leases under the UP Tenancy Act but the lessees/sub-lessees can claim no rights contrary to the terms of the grant. All the transfers made by the Company or Farm by sale or lease contrary to the terms of the Govt. Grant create no independent rights in favour of the said transferees or lessees. The claims of transferees and lessees based on the provisions of UP Tenancy Act were, therefore, rightly negatived by the ceiling authority and the High Court. 30. We may also reproduce the observations made in paragraph 32 of the Escorts Farms Ltd. (Supra) :- 32. No action of the revenue authorities can, therefore, estop the ceiling authorities from ignoring the claims of tenancy rights on the land set up by the lessees/sub-lessees. The rights between the government and the grantee are strictly to be regulated by the terms of the grant and in accordance with the Govt. Grants (UP Amendment) Act, 1960. The entries in revenue records and recognition of any tenancy rights of the lessee and/or sub-lessee as hereditary tenant, Sirdars or Bhumidhars under the UP Tenancy Act can have no adverse legal effect on the Govt. Grant which has an overriding effect under the Govt. Grants Act. No estoppel can operate against the overriding statute so as to bind the ceiling authorities to accept the tenancy rights of the lessees/sub-lessees as indefeasible in application of Ceiling Act to the lands in question. 31. From the aforesaid discussions, it is clear that the provisions of Ceiling Act would be applicable in case of grantee of Government under a lease agreement. The grantee being a lessee from the Government has no right to transfer the land without fulfilling the conditions stipulated in Clause 9 of lease deed. The terms of the lease deed though provide for sub-lease for agricultural purposes but sub-lessees can claim no independent rights as a tenure holder. 32. Thus, the appellant being a sub-lessee continues to be an ostensible holder of land and the government grantee, the Respondent No. 2, to be the real holder and the ceiling authorities as well as the High Court have rightly dismissed the claim of the appellant.

0[ds]21. The terms of the grant go to show that 4805 acres of land situated in Pargana Bazpur, District Nainital, were leased out to the Government Lessee.22. Condition No. 9 of the Grant lays down the conditions to be fulfillled in the event of lessee transferring the lease land or a portion thereto except transfer by way of an inheritance. Conditions laid down by Clause 9 of the grant has been made inapplicable in case of sub-leases made by the lessee while subletting the land in the ordinary course of agriculture.23. A perusal of the aforesaid provision makes it clear that the grantee was only allowed to transfer the land on fulfillment of the conditions enumerated in the said clause.25. Thus, a conjoint reading of Clause 5 of the sub-lease and Clause 9 of the Government lease clearly stipulates that acquisition of rights, if any, as independent tenure holder can only be by following the stipulations as contained in Clause 5 of the sub-lease and Clause 9 of the Government lease, which, in the present case, admittedly, has not been followed.26. An analysis of the terms and conditions of grant makes it clear that any transfer of land by the Government Lessee was subject to fulfilment of the conditions of the government lease and sub-lease and non-compliance of the conditions and transfer made without fulfilling the conditions would be void. Though, the conditions of grant allowed sub-lease of the land in the ordinary course of agriculture but contrary to the terms of grant, the sub-lessee can claim no independent tenancy right so as to frustrate the terms and tenure of the grant, as the sub-lease executed for ordinary course of agriculture cannot be treated as transfer for want of compliance of the conditions enumerated in the Clause itself. Thus, the appellants in their capacity as sub-lessee shall not acquire the status of an independent tenure holder.27. Admittedly, the lease in favour of Respondent No. 2 was made under the Government Grants Act, 1895. Respondent No. 2 was put in possession of the land under the terms and conditions of the Government grant which did not permit any transfer of land by him without fulfilling the conditions prescribed in Clause 9. The conditions of grant though allowed sub-lease for agricultural purpose but sub-lessees cannot claim independent tenancy rights contrary to terms of grant. The terms and conditions of grant will have an overriding effect in view of amendment of Sections 2 & 3 of the Government Grants Act in its application to State of U.P. inserted by U.P. Amendment Act 13 of 1960 with retrospective effect.28. The aforesaid provisions as applicable in the State of U.P. with retrospective effect clearly provides that the rights and obligations between the Government as lessor of the land and the grantee as lessee of the land are to be regulated by the terms of the grant. The terms of the grant clearly postulates transfer of the land by Government Lessee subject to fulfillment of certain conditions. A sub-lease created for agricultural purposes having been exempted from operation of the conditions and no vested right shall be created in sublease and he cannot claim any rights contrary to the terms of the grant.29. Similar issue came up for consideration before this Court in the case of Escorts Farms Ltd., Previously Known As M/S. Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumaon Division, Nainital, U.P. And Ors. (2004) 4 SCC 281 , and has been answered as under :-33. The Statement of Objects and Reasons for amending Section 2 of the Govt. Grants Act, 1895 by UP Amendment Act of 1960 makes it clear that the State Legislature intended to apply only the provisions of Land Reforms Act and Ceiling Act to the lands held by persons under the Govt. Grants Act. The statements of objects and reasons read thus:-Provisions of Section 2 of the Government Grants (UP Amendment) Act, 1959, have the effect of saving a grant of an agricultural lease by or on behalf of the Government from the operation not only on the Acts mentioned therein, but also of any other law, including the law for imposition of ceiling on land holdings, that might be made in future. There is also an apprehension that the result of the wordings of section 2 may be to undo the vesting of estates of government grantees under section 4 of the UP Zamindari Abolition and Land Reforms Act, 1950. With a view, therefore, to remove any such apprehension and to put the UP Imposition of Ceiling on Land Holdings Bill, 1959, when enacted, beyond the purview of the Government Grants Acts, this Bill is being introduced. Vide UP Gazette Extraordinary, dated February 3, 1960.34. Land Reforms Act, 1950 being saved by sub-section (3) of Section 2 of Govt. Grants Act is applicable to the govt. grants. Under Section 18 (l)(c) of Land Reforms Act, a govt. grantee holding land rent-free was allowed to retain possession of the land as Bhumidhar. Section 18 of the Land Reforms Act with clause (c) in sub-section (1) reads thus:-Section 18. Settlement of certain lands with intermediaries or cultivators as Bhumidar - (1) Subject to the provisions of Sections 10,15,16 and 17, all lands - (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary grove. (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by - i) an occupancy tenant, Possessing the ii) a hereditary tenant, right to transfer iii) a tenant on Patta the holding by sale Dawami or Istamrari referred to in Section 17, (e) held by a grove holder.On the dale immediately preceding the date of vesting shall be deemed to be sell led by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder] as the case may be, who shall, subject to the provisions of this Act. be entitled to take or retain possession as a bhumidhar thereof.35. As seen above, proviso below sub-section (3) of Section 2, of Govt. Grants (UP Amendment) Act makes applicable Ceiling Act to the land held by a grantee under the Govt. Grant. It has already been noted that a Govt. Grantee or a lessee is covered within the definition of tenure holder given in under clause (17) read with clause (9) of Ceiling Act and the definition of person in Section 4 (33) of the UP General Clauses Act. Thus conjointly reading the provisions of the Ceiling Act and the Land Reforms Act, the grantee of land from the government is a holder of land in the status of a Bhumidhar and the land can be subjected to ceiling limit. To the lands held by the company, which is grantee of the Govt., the provisions of Ceiling Act would be attracted. Such grantee being a lessee from Government has no right to transfer the land without permission of the Government. It can grant leases or sub-leases under the UP Tenancy Act but the lessees/sub-lessees can claim no rights contrary to the terms of the grant. All the transfers made by the Company or Farm by sale or lease contrary to the terms of the Govt. Grant create no independent rights in favour of the said transferees or lessees. The claims of transferees and lessees based on the provisions of UP Tenancy Act were, therefore, rightly negatived by the ceiling authority and the High Court.30. We may also reproduce the observations made in paragraph 32 of the Escorts Farms Ltd. (Supra) :-32. No action of the revenue authorities can, therefore, estop the ceiling authorities from ignoring the claims of tenancy rights on the land set up by the lessees/sub-lessees. The rights between the government and the grantee are strictly to be regulated by the terms of the grant and in accordance with the Govt. Grants (UP Amendment) Act, 1960. The entries in revenue records and recognition of any tenancy rights of the lessee and/or sub-lessee as hereditary tenant, Sirdars or Bhumidhars under the UP Tenancy Act can have no adverse legal effect on the Govt. Grant which has an overriding effect under the Govt. Grants Act. No estoppel can operate against the overriding statute so as to bind the ceiling authorities to accept the tenancy rights of the lessees/sub-lessees as indefeasible in application of Ceiling Act to the lands in question.31. From the aforesaid discussions, it is clear that the provisions of Ceiling Act would be applicable in case of grantee of Government under a lease agreement. The grantee being a lessee from the Government has no right to transfer the land without fulfilling the conditions stipulated in Clause 9 of lease deed. The terms of the lease deed though provide for sub-lease for agricultural purposes but sub-lessees can claim no independent rights as a tenure holder.32. Thus, the appellant being a sub-lessee continues to be an ostensible holder of land and the government grantee, the Respondent No. 2, to be the real holder and the ceiling authorities as well as the High Court have rightly dismissed the claim of the appellant.

### 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: case of Escorts Farms Ltd., Previously Known As M/S. Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumaon Division, Nainital, U.P. And Ors. (2004) 4 SCC 281 , and has been answered as under :- 33. The Statement of Objects and Reasons for amending Section 2 of the Govt. Grants Act, 1895 by UP Amendment Act of 1960 makes it clear that the State Legislature intended to apply only the provisions of Land Reforms Act and Ceiling Act to the lands held by persons under the Govt. Grants Act. The statements of objects and reasons read thus:- Provisions of Section 2 of the Government Grants (UP Amendment) Act, 1959, have the effect of saving a grant of an agricultural lease by or on behalf of the Government from the operation not only on the Acts mentioned therein, but also of any other law, including the law for imposition of ceiling on land holdings, that might be made in future. There is also an apprehension that the result of the wordings of section 2 may be to undo the vesting of estates of government grantees under section 4 of the UP Zamindari Abolition and Land Reforms Act, 1950. With a view, therefore, to remove any such apprehension and to put the UP Imposition of Ceiling on Land Holdings Bill, 1959, when enacted, beyond the purview of the Government Grants Acts, this Bill is being introduced. Vide UP Gazette Extraordinary, dated February 3, 1960. 34. Land Reforms Act, 1950 being saved by sub-section (3) of Section 2 of Govt. Grants Act is applicable to the govt. grants. Under Section 18 (l)(c) of Land Reforms Act, a govt. grantee holding land rent-free was allowed to retain possession of the land as Bhumidhar. Section 18 of the Land Reforms Act with clause (c) in sub-section (1) reads thus:- Section 18. Settlement of certain lands with intermediaries or cultivators as Bhumidar - (1) Subject to the provisions of Sections 10,15,16 and 17, all lands - (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary grove. (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by - i) an occupancy tenant, Possessing the ii) a hereditary tenant, right to transfer iii) a tenant on Patta the holding by sale Dawami or Istamrari referred to in Section 17, (e) held by a grove holder. On the dale immediately preceding the date of vesting shall be deemed to be sell led by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder] as the case may be, who shall, subject to the provisions of this Act. be entitled to take or retain possession as a bhumidhar thereof. 35. As seen above, proviso below sub-section (3) of Section 2, of Govt. Grants (UP Amendment) Act makes applicable Ceiling Act to the land held by a grantee under the Govt. Grant. It has already been noted that a Govt. Grantee or a lessee is covered within the definition of tenure holder given in under clause (17) read with clause (9) of Ceiling Act and the definition of person in Section 4 (33) of the UP General Clauses Act. Thus conjointly reading the provisions of the Ceiling Act and the Land Reforms Act, the grantee of land from the government is a holder of land in the status of a Bhumidhar and the land can be subjected to ceiling limit. To the lands held by the company, which is grantee of the Govt., the provisions of Ceiling Act would be attracted. Such grantee being a lessee from Government has no right to transfer the land without permission of the Government. It can grant leases or sub-leases under the UP Tenancy Act but the lessees/sub-lessees can claim no rights contrary to the terms of the grant. All the transfers made by the Company or Farm by sale or lease contrary to the terms of the Govt. Grant create no independent rights in favour of the said transferees or lessees. The claims of transferees and lessees based on the provisions of UP Tenancy Act were, therefore, rightly negatived by the ceiling authority and the High Court. 30. We may also reproduce the observations made in paragraph 32 of the Escorts Farms Ltd. (Supra) :- 32. No action of the revenue authorities can, therefore, estop the ceiling authorities from ignoring the claims of tenancy rights on the land set up by the lessees/sub-lessees. The rights between the government and the grantee are strictly to be regulated by the terms of the grant and in accordance with the Govt. Grants (UP Amendment) Act, 1960. The entries in revenue records and recognition of any tenancy rights of the lessee and/or sub-lessee as hereditary tenant, Sirdars or Bhumidhars under the UP Tenancy Act can have no adverse legal effect on the Govt. Grant which has an overriding effect under the Govt. Grants Act. No estoppel can operate against the overriding statute so as to bind the ceiling authorities to accept the tenancy rights of the lessees/sub-lessees as indefeasible in application of Ceiling Act to the lands in question. 31. From the aforesaid discussions, it is clear that the provisions of Ceiling Act would be applicable in case of grantee of Government under a lease agreement. The grantee being a lessee from the Government has no right to transfer the land without fulfilling the conditions stipulated in Clause 9 of lease deed. The terms of the lease deed though provide for sub-lease for agricultural purposes but sub-lessees can claim no independent rights as a tenure holder. 32. Thus, the appellant being a sub-lessee continues to be an ostensible holder of land and the government grantee, the Respondent No. 2, to be the real holder and the ceiling authorities as well as the High Court have rightly dismissed the claim of the appellant. ### Response: 0 ### Explanation: came up for consideration before this Court in the case of Escorts Farms Ltd., Previously Known As M/S. Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumaon Division, Nainital, U.P. And Ors. (2004) 4 SCC 281 , and has been answered as under :-33. The Statement of Objects and Reasons for amending Section 2 of the Govt. Grants Act, 1895 by UP Amendment Act of 1960 makes it clear that the State Legislature intended to apply only the provisions of Land Reforms Act and Ceiling Act to the lands held by persons under the Govt. Grants Act. The statements of objects and reasons read thus:-Provisions of Section 2 of the Government Grants (UP Amendment) Act, 1959, have the effect of saving a grant of an agricultural lease by or on behalf of the Government from the operation not only on the Acts mentioned therein, but also of any other law, including the law for imposition of ceiling on land holdings, that might be made in future. There is also an apprehension that the result of the wordings of section 2 may be to undo the vesting of estates of government grantees under section 4 of the UP Zamindari Abolition and Land Reforms Act, 1950. With a view, therefore, to remove any such apprehension and to put the UP Imposition of Ceiling on Land Holdings Bill, 1959, when enacted, beyond the purview of the Government Grants Acts, this Bill is being introduced. Vide UP Gazette Extraordinary, dated February 3, 1960.34. Land Reforms Act, 1950 being saved by sub-section (3) of Section 2 of Govt. Grants Act is applicable to the govt. grants. Under Section 18 (l)(c) of Land Reforms Act, a govt. grantee holding land rent-free was allowed to retain possession of the land as Bhumidhar. Section 18 of the Land Reforms Act with clause (c) in sub-section (1) reads thus:-Section 18. Settlement of certain lands with intermediaries or cultivators as Bhumidar - (1) Subject to the provisions of Sections 10,15,16 and 17, all lands - (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary grove. (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by - i) an occupancy tenant, Possessing the ii) a hereditary tenant, right to transfer iii) a tenant on Patta the holding by sale Dawami or Istamrari referred to in Section 17, (e) held by a grove holder.On the dale immediately preceding the date of vesting shall be deemed to be sell led by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder] as the case may be, who shall, subject to the provisions of this Act. be entitled to take or retain possession as a bhumidhar thereof.35. As seen above, proviso below sub-section (3) of Section 2, of Govt. Grants (UP Amendment) Act makes applicable Ceiling Act to the land held by a grantee under the Govt. Grant. It has already been noted that a Govt. Grantee or a lessee is covered within the definition of tenure holder given in under clause (17) read with clause (9) of Ceiling Act and the definition of person in Section 4 (33) of the UP General Clauses Act. Thus conjointly reading the provisions of the Ceiling Act and the Land Reforms Act, the grantee of land from the government is a holder of land in the status of a Bhumidhar and the land can be subjected to ceiling limit. To the lands held by the company, which is grantee of the Govt., the provisions of Ceiling Act would be attracted. Such grantee being a lessee from Government has no right to transfer the land without permission of the Government. It can grant leases or sub-leases under the UP Tenancy Act but the lessees/sub-lessees can claim no rights contrary to the terms of the grant. All the transfers made by the Company or Farm by sale or lease contrary to the terms of the Govt. Grant create no independent rights in favour of the said transferees or lessees. The claims of transferees and lessees based on the provisions of UP Tenancy Act were, therefore, rightly negatived by the ceiling authority and the High Court.30. We may also reproduce the observations made in paragraph 32 of the Escorts Farms Ltd. (Supra) :-32. No action of the revenue authorities can, therefore, estop the ceiling authorities from ignoring the claims of tenancy rights on the land set up by the lessees/sub-lessees. The rights between the government and the grantee are strictly to be regulated by the terms of the grant and in accordance with the Govt. Grants (UP Amendment) Act, 1960. The entries in revenue records and recognition of any tenancy rights of the lessee and/or sub-lessee as hereditary tenant, Sirdars or Bhumidhars under the UP Tenancy Act can have no adverse legal effect on the Govt. Grant which has an overriding effect under the Govt. Grants Act. No estoppel can operate against the overriding statute so as to bind the ceiling authorities to accept the tenancy rights of the lessees/sub-lessees as indefeasible in application of Ceiling Act to the lands in question.31. From the aforesaid discussions, it is clear that the provisions of Ceiling Act would be applicable in case of grantee of Government under a lease agreement. The grantee being a lessee from the Government has no right to transfer the land without fulfilling the conditions stipulated in Clause 9 of lease deed. The terms of the lease deed though provide for sub-lease for agricultural purposes but sub-lessees can claim no independent rights as a tenure holder.32. Thus, the appellant being a sub-lessee continues to be an ostensible holder of land and the government grantee, the Respondent No. 2, to be the real holder and the ceiling authorities as well as the High Court have rightly dismissed the claim of the appellant.

The Dominion Of India And Another Vs. Shrinbai A. Irani And Another

were to expire on 30-9-1946 and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to be continued.17. While recognising the force of this argument it is however necessary to observe that although ordinarily there should be close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be coextensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of ambit and scope of the operative part of the enactment. Whatever may have been the presumed or the expressed intention of the legislating authority when enacting Ordinance 19 of 1946 the words of Cl. 3 read along with the definition of requisitioned land contained in Cl. 2 (3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by Cl. 3 of the Ordinance when the only interpretation which could be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939 expired were subject to any requisition effected under the Act and the rules were to continue to be subject to requisition until the expiry of the Ordinance.18. No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Cl. 3 of the Ordinance covered all cases of immovable properties which on 30-9-1946 were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30-9-1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Cl. 3 read along with the definition in Cl. 2 (3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance.19. We are not here concerned with the equities of individual cases. There may be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Court would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala-fides or abuse of power were alleged.20. We have therefore come to the conclusion that both the trial Court and the Court of Appeal were in error when they reached the conclusion that Cl. 3 of the Ordinance had not the effect of continuing the requisition order in question.21. Mr. Palkhivala at the close of the arguments appealed to us that his client was a petty landlady and the immoveable property which she owned was of a small value and the result of an order of remand could be to put her to further harassment and costs. He pointed out to us that he had particularly requested the Court of Appeal not to decide the appeal merely on the short point in regard to the construction of Cl. 3 of the Ordinance, but to decide it on all the points which had been canvassed before the trial Court. But the Court of Appeal turned down his request and decided the appeal only on that point stating that it was unnecessary to go into the other points which Mr. Palkhivala wanted to urge before it. It is to be regretted that the Court of Appeal did not respond to Mr. Palkhivalas request, but we have not had the benefit of the judgment of the Court of Appeal on those points which found favour with the trial Court and which were not considered by the Court of Appeal and we cannot help remanding the matter to the Court of Appeal with a direction that the appeal be disposed of on all the points which were dealt with by the trial Court.22. It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases and the properties involved would be considerable as alleged by Mr. Seervai before the trial Court. We are not concerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the burnt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of Appeal. We cannot make any order for costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of Appeal.23.

1[ds]It is clear from the preamble as also Cl. 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act,1939 and the rules made thereunder. All the requisition orders which had been made under the Act and the rules would have ceased to be operative and come to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition. It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the continuance of the powers exercisable under the Act and the rules and to continue the requisitions of immovable properties which had been madea plain and grammatical construction of these provisions it was obvious that once you had an immoveable property which when the Defence of India Act expired, that is on 30-9-1946, was subject to any requisition effected under the Act and the rules, that immoveable property continued to be subject to requisition until the expiry of the Ordinance, no matter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration. The only test was whether the immovable property in question was on 30-9-1946 subject to any requisition effected under the Act and the rules. This construction was sought to be negatived by having resort to the non-obstante clause which, it was submitted, restricted the operation of Cl. 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or come to an end merely by reason of the expiration of the Act and thethere was in existence on 30-9-1946 any requisition order which would have ceased to be operative or come to an end by reason of the fact that it was limited in duration and was to expire on 30-9-1946 the non-obstante clause saved that from the operation of cl. 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance is therein provided. Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on 30-9-1946 and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to bedoubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Cl. 3 of the Ordinance covered all cases of immovable properties which on 30-9-1946 were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30-9-1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Cl. 3 read along with the definition in Cl. 2 (3) of the Ordinance and were by the clear terms thereof continued until the expiry of themay be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Court would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala-fides or abuse of power were alleged.It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases and the properties involved would be considerable as alleged by Mr. Seervai before the trial Court. We are not concerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the burnt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of Appeal. We cannot make any order for costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of Appeal.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: were to expire on 30-9-1946 and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to be continued.17. While recognising the force of this argument it is however necessary to observe that although ordinarily there should be close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be coextensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of ambit and scope of the operative part of the enactment. Whatever may have been the presumed or the expressed intention of the legislating authority when enacting Ordinance 19 of 1946 the words of Cl. 3 read along with the definition of requisitioned land contained in Cl. 2 (3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by Cl. 3 of the Ordinance when the only interpretation which could be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939 expired were subject to any requisition effected under the Act and the rules were to continue to be subject to requisition until the expiry of the Ordinance.18. No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Cl. 3 of the Ordinance covered all cases of immovable properties which on 30-9-1946 were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30-9-1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Cl. 3 read along with the definition in Cl. 2 (3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance.19. We are not here concerned with the equities of individual cases. There may be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Court would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala-fides or abuse of power were alleged.20. We have therefore come to the conclusion that both the trial Court and the Court of Appeal were in error when they reached the conclusion that Cl. 3 of the Ordinance had not the effect of continuing the requisition order in question.21. Mr. Palkhivala at the close of the arguments appealed to us that his client was a petty landlady and the immoveable property which she owned was of a small value and the result of an order of remand could be to put her to further harassment and costs. He pointed out to us that he had particularly requested the Court of Appeal not to decide the appeal merely on the short point in regard to the construction of Cl. 3 of the Ordinance, but to decide it on all the points which had been canvassed before the trial Court. But the Court of Appeal turned down his request and decided the appeal only on that point stating that it was unnecessary to go into the other points which Mr. Palkhivala wanted to urge before it. It is to be regretted that the Court of Appeal did not respond to Mr. Palkhivalas request, but we have not had the benefit of the judgment of the Court of Appeal on those points which found favour with the trial Court and which were not considered by the Court of Appeal and we cannot help remanding the matter to the Court of Appeal with a direction that the appeal be disposed of on all the points which were dealt with by the trial Court.22. It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases and the properties involved would be considerable as alleged by Mr. Seervai before the trial Court. We are not concerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the burnt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of Appeal. We cannot make any order for costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of Appeal.23. ### Response: 1 ### Explanation: It is clear from the preamble as also Cl. 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act,1939 and the rules made thereunder. All the requisition orders which had been made under the Act and the rules would have ceased to be operative and come to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition. It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the continuance of the powers exercisable under the Act and the rules and to continue the requisitions of immovable properties which had been madea plain and grammatical construction of these provisions it was obvious that once you had an immoveable property which when the Defence of India Act expired, that is on 30-9-1946, was subject to any requisition effected under the Act and the rules, that immoveable property continued to be subject to requisition until the expiry of the Ordinance, no matter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration. The only test was whether the immovable property in question was on 30-9-1946 subject to any requisition effected under the Act and the rules. This construction was sought to be negatived by having resort to the non-obstante clause which, it was submitted, restricted the operation of Cl. 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or come to an end merely by reason of the expiration of the Act and thethere was in existence on 30-9-1946 any requisition order which would have ceased to be operative or come to an end by reason of the fact that it was limited in duration and was to expire on 30-9-1946 the non-obstante clause saved that from the operation of cl. 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance is therein provided. Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on 30-9-1946 and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to bedoubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Cl. 3 of the Ordinance covered all cases of immovable properties which on 30-9-1946 were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30-9-1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Cl. 3 read along with the definition in Cl. 2 (3) of the Ordinance and were by the clear terms thereof continued until the expiry of themay be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Court would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala-fides or abuse of power were alleged.It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases and the properties involved would be considerable as alleged by Mr. Seervai before the trial Court. We are not concerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the burnt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of Appeal. We cannot make any order for costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of Appeal.

Walter Bau Ag, Legal Successor, of the Original Contractor, Dyckerhoff & Widmann A.G Vs. Municipal Corporation of Greater Mumbai & Another

appoint an arbitrator. The respondent Corporation pursuant to the said communication of the ICADR appointed Mr. Justice (Retd.) A.D. Mane as its arbitrator by communication dated 3rd July, 2014. Thereafter, this application/petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act") was filed on 21st August, 2014. 5. Mr. Shamik Sanjanwala, learned counsel appearing for the petitioner has submitted that the arbitration clause in the agreement read with Rules 5 and 35 of the ICADR Rules embody a procedure that was agreed upon by the parties with regard to appointment of the arbitrator(s). Clearly and evidently, the appointment of Mr. Justice A.D. Mane by the respondent Corporation is contrary to the procedure agreed upon inasmuch as under the relevant Rules governing the ICADR, the said Body was required to communicate the respondent Corporation a panel of three names and it is from the said panel that the respondent Corporation was required to name its Arbitrator. The Rules do not contemplate an alternative procedure giving the respondent Corporation liberty to appoint an Arbitrator of his choice once the respondent Corporation failed to appoint its arbitrator within the agreed upon period of thirty days from the receipt of the notice from the petitioner. The appointment of Mr. Justice A.D.Mane as Arbitrator is, therefore, non-est, leaving it open for this Court to exercise its powers under Section 11(6) of the Act to appoint an Arbitrator on behalf of the respondent Corporation. It is also pointed out that the petitioner has a serious basis to question the impartiality and independence of the arbitrator purported to be appointed by the respondent Corporation.6. Mr. Mukul Rohatgi, learned Attorney General, appearing for the the respondent Corporation, on the other hand, has submitted that the present petition would not be maintainable inasmuch as an Arbitrator has already been appointed and any exercise of power under Section 11(6) of the Arbitration Act, at this stage, would operate as an ouster of the said Arbitrator. It is submitted that the remedy of the petitioner, if any, lies elsewhere and under different provisions of the Arbitration Act and not by way of an application under Section 11(6) thereof. Reliance has been placed on the decision of this Court in Antrix Corporation Limited versus Devas Multimedia Private Limited [(2014) 11 SCC 560] and another recent pronouncement of this Court dated 16th December, 2014 in Pricol Limited versus Johnson Controls Enterprise Ltd. & Ors. [Arbitration Case (Civil) NO.30 of 2014].7. Alternatively, it has been urged by Mr.Rohatgi that as the appointment of Mr. Justice A.D. Mane was made before the present application/petition was filed in this Court, the said appointment would be valid in law. It is submitted that the requirement of appointment within 30 days of receipt of a notice is only in cases covered under Section 11(4) and 11(5) of the Arbitration Act, whereas in cases falling under Section 11(2) read with Section 11(6) of the Arbitration Act, so long the appointment is made before the concerned aggrieved party moves the Court under Section 11(6), such appointment will not be invalidated. In this regard, reliance has been placed on Datar Switchgears Ltd. Versus Tata Finance Ltd. and another [(2000) 8 SCC 151] and Deep Trading Company versus Indian Oil Corporation and others [(2013) 4 SCC 35] . 8. While it is correct that in Antrix (supra) and Pricol Limited (supra), it was opined by this Court that after appointment of an Arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (supra), appointment of the Arbitrator, as per ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Limited (supra), the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the Arbitrator. In the present case, the situation is otherwise. 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non- est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law.

1[ds]9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is nonest in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law.While it is correct that in Antrix (supra) and Pricol Limited (supra), it was opined by this Court that after appointment of an Arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (supra), appointment of the Arbitrator, as per ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Limited (supra), the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the Arbitrator. In the present case, the situation is otherwise.

### 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: appoint an arbitrator. The respondent Corporation pursuant to the said communication of the ICADR appointed Mr. Justice (Retd.) A.D. Mane as its arbitrator by communication dated 3rd July, 2014. Thereafter, this application/petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act") was filed on 21st August, 2014. 5. Mr. Shamik Sanjanwala, learned counsel appearing for the petitioner has submitted that the arbitration clause in the agreement read with Rules 5 and 35 of the ICADR Rules embody a procedure that was agreed upon by the parties with regard to appointment of the arbitrator(s). Clearly and evidently, the appointment of Mr. Justice A.D. Mane by the respondent Corporation is contrary to the procedure agreed upon inasmuch as under the relevant Rules governing the ICADR, the said Body was required to communicate the respondent Corporation a panel of three names and it is from the said panel that the respondent Corporation was required to name its Arbitrator. The Rules do not contemplate an alternative procedure giving the respondent Corporation liberty to appoint an Arbitrator of his choice once the respondent Corporation failed to appoint its arbitrator within the agreed upon period of thirty days from the receipt of the notice from the petitioner. The appointment of Mr. Justice A.D.Mane as Arbitrator is, therefore, non-est, leaving it open for this Court to exercise its powers under Section 11(6) of the Act to appoint an Arbitrator on behalf of the respondent Corporation. It is also pointed out that the petitioner has a serious basis to question the impartiality and independence of the arbitrator purported to be appointed by the respondent Corporation.6. Mr. Mukul Rohatgi, learned Attorney General, appearing for the the respondent Corporation, on the other hand, has submitted that the present petition would not be maintainable inasmuch as an Arbitrator has already been appointed and any exercise of power under Section 11(6) of the Arbitration Act, at this stage, would operate as an ouster of the said Arbitrator. It is submitted that the remedy of the petitioner, if any, lies elsewhere and under different provisions of the Arbitration Act and not by way of an application under Section 11(6) thereof. Reliance has been placed on the decision of this Court in Antrix Corporation Limited versus Devas Multimedia Private Limited [(2014) 11 SCC 560] and another recent pronouncement of this Court dated 16th December, 2014 in Pricol Limited versus Johnson Controls Enterprise Ltd. & Ors. [Arbitration Case (Civil) NO.30 of 2014].7. Alternatively, it has been urged by Mr.Rohatgi that as the appointment of Mr. Justice A.D. Mane was made before the present application/petition was filed in this Court, the said appointment would be valid in law. It is submitted that the requirement of appointment within 30 days of receipt of a notice is only in cases covered under Section 11(4) and 11(5) of the Arbitration Act, whereas in cases falling under Section 11(2) read with Section 11(6) of the Arbitration Act, so long the appointment is made before the concerned aggrieved party moves the Court under Section 11(6), such appointment will not be invalidated. In this regard, reliance has been placed on Datar Switchgears Ltd. Versus Tata Finance Ltd. and another [(2000) 8 SCC 151] and Deep Trading Company versus Indian Oil Corporation and others [(2013) 4 SCC 35] . 8. While it is correct that in Antrix (supra) and Pricol Limited (supra), it was opined by this Court that after appointment of an Arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (supra), appointment of the Arbitrator, as per ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Limited (supra), the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the Arbitrator. In the present case, the situation is otherwise. 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non- est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law. ### Response: 1 ### Explanation: 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is nonest in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law.While it is correct that in Antrix (supra) and Pricol Limited (supra), it was opined by this Court that after appointment of an Arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (supra), appointment of the Arbitrator, as per ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Limited (supra), the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the Arbitrator. In the present case, the situation is otherwise.

Union Of India Vs. Bashirbhai R. Khiliji

cases.NOTE 1.- No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of the intention of the applicant to appear before the Medical Authority. The medical authority shall also be supplied b the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the age of the applicant. If a Service Book is being maintained for the applicant, the age recorded therein should be reported.NOTE 2.- A lady doctor shall be included as a member of the Medical Board when a woman candidate is to be examined.(3) The form of the Medical Certificate to be granted by the Medical Authority specified in sub-rule (2) shall be as in Form 23.(4) Where the Medical Authority referred to in sub-rule (2) has declared a Government servant for further service of less laborious character than that which he had been doing, he should, provided he is willing to be so employed, be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension." Rule 39 deals with compensation pension. Rule 40 deals with compulsory retirement pension. Rule 41 deals with compassionate allowance. These are various kinds of pensions admissible to Government servants. Chapter VII deals with regulation of amounts of pensions. This chapter deals with how the amount to be determined after putting in qualifying service. Rule 48 deals with retirement on completion of 30 years qualifying service. Rule 48A deals with retirement on completion of 20 years qualifying service. Rule 49 which is relevant for our purpose, reads as under: "49. Amount of Pension(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service.(2)(a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not les than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than Rupees three hundred and seventy-five per mensem. Notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54.(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service.(4) The amount of pension finally determined under Clause () or Clause (b) of sub-rule, shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.(5) & (6) Deleted." We are presently concerned with two provisions of the Rules i.e. Rule 38 and Rule 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the concerned authorities and in particular form No.23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a Government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 2(q) of the Rules which reads as under: "(q) Qualifying Service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules;" Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. 4. We feel that this is little harsh that an incumbent while discharging his onerous duties became completely deaf. Therefore, the respondent should have been adequately compensated for that. A sum of Rs.1000/- per month has already been granted to him from the Risk Fund which is specially reserved for such contingency. So far as the pension is concerned, as he has not put in ten years of minimum qualifying service, it would not be admissible to him. However, a sum of Rs.22,231/- which has been paid to him during the medical treatment, shall not be recovered from him.

1[ds]There is no two opinion in the matter the respondent while serving at height has suffered 100 per cent invalidity. He has already been granted Rs.1000/per month out of the risk fund which is specially reserved for such disability. But so far as the question of granting invalid pension is concerned, that cannot be considered though it may be harsh, as per the scheme of the Pension Rules. The respondent being a constable in the Central Reserve Police Force is governed by the Central Reserve Police Force Act, 1949 and Central Reserve Police Force Rules,We feel that this is little harsh that an incumbent while discharging his onerous duties became completely deaf. Therefore, the respondent should have been adequately compensated for that. A sum of Rs.1000/per month has already been granted to him from the Risk Fund which is specially reserved for such contingency. So far as the pension is concerned, as he has not put in ten years of minimum qualifying service, it would not be admissible to him. However, a sum of Rs.22,231/which has been paid to him during the medical treatment, shall not be recovered from him.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: cases.NOTE 1.- No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of the intention of the applicant to appear before the Medical Authority. The medical authority shall also be supplied b the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the age of the applicant. If a Service Book is being maintained for the applicant, the age recorded therein should be reported.NOTE 2.- A lady doctor shall be included as a member of the Medical Board when a woman candidate is to be examined.(3) The form of the Medical Certificate to be granted by the Medical Authority specified in sub-rule (2) shall be as in Form 23.(4) Where the Medical Authority referred to in sub-rule (2) has declared a Government servant for further service of less laborious character than that which he had been doing, he should, provided he is willing to be so employed, be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension." Rule 39 deals with compensation pension. Rule 40 deals with compulsory retirement pension. Rule 41 deals with compassionate allowance. These are various kinds of pensions admissible to Government servants. Chapter VII deals with regulation of amounts of pensions. This chapter deals with how the amount to be determined after putting in qualifying service. Rule 48 deals with retirement on completion of 30 years qualifying service. Rule 48A deals with retirement on completion of 20 years qualifying service. Rule 49 which is relevant for our purpose, reads as under: "49. Amount of Pension(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service.(2)(a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not les than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than Rupees three hundred and seventy-five per mensem. Notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54.(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service.(4) The amount of pension finally determined under Clause () or Clause (b) of sub-rule, shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.(5) & (6) Deleted." We are presently concerned with two provisions of the Rules i.e. Rule 38 and Rule 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the concerned authorities and in particular form No.23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a Government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 2(q) of the Rules which reads as under: "(q) Qualifying Service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules;" Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. 4. We feel that this is little harsh that an incumbent while discharging his onerous duties became completely deaf. Therefore, the respondent should have been adequately compensated for that. A sum of Rs.1000/- per month has already been granted to him from the Risk Fund which is specially reserved for such contingency. So far as the pension is concerned, as he has not put in ten years of minimum qualifying service, it would not be admissible to him. However, a sum of Rs.22,231/- which has been paid to him during the medical treatment, shall not be recovered from him. ### Response: 1 ### Explanation: There is no two opinion in the matter the respondent while serving at height has suffered 100 per cent invalidity. He has already been granted Rs.1000/per month out of the risk fund which is specially reserved for such disability. But so far as the question of granting invalid pension is concerned, that cannot be considered though it may be harsh, as per the scheme of the Pension Rules. The respondent being a constable in the Central Reserve Police Force is governed by the Central Reserve Police Force Act, 1949 and Central Reserve Police Force Rules,We feel that this is little harsh that an incumbent while discharging his onerous duties became completely deaf. Therefore, the respondent should have been adequately compensated for that. A sum of Rs.1000/per month has already been granted to him from the Risk Fund which is specially reserved for such contingency. So far as the pension is concerned, as he has not put in ten years of minimum qualifying service, it would not be admissible to him. However, a sum of Rs.22,231/which has been paid to him during the medical treatment, shall not be recovered from him.

Arulayi Nadachi Selvi Ammal Nadachi (Dead) By L.Rs Vs. Selvi Ammal Nadachi Maria Arulayi Nadachi (Dead) By L.Rs

the other items excluding 1 (which I have given to you today with full rights), after my lifetime you can take possession of No. 1 above, she should be in management of them and enjoy them in that capacity. After her lifetime, Nos. 2 and 3 above will take those properties with full rights including powers of alienation (with absolute rights including powers of alienation)."You" in Clause 1 includes the wife of the settlor and their two daughter, Arulayi Nadachi and Rosammal Nadachi, who have been referred to as No. 1, No. 2 and No. 3 respectively in Clause 4. Even proceeding on the translation made by the learned Judge we do not see how it can be said that the first defendant was given only a life interest. It is said that the expression "full rights" or "absolute rights" in the first sentence of Clause 4 should be contrasted with the same expression used in last sentence of the clause with the words "including powers of alienation" added. According to the learned Judge, these words were added to indicate that when the settler said that "after my lifetime you can take possession of them with full rights, he did not mean to grant absolute ownership to any of the three. The translation of the last sentence of Clause 4 in Ex. A-1 is not materially different, ". . . after the death of party No. 1, parties Nos. 2 and 3 shall take over the same absolutely with right of alienation thereto". The learned Judges view is that the settlers intention was that the first defendant should manage all the properties including those in the shares of the daughters but after her lifetime the daughters would become absolute owners. This means that after the death of the first defendant her daughters would each become owner of half share in all the properties including those in their mothers share. We do not think that the words "full rights" can be read in this restricted sense as the High Court has done. Clause 1 provides that item No. 1 of the properties mentioned in the schedule to the settlement deed would be enjoyed by all the three from the date the deed was executed with "full rights and with powers of alienation". It will be useful here to refer to Clause 5 of the deed which has not been translated by the learned Judge. Clause 5 says that certain properties were allotted to the settlor "absolutely" on partition and that he was in possession and enjoyment thereof "absolutely" and, further, that he was "having transactions regarding the same". It is clear beyond doubt that the settlor held the properties referred to in Clause 5 as absolute owner though the words "with the right of alienation" are absent here. It seems plain to us that the words "with the right of alienation" were added in the last sentence of Clause 4 only to emphasise that during the lifetime of the mother she would remain in management and enjoyment of all the properties and the daughters would have no right of alienation in respect of the properties in their shares so long as she was alive.3. On the question of mesne profits, for the appellant pointed out that Clause 4 of the deed permitted the first defendant to "manage and enjoy" the properties given by the settlor to her daughter so long as she was alive, and therefore she could not be made liable for mesne profits. Counsel for the first respondent drew out attention to the relevant portion of Clause 4 as translated by the learned Judge which according to her was more accurate. Clause 4 provides inter alia that during the lifetime of the first defendant "she should be in management" of the properties and "enjoy them in that capacity". It was submitted that the words "in that capacity" indicated that the first defendant was to be in possession of her daughters properties as manager only and therefore accountable to them for mesne profits. We do not think that this contention is correct even on the translation as made by the learned Judge. The first defendant was given the right not only to manage but also "to enjoy". This means in our opinion that she was to remain in possession of the properties in her daughters shares not as owner, but having a right to enjoy the profits thereof so long she was alive which is similar to the right reserved by the settlor for himself in Clause 1 in respect of the properties other than item 1 of the properties mentioned in the schedule to the deed.4. Counsel for the first respondent also sought to read Clause 4 as giving the first defendant a right of management over all the properties which implied, the argument proceeded, that she had only a life interest in respect of her own share, because there was no point in giving her a right of management over properties of which she was the absolute owner. We do not think that Clause 4 can be read in the way suggested by the learned Counsel for the first respondent. The opening paragraph of the settlement deed makes it quite clear that the properties were given to the first defendant and her two daughters absolutely subject to the terms set out in the five clauses that followed. Clause 4 does not limit the first defendants rights in her own share but imposes a limitation on the rights of her daughters as long as she was alive.5. The High Court in decreeing the claim for mesne profits observed :It is quite possible that the settlor when he directed that the property should be managed by his wife had in view the status of his daughters as unmarried and therefore unprotected young women at that time.This is an unwarranted conjecture, contrary to the plain words of the deed, and this is also not the case of any of the parties.

1[ds]We do not think that Clause 4 can be read in the way suggested by the learned Counsel for the first respondent. The opening paragraph of the settlement deed makes it quite clear that the properties were given to the first defendant and her two daughters absolutely subject to the terms set out in the five clauses that followed. Clause 4 does not limit the first defendants rights in her own share but imposes a limitation on the rights of her daughters as long as she was alive.

### 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: the other items excluding 1 (which I have given to you today with full rights), after my lifetime you can take possession of No. 1 above, she should be in management of them and enjoy them in that capacity. After her lifetime, Nos. 2 and 3 above will take those properties with full rights including powers of alienation (with absolute rights including powers of alienation)."You" in Clause 1 includes the wife of the settlor and their two daughter, Arulayi Nadachi and Rosammal Nadachi, who have been referred to as No. 1, No. 2 and No. 3 respectively in Clause 4. Even proceeding on the translation made by the learned Judge we do not see how it can be said that the first defendant was given only a life interest. It is said that the expression "full rights" or "absolute rights" in the first sentence of Clause 4 should be contrasted with the same expression used in last sentence of the clause with the words "including powers of alienation" added. According to the learned Judge, these words were added to indicate that when the settler said that "after my lifetime you can take possession of them with full rights, he did not mean to grant absolute ownership to any of the three. The translation of the last sentence of Clause 4 in Ex. A-1 is not materially different, ". . . after the death of party No. 1, parties Nos. 2 and 3 shall take over the same absolutely with right of alienation thereto". The learned Judges view is that the settlers intention was that the first defendant should manage all the properties including those in the shares of the daughters but after her lifetime the daughters would become absolute owners. This means that after the death of the first defendant her daughters would each become owner of half share in all the properties including those in their mothers share. We do not think that the words "full rights" can be read in this restricted sense as the High Court has done. Clause 1 provides that item No. 1 of the properties mentioned in the schedule to the settlement deed would be enjoyed by all the three from the date the deed was executed with "full rights and with powers of alienation". It will be useful here to refer to Clause 5 of the deed which has not been translated by the learned Judge. Clause 5 says that certain properties were allotted to the settlor "absolutely" on partition and that he was in possession and enjoyment thereof "absolutely" and, further, that he was "having transactions regarding the same". It is clear beyond doubt that the settlor held the properties referred to in Clause 5 as absolute owner though the words "with the right of alienation" are absent here. It seems plain to us that the words "with the right of alienation" were added in the last sentence of Clause 4 only to emphasise that during the lifetime of the mother she would remain in management and enjoyment of all the properties and the daughters would have no right of alienation in respect of the properties in their shares so long as she was alive.3. On the question of mesne profits, for the appellant pointed out that Clause 4 of the deed permitted the first defendant to "manage and enjoy" the properties given by the settlor to her daughter so long as she was alive, and therefore she could not be made liable for mesne profits. Counsel for the first respondent drew out attention to the relevant portion of Clause 4 as translated by the learned Judge which according to her was more accurate. Clause 4 provides inter alia that during the lifetime of the first defendant "she should be in management" of the properties and "enjoy them in that capacity". It was submitted that the words "in that capacity" indicated that the first defendant was to be in possession of her daughters properties as manager only and therefore accountable to them for mesne profits. We do not think that this contention is correct even on the translation as made by the learned Judge. The first defendant was given the right not only to manage but also "to enjoy". This means in our opinion that she was to remain in possession of the properties in her daughters shares not as owner, but having a right to enjoy the profits thereof so long she was alive which is similar to the right reserved by the settlor for himself in Clause 1 in respect of the properties other than item 1 of the properties mentioned in the schedule to the deed.4. Counsel for the first respondent also sought to read Clause 4 as giving the first defendant a right of management over all the properties which implied, the argument proceeded, that she had only a life interest in respect of her own share, because there was no point in giving her a right of management over properties of which she was the absolute owner. We do not think that Clause 4 can be read in the way suggested by the learned Counsel for the first respondent. The opening paragraph of the settlement deed makes it quite clear that the properties were given to the first defendant and her two daughters absolutely subject to the terms set out in the five clauses that followed. Clause 4 does not limit the first defendants rights in her own share but imposes a limitation on the rights of her daughters as long as she was alive.5. The High Court in decreeing the claim for mesne profits observed :It is quite possible that the settlor when he directed that the property should be managed by his wife had in view the status of his daughters as unmarried and therefore unprotected young women at that time.This is an unwarranted conjecture, contrary to the plain words of the deed, and this is also not the case of any of the parties. ### Response: 1 ### Explanation: We do not think that Clause 4 can be read in the way suggested by the learned Counsel for the first respondent. The opening paragraph of the settlement deed makes it quite clear that the properties were given to the first defendant and her two daughters absolutely subject to the terms set out in the five clauses that followed. Clause 4 does not limit the first defendants rights in her own share but imposes a limitation on the rights of her daughters as long as she was alive.

Commissioner of Income Tax Vs. Bhurangya Coal Company

On behalf of the Appellant, it is stated that the question as to what are immovables and what are movables, arises only on the Judgment of the Tribunal and that therefore an opportunity ought to be given for an investigation of this aspect of the question. We are not impressed by this argument. Surely, before the Tribunal there must have been a discussion as to the position with reference to the movables as distinct from the immovables, under the transaction and if the appellant considered that in view of that distinction, further enquiry was called for, it was incumbent upon it to apply to the Tribunal itself to order it and not having done so, it had no right to call upon the High Court to remand the matter for that purpose. In our opinion the High Court was justified in declining to entertain this point.5. It is next argued for the appellant that some of the properties described as movables in Part. 2 of the schedule are really fixtures which would be immovable properties as defined in the General Clauses Act and S. 3, Transfer of Property Act, and that they passed to the transferee under the sale deed dated 17-5-1946 and that therefore their value should also be taken into account in assessing the chargeable income under S. 12 (B), Income-tax Act. The argument in support of this contention might thus be stated :"Section 2, sub-cl. 7, Sale of Goods Act, defines goods as follows :Goods means even kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, glass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale."6. According to this definition fixtures mentioned in Part 2 of the schedule could be held to be movables only if they were intended to be served and sold separately. But that was not the intention of the parties. The collieries were sold as a going concern and the intention was therefore that the fixtures should pass along with the land. Therefore there was no valid sale of the fixtures as movables. Moreover; S. 85 of the Contract Act provides that"Where an agreement is made for the sale of immovable and movable property combined, the ownersnip of the movable properly does not pass before the transfer of the immovable property".Though this section has been repealed by the, Sale of Goods Act, 1930 the principle enunciated thereunder could be applied to the facts of this case. There was a sale of both movables and immovables and that therefore title to the movables could pass only on the execution of the sale deed on 17-5-1946. Coming next to the sale of the immovables under the sale deed dated 17-5-l946 the matter is governed by S. 8, Transfer of Property Act. That section provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, and those incidents include all things attached to the earth. Fixtures will pass under this section, to the transferee unless it is provided otherwise. Therefore, the sale deed dated 17-5-1946 operated to vest title in the fixtures also in the purchaser.7. Now the sole point for determination in this appeal is, what were the properties that were sold to the purchaser under the sale deed dated 17 5-1946, whether they were only the properties mentioned in part 1 to the schedule or whether they included the fixtures mentioned in part 2 as well. That is a question which must be decided purely on the construction of the sale deed. No doubt, fixtures attached to the land will pass on a sale of the land under S. 8, Transfer of Property Act, but that is subject to any different intention which is express or necessarily be implied in the document.We have examined both the sale deed dated 17-5-1946 and the agreement to sell dated 16-3-1946 on which it was based.Now it is clear to us on a reading of these documents that there were really two sale transactions, one relating to movablas and the other relating to the immovables, as set out in the two parts to schedule.Different prices are fixed therefor and the actual conveyance under the sale deed dated 17-5-1946 is only of the immovables described in part 1. Then there is the fact that the price fixed for the properties sold under the deed dated 17-5-1946 is Rs. 2,00,600 which is the price only of the properties described in part 1. It is also to be noted that the parties were conscious that title for the movables would pass by delivery, and expressly say so with reference to the properties mentioned in the second part including the, fixtures.Now to say that the parties really intended to sell under the sale deed dated 17-5-1946 not merely the properties mentioned in part 1, but also some of the properties mentioned in part 2 would be re-writing the whole document. That, in our opinion, cannot be done. On a construction of the two documents, we are of opinion that what were intended to be sold and what were actually sold under the deed dated 17-5-1946 were only the properties mentioned in part 1 of the schedule and not any items included in part 2 and that the intention was to sell the fixtures as movables in this view, the question whether the movables have been validly sold does not really arise for determination, because if the sale is invalid, then there is no sale so far as they are concerned and S.12-B will be inapplicable. The decision of the Tribunal holding that it is only the profits in respect of the sale of the properties described in part 1 that are liable to tax under S. 12 B is correct.

0[ds]On behalf of the Appellant, it is stated that the question as to what are immovables and what are movables, arises only on the Judgment of the Tribunal and that therefore an opportunity ought to be given for an investigation of this aspect of the question.We are not impressed by this argument. Surely, before the Tribunal there must have been a discussion as to the position with reference to the movables as distinct from the immovables, under the transaction and if the appellant considered that in view of that distinction, further enquiry was called for, it was incumbent upon it to apply to the Tribunal itself to order it and not having done so, it had no right to call upon the High Court to remand the matter for that purpose. In our opinion the High Court was justified in declining to entertain this point.Now the sole point for determination in this appeal is, what were the properties that were sold to the purchaser under the sale deed dated 17whether they were only the properties mentioned in part 1 to the schedule or whether they included the fixtures mentioned in part 2 as well.That is a question which must be decided purely on the construction of the sale deed. No doubt, fixtures attached to the land will pass on a sale of the land under S. 8, Transfer of Property Act, but that is subject to any different intention which is express or necessarily be implied in the document.We have examined both the sale deed datedand the agreement to sell datedon which it was based.Now it is clear to us on a reading of these documents that there were really two sale transactions, one relating to movablas and the other relating to the immovables, as set out in the two parts to schedule.Different prices are fixed therefor and the actual conveyance under the sale deed datedis only of the immovables described in part 1. Then there is the fact that the price fixed for the properties sold under the deed datedis Rs. 2,00,600 which is the price only of the properties described in part 1. It is also to be noted that the parties were conscious that title for the movables would pass by delivery, and expressly say so with reference to the properties mentioned in the second part including the, fixtures.Now to say that the parties really intended to sell under the sale deed datednot merely the properties mentioned in part 1, but also some of the properties mentioned in part 2 would bethe whole document. That, in our opinion, cannot be done. On a construction of the two documents, we are of opinion that what were intended to be sold and what were actually sold under the deed datedwere only the properties mentioned in part 1 of the schedule and not any items included in part 2 and that the intention was to sell the fixtures as movables in this view, the question whether the movables have been validly sold does not really arise for determination, because if the sale is invalid, then there is no sale so far as they are concerned andwill be inapplicable. The decision of the Tribunal holding that it is only the profits in respect of the sale of the properties described in part 1 that are liable to tax under S. 12 B is correct.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: On behalf of the Appellant, it is stated that the question as to what are immovables and what are movables, arises only on the Judgment of the Tribunal and that therefore an opportunity ought to be given for an investigation of this aspect of the question. We are not impressed by this argument. Surely, before the Tribunal there must have been a discussion as to the position with reference to the movables as distinct from the immovables, under the transaction and if the appellant considered that in view of that distinction, further enquiry was called for, it was incumbent upon it to apply to the Tribunal itself to order it and not having done so, it had no right to call upon the High Court to remand the matter for that purpose. In our opinion the High Court was justified in declining to entertain this point.5. It is next argued for the appellant that some of the properties described as movables in Part. 2 of the schedule are really fixtures which would be immovable properties as defined in the General Clauses Act and S. 3, Transfer of Property Act, and that they passed to the transferee under the sale deed dated 17-5-1946 and that therefore their value should also be taken into account in assessing the chargeable income under S. 12 (B), Income-tax Act. The argument in support of this contention might thus be stated :"Section 2, sub-cl. 7, Sale of Goods Act, defines goods as follows :Goods means even kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, glass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale."6. According to this definition fixtures mentioned in Part 2 of the schedule could be held to be movables only if they were intended to be served and sold separately. But that was not the intention of the parties. The collieries were sold as a going concern and the intention was therefore that the fixtures should pass along with the land. Therefore there was no valid sale of the fixtures as movables. Moreover; S. 85 of the Contract Act provides that"Where an agreement is made for the sale of immovable and movable property combined, the ownersnip of the movable properly does not pass before the transfer of the immovable property".Though this section has been repealed by the, Sale of Goods Act, 1930 the principle enunciated thereunder could be applied to the facts of this case. There was a sale of both movables and immovables and that therefore title to the movables could pass only on the execution of the sale deed on 17-5-1946. Coming next to the sale of the immovables under the sale deed dated 17-5-l946 the matter is governed by S. 8, Transfer of Property Act. That section provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, and those incidents include all things attached to the earth. Fixtures will pass under this section, to the transferee unless it is provided otherwise. Therefore, the sale deed dated 17-5-1946 operated to vest title in the fixtures also in the purchaser.7. Now the sole point for determination in this appeal is, what were the properties that were sold to the purchaser under the sale deed dated 17 5-1946, whether they were only the properties mentioned in part 1 to the schedule or whether they included the fixtures mentioned in part 2 as well. That is a question which must be decided purely on the construction of the sale deed. No doubt, fixtures attached to the land will pass on a sale of the land under S. 8, Transfer of Property Act, but that is subject to any different intention which is express or necessarily be implied in the document.We have examined both the sale deed dated 17-5-1946 and the agreement to sell dated 16-3-1946 on which it was based.Now it is clear to us on a reading of these documents that there were really two sale transactions, one relating to movablas and the other relating to the immovables, as set out in the two parts to schedule.Different prices are fixed therefor and the actual conveyance under the sale deed dated 17-5-1946 is only of the immovables described in part 1. Then there is the fact that the price fixed for the properties sold under the deed dated 17-5-1946 is Rs. 2,00,600 which is the price only of the properties described in part 1. It is also to be noted that the parties were conscious that title for the movables would pass by delivery, and expressly say so with reference to the properties mentioned in the second part including the, fixtures.Now to say that the parties really intended to sell under the sale deed dated 17-5-1946 not merely the properties mentioned in part 1, but also some of the properties mentioned in part 2 would be re-writing the whole document. That, in our opinion, cannot be done. On a construction of the two documents, we are of opinion that what were intended to be sold and what were actually sold under the deed dated 17-5-1946 were only the properties mentioned in part 1 of the schedule and not any items included in part 2 and that the intention was to sell the fixtures as movables in this view, the question whether the movables have been validly sold does not really arise for determination, because if the sale is invalid, then there is no sale so far as they are concerned and S.12-B will be inapplicable. The decision of the Tribunal holding that it is only the profits in respect of the sale of the properties described in part 1 that are liable to tax under S. 12 B is correct. ### Response: 0 ### Explanation: On behalf of the Appellant, it is stated that the question as to what are immovables and what are movables, arises only on the Judgment of the Tribunal and that therefore an opportunity ought to be given for an investigation of this aspect of the question.We are not impressed by this argument. Surely, before the Tribunal there must have been a discussion as to the position with reference to the movables as distinct from the immovables, under the transaction and if the appellant considered that in view of that distinction, further enquiry was called for, it was incumbent upon it to apply to the Tribunal itself to order it and not having done so, it had no right to call upon the High Court to remand the matter for that purpose. In our opinion the High Court was justified in declining to entertain this point.Now the sole point for determination in this appeal is, what were the properties that were sold to the purchaser under the sale deed dated 17whether they were only the properties mentioned in part 1 to the schedule or whether they included the fixtures mentioned in part 2 as well.That is a question which must be decided purely on the construction of the sale deed. No doubt, fixtures attached to the land will pass on a sale of the land under S. 8, Transfer of Property Act, but that is subject to any different intention which is express or necessarily be implied in the document.We have examined both the sale deed datedand the agreement to sell datedon which it was based.Now it is clear to us on a reading of these documents that there were really two sale transactions, one relating to movablas and the other relating to the immovables, as set out in the two parts to schedule.Different prices are fixed therefor and the actual conveyance under the sale deed datedis only of the immovables described in part 1. Then there is the fact that the price fixed for the properties sold under the deed datedis Rs. 2,00,600 which is the price only of the properties described in part 1. It is also to be noted that the parties were conscious that title for the movables would pass by delivery, and expressly say so with reference to the properties mentioned in the second part including the, fixtures.Now to say that the parties really intended to sell under the sale deed datednot merely the properties mentioned in part 1, but also some of the properties mentioned in part 2 would bethe whole document. That, in our opinion, cannot be done. On a construction of the two documents, we are of opinion that what were intended to be sold and what were actually sold under the deed datedwere only the properties mentioned in part 1 of the schedule and not any items included in part 2 and that the intention was to sell the fixtures as movables in this view, the question whether the movables have been validly sold does not really arise for determination, because if the sale is invalid, then there is no sale so far as they are concerned andwill be inapplicable. The decision of the Tribunal holding that it is only the profits in respect of the sale of the properties described in part 1 that are liable to tax under S. 12 B is correct.

M/S. Girnar Traders Vs. State Of Maharashtra

has to be moved under clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126(1)(c); and (ii) declaration by the State Government on receipt of the application mentioned in clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision has been given under Section 126(4). In the present case, the amended regional plan was published in the year 1991. Thereafter, the steps by making an application under clause (c) of sub-section (1) of Section 126 for issuance of the declaration of acquisition and the declaration itself has to be made within the period of one year from the date of the publication of regional plan, that is, within the period of one year from 1991. The application under Section 126(1)(c) could be said to be a step taken for acquisition of the land if such application is moved within the period of one year from the date of publication of regional plan. The application moved after the expiry of one year could not result in the publication of declaration in the manner provided under Section 6 of the LA Act, under sub-section (2) of Section 126 of the MRTP Act, there being a prohibition under the proviso to issue such declaration after one year. Therefore, by no stretch of imagination, the step taken by the Municipal Corporation under Section 126(1)(c) of making an application could be said to be a step for the commencement of acquisition of the land. After the expiry of one year, it is left to the Government concerned under sub-section (4) of Section 126 to issue declaration under Section 6 of the LA Act for the purposes of acquisition for which no application is required under Section 126(1)(c). Sub-section (4) of Section 126 of the MRTP Act would come into operation if the State Government is of the view that the land is required to be acquired for any public purpose. 36. The High Court has committed an apparent error when it held that the steps taken by the respondent-Corporation on 9.9.2002 and 13.9.2002 would constitute steps as required under Section 126(1)(c) of the MRTP Act. What is required under Section 126(1)(c) is that the application is to be moved to the State Government for acquiring the land under the LA Act by the planning/local authority. Passing of a resolution by the Improvement Committee recommending that the steps be taken under Section 126(1)(c) or making an application by the Chief Engineer without there being any authority or resolution passed by the Municipal Corporation, could not be taken to be steps taken of moving an application before the State Government for acquiring the land under the LA Act. The High Court has committed an apparent error in relying on these two documents for reaching the conclusion that the steps for acquisition had been commenced by the Municipal Corporation before the expiry of period of six months which was to expire on 18.9.2002. Further, if we look at the letter dated 17.9.2002 which, as per the counsel for the respondent-Corporation, is a request made by the Municipal Corporation to the State Government under clause (c) of Section 126(1), we cannot agree with the submissions of the respondents. The letter itself shows that the resolution was passed by the Municipal Corporation on 16.9.2002 whereby it was informed that the sanction had been accorded to initiate the acquisition proceedings for the land in question. The letter also mentioned that the authorization had been given to the Municipal Commissioner to make an application to the State Government as per the provisions of Section 126(1) of the MRTP Act. Under Section 2(19) read with Section 2(15) with Section 126(1) of the MRTP Act, the application to the State Government under clause (c) of Section 126(1) has to be made by the planning/local authority, i.e. the Municipal Corporation of Greater Mumbai constituted under the Bombay Municipal Corporation Act. The Municipal Corporation had passed a resolution delegating authority to Municipal Commissioner for making an application to the State Government, but the application/letter either dated 13.9.2002 or 17.9.2002 were made to the State Government by the Chief Engineer (Development Plan). The authority was given by the Municipal Corporation to the Municipal Commissioner to make an application to the State Government. No such application or letter moved by the Municipal Commissioner has been produced before us. On being asked by this Court, as many as six documents have been produced before us by the counsel for the Municipal Corporation who has stated before us that these documents were also placed before the Division Bench of the Bombay High Court. Therefore, we have permitted production of these documents before us. On a minute and careful scrutiny of the documents produced before us, we do not find that the application under clause (c) of Section 126(1) was moved by the officer authorized by the Municipal Corporation, i.e. the Municipal Commissioner, to the State Government for acquisition of the land, so that it could be said that steps as contemplated were taken for the commencement of acquisition proceedings. 37. In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed, and the other question argued on the applicability of the newly inserted Section 11A of the LA Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case.

1[ds]37. In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed, and the other question argued on the applicability of the newly inserted Section 11A of the LA Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: has to be moved under clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126(1)(c); and (ii) declaration by the State Government on receipt of the application mentioned in clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision has been given under Section 126(4). In the present case, the amended regional plan was published in the year 1991. Thereafter, the steps by making an application under clause (c) of sub-section (1) of Section 126 for issuance of the declaration of acquisition and the declaration itself has to be made within the period of one year from the date of the publication of regional plan, that is, within the period of one year from 1991. The application under Section 126(1)(c) could be said to be a step taken for acquisition of the land if such application is moved within the period of one year from the date of publication of regional plan. The application moved after the expiry of one year could not result in the publication of declaration in the manner provided under Section 6 of the LA Act, under sub-section (2) of Section 126 of the MRTP Act, there being a prohibition under the proviso to issue such declaration after one year. Therefore, by no stretch of imagination, the step taken by the Municipal Corporation under Section 126(1)(c) of making an application could be said to be a step for the commencement of acquisition of the land. After the expiry of one year, it is left to the Government concerned under sub-section (4) of Section 126 to issue declaration under Section 6 of the LA Act for the purposes of acquisition for which no application is required under Section 126(1)(c). Sub-section (4) of Section 126 of the MRTP Act would come into operation if the State Government is of the view that the land is required to be acquired for any public purpose. 36. The High Court has committed an apparent error when it held that the steps taken by the respondent-Corporation on 9.9.2002 and 13.9.2002 would constitute steps as required under Section 126(1)(c) of the MRTP Act. What is required under Section 126(1)(c) is that the application is to be moved to the State Government for acquiring the land under the LA Act by the planning/local authority. Passing of a resolution by the Improvement Committee recommending that the steps be taken under Section 126(1)(c) or making an application by the Chief Engineer without there being any authority or resolution passed by the Municipal Corporation, could not be taken to be steps taken of moving an application before the State Government for acquiring the land under the LA Act. The High Court has committed an apparent error in relying on these two documents for reaching the conclusion that the steps for acquisition had been commenced by the Municipal Corporation before the expiry of period of six months which was to expire on 18.9.2002. Further, if we look at the letter dated 17.9.2002 which, as per the counsel for the respondent-Corporation, is a request made by the Municipal Corporation to the State Government under clause (c) of Section 126(1), we cannot agree with the submissions of the respondents. The letter itself shows that the resolution was passed by the Municipal Corporation on 16.9.2002 whereby it was informed that the sanction had been accorded to initiate the acquisition proceedings for the land in question. The letter also mentioned that the authorization had been given to the Municipal Commissioner to make an application to the State Government as per the provisions of Section 126(1) of the MRTP Act. Under Section 2(19) read with Section 2(15) with Section 126(1) of the MRTP Act, the application to the State Government under clause (c) of Section 126(1) has to be made by the planning/local authority, i.e. the Municipal Corporation of Greater Mumbai constituted under the Bombay Municipal Corporation Act. The Municipal Corporation had passed a resolution delegating authority to Municipal Commissioner for making an application to the State Government, but the application/letter either dated 13.9.2002 or 17.9.2002 were made to the State Government by the Chief Engineer (Development Plan). The authority was given by the Municipal Corporation to the Municipal Commissioner to make an application to the State Government. No such application or letter moved by the Municipal Commissioner has been produced before us. On being asked by this Court, as many as six documents have been produced before us by the counsel for the Municipal Corporation who has stated before us that these documents were also placed before the Division Bench of the Bombay High Court. Therefore, we have permitted production of these documents before us. On a minute and careful scrutiny of the documents produced before us, we do not find that the application under clause (c) of Section 126(1) was moved by the officer authorized by the Municipal Corporation, i.e. the Municipal Commissioner, to the State Government for acquisition of the land, so that it could be said that steps as contemplated were taken for the commencement of acquisition proceedings. 37. In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed, and the other question argued on the applicability of the newly inserted Section 11A of the LA Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case. ### Response: 1 ### Explanation: 37. In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed, and the other question argued on the applicability of the newly inserted Section 11A of the LA Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case.

RANI Vs. NATIONAL INSURANCE COMPANY LTD

also for further enhancement of compensation amount. Similarly, Anand, the injured pillion rider, has also filed a separate appeal challenging the decision of the High Court in restricting the liability to pay compensation amount to that of the owner of the offending vehicle but also on the quantum of compensation amount. In both the appeals, it is alternatively urged that the compensation amount payable to the respective claimants should be first paid by the Insurance Company with liberty to recover the same from the owner of the offending vehicle, respondent No.2 herein. 9. The respondent No.1 Insurance Company, on the other hand, submits that by virtue of statutory provisions, it cannot be made liable to pay the compensation amount as the offending vehicle did not have a valid permit for being operated in the State of Karnataka. It is also contended that no direction be issued against the Insurance Company to pay and recover as it may be difficult for the Insurance Company to trace the owner of the offending vehicle. For, the owner of the offending lorry has not chosen to appear even before this Court. 10. We have heard Mr. Anand Sanjay M. Nuli, learned counsel appearing for the appellants and Mr. Parmanand Gaur, learned counsel for the respondents. 11. Taking the appeal filed by the legal representatives of the deceased (Satish) first, as mentioned earlier, they did not file any appeal challenging the award passed by the Tribunal determining the compensation amount payable to them at Rs.4,53,000/- (Four Lakh Fifty Three Thousand only) with interest at the rate of 6% per annum from the date of petition till the date of deposit. It is respondent No.1 Insurance Company who had challenged the award in favour of the claimants and in those appeals, the claimants (including appellants in Civil Appeal No.9078 of 2017) filed cross objections which, however, came to be dismissed for non- removal of office objections. Nevertheless, the High Court enhanced the compensation amount payable to them by invoking power under Order 41 Rule 33 of the Civil Procedure Code (C.P.C.). The Insurance Company has not challenged the said view taken by the High Court as it has already succeeded in getting a finding from the High Court that the liability to pay compensation amount was restricted to that of the owner of the offending vehicle, namely respondent No.2 herein. 12. Assuming that the legal representatives of the deceased (Satish) (appellant in Civil Appeal No.9078 of 2017) could ask for enhancement of the compensation amount in the present appeal whilst challenging the finding of the High Court to absolve the Insurance Company of its liability to pay the compensation amount, the question is whether the appellants are justified in claiming further enhanced compensation amount. 13. The Tribunal has found that no evidence regarding the income of the deceased (Satish) was produced by the claimants. That finding has not been over turned by the High Court. The High Court, however, relied upon the driving licence of the deceased and training certificate of the deceased issued by Bajaj Auto Limited and on that basis, determined the notional income of Satish (Deceased) at the time of accident at Rs.10,000/- per month. Neither the driving licence nor the certificate could per se be made the basis to assume or infer that the deceased (Satish) was gainfully employed at the relevant time and moreso was earning income of Rs.10,000/- per month. In other words, the reason assigned by the High Court for enhancing the notional income of the deceased (Satish) from Rs. 3000/- to Rs.10,000/- per month is irrational and tenuous. No tangible logic has been assigned to discard the just finding recorded by the Tribunal in the backdrop of lack of evidence regarding the monthly income of the deceased (Satish). 14. We are of the view that the High Court has already granted more than just compensation amount to the legal representatives of the deceased (Satish). In that, even if the claim of the appellants regarding future prospects, additional medical expenses and additional interest amount was to be accepted, on the basis of the notional income of Rs.5000/- (Rupees five thousand) per month, the question of awarding additional or further compensation amount to the appellants in M.F.A. No.5874 of 2011 does not arise. The appeal, however, would succeed to the limited extent that the amount of compensation determined by the High Court shall be first paid by the respondent No.1 Insurance Company with liberty to recover the same from the owner of the offending vehicle (respondent No.2 herein). We are inclined to allow the appeal to this limited extent, keeping in mind the exposition in Singh Ram Vs. Nirmala and Ors. (2018) 3 SCC 800 and Pappu and Ors. Vs. Vinod Kumar Lamba and Anr. (2018) 3 SCC 208 15. Reverting to the appeal preferred by respondent No.1 Insurance Company against Anand (M.F.A. No.5876 of 2011), as noted in paragraph Nos.11 and 12 of the impugned judgment reproduced above, the High Court 1 (2018) 3 SCC 800 2 (2018) 3 SCC 208 disposed of the said appeal by absolving the insurer from the liability to pay compensation amount. As noticed earlier, the appellant (Anand) did not file any appeal against the award passed by the Tribunal for enhancement of compensation amount and the cross objection filed by him in the appeal filed by the Insurance Company came to be dismissed for non- prosecution. Even in respect of this appeal, the Tribunal had found that he failed to produce any evidence regarding his monthly income and the permanent disability suffered by him had been determined as not exceeding 10% to the whole body and compensation had been awarded to him on that basis. Resultantly, we intend to dispose of this appeal on the same basis by directing the respondent No.1 Insurance Company to pay the compensation amount awarded to the claimant (Anand) in the first place, with liberty to recover the same from the owner of the offending vehicle (respondent No.2).

1[ds]11. Taking the appeal filed by the legal representatives of the deceased (Satish) first, as mentioned earlier, they did not file any appeal challenging the award passed by the Tribunal determining the compensation amount payable to them at Rs.4,53,000/(Four Lakh Fifty Three Thousand only) with interest at the rate of 6% per annum from the date of petition till the date of deposit. It is respondent No.1 Insurance Company who had challenged the award in favour of the claimants and in those appeals, the claimants (including appellants in Civil Appeal No.9078 of 2017) filed cross objections which, however, came to be dismissed for nonremoval of office objections. Nevertheless, the High Court enhanced the compensation amount payable to them by invoking power under Order 41 Rule 33 of the Civil Procedure Code (C.P.C.). The Insurance Company has not challenged the said view taken by the High Court as it has already succeeded in getting a finding from the High Court that the liability to pay compensation amount was restricted to that of the owner of the offending vehicle, namely respondent No.2 herein12. Assuming that the legal representatives of the deceased (Satish) (appellant in Civil Appeal No.9078 of 2017) could ask for enhancement of the compensation amount in the present appeal whilst challenging the finding of the High Court to absolve the Insurance Company of its liability to pay the compensation amount, the question is whether the appellants are justified in claiming further enhanced compensation amount13. The Tribunal has found that no evidence regarding the income of the deceased (Satish) was produced by the claimants. That finding has not been over turned by the High Court. The High Court, however, relied upon the driving licence of the deceased and training certificate of the deceased issued by Bajaj Auto Limited and on that basis, determined the notional income of Satish (Deceased) at the time of accident at Rs.10,000/per month. Neither the driving licence nor the certificate could per se be made the basis to assume or infer that the deceased (Satish) was gainfully employed at the relevant time and moreso was earning income of Rs.10,000/per month. In other words, the reason assigned by the High Court for enhancing the notional income of the deceased (Satish) from Rs. 3000/per month is irrational and tenuous. No tangible logic has been assigned to discard the just finding recorded by the Tribunal in the backdrop of lack of evidence regarding the monthly income of the deceased (Satish)14. We are of the view that the High Court has already granted more than just compensation amount to the legal representatives of the deceased (Satish). In that, even if the claim of the appellants regarding future prospects, additional medical expenses and additional interest amount was to be accepted, on the basis of the notional income of Rs.5000/(Rupees five thousand) per month, the question of awarding additional or further compensation amount to the appellants in M.F.A. No.5874 of 2011 does not arise. The appeal, however, would succeed to the limited extent that the amount of compensation determined by the High Court shall be first paid by the respondent No.1 Insurance Company with liberty to recover the same from the owner of the offending vehicle (respondent No.2 herein). We are inclined to allow the appeal to this limited extent, keeping in mind the exposition in Singh Ram Vs. Nirmala and Ors.15. Reverting to the appeal preferred by respondent No.1 Insurance Company against Anand (M.F.A. No.5876 of 2011), as noted in paragraph Nos.11 and 12 of the impugned judgment reproduced above, the High Court 1 (2018) 3 SCC 800 2 (2018) 3 SCC 208 disposed of the said appeal by absolving the insurer from the liability to pay compensation amount. As noticed earlier, the appellant (Anand) did not file any appeal against the award passed by the Tribunal for enhancement of compensation amount and the cross objection filed by him in the appeal filed by the Insurance Company came to be dismissed for nonprosecution. Even in respect of this appeal, the Tribunal had found that he failed to produce any evidence regarding his monthly income and the permanent disability suffered by him had been determined as not exceeding 10% to the whole body and compensation had been awarded to him on that basis. Resultantly, we intend to dispose of this appeal on the same basis by directing the respondent No.1 Insurance Company to pay the compensation amount awarded to the claimant (Anand) in the first place, with liberty to recover the same from the owner of the offending vehicle (respondent No.2).

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: also for further enhancement of compensation amount. Similarly, Anand, the injured pillion rider, has also filed a separate appeal challenging the decision of the High Court in restricting the liability to pay compensation amount to that of the owner of the offending vehicle but also on the quantum of compensation amount. In both the appeals, it is alternatively urged that the compensation amount payable to the respective claimants should be first paid by the Insurance Company with liberty to recover the same from the owner of the offending vehicle, respondent No.2 herein. 9. The respondent No.1 Insurance Company, on the other hand, submits that by virtue of statutory provisions, it cannot be made liable to pay the compensation amount as the offending vehicle did not have a valid permit for being operated in the State of Karnataka. It is also contended that no direction be issued against the Insurance Company to pay and recover as it may be difficult for the Insurance Company to trace the owner of the offending vehicle. For, the owner of the offending lorry has not chosen to appear even before this Court. 10. We have heard Mr. Anand Sanjay M. Nuli, learned counsel appearing for the appellants and Mr. Parmanand Gaur, learned counsel for the respondents. 11. Taking the appeal filed by the legal representatives of the deceased (Satish) first, as mentioned earlier, they did not file any appeal challenging the award passed by the Tribunal determining the compensation amount payable to them at Rs.4,53,000/- (Four Lakh Fifty Three Thousand only) with interest at the rate of 6% per annum from the date of petition till the date of deposit. It is respondent No.1 Insurance Company who had challenged the award in favour of the claimants and in those appeals, the claimants (including appellants in Civil Appeal No.9078 of 2017) filed cross objections which, however, came to be dismissed for non- removal of office objections. Nevertheless, the High Court enhanced the compensation amount payable to them by invoking power under Order 41 Rule 33 of the Civil Procedure Code (C.P.C.). The Insurance Company has not challenged the said view taken by the High Court as it has already succeeded in getting a finding from the High Court that the liability to pay compensation amount was restricted to that of the owner of the offending vehicle, namely respondent No.2 herein. 12. Assuming that the legal representatives of the deceased (Satish) (appellant in Civil Appeal No.9078 of 2017) could ask for enhancement of the compensation amount in the present appeal whilst challenging the finding of the High Court to absolve the Insurance Company of its liability to pay the compensation amount, the question is whether the appellants are justified in claiming further enhanced compensation amount. 13. The Tribunal has found that no evidence regarding the income of the deceased (Satish) was produced by the claimants. That finding has not been over turned by the High Court. The High Court, however, relied upon the driving licence of the deceased and training certificate of the deceased issued by Bajaj Auto Limited and on that basis, determined the notional income of Satish (Deceased) at the time of accident at Rs.10,000/- per month. Neither the driving licence nor the certificate could per se be made the basis to assume or infer that the deceased (Satish) was gainfully employed at the relevant time and moreso was earning income of Rs.10,000/- per month. In other words, the reason assigned by the High Court for enhancing the notional income of the deceased (Satish) from Rs. 3000/- to Rs.10,000/- per month is irrational and tenuous. No tangible logic has been assigned to discard the just finding recorded by the Tribunal in the backdrop of lack of evidence regarding the monthly income of the deceased (Satish). 14. We are of the view that the High Court has already granted more than just compensation amount to the legal representatives of the deceased (Satish). In that, even if the claim of the appellants regarding future prospects, additional medical expenses and additional interest amount was to be accepted, on the basis of the notional income of Rs.5000/- (Rupees five thousand) per month, the question of awarding additional or further compensation amount to the appellants in M.F.A. No.5874 of 2011 does not arise. The appeal, however, would succeed to the limited extent that the amount of compensation determined by the High Court shall be first paid by the respondent No.1 Insurance Company with liberty to recover the same from the owner of the offending vehicle (respondent No.2 herein). We are inclined to allow the appeal to this limited extent, keeping in mind the exposition in Singh Ram Vs. Nirmala and Ors. (2018) 3 SCC 800 and Pappu and Ors. Vs. Vinod Kumar Lamba and Anr. (2018) 3 SCC 208 15. Reverting to the appeal preferred by respondent No.1 Insurance Company against Anand (M.F.A. No.5876 of 2011), as noted in paragraph Nos.11 and 12 of the impugned judgment reproduced above, the High Court 1 (2018) 3 SCC 800 2 (2018) 3 SCC 208 disposed of the said appeal by absolving the insurer from the liability to pay compensation amount. As noticed earlier, the appellant (Anand) did not file any appeal against the award passed by the Tribunal for enhancement of compensation amount and the cross objection filed by him in the appeal filed by the Insurance Company came to be dismissed for non- prosecution. Even in respect of this appeal, the Tribunal had found that he failed to produce any evidence regarding his monthly income and the permanent disability suffered by him had been determined as not exceeding 10% to the whole body and compensation had been awarded to him on that basis. Resultantly, we intend to dispose of this appeal on the same basis by directing the respondent No.1 Insurance Company to pay the compensation amount awarded to the claimant (Anand) in the first place, with liberty to recover the same from the owner of the offending vehicle (respondent No.2). ### Response: 1 ### Explanation: 11. Taking the appeal filed by the legal representatives of the deceased (Satish) first, as mentioned earlier, they did not file any appeal challenging the award passed by the Tribunal determining the compensation amount payable to them at Rs.4,53,000/(Four Lakh Fifty Three Thousand only) with interest at the rate of 6% per annum from the date of petition till the date of deposit. It is respondent No.1 Insurance Company who had challenged the award in favour of the claimants and in those appeals, the claimants (including appellants in Civil Appeal No.9078 of 2017) filed cross objections which, however, came to be dismissed for nonremoval of office objections. Nevertheless, the High Court enhanced the compensation amount payable to them by invoking power under Order 41 Rule 33 of the Civil Procedure Code (C.P.C.). The Insurance Company has not challenged the said view taken by the High Court as it has already succeeded in getting a finding from the High Court that the liability to pay compensation amount was restricted to that of the owner of the offending vehicle, namely respondent No.2 herein12. Assuming that the legal representatives of the deceased (Satish) (appellant in Civil Appeal No.9078 of 2017) could ask for enhancement of the compensation amount in the present appeal whilst challenging the finding of the High Court to absolve the Insurance Company of its liability to pay the compensation amount, the question is whether the appellants are justified in claiming further enhanced compensation amount13. The Tribunal has found that no evidence regarding the income of the deceased (Satish) was produced by the claimants. That finding has not been over turned by the High Court. The High Court, however, relied upon the driving licence of the deceased and training certificate of the deceased issued by Bajaj Auto Limited and on that basis, determined the notional income of Satish (Deceased) at the time of accident at Rs.10,000/per month. Neither the driving licence nor the certificate could per se be made the basis to assume or infer that the deceased (Satish) was gainfully employed at the relevant time and moreso was earning income of Rs.10,000/per month. In other words, the reason assigned by the High Court for enhancing the notional income of the deceased (Satish) from Rs. 3000/per month is irrational and tenuous. No tangible logic has been assigned to discard the just finding recorded by the Tribunal in the backdrop of lack of evidence regarding the monthly income of the deceased (Satish)14. We are of the view that the High Court has already granted more than just compensation amount to the legal representatives of the deceased (Satish). In that, even if the claim of the appellants regarding future prospects, additional medical expenses and additional interest amount was to be accepted, on the basis of the notional income of Rs.5000/(Rupees five thousand) per month, the question of awarding additional or further compensation amount to the appellants in M.F.A. No.5874 of 2011 does not arise. The appeal, however, would succeed to the limited extent that the amount of compensation determined by the High Court shall be first paid by the respondent No.1 Insurance Company with liberty to recover the same from the owner of the offending vehicle (respondent No.2 herein). We are inclined to allow the appeal to this limited extent, keeping in mind the exposition in Singh Ram Vs. Nirmala and Ors.15. Reverting to the appeal preferred by respondent No.1 Insurance Company against Anand (M.F.A. No.5876 of 2011), as noted in paragraph Nos.11 and 12 of the impugned judgment reproduced above, the High Court 1 (2018) 3 SCC 800 2 (2018) 3 SCC 208 disposed of the said appeal by absolving the insurer from the liability to pay compensation amount. As noticed earlier, the appellant (Anand) did not file any appeal against the award passed by the Tribunal for enhancement of compensation amount and the cross objection filed by him in the appeal filed by the Insurance Company came to be dismissed for nonprosecution. Even in respect of this appeal, the Tribunal had found that he failed to produce any evidence regarding his monthly income and the permanent disability suffered by him had been determined as not exceeding 10% to the whole body and compensation had been awarded to him on that basis. Resultantly, we intend to dispose of this appeal on the same basis by directing the respondent No.1 Insurance Company to pay the compensation amount awarded to the claimant (Anand) in the first place, with liberty to recover the same from the owner of the offending vehicle (respondent No.2).

State of Tamil Nadu Vs. Mc. Dowell and Company Limited, Madras

to show the price, the tax payable thereon and the deposits for assessee in its turn, similarly charged its customers. The rate of deposit at which the assessee was charged by U.B. and the rate at which assessee charged its customers were same. The same procedure was followed year after year. From time to time, the rate of deposit was enhanced due to shortage of empty bottle. In the ale notes, it was specifically stated "Empty bottle deposit is refundable against the return of the bottles at the Brewery. The freight on return of empties and breakages will be on your (Purchasers) account". In the copies of the bills issued as against the assessee, the price of liquor was separately shown and the sales tax was added to it. 2. Thereafter, with reference to the number of bottles supplied, a separate charge was made as deposits at the rate of 40 paise per bottle or Rs.4.80 per dozen of bottles. The question that came up for consideration was whether these deposits were liable to be treated as part of the assessees sales turnover for the purpose of levy of sales tax. The assessing authority was of the view that there was a sale of the bottles by U.B. to the purchaser and the de posit amount had to be included in the turnover and taxed. The Tribunal, however, took the view that the receipts were only deposits and not price realised on sale of the bottles. The deposit amount could not be taxed in any way was price of bottles.Before the High Court, contention of the State was that the transactions were liable to be treated as sales. The deposits were merely shown in the accounts separately. That did not mean that these deposits were not sale proceeds. The way they w ere shown in the accounts could not be determinative of the nature of the amount received. The rights of the parties crystallised at the time when the sale of liquor took place. The Purchaser not only paid for the liquor but also for the bottles. The amounts received on account of sale of the bottles though described in the account as deposits, were nothing but sale price of the bottles. 3. Another point which was highlighted on behalf of the State was that the assessee has debited the amounts paid for the bottle in its purchase account. It was, therefore, contended that there was no doubt in the mind of the assessee that it was purchasing the bottles. The High Court, however, did not uphold the contention of the State. It was of the view that the bottles were handed over to the assessee subject to their being returned. 4. As a safeguard against the contingency of the bottles being damaged or not being returned for any reason, a deposit was collected which According to the High Court, this was a clear case where the deposit retained the character of deposit and did not acquire the character of sale price of the goods. It was pointed out that even in the case of soft drinks, in all retail outlets, the trade practice was to collect small amounts against the return of the bottles. If the bottle were not returned, the amounts were forfeited. But if the bottles were returned, the amount was refunded to the consumer. In all such cases, it cannot be said that there was a sale of the bottles in the first instance, and thereafter, when the bottles were returned, a resale took place.We are of the view that the High Court in the facts of this case, has come to a correct decision. The bottles were supplied initially by U.B. to the assessee who was a distributor. The finding of fact by the Tribunal is that the assessee had to deposit certain amounts for taking delivery of the liquor in bottles. The assessee, in its turn, collected deposits at the same rate from its customers when it sold liquor in bottles. when the bottles were returned, the assessee refunded the amount of deposit collected by it to its customers. It any customer did not return the bottles due to breakages or for any other reason, the assessee did not refund the deposit amount. 5. When the assessee received back the bottles from its customers, it used to return the bottles to its principal and get back its deposit. It there was any shortage in returning of the bottles, the deposit to that extent was retained by U.B., The principal. In this case, the assessee was just a middle-man. No question of sale of bottles could arise. When it collected the bottles, it paid a deposit to its principal. when in its turn, it supplied the bottles to its customers, it obtained a deposit from its customers returned all the bottles, the assessee would refund the entire amount of deposit received by it from its customers. Thereafter, the assessee would return all the bottles to its principal, The principal would then refund the deposit amount to the assessee. In the facts of this case, no question of any sale of bottles arises. 6. If the States contention is accepted that sale of bottles took place when the bottles with beer were supplied by the manufacturer to the wholesaler and again by the wholesaler to the consumers, then it will have to be held that sale of bottles to the dealers. Therefore, the consumers will be liable to pay sales tax when they return the bottles by taking back the deposits. This proposition was countered by arguing that there was a single point tax on sale of bottles. If that be so, then the charge of tax, if any, would fall on the first sale by the principal, i.e., United Brewery Company Limited. The assessee was a middle- man and could not be made liable to pay sales tax on account of "sale" of the bottles to the retailers or the consumers in any event. 7.

0[ds]We are of the view that the High Court in the facts of this case, has come to a correct decision. The bottles were supplied initially by U.B. to the assessee who was a distributor. The finding of fact by the Tribunal is that the assessee had to deposit certain amounts for taking delivery of the liquor in bottles. The assessee, in its turn, collected deposits at the same rate from its customers when it sold liquor in bottles. when the bottles were returned, the assessee refunded the amount of deposit collected by it to its customers. It any customer did not return the bottles due to breakages or for any other reason, the assessee did not refund the depositthe assessee received back the bottles from its customers, it used to return the bottles to its principal and get back its deposit. It there was any shortage in returning of the bottles, the deposit to that extent was retained by U.B., The principal. In this case, the assessee was just a middle-man. No question of sale of bottles could arise. When it collected the bottles, it paid a deposit to its principal. when in its turn, it supplied the bottles to its customers, it obtained a deposit from its customers returned all the bottles, the assessee would refund the entire amount of deposit received by it from its customers. Thereafter, the assessee would return all the bottles to its principal, The principal would then refund the deposit amount to the assessee. In the facts of this case, no question of any sale of bottlesthe States contention is accepted that sale of bottles took place when the bottles with beer were supplied by the manufacturer to the wholesaler and again by the wholesaler to the consumers, then it will have to be held that sale of bottles to the dealers. Therefore, the consumers will be liable to pay sales tax when they return the bottles by taking back the deposits. This proposition was countered by arguing that there was a single point tax on sale of bottles. If that be so, then the charge of tax, if any, would fall on the first sale by the principal, i.e., United Brewery Company Limited. The assessee was a middle- man and could not be made liable to pay sales tax on account of "sale" of the bottles to the retailers or the consumers in any event.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: to show the price, the tax payable thereon and the deposits for assessee in its turn, similarly charged its customers. The rate of deposit at which the assessee was charged by U.B. and the rate at which assessee charged its customers were same. The same procedure was followed year after year. From time to time, the rate of deposit was enhanced due to shortage of empty bottle. In the ale notes, it was specifically stated "Empty bottle deposit is refundable against the return of the bottles at the Brewery. The freight on return of empties and breakages will be on your (Purchasers) account". In the copies of the bills issued as against the assessee, the price of liquor was separately shown and the sales tax was added to it. 2. Thereafter, with reference to the number of bottles supplied, a separate charge was made as deposits at the rate of 40 paise per bottle or Rs.4.80 per dozen of bottles. The question that came up for consideration was whether these deposits were liable to be treated as part of the assessees sales turnover for the purpose of levy of sales tax. The assessing authority was of the view that there was a sale of the bottles by U.B. to the purchaser and the de posit amount had to be included in the turnover and taxed. The Tribunal, however, took the view that the receipts were only deposits and not price realised on sale of the bottles. The deposit amount could not be taxed in any way was price of bottles.Before the High Court, contention of the State was that the transactions were liable to be treated as sales. The deposits were merely shown in the accounts separately. That did not mean that these deposits were not sale proceeds. The way they w ere shown in the accounts could not be determinative of the nature of the amount received. The rights of the parties crystallised at the time when the sale of liquor took place. The Purchaser not only paid for the liquor but also for the bottles. The amounts received on account of sale of the bottles though described in the account as deposits, were nothing but sale price of the bottles. 3. Another point which was highlighted on behalf of the State was that the assessee has debited the amounts paid for the bottle in its purchase account. It was, therefore, contended that there was no doubt in the mind of the assessee that it was purchasing the bottles. The High Court, however, did not uphold the contention of the State. It was of the view that the bottles were handed over to the assessee subject to their being returned. 4. As a safeguard against the contingency of the bottles being damaged or not being returned for any reason, a deposit was collected which According to the High Court, this was a clear case where the deposit retained the character of deposit and did not acquire the character of sale price of the goods. It was pointed out that even in the case of soft drinks, in all retail outlets, the trade practice was to collect small amounts against the return of the bottles. If the bottle were not returned, the amounts were forfeited. But if the bottles were returned, the amount was refunded to the consumer. In all such cases, it cannot be said that there was a sale of the bottles in the first instance, and thereafter, when the bottles were returned, a resale took place.We are of the view that the High Court in the facts of this case, has come to a correct decision. The bottles were supplied initially by U.B. to the assessee who was a distributor. The finding of fact by the Tribunal is that the assessee had to deposit certain amounts for taking delivery of the liquor in bottles. The assessee, in its turn, collected deposits at the same rate from its customers when it sold liquor in bottles. when the bottles were returned, the assessee refunded the amount of deposit collected by it to its customers. It any customer did not return the bottles due to breakages or for any other reason, the assessee did not refund the deposit amount. 5. When the assessee received back the bottles from its customers, it used to return the bottles to its principal and get back its deposit. It there was any shortage in returning of the bottles, the deposit to that extent was retained by U.B., The principal. In this case, the assessee was just a middle-man. No question of sale of bottles could arise. When it collected the bottles, it paid a deposit to its principal. when in its turn, it supplied the bottles to its customers, it obtained a deposit from its customers returned all the bottles, the assessee would refund the entire amount of deposit received by it from its customers. Thereafter, the assessee would return all the bottles to its principal, The principal would then refund the deposit amount to the assessee. In the facts of this case, no question of any sale of bottles arises. 6. If the States contention is accepted that sale of bottles took place when the bottles with beer were supplied by the manufacturer to the wholesaler and again by the wholesaler to the consumers, then it will have to be held that sale of bottles to the dealers. Therefore, the consumers will be liable to pay sales tax when they return the bottles by taking back the deposits. This proposition was countered by arguing that there was a single point tax on sale of bottles. If that be so, then the charge of tax, if any, would fall on the first sale by the principal, i.e., United Brewery Company Limited. The assessee was a middle- man and could not be made liable to pay sales tax on account of "sale" of the bottles to the retailers or the consumers in any event. 7. ### Response: 0 ### Explanation: We are of the view that the High Court in the facts of this case, has come to a correct decision. The bottles were supplied initially by U.B. to the assessee who was a distributor. The finding of fact by the Tribunal is that the assessee had to deposit certain amounts for taking delivery of the liquor in bottles. The assessee, in its turn, collected deposits at the same rate from its customers when it sold liquor in bottles. when the bottles were returned, the assessee refunded the amount of deposit collected by it to its customers. It any customer did not return the bottles due to breakages or for any other reason, the assessee did not refund the depositthe assessee received back the bottles from its customers, it used to return the bottles to its principal and get back its deposit. It there was any shortage in returning of the bottles, the deposit to that extent was retained by U.B., The principal. In this case, the assessee was just a middle-man. No question of sale of bottles could arise. When it collected the bottles, it paid a deposit to its principal. when in its turn, it supplied the bottles to its customers, it obtained a deposit from its customers returned all the bottles, the assessee would refund the entire amount of deposit received by it from its customers. Thereafter, the assessee would return all the bottles to its principal, The principal would then refund the deposit amount to the assessee. In the facts of this case, no question of any sale of bottlesthe States contention is accepted that sale of bottles took place when the bottles with beer were supplied by the manufacturer to the wholesaler and again by the wholesaler to the consumers, then it will have to be held that sale of bottles to the dealers. Therefore, the consumers will be liable to pay sales tax when they return the bottles by taking back the deposits. This proposition was countered by arguing that there was a single point tax on sale of bottles. If that be so, then the charge of tax, if any, would fall on the first sale by the principal, i.e., United Brewery Company Limited. The assessee was a middle- man and could not be made liable to pay sales tax on account of "sale" of the bottles to the retailers or the consumers in any event.

K.P.G. Nair Vs. Jindal Menthol India Limited

The appellant challenges the validity of the order passed by the High Court of Delhi in Criminal Miscellaneous Petition No. 3179 of 1999, dated December 16, 1999. By the said order, the High Court dismissed the petition filed by the appellant under section 482 to quash the criminal proceedings emanating from the complaint filed by the respondent-company against him and others under section 138 of the Negotiable Instruments Act, 1881. The High Court took the view that the averments made in the complaint read along with the statement of the witness, prima facie, go to show that at the relevant time, the appellant being the director of the accused company, was also in charge of and responsible for the business of the accused company. V. R. Reddy, the learned senior counsel appearing for the appellant submits that a plain reading of the relevant allegations made in the complaint does not even, prima facie make out a case against the appellant. He argues that it is not a case where the appellant has signed the cheques himself; he is sought to be prosecuted in view of the provisions of section 141 of the Negotiable instruments Act as he happened to be the director of the accused company at one Point of time. Mr. Arora, learned counsel appearing for the complainant company-respondent contends that from the allegations in the complaint, it has to be inferred that the appellant was in charge of and was responsible to the company for the conduct of the business of the accused company at the time the offence was committed. To appreciate the contentions of learned counsel, it would be necessary to briefly narrate the facts giving rise to this appeal. The accused company issued two cheques on March 15, 1998 and one cheque on March 24, 1998. Those cheques were presented in May, 1998, but were returned dishonoured on May 14, 1998, The respondent-company issued notice to seven persons including the appellant on May 29, 1998, requiring them to pay the amounts of cheques which were dishonoured on May 14, 1998. It is stated that the appellant sent a reply on June 6, 1998, intimating that he was not in charge of the affairs of the company on the date of the alleged offence.Be that as it may, the respondent-company filed a complaint on July 14, 1998. The relevant allegations against the appellant are contained in para. 11, which reads as follows : "That accused No. 1 is the company, accused No. 2 is the whole time chairman, accused No. 3 is one of the directors, who signed the share certificates on the date of issuance of the same and the three cheques which were issued to the complainant for the payment of the value of the preferential shares on the date of maturity. Accused Nos. 4 and 5 are the signatories of all the three cheques. All the accused persons hatched a conspiracy with a mala fide intention to deceive the complainant to the tune of Rs. 57 lakhs, thereby committing an offence of cheating and are liable to be punished under section 429/120-B of the Indian Penal Code. All the accused persons are also responsible for the dishonourment of the cheques under the Negotiable Instruments Act and all are liable to be punished for the offences committed under section 138 of the Negotiable Instruments Act. All the accused persons have failed to make the payment of the dishonoured cheques despite the legal notice which was sent by registered post." * From a perusal of the excerpts of the complaint, it is seen that nowhere it is stated that on the date when the offence is alleged to have been committed, the appellant was in charge of or was responsible to the accused company for the conduct of its business. Here it will be appropriate to note sub-section (1) of section 141 which is in the following terms : "S. 141(1) : If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly." * From a perusal of section 141, it is evident that in a case where a company committed offence under section 138, then not only the company but also every person who at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly. It follows that a person other than the company can be proceeded against under those provisions, only if that person was in charge of and was responsible to the company for the conduct of its business. It is true, as submitted by Mr. Arora that the words of section 141(1) need not be incorporated in a complaint as magic words but it cannot also be disputed that substance of the allegations read as a whole, should answer and fulfil the requirements of the ingredients of the said provision (for being proceeded against for an offence which he is alleged to have committed). On the above premise, it is clear that the allegations made in the complaint do not, either in express words or with reference to the allegations contained therein, make out a case that at the time of commission of the offence, the appellant was in charge of and was responsible to the company for the conduct of its business. In that view of the matter, the High Court has misdirected itself and committed an error in coming to the conclusion that the requirements of section 141 are prima facie satisfied in so far as the appellant is concerned.

1[ds]It is true, as submitted by Mr. Arora that the words of section 141(1) need not be incorporated in a complaint as magic words but it cannot also be disputed that substance of the allegations read as a whole, should answer and fulfil the requirements of the ingredients of the said provision (for being proceeded against for an offence which he is alleged to have committed). On the above premise, it is clear that the allegations made in the complaint do not, either in express words or with reference to the allegations contained therein, make out a case that at the time of commission of the offence, the appellant was in charge of and was responsible to the company for the conduct of its businessIn that view of the matter, the High Court has misdirected itself and committed an error in coming to the conclusion that the requirements of section 141 are prima facie satisfied in so far as the appellant is concerned.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: The appellant challenges the validity of the order passed by the High Court of Delhi in Criminal Miscellaneous Petition No. 3179 of 1999, dated December 16, 1999. By the said order, the High Court dismissed the petition filed by the appellant under section 482 to quash the criminal proceedings emanating from the complaint filed by the respondent-company against him and others under section 138 of the Negotiable Instruments Act, 1881. The High Court took the view that the averments made in the complaint read along with the statement of the witness, prima facie, go to show that at the relevant time, the appellant being the director of the accused company, was also in charge of and responsible for the business of the accused company. V. R. Reddy, the learned senior counsel appearing for the appellant submits that a plain reading of the relevant allegations made in the complaint does not even, prima facie make out a case against the appellant. He argues that it is not a case where the appellant has signed the cheques himself; he is sought to be prosecuted in view of the provisions of section 141 of the Negotiable instruments Act as he happened to be the director of the accused company at one Point of time. Mr. Arora, learned counsel appearing for the complainant company-respondent contends that from the allegations in the complaint, it has to be inferred that the appellant was in charge of and was responsible to the company for the conduct of the business of the accused company at the time the offence was committed. To appreciate the contentions of learned counsel, it would be necessary to briefly narrate the facts giving rise to this appeal. The accused company issued two cheques on March 15, 1998 and one cheque on March 24, 1998. Those cheques were presented in May, 1998, but were returned dishonoured on May 14, 1998, The respondent-company issued notice to seven persons including the appellant on May 29, 1998, requiring them to pay the amounts of cheques which were dishonoured on May 14, 1998. It is stated that the appellant sent a reply on June 6, 1998, intimating that he was not in charge of the affairs of the company on the date of the alleged offence.Be that as it may, the respondent-company filed a complaint on July 14, 1998. The relevant allegations against the appellant are contained in para. 11, which reads as follows : "That accused No. 1 is the company, accused No. 2 is the whole time chairman, accused No. 3 is one of the directors, who signed the share certificates on the date of issuance of the same and the three cheques which were issued to the complainant for the payment of the value of the preferential shares on the date of maturity. Accused Nos. 4 and 5 are the signatories of all the three cheques. All the accused persons hatched a conspiracy with a mala fide intention to deceive the complainant to the tune of Rs. 57 lakhs, thereby committing an offence of cheating and are liable to be punished under section 429/120-B of the Indian Penal Code. All the accused persons are also responsible for the dishonourment of the cheques under the Negotiable Instruments Act and all are liable to be punished for the offences committed under section 138 of the Negotiable Instruments Act. All the accused persons have failed to make the payment of the dishonoured cheques despite the legal notice which was sent by registered post." * From a perusal of the excerpts of the complaint, it is seen that nowhere it is stated that on the date when the offence is alleged to have been committed, the appellant was in charge of or was responsible to the accused company for the conduct of its business. Here it will be appropriate to note sub-section (1) of section 141 which is in the following terms : "S. 141(1) : If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly." * From a perusal of section 141, it is evident that in a case where a company committed offence under section 138, then not only the company but also every person who at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly. It follows that a person other than the company can be proceeded against under those provisions, only if that person was in charge of and was responsible to the company for the conduct of its business. It is true, as submitted by Mr. Arora that the words of section 141(1) need not be incorporated in a complaint as magic words but it cannot also be disputed that substance of the allegations read as a whole, should answer and fulfil the requirements of the ingredients of the said provision (for being proceeded against for an offence which he is alleged to have committed). On the above premise, it is clear that the allegations made in the complaint do not, either in express words or with reference to the allegations contained therein, make out a case that at the time of commission of the offence, the appellant was in charge of and was responsible to the company for the conduct of its business. In that view of the matter, the High Court has misdirected itself and committed an error in coming to the conclusion that the requirements of section 141 are prima facie satisfied in so far as the appellant is concerned. ### Response: 1 ### Explanation: It is true, as submitted by Mr. Arora that the words of section 141(1) need not be incorporated in a complaint as magic words but it cannot also be disputed that substance of the allegations read as a whole, should answer and fulfil the requirements of the ingredients of the said provision (for being proceeded against for an offence which he is alleged to have committed). On the above premise, it is clear that the allegations made in the complaint do not, either in express words or with reference to the allegations contained therein, make out a case that at the time of commission of the offence, the appellant was in charge of and was responsible to the company for the conduct of its businessIn that view of the matter, the High Court has misdirected itself and committed an error in coming to the conclusion that the requirements of section 141 are prima facie satisfied in so far as the appellant is concerned.

MALLURU MALLAPPA(D) THR. LRS Vs. KURUVATHAPPA & ORS

judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (2001) 3 SCC 179 , Madhukar and others v. Sangram and Others (2001) 4 SCC 756 , B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another (2011) 15 SCC 476 , H. K. N. Swami v. Irshad Basith (Dead) By Lrs. (2005) 10 SCC 243 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259 ]. 15. A first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. 16. Order XLI Rule 31 of the CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order XLI Rule 31 of the CPC is as under: - 31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein. 17. In Vinod Kumar v. Gangadhar (2015) 1 SCC 391 this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under:- 15. Again in B.V . Nagesh v. H.V . Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) 3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948 ] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.) 18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr. (2015) 11 SCC 269 , it was held as under:- 21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law. 19. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice. 20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective.

1[ds]19. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective14. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.(2001) 3 SCC 179 , Madhukar and others v. Sangram and Others (2001) 4 SCC 756 , B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another(2011) 15 SCC 476 , H. K. N. Swami v. Irshad Basith (Dead) By Lrs. (2005) 10 SCC 243 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259 ].

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (2001) 3 SCC 179 , Madhukar and others v. Sangram and Others (2001) 4 SCC 756 , B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another (2011) 15 SCC 476 , H. K. N. Swami v. Irshad Basith (Dead) By Lrs. (2005) 10 SCC 243 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259 ]. 15. A first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. 16. Order XLI Rule 31 of the CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order XLI Rule 31 of the CPC is as under: - 31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein. 17. In Vinod Kumar v. Gangadhar (2015) 1 SCC 391 this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under:- 15. Again in B.V . Nagesh v. H.V . Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) 3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948 ] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.) 18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr. (2015) 11 SCC 269 , it was held as under:- 21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law. 19. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice. 20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective. ### Response: 1 ### Explanation: 19. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective14. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.(2001) 3 SCC 179 , Madhukar and others v. Sangram and Others (2001) 4 SCC 756 , B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another(2011) 15 SCC 476 , H. K. N. Swami v. Irshad Basith (Dead) By Lrs. (2005) 10 SCC 243 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259 ].

Mckenzie & Co. Ltd Vs. Its Workmen And Others

Appellate Tribunal barred the fight of the management of the appellant company to start a fresh enquiry in respect of the same incident which formed the subject-matter of the previous enquiry. There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under S. 33.That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or without permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under S. 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen.Atherton West and Co: Ltd. Kanpur, U. P. v. Suti Mill Mazdoor Union, 1953 S C R 780 at p. 788 : (A I R 1953 S C 241 at p. 244); (S) A I R 1957 S C 82.17. In the Automobile Products of India Ltd. v. Rukmaji Bala, 1955-1 S C R 1241: ( (S ) A I R 1955 S C 258) Das J., (as he then was ) said at p. 1256 (of S C R) : (at p. 265 of A I R):"The purpose of these two sections (S. 33, Industrial Disputes Act and S. 22, Industrial Disputes (Appellate Tribunal) Act) being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these two sections is to accord or withhold permission."18. As the purpose of S. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute any finding under S. 33 would not operate as res judicata and bar the raising of an industrial dispute nor is there anything in the section itself or in the findings arrived at by the Industrial Tribunal in S. 33 proceedings as dated 6th June 1954 or of the Labour Appellate Tribunal dated 29th March 1955 which would debar the appellant company from holding the second enquiry or dismissing the workmen provided the principles above set out are complied with.19. It was next contended that in the present case there was a basic error within the meaning of the rule laid down by S. K. Das J., in AIR 1953 S C 130. The basic error according to counsel was this that the appellant companys witness Serjeant Lourds had stated that the number of persons who had confined and were surrounding Dcruz was 100 to 130 persons and if out of them 106 were reinstated there could not be 67 workmen left to be proceeded against. The appellant company had started proceedings against 170 workmen i. e., all their workmen and after reinstatement of a large number of them only 67 remained against whom the appellant company took proceedings with a view to take action against them and it was in regard to these persons that permission for dismissal was sought under S. 33. It is significant that this basic error does not seem to have been argued either before the Industrial Tribunal or the Labour Appellate Tribunal, on the other hand, the parties seem to have proceeded on the basis that the number of workmen proceeded against by the appellant company was 67 out of whom 64 were left after three were allowed to be dismissed. Out of the rest 16 had resigned and there were only 48 persons whose cases remained for adjudication by the Industrial Tribunal. No basic error is therefore made out.20. The question of compensation to the workmen from the date when they were ordered to be reinstated i. e. from 1st April 1955 to 6th June 1955 when their services were terminated is equally unsustainable. The Industrial Tribunal in its order of 26th June 1954 and the Labour Appellate Tribunal in its order dated 29th March 1955 held the strike to be illegal. Mr. S. C. Sen Gupta Judge of the 6th Industrial Tribunal who gave the award dated 7th June 1956 refused to give any compensation to workmen Nos. 25 to 48 whose dismissal he upheld on the ground that the strike was illegal, the strikers had taken up a belligerent attitude and the lock out was fully justified. The Labour Appellate Tribunal awarded to the 24 workmen reinstated by its amended order dated 28th September 1956 back wages from 1st April 1956 to the date of reinstatement as was done by the Industrial Tribunal in the case of workmen Nos. 2 to 24, whom the Tribunal had ordered to be reinstated. As we have come to the conclusion that the order of reinstatement by the Industrial Tribunal of workmen Nos. 2 to 24 and by the Appellate Tribunal of workmen Nos. 25 to 48 was erroneous, neither of the two sets of workmen is entitled to back wages by way of compensation.2

1[ds]It is not necessary to go into the first question because, in our opinion, the second question raised is well founded. The principles which govern the power of an Industrial Tribunal to interfere with the decision of the employer following an enquiry made by him were laid down by this Court in Indian iron and Steel Co. Ltd. v. Their Workmen, A. I. R. 1958 S. C. 130 where S. K. Das J., said at page 138the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (1) when there is want of good faith (ii) when there is victimisation or unfair labour practice (ii)when the management has been guilty of a basis error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse.In our opinion, the Industrial Tribunal proceeded on correct principles as to its power in regard to an enquiry held by the management and the Labour Appellate Tribunal seems to have approached the question as if it was sitting in appeal against the decision taken by the management in regard to the termination of service of their workmen.In the instant case none of the principles, which have been laid down by Labour Courts as well as by this Court in regard to enquiry by the management into the misconduct of their workmen, have been violated and the Labour Appellate Tribunal was in error in setting aside the order of the Industrial Tribunal on the ground that it was unable to accept the testimony of DCruz as to the identity of persons who had taken part in wrongfully confining him on the day of the illegal strike. It appears to have proceeded as if it was sitting in appeal against the decision of the managerial enquiry and further it was under a misapprehension as to the nature of the proceedings before the Industrial Tribunal and before itself, inasmuch as it seems to have been under the wrong impression that the appeal before it arose out of an application under S. 33 of the Act and that the Industrial Tribunal had given permission to the appellant company to discharge its workmen. Its amended order shows that it thought, and again wrongly, that really the proceedings were under S. 33A of the Act and it was that mistaken view of the nature of the proceedings which led to its order for reinstatement of the workmen with back wages from 1st April 1955 to the date of reinstatement. The Labour Appellate Tribunal seems to have overlooked the fact that the appeal before it arose out of a Reference made by the West Bengal Government under S. 10 of the Act. This misconception as to the nature of the proceedings vitiated its order as the Appellate Tribunal misdirected itself as to the scope of the powers to be exercised by it and consequently it led to the making of an erroneous order.The Industrial Tribunal held that there was no proper notice to workmen Nos. 2 to 24 and the mere affixing of the notices on the notice Board of the company was not sufficient as the workmen could not enter the appellant companys premises due to the lock out. It overlooked the evidence as to the notice being affixed on the appellant companys board outside its date from where the workmen were not excluded as a result of the lock out and it was open to them if they so desired to go and look up, the notices there. Further the Tribunal was of the opinion that the appellant company might have sent the notices to the secretary of the Union "for circulation to the absentees". In the first place this is not one of the recognised modes of effecting service and in this case the company would have been justified in not taking this action after the way that, gentleman had neglected even to reply to the appellant companys letter asking him to supply the addresses of the workmen. Apart from complying with its standing orders the appellant company made every effort under the circumstances to serve notices on its workmen. No principle of natural justice has, in our opinion, been infringed and the finding as to the workmen having no notice of the charges against them and consequently not having a proper opportunity to meet the case against them cannot be sustained. It cannot be said that the workmen did not have a proper opportunity to answer the case against them. If the rule were as the order o the Industrial Tribunal holds it to be then by their action of not giving proper addresses to the employer or abstaining from looking up the Notice Boards where under the standing orders notices were required to be affixed the workmen might make it impossible for an employer to take disciplinary action assuming that such action is necessary or justified. The Labour Appellate Tribunal did not consider or apply its mind to this aspect of the case, it being under a misapprehension as to correct nature of theis no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under S. 33.That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or without permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under S. 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen.Atherton West and Co: Ltd. Kanpur, U. P. v. Suti Mill Mazdoor Union, 1953 S C R 780 at p. 788 : (A I R 1953 S C 241 at p. 244); (S) A I R 1957 S Cis significant that this basic error does not seem to have been argued either before the Industrial Tribunal or the Labour Appellate Tribunal, on the other hand, the parties seem to have proceeded on the basis that the number of workmen proceeded against by the appellant company was 67 out of whom 64 were left after three were allowed to be dismissed. Out of the rest 16 had resigned and there were only 48 persons whose cases remained for adjudication by the Industrial Tribunal. No basic error is therefore made out.20. The question of compensation to the workmen from the date when they were ordered to be reinstated i. e. from 1st April 1955 to 6th June 1955 when their services were terminated is equally unsustainable. The Industrial Tribunal in its order of 26th June 1954 and the Labour Appellate Tribunal in its order dated 29th March 1955 held the strike to be illegal. Mr. S. C. Sen Gupta Judge of the 6th Industrial Tribunal who gave the award dated 7th June 1956 refused to give any compensation to workmen Nos. 25 to 48 whose dismissal he upheld on the ground that the strike was illegal, the strikers had taken up a belligerent attitude and the lock out was fully justified. The Labour Appellate Tribunal awarded to the 24 workmen reinstated by its amended order dated 28th September 1956 back wages from 1st April 1956 to the date of reinstatement as was done by the Industrial Tribunal in the case of workmen Nos. 2 to 24, whom the Tribunal had ordered to be reinstated. As we have come to the conclusion that the order of reinstatement by the Industrial Tribunal of workmen Nos. 2 to 24 and by the Appellate Tribunal of workmen Nos. 25 to 48 was erroneous, neither of the two sets of workmen is entitled to back wages by way of compensation.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: Appellate Tribunal barred the fight of the management of the appellant company to start a fresh enquiry in respect of the same incident which formed the subject-matter of the previous enquiry. There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under S. 33.That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or without permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under S. 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen.Atherton West and Co: Ltd. Kanpur, U. P. v. Suti Mill Mazdoor Union, 1953 S C R 780 at p. 788 : (A I R 1953 S C 241 at p. 244); (S) A I R 1957 S C 82.17. In the Automobile Products of India Ltd. v. Rukmaji Bala, 1955-1 S C R 1241: ( (S ) A I R 1955 S C 258) Das J., (as he then was ) said at p. 1256 (of S C R) : (at p. 265 of A I R):"The purpose of these two sections (S. 33, Industrial Disputes Act and S. 22, Industrial Disputes (Appellate Tribunal) Act) being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these two sections is to accord or withhold permission."18. As the purpose of S. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute any finding under S. 33 would not operate as res judicata and bar the raising of an industrial dispute nor is there anything in the section itself or in the findings arrived at by the Industrial Tribunal in S. 33 proceedings as dated 6th June 1954 or of the Labour Appellate Tribunal dated 29th March 1955 which would debar the appellant company from holding the second enquiry or dismissing the workmen provided the principles above set out are complied with.19. It was next contended that in the present case there was a basic error within the meaning of the rule laid down by S. K. Das J., in AIR 1953 S C 130. The basic error according to counsel was this that the appellant companys witness Serjeant Lourds had stated that the number of persons who had confined and were surrounding Dcruz was 100 to 130 persons and if out of them 106 were reinstated there could not be 67 workmen left to be proceeded against. The appellant company had started proceedings against 170 workmen i. e., all their workmen and after reinstatement of a large number of them only 67 remained against whom the appellant company took proceedings with a view to take action against them and it was in regard to these persons that permission for dismissal was sought under S. 33. It is significant that this basic error does not seem to have been argued either before the Industrial Tribunal or the Labour Appellate Tribunal, on the other hand, the parties seem to have proceeded on the basis that the number of workmen proceeded against by the appellant company was 67 out of whom 64 were left after three were allowed to be dismissed. Out of the rest 16 had resigned and there were only 48 persons whose cases remained for adjudication by the Industrial Tribunal. No basic error is therefore made out.20. The question of compensation to the workmen from the date when they were ordered to be reinstated i. e. from 1st April 1955 to 6th June 1955 when their services were terminated is equally unsustainable. The Industrial Tribunal in its order of 26th June 1954 and the Labour Appellate Tribunal in its order dated 29th March 1955 held the strike to be illegal. Mr. S. C. Sen Gupta Judge of the 6th Industrial Tribunal who gave the award dated 7th June 1956 refused to give any compensation to workmen Nos. 25 to 48 whose dismissal he upheld on the ground that the strike was illegal, the strikers had taken up a belligerent attitude and the lock out was fully justified. The Labour Appellate Tribunal awarded to the 24 workmen reinstated by its amended order dated 28th September 1956 back wages from 1st April 1956 to the date of reinstatement as was done by the Industrial Tribunal in the case of workmen Nos. 2 to 24, whom the Tribunal had ordered to be reinstated. As we have come to the conclusion that the order of reinstatement by the Industrial Tribunal of workmen Nos. 2 to 24 and by the Appellate Tribunal of workmen Nos. 25 to 48 was erroneous, neither of the two sets of workmen is entitled to back wages by way of compensation.2 ### Response: 1 ### Explanation: itself as to the scope of the powers to be exercised by it and consequently it led to the making of an erroneous order.The Industrial Tribunal held that there was no proper notice to workmen Nos. 2 to 24 and the mere affixing of the notices on the notice Board of the company was not sufficient as the workmen could not enter the appellant companys premises due to the lock out. It overlooked the evidence as to the notice being affixed on the appellant companys board outside its date from where the workmen were not excluded as a result of the lock out and it was open to them if they so desired to go and look up, the notices there. Further the Tribunal was of the opinion that the appellant company might have sent the notices to the secretary of the Union "for circulation to the absentees". In the first place this is not one of the recognised modes of effecting service and in this case the company would have been justified in not taking this action after the way that, gentleman had neglected even to reply to the appellant companys letter asking him to supply the addresses of the workmen. Apart from complying with its standing orders the appellant company made every effort under the circumstances to serve notices on its workmen. No principle of natural justice has, in our opinion, been infringed and the finding as to the workmen having no notice of the charges against them and consequently not having a proper opportunity to meet the case against them cannot be sustained. It cannot be said that the workmen did not have a proper opportunity to answer the case against them. If the rule were as the order o the Industrial Tribunal holds it to be then by their action of not giving proper addresses to the employer or abstaining from looking up the Notice Boards where under the standing orders notices were required to be affixed the workmen might make it impossible for an employer to take disciplinary action assuming that such action is necessary or justified. The Labour Appellate Tribunal did not consider or apply its mind to this aspect of the case, it being under a misapprehension as to correct nature of theis no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under S. 33.That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or without permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under S. 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen.Atherton West and Co: Ltd. Kanpur, U. P. v. Suti Mill Mazdoor Union, 1953 S C R 780 at p. 788 : (A I R 1953 S C 241 at p. 244); (S) A I R 1957 S Cis significant that this basic error does not seem to have been argued either before the Industrial Tribunal or the Labour Appellate Tribunal, on the other hand, the parties seem to have proceeded on the basis that the number of workmen proceeded against by the appellant company was 67 out of whom 64 were left after three were allowed to be dismissed. Out of the rest 16 had resigned and there were only 48 persons whose cases remained for adjudication by the Industrial Tribunal. No basic error is therefore made out.20. The question of compensation to the workmen from the date when they were ordered to be reinstated i. e. from 1st April 1955 to 6th June 1955 when their services were terminated is equally unsustainable. The Industrial Tribunal in its order of 26th June 1954 and the Labour Appellate Tribunal in its order dated 29th March 1955 held the strike to be illegal. Mr. S. C. Sen Gupta Judge of the 6th Industrial Tribunal who gave the award dated 7th June 1956 refused to give any compensation to workmen Nos. 25 to 48 whose dismissal he upheld on the ground that the strike was illegal, the strikers had taken up a belligerent attitude and the lock out was fully justified. The Labour Appellate Tribunal awarded to the 24 workmen reinstated by its amended order dated 28th September 1956 back wages from 1st April 1956 to the date of reinstatement as was done by the Industrial Tribunal in the case of workmen Nos. 2 to 24, whom the Tribunal had ordered to be reinstated. As we have come to the conclusion that the order of reinstatement by the Industrial Tribunal of workmen Nos. 2 to 24 and by the Appellate Tribunal of workmen Nos. 25 to 48 was erroneous, neither of the two sets of workmen is entitled to back wages by way of compensation.

A.L. Panian Shanmugam and Others Vs. State of Andhra Pradesh

of business and took possession thereof as per the instructions contained in the consignors notes Annexures C and D dated April 27, 1986. Under the said two documents the consignor instructed the mill company to arrange to take delivery of the cotton bales and pay the lorry charges of Rs. 3250 to the driver of each vehicle. It is therefore clear from these two notes Annexure C and D that the mill company was not expected to pay the value of the goods while taking delivery thereof. So far as petitioner 3 is concerned he is the proprietor of National Roadways Corporation. In the FIR there is no reference to him. Petition 4 and 5 are the proprietor and manager respectively of Sri Prakasam Transport Company but there is no specific reference to them also in the FIR lodged by the Branch Manager of the bank5. The learned Magistrate framed charges against all the petitioner under Section 406 and 420 IPC. The allegation in the charge is that the consignor dispatched 50 bales of cotton under invoice No. 5 worth Rs. 1, 06, 268.29 and 50 bales under invoice No. 6 worth Rs. 1, 27, 144.40 to the mill company on April 27, 1986 through the National Roadways Corporation Madurai. The further allegation is that the petitioner 3 without the knowledge and consent of the consignor sent the said consignments to the mill company through truck No. TDZ 9295 and TDA 9927 respectively on April 27, 1986. The bank had made payment at the instance of the consignor and had forwarded the Hundis to its Madurai branch for clearance but no payment was made by the Mills company and the Hundis were dishonored. It is alleged that petitioners 1 and 2 had written to the consignor that they would make the payment but they would not keep up the promise and thereby committed criminal breach of trust an offence punishable under Section 406 IPC. On the same allegations the second charge has been framed alleging that you petitioners 1 and 2 did not keep up your promise and thereby cheated the bank an offence punishable under Section 420 IPC6. From the facts stated in the aforesaid two charges it becomes evident that the amount was collected from the bank by the consignor and none of the petitioners were even remotely privy to that deal. Petitioners 1 and 2 were at Guntur and had made no representation whatsoever to the bank authorities. There is no material to show that petitioner 3 was in any way concerned with the arrangement between the consignor and the bank. His name does not figure in the FIR. In the charge also the only allegation is that he entrusted both the consignments to petitioners 4 and 5 of Sri Prakasam Transport Company without the knowledge and consent of the consignor. There is no material support this allegation because Annexure C and D shows to the contrary inasmuch as there is specific mentioned therein that the consignment are sent through Sri. Prakasam Transport. There is no positive allegation against petition 4 and 5 that they were in league with the other petitioners to defraud the bank. The admitted fact is that the said transport delivered the cotton bales to the mill company and the mill company obtained delivery thereof as per the instructions contained in the consignors notes Annexure C and D. The instruction is merely to arrange to take delivery and pay the lorry charges to the respective drivers of the vehicles. The mill company was not asked to take delivery against payment. i. e. the value of the cotton bales. Mere subsequent promise by petitioner 1 and 2 of the mill company to clear the outstanding by the end of September 1986 and their failure to do so cannot render them liable under Section 406 or 420 IPC. In mercantile transactions consignments are delivered on credit and very often the payment cannot be made on the due date but that does not attract penal consequences. In the instant case also it appears a letter was written by the officer of the mill company to the consignor on August 12, 1986 that they will clear all pending bills one by one and complete payment before the end of September 1986. Failure to keep this promise cannot covert a purely business transaction into one of a penal nature punishable under Section 406 and 420 IPC. In fact the transport company had delivered the goods to the mill company as directed by the notes Annexure C and D dated April 27, 1986. They were in no way concerned with the arrangement between the consignor and the bank. None of the petitioner were in any manner involved in obtaining money from the bank. There was no privity of contract between the bank and the petitioner nor were they in league with the consignor in defrauding the bank of money. The consignor had long standing business relation with the mill company but it appears that after the textile industry suffered a set back and the mill company was declared relief undertaking under Tamil Nadu Act 21 of 1969 the consignor and the bank manager realised that it was not possible to recover the does from the mill company. The Branch Manager of the bank who had advanced the money to the consignor therefore resorted bank who had advanced the money to the consignor therefore resorted to this method to pressurise the petitioner and to show that he was a victim of fraud. Surprisingly the consignor who has received payment is not charged but is treated as a prosecution witness. We are therefore satisfied beyond any manner of doubt that this a business transaction pure and simple and there is no material on record to show the involvement of the petitioner with the consignor to defraud the bank. The responsibility if at all was solely of the consignor and the petitioner had nothing to do with his transaction with the bank

1[ds]4. From the facts stated in the above complaint it becomes clear that the consignor alone had approached the bank at Guntur and had obtained the aforesaid amount on the basis of the two lorry receipts evidencing the dispatch of 50 bales of cotton under each receipt to the mill company at Madurai None of the petitioners herein were any way concerned with the transaction between the bank and the consignor. The mill company received the bales in due course of business and took possession thereof as per the instructions contained in the consignors notes Annexures C and D dated April 27, 1986. Under the said two documents the consignor instructed the mill company to arrange to take delivery of the cotton bales and pay the lorry charges of Rs. 3250 to the driver of each vehicle. It is therefore clear from these two notes Annexure C and D that the mill company was not expected to pay the value of the goods while taking delivery thereof. So far as petitioner 3 is concerned he is the proprietor of National Roadways Corporation. In the FIR there is no reference to him. Petition 4 and 5 are the proprietor and manager respectively of Sri Prakasam Transport Company but there is no specific reference to them also in the FIR lodged by the Branch Manager of theThe learned Magistrate framed charges against all the petitioner under Section 406 and 420 IPC. The allegation in the charge is that the consignor dispatched 50 bales of cotton under invoice No. 5 worth Rs. 1, 06, 268.29 and 50 bales under invoice No. 6 worth Rs. 1, 27, 144.40 to the mill company on April 27, 1986 through the National Roadways Corporation Madurai.The further allegation is that the petitioner 3 without the knowledge and consent of the consignor sent the said consignments to the mill company through truck No. TDZ 9295 and TDA 9927 respectively on April 27, 1986. The bank had made payment at the instance of the consignor and had forwarded the Hundis to its Madurai branch for clearance but no payment was made by the Mills company and the Hundis were dishonored. It is alleged that petitioners 1 and 2 had written to the consignor that they would make the payment but they would not keep up the promise and thereby committed criminal breach of trust an offence punishable under Section 406 IPC. On the same allegations the second charge has been framed alleging that you petitioners 1 and 2 did not keep up your promise and thereby cheated the bank an offence punishable under Section 420From the facts stated in the aforesaid two charges it becomes evident that the amount was collected from the bank by the consignor and none of the petitioners were even remotely privy to that deal. Petitioners 1 and 2 were at Guntur and had made no representation whatsoever to the bank authorities. There is no material to show that petitioner 3 was in any way concerned with the arrangement between the consignor and the bank. His name does not figure in the FIR. In the charge also the only allegation is that he entrusted both the consignments to petitioners 4 and 5 of Sri Prakasam Transport Company without the knowledge and consent of the consignor. There is no material support this allegation because Annexure C and D shows to the contrary inasmuch as there is specific mentioned therein that the consignment are sent through Sri. Prakasam Transport. There is no positive allegation against petition 4 and 5 that they were in league with the other petitioners to defraud the bank. The admitted fact is that the said transport delivered the cotton bales to the mill company and the mill company obtained delivery thereof as per the instructions contained in the consignors notes Annexure C and D. The instruction is merely to arrange to take delivery and pay the lorry charges to the respective drivers of the vehicles. The mill company was not asked to take delivery against payment. i. e. the value of the cotton bales. Mere subsequent promise by petitioner 1 and 2 of the mill company to clear the outstanding by the end of September 1986 and their failure to do so cannot render them liable under Section 406 or 420 IPC. In mercantile transactions consignments are delivered on credit and very often the payment cannot be made on the due date but that does not attract penal consequences. In the instant case also it appears a letter was written by the officer of the mill company to the consignor on August 12, 1986 that they will clear all pending bills one by one and complete payment before the end of September 1986. Failure to keep this promise cannot covert a purely business transaction into one of a penal nature punishable under Section 406 and 420 IPC. In fact the transport company had delivered the goods to the mill company as directed by the notes Annexure C and D dated April 27, 1986. They were in no way concerned with the arrangement between the consignor and the bank. None of the petitioner were in any manner involved in obtaining money from the bank. There was no privity of contract between the bank and the petitioner nor were they in league with the consignor in defrauding the bank of money. The consignor had long standing business relation with the mill company but it appears that after the textile industry suffered a set back and the mill company was declared relief undertaking under Tamil Nadu Act 21 of 1969 the consignor and the bank manager realised that it was not possible to recover the does from the mill company. The Branch Manager of the bank who had advanced the money to the consignor therefore resorted bank who had advanced the money to the consignor therefore resorted to this method to pressurise the petitioner and to show that he was a victim of fraud. Surprisingly the consignor who has received payment is not charged but is treated as a prosecution witness. We are therefore satisfied beyond any manner of doubt that this a business transaction pure and simple and there is no material on record to show the involvement of the petitioner with the consignor to defraud the bank. The responsibility if at all was solely of the consignor and the petitioner had nothing to do with his transaction with the bank

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: of business and took possession thereof as per the instructions contained in the consignors notes Annexures C and D dated April 27, 1986. Under the said two documents the consignor instructed the mill company to arrange to take delivery of the cotton bales and pay the lorry charges of Rs. 3250 to the driver of each vehicle. It is therefore clear from these two notes Annexure C and D that the mill company was not expected to pay the value of the goods while taking delivery thereof. So far as petitioner 3 is concerned he is the proprietor of National Roadways Corporation. In the FIR there is no reference to him. Petition 4 and 5 are the proprietor and manager respectively of Sri Prakasam Transport Company but there is no specific reference to them also in the FIR lodged by the Branch Manager of the bank5. The learned Magistrate framed charges against all the petitioner under Section 406 and 420 IPC. The allegation in the charge is that the consignor dispatched 50 bales of cotton under invoice No. 5 worth Rs. 1, 06, 268.29 and 50 bales under invoice No. 6 worth Rs. 1, 27, 144.40 to the mill company on April 27, 1986 through the National Roadways Corporation Madurai. The further allegation is that the petitioner 3 without the knowledge and consent of the consignor sent the said consignments to the mill company through truck No. TDZ 9295 and TDA 9927 respectively on April 27, 1986. The bank had made payment at the instance of the consignor and had forwarded the Hundis to its Madurai branch for clearance but no payment was made by the Mills company and the Hundis were dishonored. It is alleged that petitioners 1 and 2 had written to the consignor that they would make the payment but they would not keep up the promise and thereby committed criminal breach of trust an offence punishable under Section 406 IPC. On the same allegations the second charge has been framed alleging that you petitioners 1 and 2 did not keep up your promise and thereby cheated the bank an offence punishable under Section 420 IPC6. From the facts stated in the aforesaid two charges it becomes evident that the amount was collected from the bank by the consignor and none of the petitioners were even remotely privy to that deal. Petitioners 1 and 2 were at Guntur and had made no representation whatsoever to the bank authorities. There is no material to show that petitioner 3 was in any way concerned with the arrangement between the consignor and the bank. His name does not figure in the FIR. In the charge also the only allegation is that he entrusted both the consignments to petitioners 4 and 5 of Sri Prakasam Transport Company without the knowledge and consent of the consignor. There is no material support this allegation because Annexure C and D shows to the contrary inasmuch as there is specific mentioned therein that the consignment are sent through Sri. Prakasam Transport. There is no positive allegation against petition 4 and 5 that they were in league with the other petitioners to defraud the bank. The admitted fact is that the said transport delivered the cotton bales to the mill company and the mill company obtained delivery thereof as per the instructions contained in the consignors notes Annexure C and D. The instruction is merely to arrange to take delivery and pay the lorry charges to the respective drivers of the vehicles. The mill company was not asked to take delivery against payment. i. e. the value of the cotton bales. Mere subsequent promise by petitioner 1 and 2 of the mill company to clear the outstanding by the end of September 1986 and their failure to do so cannot render them liable under Section 406 or 420 IPC. In mercantile transactions consignments are delivered on credit and very often the payment cannot be made on the due date but that does not attract penal consequences. In the instant case also it appears a letter was written by the officer of the mill company to the consignor on August 12, 1986 that they will clear all pending bills one by one and complete payment before the end of September 1986. Failure to keep this promise cannot covert a purely business transaction into one of a penal nature punishable under Section 406 and 420 IPC. In fact the transport company had delivered the goods to the mill company as directed by the notes Annexure C and D dated April 27, 1986. They were in no way concerned with the arrangement between the consignor and the bank. None of the petitioner were in any manner involved in obtaining money from the bank. There was no privity of contract between the bank and the petitioner nor were they in league with the consignor in defrauding the bank of money. The consignor had long standing business relation with the mill company but it appears that after the textile industry suffered a set back and the mill company was declared relief undertaking under Tamil Nadu Act 21 of 1969 the consignor and the bank manager realised that it was not possible to recover the does from the mill company. The Branch Manager of the bank who had advanced the money to the consignor therefore resorted bank who had advanced the money to the consignor therefore resorted to this method to pressurise the petitioner and to show that he was a victim of fraud. Surprisingly the consignor who has received payment is not charged but is treated as a prosecution witness. We are therefore satisfied beyond any manner of doubt that this a business transaction pure and simple and there is no material on record to show the involvement of the petitioner with the consignor to defraud the bank. The responsibility if at all was solely of the consignor and the petitioner had nothing to do with his transaction with the bank ### Response: 1 ### Explanation: the bales in due course of business and took possession thereof as per the instructions contained in the consignors notes Annexures C and D dated April 27, 1986. Under the said two documents the consignor instructed the mill company to arrange to take delivery of the cotton bales and pay the lorry charges of Rs. 3250 to the driver of each vehicle. It is therefore clear from these two notes Annexure C and D that the mill company was not expected to pay the value of the goods while taking delivery thereof. So far as petitioner 3 is concerned he is the proprietor of National Roadways Corporation. In the FIR there is no reference to him. Petition 4 and 5 are the proprietor and manager respectively of Sri Prakasam Transport Company but there is no specific reference to them also in the FIR lodged by the Branch Manager of theThe learned Magistrate framed charges against all the petitioner under Section 406 and 420 IPC. The allegation in the charge is that the consignor dispatched 50 bales of cotton under invoice No. 5 worth Rs. 1, 06, 268.29 and 50 bales under invoice No. 6 worth Rs. 1, 27, 144.40 to the mill company on April 27, 1986 through the National Roadways Corporation Madurai.The further allegation is that the petitioner 3 without the knowledge and consent of the consignor sent the said consignments to the mill company through truck No. TDZ 9295 and TDA 9927 respectively on April 27, 1986. The bank had made payment at the instance of the consignor and had forwarded the Hundis to its Madurai branch for clearance but no payment was made by the Mills company and the Hundis were dishonored. It is alleged that petitioners 1 and 2 had written to the consignor that they would make the payment but they would not keep up the promise and thereby committed criminal breach of trust an offence punishable under Section 406 IPC. On the same allegations the second charge has been framed alleging that you petitioners 1 and 2 did not keep up your promise and thereby cheated the bank an offence punishable under Section 420From the facts stated in the aforesaid two charges it becomes evident that the amount was collected from the bank by the consignor and none of the petitioners were even remotely privy to that deal. Petitioners 1 and 2 were at Guntur and had made no representation whatsoever to the bank authorities. There is no material to show that petitioner 3 was in any way concerned with the arrangement between the consignor and the bank. His name does not figure in the FIR. In the charge also the only allegation is that he entrusted both the consignments to petitioners 4 and 5 of Sri Prakasam Transport Company without the knowledge and consent of the consignor. There is no material support this allegation because Annexure C and D shows to the contrary inasmuch as there is specific mentioned therein that the consignment are sent through Sri. Prakasam Transport. There is no positive allegation against petition 4 and 5 that they were in league with the other petitioners to defraud the bank. The admitted fact is that the said transport delivered the cotton bales to the mill company and the mill company obtained delivery thereof as per the instructions contained in the consignors notes Annexure C and D. The instruction is merely to arrange to take delivery and pay the lorry charges to the respective drivers of the vehicles. The mill company was not asked to take delivery against payment. i. e. the value of the cotton bales. Mere subsequent promise by petitioner 1 and 2 of the mill company to clear the outstanding by the end of September 1986 and their failure to do so cannot render them liable under Section 406 or 420 IPC. In mercantile transactions consignments are delivered on credit and very often the payment cannot be made on the due date but that does not attract penal consequences. In the instant case also it appears a letter was written by the officer of the mill company to the consignor on August 12, 1986 that they will clear all pending bills one by one and complete payment before the end of September 1986. Failure to keep this promise cannot covert a purely business transaction into one of a penal nature punishable under Section 406 and 420 IPC. In fact the transport company had delivered the goods to the mill company as directed by the notes Annexure C and D dated April 27, 1986. They were in no way concerned with the arrangement between the consignor and the bank. None of the petitioner were in any manner involved in obtaining money from the bank. There was no privity of contract between the bank and the petitioner nor were they in league with the consignor in defrauding the bank of money. The consignor had long standing business relation with the mill company but it appears that after the textile industry suffered a set back and the mill company was declared relief undertaking under Tamil Nadu Act 21 of 1969 the consignor and the bank manager realised that it was not possible to recover the does from the mill company. The Branch Manager of the bank who had advanced the money to the consignor therefore resorted bank who had advanced the money to the consignor therefore resorted to this method to pressurise the petitioner and to show that he was a victim of fraud. Surprisingly the consignor who has received payment is not charged but is treated as a prosecution witness. We are therefore satisfied beyond any manner of doubt that this a business transaction pure and simple and there is no material on record to show the involvement of the petitioner with the consignor to defraud the bank. The responsibility if at all was solely of the consignor and the petitioner had nothing to do with his transaction with the bank

Varunarjun Trust Vs. Union Of India

such an institute will not be considered for issue of renewal of permission in that Academic Year and further such ain institute will not be considered for processing applications for Postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendations for withdrawal of recognition of the courses run by that institute should not be made for undergraduate and postgraduate courses which are recognised u/s 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted postgraduate courses.In Clause 8(3)(1)(d) under the heading "Colleges which are found to have employed teachers with fake/forged documents: the second paragraph shall be substituted as:-"However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt."4. The Council may obtain any other information from the proposed medical college as it deems fit and necessary.Whenever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report."Considering the requirements of the scheme and as the petitioner college failed to fulfil the conditions specified by the OC as incorporated in the formal conditional Letter of Permission dated 12th September, 2016, the question of confirming the Letter of Permission for the academic session 2016-17 without removal of deficiencies in all respects does not arise. The petitioner college must first remove all those deficiencies to become eligible for confirmation of LOP, as per the undertaking given by the college in that regard.16. The petitioners have relied upon recent decisions of this Court dealing with similar issues in the cases viz Dr. Jagat Narain Subharti Charitable Trust & Anr. v. Union of India and Ors., Writ Petition (C) No. 513 of 2017, decided on 30.08.2017. ; Gangajali Education Society & Anr. v. Union of India & Ors., Writ Petition (C) No.709 of 2017, decided on 31.08.2017.; Saraswati Educational Charitable Trust & Anr. v. Union of India & Ors., Writ Petition (C) No. 515 of 2017, decided on 01.09.2017.; Apollo Institute of Medical Sciences & Research & Ors. v. Union of India & Anr., Writ Petition (C) No. 496 of 2017, decided on 31.08.2017. to contend that in similar situations, this Court preferred to rely on the opinion given by the OC and overturned the conclusion reached by the Competent Authority of the Central Government for debarring the concerned institution from admitting students for a period of two years and authorising MCI to encash bank guarantee of Rs. 2 Crore. This submission does not commend us. For, the dictum in those cases is contextual and on facts of those cases. In the present case, the Hearing Committee has duly considered the explanation offered by the college. It has, however, rejected the same for the reasons recorded in the impugned decision. The fact that specific reference to the opinion of the OC is absent in the conclusion recorded by the Hearing Committee, it does not follow that the issue has not been considered by the Hearing Committee or by the Central Government. The Competent Authority in the final decision after adverting to the observations of the OC and also of the Hearing Committee has noted that the absence of such large number of faculties and residents during duty hours was unacceptable and, moreso, failure of the college to ensure presence of 5 (five) residents on night off and yet could not come, even late, for the head count nor was it reflected in the SAF. This aspect has not been dealt with by the OC in its opinion dated 14th May, 2017. Therefore, non-acceptance of the explanation offered by the college by the Hearing Committee and the Competent Authority of the Central Government, cannot be said to be irrelevant, unjust or for extraneous consideration.17. As stated earlier, the college had failed to produce supportive documents or evidence about 6 (six) minor operations on the day of assessment. No doubt, the OC accepted the explanation of the college by holding that there was no Minimum Standard Requirement (for short `MSR) in that behalf. The finding in the assessment report was that there was only one minor operation on the day of assessment whereas the college claimed to have conducted 6 (six) operations. Nothing prevented the college from producing documents or evidence in support of that claim before the Hearing Committee. It was open to the petitioners to invite the attention of the Hearing Committee to such documents, if already placed on record during the earlier hearing. That was obviously not done. Else, the Hearing Committee in its conclusion submitted to the Ministry may have referred to it. The Hearing Committee has noted that even the relevant list/documents in relation to paramedical non-teaching staff was not produced before it. There is no reason to doubt the correctness of this factual position noted by the Hearing Committee. In any case, since the deficiencies in respect of faculty (16.79%) and residents (21.73%) remains unexplained and being significant, the same cannot be overlooked. This appears to be the view taken by the Hearing Committee and the Competent Authority of the Central Government.18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th - 19th November, 2016. The question is: whether absence of faculty members and residents on the given day, assuming it to be substantial in number, per se, could be the basis for determining the efficiency and performance of the college for the rest of the academic session while considering the proposal for grant of permission?

1[ds]12. We must first answer the submission of the petitioners that the satisfaction recorded by the OC whilst accepting the explanation offered by the petitioners was binding on the Central Government. We do not agree with this submission. It is one thing to say that the satisfaction/opinion recorded by the OC constituted by this Court is a relevant matter and which must receive due attention of the Hearing Committee as well as the Central Government. But it is not possible to accept the contention that the opinion of OC must bind the Hearing Committee and the Central Government whilst discharging their statutory duties, moreso, when the legislative scheme of the Act has bestowed the final authority upon the Central Government to grant or refuse to grant permission in terms of Section10A of thethis case, the deficiency of faculty and residents was significant, besides the other two deficiencies taken note of by the Hearing Committee and the Central Government in the impugned decision. For that, the college did not produce supportive documents or evidence in respect of its claim of 6 (six) minor operations and list of paramedicalstaff. These deficiencies cannot be treated as trivial or unrelated to maintenance of high standards of imparting medical education.14. We are conscious of the fact that the proposal under consideration was for establishment of a new medical college from academic sessionand that has to be examined keeping in mind the norms specified in the statutory scheme formulated regarding permission to establish a new medical college. That scheme postulates the minimum standard of education, which has been formulated by the MCI in terms of Sectionof the Act. The scheme provides for minimum infrastructure facilities and staff requirements for 100 admissions. It also provides guidance as to how deficiency in respect of those matters should be calculated. The Medical Council of India has published those norms and the schemes for requirements to be fulfilled by the applicant College(s) for obtaining Letter of Intent and Letter of Permission for establishment of a new medical college and for yearly renewal under Section10A of thethe requirements of the scheme and as the petitioner college failed to fulfil the conditions specified by the OC as incorporated in the formal conditional Letter of Permission dated 12th September, 2016, the question of confirming the Letter of Permission for the academic sessionwithout removal of deficiencies in all respects does not arise. The petitioner college must first remove all those deficiencies to become eligible for confirmation of LOP, as per the undertaking given by the college in thatsubmission does not commend us. For, the dictum in those cases is contextual and on facts of those cases. In the present case, the Hearing Committee has duly considered the explanation offered by the college. It has, however, rejected the same for the reasons recorded in the impugned decision. The fact that specific reference to the opinion of the OC is absent in the conclusion recorded by the Hearing Committee, it does not follow that the issue has not been considered by the Hearing Committee or by the Central Government. The Competent Authority in the final decision after adverting to the observations of the OC and also of the Hearing Committee has noted that the absence of such large number of faculties and residents during duty hours was unacceptable and, moreso, failure of the college to ensure presence of 5 (five) residents on night off and yet could not come, even late, for the head count nor was it reflected in the SAF. This aspect has not been dealt with by the OC in its opinion dated 14th May, 2017. Therefore,of the explanation offered by the college by the Hearing Committee and the Competent Authority of the Central Government, cannot be said to be irrelevant, unjust or for extraneous consideration.17. As stated earlier, the college had failed to produce supportive documents or evidence about 6 (six) minor operations on the day of assessment. No doubt, the OC accepted the explanation of the college by holding that there was no Minimum Standard Requirement (for short `MSR) in that behalf. The finding in the assessment report was that there was only one minor operation on the day of assessment whereas the college claimed to have conducted 6 (six) operations. Nothing prevented the college from producing documents or evidence in support of that claim before the Hearing Committee. It was open to the petitioners to invite the attention of the Hearing Committee to such documents, if already placed on record during the earlier hearing. That was obviously not done. Else, the Hearing Committee in its conclusion submitted to the Ministry may have referred to it. The Hearing Committee has noted that even the relevant list/documents in relation to paramedicalstaff was not produced before it. There is no reason to doubt the correctness of this factual position noted by the Hearing Committee. In any case, since the deficiencies in respect of faculty (16.79%) and residents (21.73%) remains unexplained and being significant, the same cannot be overlooked. This appears to be the view taken by the Hearing Committee and the Competent Authority of the Central Government.18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th19th November, 2016.

### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: such an institute will not be considered for issue of renewal of permission in that Academic Year and further such ain institute will not be considered for processing applications for Postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendations for withdrawal of recognition of the courses run by that institute should not be made for undergraduate and postgraduate courses which are recognised u/s 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted postgraduate courses.In Clause 8(3)(1)(d) under the heading "Colleges which are found to have employed teachers with fake/forged documents: the second paragraph shall be substituted as:-"However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt."4. The Council may obtain any other information from the proposed medical college as it deems fit and necessary.Whenever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report."Considering the requirements of the scheme and as the petitioner college failed to fulfil the conditions specified by the OC as incorporated in the formal conditional Letter of Permission dated 12th September, 2016, the question of confirming the Letter of Permission for the academic session 2016-17 without removal of deficiencies in all respects does not arise. The petitioner college must first remove all those deficiencies to become eligible for confirmation of LOP, as per the undertaking given by the college in that regard.16. The petitioners have relied upon recent decisions of this Court dealing with similar issues in the cases viz Dr. Jagat Narain Subharti Charitable Trust & Anr. v. Union of India and Ors., Writ Petition (C) No. 513 of 2017, decided on 30.08.2017. ; Gangajali Education Society & Anr. v. Union of India & Ors., Writ Petition (C) No.709 of 2017, decided on 31.08.2017.; Saraswati Educational Charitable Trust & Anr. v. Union of India & Ors., Writ Petition (C) No. 515 of 2017, decided on 01.09.2017.; Apollo Institute of Medical Sciences & Research & Ors. v. Union of India & Anr., Writ Petition (C) No. 496 of 2017, decided on 31.08.2017. to contend that in similar situations, this Court preferred to rely on the opinion given by the OC and overturned the conclusion reached by the Competent Authority of the Central Government for debarring the concerned institution from admitting students for a period of two years and authorising MCI to encash bank guarantee of Rs. 2 Crore. This submission does not commend us. For, the dictum in those cases is contextual and on facts of those cases. In the present case, the Hearing Committee has duly considered the explanation offered by the college. It has, however, rejected the same for the reasons recorded in the impugned decision. The fact that specific reference to the opinion of the OC is absent in the conclusion recorded by the Hearing Committee, it does not follow that the issue has not been considered by the Hearing Committee or by the Central Government. The Competent Authority in the final decision after adverting to the observations of the OC and also of the Hearing Committee has noted that the absence of such large number of faculties and residents during duty hours was unacceptable and, moreso, failure of the college to ensure presence of 5 (five) residents on night off and yet could not come, even late, for the head count nor was it reflected in the SAF. This aspect has not been dealt with by the OC in its opinion dated 14th May, 2017. Therefore, non-acceptance of the explanation offered by the college by the Hearing Committee and the Competent Authority of the Central Government, cannot be said to be irrelevant, unjust or for extraneous consideration.17. As stated earlier, the college had failed to produce supportive documents or evidence about 6 (six) minor operations on the day of assessment. No doubt, the OC accepted the explanation of the college by holding that there was no Minimum Standard Requirement (for short `MSR) in that behalf. The finding in the assessment report was that there was only one minor operation on the day of assessment whereas the college claimed to have conducted 6 (six) operations. Nothing prevented the college from producing documents or evidence in support of that claim before the Hearing Committee. It was open to the petitioners to invite the attention of the Hearing Committee to such documents, if already placed on record during the earlier hearing. That was obviously not done. Else, the Hearing Committee in its conclusion submitted to the Ministry may have referred to it. The Hearing Committee has noted that even the relevant list/documents in relation to paramedical non-teaching staff was not produced before it. There is no reason to doubt the correctness of this factual position noted by the Hearing Committee. In any case, since the deficiencies in respect of faculty (16.79%) and residents (21.73%) remains unexplained and being significant, the same cannot be overlooked. This appears to be the view taken by the Hearing Committee and the Competent Authority of the Central Government.18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th - 19th November, 2016. The question is: whether absence of faculty members and residents on the given day, assuming it to be substantial in number, per se, could be the basis for determining the efficiency and performance of the college for the rest of the academic session while considering the proposal for grant of permission? ### Response: 1 ### Explanation: 12. We must first answer the submission of the petitioners that the satisfaction recorded by the OC whilst accepting the explanation offered by the petitioners was binding on the Central Government. We do not agree with this submission. It is one thing to say that the satisfaction/opinion recorded by the OC constituted by this Court is a relevant matter and which must receive due attention of the Hearing Committee as well as the Central Government. But it is not possible to accept the contention that the opinion of OC must bind the Hearing Committee and the Central Government whilst discharging their statutory duties, moreso, when the legislative scheme of the Act has bestowed the final authority upon the Central Government to grant or refuse to grant permission in terms of Section10A of thethis case, the deficiency of faculty and residents was significant, besides the other two deficiencies taken note of by the Hearing Committee and the Central Government in the impugned decision. For that, the college did not produce supportive documents or evidence in respect of its claim of 6 (six) minor operations and list of paramedicalstaff. These deficiencies cannot be treated as trivial or unrelated to maintenance of high standards of imparting medical education.14. We are conscious of the fact that the proposal under consideration was for establishment of a new medical college from academic sessionand that has to be examined keeping in mind the norms specified in the statutory scheme formulated regarding permission to establish a new medical college. That scheme postulates the minimum standard of education, which has been formulated by the MCI in terms of Sectionof the Act. The scheme provides for minimum infrastructure facilities and staff requirements for 100 admissions. It also provides guidance as to how deficiency in respect of those matters should be calculated. The Medical Council of India has published those norms and the schemes for requirements to be fulfilled by the applicant College(s) for obtaining Letter of Intent and Letter of Permission for establishment of a new medical college and for yearly renewal under Section10A of thethe requirements of the scheme and as the petitioner college failed to fulfil the conditions specified by the OC as incorporated in the formal conditional Letter of Permission dated 12th September, 2016, the question of confirming the Letter of Permission for the academic sessionwithout removal of deficiencies in all respects does not arise. The petitioner college must first remove all those deficiencies to become eligible for confirmation of LOP, as per the undertaking given by the college in thatsubmission does not commend us. For, the dictum in those cases is contextual and on facts of those cases. In the present case, the Hearing Committee has duly considered the explanation offered by the college. It has, however, rejected the same for the reasons recorded in the impugned decision. The fact that specific reference to the opinion of the OC is absent in the conclusion recorded by the Hearing Committee, it does not follow that the issue has not been considered by the Hearing Committee or by the Central Government. The Competent Authority in the final decision after adverting to the observations of the OC and also of the Hearing Committee has noted that the absence of such large number of faculties and residents during duty hours was unacceptable and, moreso, failure of the college to ensure presence of 5 (five) residents on night off and yet could not come, even late, for the head count nor was it reflected in the SAF. This aspect has not been dealt with by the OC in its opinion dated 14th May, 2017. Therefore,of the explanation offered by the college by the Hearing Committee and the Competent Authority of the Central Government, cannot be said to be irrelevant, unjust or for extraneous consideration.17. As stated earlier, the college had failed to produce supportive documents or evidence about 6 (six) minor operations on the day of assessment. No doubt, the OC accepted the explanation of the college by holding that there was no Minimum Standard Requirement (for short `MSR) in that behalf. The finding in the assessment report was that there was only one minor operation on the day of assessment whereas the college claimed to have conducted 6 (six) operations. Nothing prevented the college from producing documents or evidence in support of that claim before the Hearing Committee. It was open to the petitioners to invite the attention of the Hearing Committee to such documents, if already placed on record during the earlier hearing. That was obviously not done. Else, the Hearing Committee in its conclusion submitted to the Ministry may have referred to it. The Hearing Committee has noted that even the relevant list/documents in relation to paramedicalstaff was not produced before it. There is no reason to doubt the correctness of this factual position noted by the Hearing Committee. In any case, since the deficiencies in respect of faculty (16.79%) and residents (21.73%) remains unexplained and being significant, the same cannot be overlooked. This appears to be the view taken by the Hearing Committee and the Competent Authority of the Central Government.18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th19th November, 2016.

Kunwar Trivikram Narain Singh Vs. State Of Uttar Pradesh And Others

operation of the U. P. Agricultural Income-tax (Amendment) Act. 1956 (U. P. Act No. XIV of 1956).2. The facts are simple and they are as follows: On January 10, 1953, for the assessment year 1952-53, the Additional Collector, Banaras, assesssed the appellant to agricultural income-tax under the U. P. Agricultural Income-tax Act, 1948 (U. P. Act III of 1949). On February 9, 1956, U. P. Agricultural Income-tax (Amendment) Ordinance, 1956 (Ordinance 2 of 1956) was passed enacting that the word "Collector" shall always be deemed to include Additional Collector. That Ordinance was later replaced by the U. P. Agricultural Income-tax (Amendment) Act XIV of 1956. On an application filed by the appellant, the Collector by his order dated May 9, 1956, revoked his earlier order and directed the Additional Collector to proceed to assess the appellant in accordance with law. Thereupon, the Additional Collector resumed proceedings and on June 7, 1956 passed a fresh assessment order imposing a tax of Rs. 42,761 on the appellant, and on July 4, 1956, he issued a notice to the appellant for payment of the tax. On August 7, 1956, the appellant filed a petition under Art. 226 of the Constitution in the High Court of Judicature at Allahabad for quashing the order of assessment and the notice issued pursuant thereto. The petition was heard, in the first instance, by Tandon, J., who dismissed the same with costs. The appeal preferred by the appellant against that order to a Division Bench of the said Court was also dismissed. Hence the present appeal.3. Mr. S. P. Varma, learned counsel for the appellant contended, (i) that the respondents right to assess the appellant to tax was barred by limitation and, therefore, the Act could not have the effect of reviving the said right; and (ii) the amount of malikhana could not be in law the subject-matter of assessment.4. The second point was not raised in the High Court. We did not permit the learned counsel to raise the point for the first time before us.5. The first point turns upon the relevant provisions of Act III of 1949 and Act XIV of 1956. Under Act III of 1949 the definition of "Collector" did not include "Additional Collector. Act XIV of 1956 received the assent of the Governor on April 17, 1956 and was published in the U. P. Gazette (Extraordinary) dated May 19, 1956. S. 2 of Act XIV of 1956, reads:"In S. 2 of the U. P. Agricultural Income-tax Act, 1948 (hereinafter called the Principal Act), for cl. (4), the following, shall be and be deemed always to have been substituted"(4-a) Collector shall have the meaning as in the U. P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act."6. Section II of the Act reads:"Where before the commencement of this Act any Court or authority has, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector or Additional Assistant Collector in charge of a sub-division merely on the ground that the assessing authority had no juridiction to make the assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the Court or authority for a review of the proceedings in the light of the provisions of this Act and the Court or authoirty to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made, as may be necessary to give effect to the provisions of the Principal Act as amended by Ss. 2 and 8 of this Act."7.A combined reading of the said provisions establishes that if an application for review was filed within the time prescribed, the previous proceedings would be restored and the parties would be relegated to the position which they had occupied before the proceedings were quashed on the ground of want of jurisdiction.8. In this case proceedings were initiated by the Additional Collector on January 10, 1953, for the purpose of assessing the appellant for the assessment year 1952-53. There was no flaw in the said proceedings except that the Additional Collector was not authorized by Act III of 1949, as it then stood, to make the said assessment. The Collector quashed those proceeding by his order dated November 26, 1955. After the Amending Act wad passed, within 90 days therefrom the appropriate income-tax authority had filed an application before the Collector to review his order. The Collector reviewed the order and set aside the same. The result was that the proceeding before the Additional Collector was restored. As by the amendment the Additional Collector must be deemed to have been the Collector from the inception of the Principal Act itself, the said proceedings must be deemed to have been initiated before the proper authority under the Principal Act. In this view no question of limitation could possibly arise, for the proceedings were initiated in time and must be deemed to have been pending throughout and the fresh assessment was made in the said proceedings.9. The decisions cited by the learned counsel are really beside the mark. He relied upon the judgments of this Court in S. C. Prashar v. Vasantsen, AIR 1968 SC 1356, and Commr. of Income-tax B. and O. v. Lakhmir Singh, AIR 1968 SC 1394. One of the questions raised in those cases was whether an amending Act revived a remedy which had become barred before the amendment was introduced. That aspect of the question has no relevance to the present enquiry. Here we are dealing with an Act whose constitutionality is not questioned. It has expressly conferred power on the appropriate authority to review its previous order if an Application was filed within the time prescribed. When once that power of review was exercised, the proceedings were reopened. In this view no question of the application of an amending Act to a barred claim would arise.

1[ds]7.A combined reading of the said provisions establishes that if an application for review was filed within the time prescribed, the previous proceedings would be restored and the parties would be relegated to the position which they had occupied before the proceedings were quashed on the ground of want of jurisdiction.8. In this case proceedings were initiated by the Additional Collector on January 10, 1953, for the purpose of assessing the appellant for the assessment year 1952-53. There was no flaw in the said proceedings except that the Additional Collector was not authorized by Act III of 1949, as it then stood, to make the said assessment. The Collector quashed those proceeding by his order dated November 26, 1955. After the Amending Act wad passed, within 90 days therefrom the appropriate income-tax authority had filed an application before the Collector to review his order. The Collector reviewed the order and set aside the same. The result was that the proceeding before the Additional Collector was restored. As by the amendment the Additional Collector must be deemed to have been the Collector from the inception of the Principal Act itself, the said proceedings must be deemed to have been initiated before the proper authority under the Principal Act. In this view no question of limitation could possibly arise, for the proceedings were initiated in time and must be deemed to have been pending throughout and the fresh assessment was made in the saidwe are dealing with an Act whose constitutionality is not questioned. It has expressly conferred power on the appropriate authority to review its previous order if an Application was filed within the time prescribed. When once that power of review was exercised, the proceedings were reopened. In this view no question of the application of an amending Act to a barred claim would arise.The second point was not raised in the High Court. We did not permit the learned counsel to raise the point for the first time before us.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: operation of the U. P. Agricultural Income-tax (Amendment) Act. 1956 (U. P. Act No. XIV of 1956).2. The facts are simple and they are as follows: On January 10, 1953, for the assessment year 1952-53, the Additional Collector, Banaras, assesssed the appellant to agricultural income-tax under the U. P. Agricultural Income-tax Act, 1948 (U. P. Act III of 1949). On February 9, 1956, U. P. Agricultural Income-tax (Amendment) Ordinance, 1956 (Ordinance 2 of 1956) was passed enacting that the word "Collector" shall always be deemed to include Additional Collector. That Ordinance was later replaced by the U. P. Agricultural Income-tax (Amendment) Act XIV of 1956. On an application filed by the appellant, the Collector by his order dated May 9, 1956, revoked his earlier order and directed the Additional Collector to proceed to assess the appellant in accordance with law. Thereupon, the Additional Collector resumed proceedings and on June 7, 1956 passed a fresh assessment order imposing a tax of Rs. 42,761 on the appellant, and on July 4, 1956, he issued a notice to the appellant for payment of the tax. On August 7, 1956, the appellant filed a petition under Art. 226 of the Constitution in the High Court of Judicature at Allahabad for quashing the order of assessment and the notice issued pursuant thereto. The petition was heard, in the first instance, by Tandon, J., who dismissed the same with costs. The appeal preferred by the appellant against that order to a Division Bench of the said Court was also dismissed. Hence the present appeal.3. Mr. S. P. Varma, learned counsel for the appellant contended, (i) that the respondents right to assess the appellant to tax was barred by limitation and, therefore, the Act could not have the effect of reviving the said right; and (ii) the amount of malikhana could not be in law the subject-matter of assessment.4. The second point was not raised in the High Court. We did not permit the learned counsel to raise the point for the first time before us.5. The first point turns upon the relevant provisions of Act III of 1949 and Act XIV of 1956. Under Act III of 1949 the definition of "Collector" did not include "Additional Collector. Act XIV of 1956 received the assent of the Governor on April 17, 1956 and was published in the U. P. Gazette (Extraordinary) dated May 19, 1956. S. 2 of Act XIV of 1956, reads:"In S. 2 of the U. P. Agricultural Income-tax Act, 1948 (hereinafter called the Principal Act), for cl. (4), the following, shall be and be deemed always to have been substituted"(4-a) Collector shall have the meaning as in the U. P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act."6. Section II of the Act reads:"Where before the commencement of this Act any Court or authority has, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector or Additional Assistant Collector in charge of a sub-division merely on the ground that the assessing authority had no juridiction to make the assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the Court or authority for a review of the proceedings in the light of the provisions of this Act and the Court or authoirty to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made, as may be necessary to give effect to the provisions of the Principal Act as amended by Ss. 2 and 8 of this Act."7.A combined reading of the said provisions establishes that if an application for review was filed within the time prescribed, the previous proceedings would be restored and the parties would be relegated to the position which they had occupied before the proceedings were quashed on the ground of want of jurisdiction.8. In this case proceedings were initiated by the Additional Collector on January 10, 1953, for the purpose of assessing the appellant for the assessment year 1952-53. There was no flaw in the said proceedings except that the Additional Collector was not authorized by Act III of 1949, as it then stood, to make the said assessment. The Collector quashed those proceeding by his order dated November 26, 1955. After the Amending Act wad passed, within 90 days therefrom the appropriate income-tax authority had filed an application before the Collector to review his order. The Collector reviewed the order and set aside the same. The result was that the proceeding before the Additional Collector was restored. As by the amendment the Additional Collector must be deemed to have been the Collector from the inception of the Principal Act itself, the said proceedings must be deemed to have been initiated before the proper authority under the Principal Act. In this view no question of limitation could possibly arise, for the proceedings were initiated in time and must be deemed to have been pending throughout and the fresh assessment was made in the said proceedings.9. The decisions cited by the learned counsel are really beside the mark. He relied upon the judgments of this Court in S. C. Prashar v. Vasantsen, AIR 1968 SC 1356, and Commr. of Income-tax B. and O. v. Lakhmir Singh, AIR 1968 SC 1394. One of the questions raised in those cases was whether an amending Act revived a remedy which had become barred before the amendment was introduced. That aspect of the question has no relevance to the present enquiry. Here we are dealing with an Act whose constitutionality is not questioned. It has expressly conferred power on the appropriate authority to review its previous order if an Application was filed within the time prescribed. When once that power of review was exercised, the proceedings were reopened. In this view no question of the application of an amending Act to a barred claim would arise. ### Response: 1 ### Explanation: 7.A combined reading of the said provisions establishes that if an application for review was filed within the time prescribed, the previous proceedings would be restored and the parties would be relegated to the position which they had occupied before the proceedings were quashed on the ground of want of jurisdiction.8. In this case proceedings were initiated by the Additional Collector on January 10, 1953, for the purpose of assessing the appellant for the assessment year 1952-53. There was no flaw in the said proceedings except that the Additional Collector was not authorized by Act III of 1949, as it then stood, to make the said assessment. The Collector quashed those proceeding by his order dated November 26, 1955. After the Amending Act wad passed, within 90 days therefrom the appropriate income-tax authority had filed an application before the Collector to review his order. The Collector reviewed the order and set aside the same. The result was that the proceeding before the Additional Collector was restored. As by the amendment the Additional Collector must be deemed to have been the Collector from the inception of the Principal Act itself, the said proceedings must be deemed to have been initiated before the proper authority under the Principal Act. In this view no question of limitation could possibly arise, for the proceedings were initiated in time and must be deemed to have been pending throughout and the fresh assessment was made in the saidwe are dealing with an Act whose constitutionality is not questioned. It has expressly conferred power on the appropriate authority to review its previous order if an Application was filed within the time prescribed. When once that power of review was exercised, the proceedings were reopened. In this view no question of the application of an amending Act to a barred claim would arise.The second point was not raised in the High Court. We did not permit the learned counsel to raise the point for the first time before us.

Commissioner Of Income-Tax, Culcutta Vs. Keshavlal Lallubhai Patel

used in the technical sense or in the popular sense? And, secondly, what is comprehended in the word indirectly?9. Some assistance is derived in ascertaining the meaning of the word transfer by looking at the language of S. 16 (1)(c). In that clause, the legislature uses the words settlement, disposition and transfer, and in the expression settlement or disposition is included any disposition, trust, covenant, agreement or arrangement. In this clause, the word transfer is clearly used in the strict sense. If the legislature were minded to include an arrangement or agreement, not amounting to transfer, in S. 16(3)(a)(iii), it could have used these words. It seems to us that the word transfer has been used in the strict sense and not in the sense of including every means by which the property may be passed from one to another. This conclusion is reinforced by the consideration that, as observed by this Court in Philip John Plasket Thomas v. Commr. of Income-tax, Calcutta, (1963) 49 ITR (SC) 97 : (AIR 1964 SC 587 ) S.16(3) "creates an artificial income and must be construed strictly".10. Coming now to the expression directly or indirectly there does not seem to be any doubt that the legislature meant to rope in indirect transfers. One example is furnished by Commr. of Income-tax v. C. M. Kothari, (1963) 49 ITR (SC) 107 : (AIR 1964 SC 331 ). But there must still be a transfer of assets. The word indirectly does not destroy the significance of the word transfer.11. Mr. Rajagopala Sastri relies strongly on the decision of this Court in (1963) 49 ITR (SC) 107 : (AIR 1964 SC 331 ). But in our opinion that case is clearly distinguishable and does not assist us in this case. In that case, C. M. Kothari and his sons were both desirous of putting Rs. 30,000 in the hands of their wives to enable them to buy a share in a house. Instead of directly gifting the amount, they hit upon the following device : C. M. Kothari would gift Rs. 30,000 to the daughter-in-law and the son would gift Rs. 30,000 to the mother. This Court held that it was a palpable device and a trick and the two cross transactions amounted to an indirect transfer within S.16(3)(a)(iii). In effect, this Court held that the father used his son as a conduit pipe and the son used his father as a conduit pipe to gift Rs. 30,000 each. Mr. Sastri relies on the words "chain of transfers" used by Hidayatullah, J., in the following sentence :"A chain of transfers, if not comprehended by the word indirectly would easily defeat the object of the law which is to tax the income of the wife in the hands of the husband, if the income of the wife arises to her from assets transferred by the husband."But in the context they refer to the cross-gifts, if we may so call the two gifts of Rs. 30,000 each. These are transfers in the strict sense of the term. In the present case there are no cross-gifts. We have, on the other hand, in this case, a throwing of property into the hotchpotch and a partition of the JHF property. As will be pointed out later, the latter at any rate is not a transfer at all.12. This takes us to the facts of this case, and the question arises whether there is any transfer of assets in the strict sense. There is some difference of opinion whether the act of throwing self-acquired property into the hotchpotch is a transfer or not. We need not settle this controversy in this case. Let us assume that it is. But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not this was so held in Gutta Radhakrishnayya v. Gutta Sarasamma, ILR (1951) Mad 607 : (AIR 1951 Mad 213 ) Subba Rao, J., then a Judge of the Madras High Court, after examining several authorities, came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharer had an antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. Commr. of Income Tax, Madras, (1961) 41 ITR 297 : (AIR 1962 Mad 26 ) with reference to S. 16 (3)(a)(iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common."13. The Punjab High Court came to the same conclusion in Jagannath v. State of Punjab, 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within S. 16 (3)(a)(iii) and (iv) to the wife or the minor son.14. Mr. Rajagopala Sastri finally contended that we must look at the substance of the transaction. But as pointed out by Lord Normand in Potts Executors. v. Commr. of lnland Revenue, (1952) 32 Tax Cas 211 "the Court is not entitled to say that for the purposes of taxation the actual transaction is to be disregarded as "machinery" and that the substance or equivalent financial results are the relevant consideration. It may indeed be said that if these loose principles of construction had been liberally applied, they would in many instances have been adequate to deal with tax evasion and there would have been less frequent cause for the intervention of Parliament."

0[ds]9. Some assistance is derived in ascertaining the meaning of the word transfer by looking at the language of S. 16 (1)(c). In that clause, the legislature uses the words settlement, disposition and transfer, and in the expression settlement or disposition is included any disposition, trust, covenant, agreement or arrangement. In this clause, the word transfer is clearly used in the strict sense. If the legislature were minded to include an arrangement or agreement, not amounting to transfer, in S. 16(3)(a)(iii), it could have used these words. It seems to us that the word transfer has been used in the strict sense and not in the sense of including every means by which the property may be passed from one to another.s takes us to the facts of this case, and the question arises whether there is any transfer of assets in the strict sense.There is some difference of opinion whether the act of throwing self-acquired property into the hotchpotch is a transfer or not. We need not settle this controversy in this case. Let us assume that it is. But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not this was so held in Gutta Radhakrishnayya v. Gutta Sarasamma, ILR (1951) Mad 607 : (AIR 1951 Mad 213 ) Subba Rao, J., then a Judge of the Madras High Court, after examining several authorities, came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharer had an antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. Commr. of Income Tax, Madras, (1961) 41 ITR 297 : (AIR 1962 Mad 26 ) with reference to S. 16 (3)(a)(iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common."13. The Punjab High Court came to the same conclusion in Jagannath v. State of Punjab, 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within S. 16 (3)(a)(iii) and (iv) to the wife or the minor son.14.Mr. Rajagopala Sastri finally contended that we must look at the substance of the transaction.But as pointed out by Lord Normand in PottsExecutors. v. Commr. of lnland Revenue, (1952) 32 Tax Cas211 "the Court is not entitled to say that for the purposes of taxation the actual transaction is to be disregarded as "machinery" and that the substance or equivalent financial results are the relevant consideration. It may indeed be said that if these loose principles of construction had been liberally applied, they would in many instances have been adequate to deal with tax evasion and there would have been less frequent cause for the intervention ofin the context they refer to theif we may so call the two gifts of Rs. 30,000 each. These are transfers in the strict sense of the term. In the present case there are noWe have, on the other hand, in this case, a throwing of property into the hotchpotch and a partition of the JHF property. As will be pointed out later, the latter at any rate is not a transfer at all.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: used in the technical sense or in the popular sense? And, secondly, what is comprehended in the word indirectly?9. Some assistance is derived in ascertaining the meaning of the word transfer by looking at the language of S. 16 (1)(c). In that clause, the legislature uses the words settlement, disposition and transfer, and in the expression settlement or disposition is included any disposition, trust, covenant, agreement or arrangement. In this clause, the word transfer is clearly used in the strict sense. If the legislature were minded to include an arrangement or agreement, not amounting to transfer, in S. 16(3)(a)(iii), it could have used these words. It seems to us that the word transfer has been used in the strict sense and not in the sense of including every means by which the property may be passed from one to another. This conclusion is reinforced by the consideration that, as observed by this Court in Philip John Plasket Thomas v. Commr. of Income-tax, Calcutta, (1963) 49 ITR (SC) 97 : (AIR 1964 SC 587 ) S.16(3) "creates an artificial income and must be construed strictly".10. Coming now to the expression directly or indirectly there does not seem to be any doubt that the legislature meant to rope in indirect transfers. One example is furnished by Commr. of Income-tax v. C. M. Kothari, (1963) 49 ITR (SC) 107 : (AIR 1964 SC 331 ). But there must still be a transfer of assets. The word indirectly does not destroy the significance of the word transfer.11. Mr. Rajagopala Sastri relies strongly on the decision of this Court in (1963) 49 ITR (SC) 107 : (AIR 1964 SC 331 ). But in our opinion that case is clearly distinguishable and does not assist us in this case. In that case, C. M. Kothari and his sons were both desirous of putting Rs. 30,000 in the hands of their wives to enable them to buy a share in a house. Instead of directly gifting the amount, they hit upon the following device : C. M. Kothari would gift Rs. 30,000 to the daughter-in-law and the son would gift Rs. 30,000 to the mother. This Court held that it was a palpable device and a trick and the two cross transactions amounted to an indirect transfer within S.16(3)(a)(iii). In effect, this Court held that the father used his son as a conduit pipe and the son used his father as a conduit pipe to gift Rs. 30,000 each. Mr. Sastri relies on the words "chain of transfers" used by Hidayatullah, J., in the following sentence :"A chain of transfers, if not comprehended by the word indirectly would easily defeat the object of the law which is to tax the income of the wife in the hands of the husband, if the income of the wife arises to her from assets transferred by the husband."But in the context they refer to the cross-gifts, if we may so call the two gifts of Rs. 30,000 each. These are transfers in the strict sense of the term. In the present case there are no cross-gifts. We have, on the other hand, in this case, a throwing of property into the hotchpotch and a partition of the JHF property. As will be pointed out later, the latter at any rate is not a transfer at all.12. This takes us to the facts of this case, and the question arises whether there is any transfer of assets in the strict sense. There is some difference of opinion whether the act of throwing self-acquired property into the hotchpotch is a transfer or not. We need not settle this controversy in this case. Let us assume that it is. But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not this was so held in Gutta Radhakrishnayya v. Gutta Sarasamma, ILR (1951) Mad 607 : (AIR 1951 Mad 213 ) Subba Rao, J., then a Judge of the Madras High Court, after examining several authorities, came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharer had an antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. Commr. of Income Tax, Madras, (1961) 41 ITR 297 : (AIR 1962 Mad 26 ) with reference to S. 16 (3)(a)(iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common."13. The Punjab High Court came to the same conclusion in Jagannath v. State of Punjab, 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within S. 16 (3)(a)(iii) and (iv) to the wife or the minor son.14. Mr. Rajagopala Sastri finally contended that we must look at the substance of the transaction. But as pointed out by Lord Normand in Potts Executors. v. Commr. of lnland Revenue, (1952) 32 Tax Cas 211 "the Court is not entitled to say that for the purposes of taxation the actual transaction is to be disregarded as "machinery" and that the substance or equivalent financial results are the relevant consideration. It may indeed be said that if these loose principles of construction had been liberally applied, they would in many instances have been adequate to deal with tax evasion and there would have been less frequent cause for the intervention of Parliament." ### Response: 0 ### Explanation: 9. Some assistance is derived in ascertaining the meaning of the word transfer by looking at the language of S. 16 (1)(c). In that clause, the legislature uses the words settlement, disposition and transfer, and in the expression settlement or disposition is included any disposition, trust, covenant, agreement or arrangement. In this clause, the word transfer is clearly used in the strict sense. If the legislature were minded to include an arrangement or agreement, not amounting to transfer, in S. 16(3)(a)(iii), it could have used these words. It seems to us that the word transfer has been used in the strict sense and not in the sense of including every means by which the property may be passed from one to another.s takes us to the facts of this case, and the question arises whether there is any transfer of assets in the strict sense.There is some difference of opinion whether the act of throwing self-acquired property into the hotchpotch is a transfer or not. We need not settle this controversy in this case. Let us assume that it is. But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not this was so held in Gutta Radhakrishnayya v. Gutta Sarasamma, ILR (1951) Mad 607 : (AIR 1951 Mad 213 ) Subba Rao, J., then a Judge of the Madras High Court, after examining several authorities, came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharer had an antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. Commr. of Income Tax, Madras, (1961) 41 ITR 297 : (AIR 1962 Mad 26 ) with reference to S. 16 (3)(a)(iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common."13. The Punjab High Court came to the same conclusion in Jagannath v. State of Punjab, 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within S. 16 (3)(a)(iii) and (iv) to the wife or the minor son.14.Mr. Rajagopala Sastri finally contended that we must look at the substance of the transaction.But as pointed out by Lord Normand in PottsExecutors. v. Commr. of lnland Revenue, (1952) 32 Tax Cas211 "the Court is not entitled to say that for the purposes of taxation the actual transaction is to be disregarded as "machinery" and that the substance or equivalent financial results are the relevant consideration. It may indeed be said that if these loose principles of construction had been liberally applied, they would in many instances have been adequate to deal with tax evasion and there would have been less frequent cause for the intervention ofin the context they refer to theif we may so call the two gifts of Rs. 30,000 each. These are transfers in the strict sense of the term. In the present case there are noWe have, on the other hand, in this case, a throwing of property into the hotchpotch and a partition of the JHF property. As will be pointed out later, the latter at any rate is not a transfer at all.

Travel Food Services Pvt. Ltd. and Ors Vs. Union of India and Ors

the propositions of law laid down therein do not admit of any doubt but what is of importance is that such decisions turned on the facts before the respective Courts. Blind reliance cannot be placed on precedents merely because of some resemblance on the factual score of denial/withdrawal of security clearance being the matters in issue. In the light of the applicable law, the facts and circumstances that have emerged in the present case have to examined and a decision in sound exercise of judicial discretion delivered either way on the merits of the rival claims. 14. The report of the IB and the materials available in the relevant file which Mr. Singh has placed before us have been read. Mr. Kadam has not been given access to the same owing to the concern of secrecy to be maintained in such cases expressed by Mr. Singh but such non- access is not prejudicial to the cause of the petitioners for the view this Court proposes to take, based firstly on Mr. Singhs answer to a query that there is nothing adverse as against the present Directors of the Company and next, resting on this Courts prima facie conclusions as delineated hereunder: (i) Even assuming what the IB has referred to as adverse, appearing on its records as against the subject on December 10, 2018, the same is relevant as on that date but it appears to be of no efficacy for the reason that there were no developments since then in respect of two of the incidents of alleged importance (neither has any FIR been lodged under section 154 of the Code of Criminal Procedure in respect of the calls that were considered suspect nor any chargesheet under section 173(2) thereof been filed by the Central Bureau of Investigation upon completion of investigation into offences under the Prevention of Corruption Act). The contents of the report as on the date the impugned order withdrawing clearance was passed, have to be seen as mere insinuations which the Joint Secretary failed to appreciate while recommending withdrawal of clearance; (ii) Every officer holding a public office has to act in furtherance of public good. This necessarily requires him to act in utmost good faith. Clause (6) of the clearance dated October 1, 2018 would not absolve the respondents of the requirement of recording reasons in the file though, in terms of such clause, they may not be under any duty to communicate such reasons. If power to act without reason is assumed, such power would tantamount to arbitrary exercise of power, - an anathema to Article 14 of the Constitution of India, and hence unsustainable in law. The twin reasons assigned by the Joint Secretary for recommending withdrawal of clearance, which has been uninterruptedly continuing since October 1, 2018, are no reasons in the eye of law and cannot legally and validly form the basis for withdrawal; (iii) The IB never advised withdrawal of clearance based only on inputs provided by it but left it to the Bureau to decide as it deemed fit. There was no attempt worth the name to find out any development over and above the IB report, and a mechanical approach is clearly discernible. There was no assessment or evaluation of the facts, much less proper assessment or evaluation, thereby causing a failure of justice at the administrative decision making level. (iv) Absence of any incriminating material in regard to dealings of the Company ever since the report of the IB reached the Bureau was a vital factor, which ought to have been taken note of but completely escaped the notice of the Joint Secretary; (v) The issue of disposal of the fresh request for security clearance had been pending before the Bureau since October, 2018 with the file moving from one desk to another without any tangible result. The judicial conscience of this Court is not satisfied that this is a case where emergent action of the nature under consideration was called for, dispensing with due process of law and compliance with natural justice principles; (vi) Although the subject is claimed by the respondents to be in overall charge of the affairs of the Company, there is not an iota of evidence in relation to his activities post December 10, 2018 and there is not even any hint of contravention of any of the provisions of the security programme since October 1, 2018, i.e., the date of issue of the security clearance; (vii) Concerns about national interest and State security have been urged as strong reasons for non-interference but nothing substantial on that front has also surfaced from the file warranting rejection of the prayer for interim relief; and (viii) There can be no two opinions that national interest must have precedence over any other interest but mere chanting of national interest without any evidence in support thereof would not afford ground for the respondents to resist a claim for interference in acts of illegality, arbitrariness and unreasonableness vitiating the proceedings which, at this stage, appears to be well-founded. 15. It would amount to rupturing and hurting the Courts sense of justice if the patent injustice is allowed to be perpetrated and the cause of justice is not vindicated at this stage. A post-decisional hearing, in the present circumstances, would not serve the ends of justice. 16. Apart from the exercise of power that this Court has found to be illegal, arbitrary and unreasonable, the ground reality as has been pleaded by the petitioners in paragraphs 15 and 17(k) of the writ petition cannot be overlooked. Abrupt closure of the business operations by the petitioners would render hundreds of employees who have been employed at the retail outlets, after the lockdown restrictions have been eased, jobless. The petitioners also have several third party contracts apart from their contractual obligation with the airport operator (MIAL), and may be liable for actions from these parties as contended by them. The inconvenience caused to the passengers, too, cannot be ignored.

1[ds]11. The respondents primary and only defence centres around security concerns that are likely to affect fight and other operations at the Mumbai International Airport, should the Company be allowed to continue with its business operations. Cases of the present nature where concerns about national interest and security of the State are raised, as of necessity, call for treading the path of caution and circumspection but not exercise of total restraint, as submitted by Mr. Singh. If Mr. Singhs contention were to be accepted, any matter touching upon national interest and security of the State would remain immune from judicial scrutiny and the Court disabled from examining whether any issue of national interest/State security, at all, is involved or not. It is the duty of the Court while considering complaints of breach of Fundamental Rights to ascertain the truth and veracity of the concerns expressed to serve the cause of justice. This Court would proceed accordingly.12. Issuance of the impugned communication has resulted in withdrawal of clearance that was earlier granted on October 1, 2018 which, in turn, has visited the petitioners with civil consequences inasmuch as business operations within the precincts of Mumbai International Airport, which it was carrying on till October 9, 2018 has come to a grinding halt. It is in the above factual background that this Court is tasked to decide the question of interim relief. If interim relief as claimed in this writ petition were granted by the Court, its effect would substantially be the same as the grant of final relief which has been claimed. The Court has to consider such issue drawing guidance from the decision of the Supreme Court in Deoraj V/s. State of Maharashtra, reported in AIR 2000 SC 1975. Paragraph 12 being relevant is quoted below:12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie caseof a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.13. Having perused the decisions cited by Mr. Singh, this Court is of the opinion that the propositions of law laid down therein do not admit of any doubt but what is of importance is that such decisions turned on the facts before the respective Courts. Blind reliance cannot be placed on precedents merely because of some resemblance on the factual score of denial/withdrawal of security clearance being the matters in issue. In the light of the applicable law, the facts and circumstances that have emerged in the present case have to examined and a decision in sound exercise of judicial discretion delivered either way on the merits of the rival claims.14. The report of the IB and the materials available in the relevant file which Mr. Singh has placed before us have been read. Mr. Kadam has not been given access to the same owing to the concern of secrecy to be maintained in such cases expressed by Mr. Singh but such non- access is not prejudicial to the cause of the petitioners for the view this Court proposes to take, based firstly on Mr. Singhs answer to a query that there is nothing adverse as against the present Directors of the Company and next, resting on this Courts prima facie conclusions as delineated hereunder:(i) Even assuming what the IB has referred to as adverse, appearing on its records as against the subject on December 10, 2018, the same is relevant as on that date but it appears to be of no efficacy for the reason that there were no developments since then in respect of two of the incidents of alleged importance (neither has any FIR been lodged under section 154 of the Code of Criminal Procedure in respect of the calls that were considered suspect nor any chargesheet under section 173(2) thereof been filed by the Central Bureau of Investigation upon completion of investigation into offences under the Prevention of Corruption Act). The contents of the report as on the date the impugned order withdrawing clearance was passed, have to be seen as mere insinuations which the Joint Secretary failed to appreciate while recommending withdrawal of clearance;(ii) Every officer holding a public office has to act in furtherance of public good. This necessarily requires him to act in utmost good faith. Clause (6) of the clearance dated October 1, 2018 would not absolve the respondents of the requirement of recording reasons in the file though, in terms of such clause, they may not be under any duty to communicate such reasons. If power to act without reason is assumed, such power would tantamount to arbitrary exercise of power, - an anathema to Article 14 of the Constitution of India, and hence unsustainable in law. The twin reasons assigned by the Joint Secretary for recommending withdrawal of clearance, which has been uninterruptedly continuing since October 1, 2018, are no reasons in the eye of law and cannot legally and validly form the basis for withdrawal;(iii) The IB never advised withdrawal of clearance based only on inputs provided by it but left it to the Bureau to decide as it deemed fit. There was no attempt worth the name to find out any development over and above the IB report, and a mechanical approach is clearly discernible. There was no assessment or evaluation of the facts, much less proper assessment or evaluation, thereby causing a failure of justice at the administrative decision making level.(iv) Absence of any incriminating material in regard to dealings of the Company ever since the report of the IB reached the Bureau was a vital factor, which ought to have been taken note of but completely escaped the notice of the Joint Secretary;(v) The issue of disposal of the fresh request for security clearance had been pending before the Bureau since October, 2018 with the file moving from one desk to another without any tangible result. The judicial conscience of this Court is not satisfied that this is a case where emergent action of the nature under consideration was called for, dispensing with due process of law and compliance with natural justice principles;(vi) Although the subject is claimed by the respondents to be in overall charge of the affairs of the Company, there is not an iota of evidence in relation to his activities post December 10, 2018 and there is not even any hint of contravention of any of the provisions of the security programme since October 1, 2018, i.e., the date of issue of the security clearance;(vii) Concerns about national interest and State security have been urged as strong reasons for non-interference but nothing substantial on that front has also surfaced from the file warranting rejection of the prayer for interim relief; and(viii) There can be no two opinions that national interest must have precedence over any other interest but mere chanting of national interest without any evidence in support thereof would not afford ground for the respondents to resist a claim for interference in acts of illegality, arbitrariness and unreasonableness vitiating the proceedings which, at this stage, appears to be well-founded.15. It would amount to rupturing and hurting the Courts sense of justice if the patent injustice is allowed to be perpetrated and the cause of justice is not vindicated at this stage. A post-decisional hearing, in the present circumstances, would not serve the ends of justice.16. Apart from the exercise of power that this Court has found to be illegal, arbitrary and unreasonable, the ground reality as has been pleaded by the petitioners in paragraphs 15 and 17(k) of the writ petition cannot be overlooked. Abrupt closure of the business operations by the petitioners would render hundreds of employees who have been employed at the retail outlets, after the lockdown restrictions have been eased, jobless. The petitioners also have several third party contracts apart from their contractual obligation with the airport operator (MIAL), and may be liable for actions from these parties as contended by them. The inconvenience caused to the passengers, too, cannot be ignored.

### 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 propositions of law laid down therein do not admit of any doubt but what is of importance is that such decisions turned on the facts before the respective Courts. Blind reliance cannot be placed on precedents merely because of some resemblance on the factual score of denial/withdrawal of security clearance being the matters in issue. In the light of the applicable law, the facts and circumstances that have emerged in the present case have to examined and a decision in sound exercise of judicial discretion delivered either way on the merits of the rival claims. 14. The report of the IB and the materials available in the relevant file which Mr. Singh has placed before us have been read. Mr. Kadam has not been given access to the same owing to the concern of secrecy to be maintained in such cases expressed by Mr. Singh but such non- access is not prejudicial to the cause of the petitioners for the view this Court proposes to take, based firstly on Mr. Singhs answer to a query that there is nothing adverse as against the present Directors of the Company and next, resting on this Courts prima facie conclusions as delineated hereunder: (i) Even assuming what the IB has referred to as adverse, appearing on its records as against the subject on December 10, 2018, the same is relevant as on that date but it appears to be of no efficacy for the reason that there were no developments since then in respect of two of the incidents of alleged importance (neither has any FIR been lodged under section 154 of the Code of Criminal Procedure in respect of the calls that were considered suspect nor any chargesheet under section 173(2) thereof been filed by the Central Bureau of Investigation upon completion of investigation into offences under the Prevention of Corruption Act). The contents of the report as on the date the impugned order withdrawing clearance was passed, have to be seen as mere insinuations which the Joint Secretary failed to appreciate while recommending withdrawal of clearance; (ii) Every officer holding a public office has to act in furtherance of public good. This necessarily requires him to act in utmost good faith. Clause (6) of the clearance dated October 1, 2018 would not absolve the respondents of the requirement of recording reasons in the file though, in terms of such clause, they may not be under any duty to communicate such reasons. If power to act without reason is assumed, such power would tantamount to arbitrary exercise of power, - an anathema to Article 14 of the Constitution of India, and hence unsustainable in law. The twin reasons assigned by the Joint Secretary for recommending withdrawal of clearance, which has been uninterruptedly continuing since October 1, 2018, are no reasons in the eye of law and cannot legally and validly form the basis for withdrawal; (iii) The IB never advised withdrawal of clearance based only on inputs provided by it but left it to the Bureau to decide as it deemed fit. There was no attempt worth the name to find out any development over and above the IB report, and a mechanical approach is clearly discernible. There was no assessment or evaluation of the facts, much less proper assessment or evaluation, thereby causing a failure of justice at the administrative decision making level. (iv) Absence of any incriminating material in regard to dealings of the Company ever since the report of the IB reached the Bureau was a vital factor, which ought to have been taken note of but completely escaped the notice of the Joint Secretary; (v) The issue of disposal of the fresh request for security clearance had been pending before the Bureau since October, 2018 with the file moving from one desk to another without any tangible result. The judicial conscience of this Court is not satisfied that this is a case where emergent action of the nature under consideration was called for, dispensing with due process of law and compliance with natural justice principles; (vi) Although the subject is claimed by the respondents to be in overall charge of the affairs of the Company, there is not an iota of evidence in relation to his activities post December 10, 2018 and there is not even any hint of contravention of any of the provisions of the security programme since October 1, 2018, i.e., the date of issue of the security clearance; (vii) Concerns about national interest and State security have been urged as strong reasons for non-interference but nothing substantial on that front has also surfaced from the file warranting rejection of the prayer for interim relief; and (viii) There can be no two opinions that national interest must have precedence over any other interest but mere chanting of national interest without any evidence in support thereof would not afford ground for the respondents to resist a claim for interference in acts of illegality, arbitrariness and unreasonableness vitiating the proceedings which, at this stage, appears to be well-founded. 15. It would amount to rupturing and hurting the Courts sense of justice if the patent injustice is allowed to be perpetrated and the cause of justice is not vindicated at this stage. A post-decisional hearing, in the present circumstances, would not serve the ends of justice. 16. Apart from the exercise of power that this Court has found to be illegal, arbitrary and unreasonable, the ground reality as has been pleaded by the petitioners in paragraphs 15 and 17(k) of the writ petition cannot be overlooked. Abrupt closure of the business operations by the petitioners would render hundreds of employees who have been employed at the retail outlets, after the lockdown restrictions have been eased, jobless. The petitioners also have several third party contracts apart from their contractual obligation with the airport operator (MIAL), and may be liable for actions from these parties as contended by them. The inconvenience caused to the passengers, too, cannot be ignored. ### Response: 1 ### Explanation: cited by Mr. Singh, this Court is of the opinion that the propositions of law laid down therein do not admit of any doubt but what is of importance is that such decisions turned on the facts before the respective Courts. Blind reliance cannot be placed on precedents merely because of some resemblance on the factual score of denial/withdrawal of security clearance being the matters in issue. In the light of the applicable law, the facts and circumstances that have emerged in the present case have to examined and a decision in sound exercise of judicial discretion delivered either way on the merits of the rival claims.14. The report of the IB and the materials available in the relevant file which Mr. Singh has placed before us have been read. Mr. Kadam has not been given access to the same owing to the concern of secrecy to be maintained in such cases expressed by Mr. Singh but such non- access is not prejudicial to the cause of the petitioners for the view this Court proposes to take, based firstly on Mr. Singhs answer to a query that there is nothing adverse as against the present Directors of the Company and next, resting on this Courts prima facie conclusions as delineated hereunder:(i) Even assuming what the IB has referred to as adverse, appearing on its records as against the subject on December 10, 2018, the same is relevant as on that date but it appears to be of no efficacy for the reason that there were no developments since then in respect of two of the incidents of alleged importance (neither has any FIR been lodged under section 154 of the Code of Criminal Procedure in respect of the calls that were considered suspect nor any chargesheet under section 173(2) thereof been filed by the Central Bureau of Investigation upon completion of investigation into offences under the Prevention of Corruption Act). The contents of the report as on the date the impugned order withdrawing clearance was passed, have to be seen as mere insinuations which the Joint Secretary failed to appreciate while recommending withdrawal of clearance;(ii) Every officer holding a public office has to act in furtherance of public good. This necessarily requires him to act in utmost good faith. Clause (6) of the clearance dated October 1, 2018 would not absolve the respondents of the requirement of recording reasons in the file though, in terms of such clause, they may not be under any duty to communicate such reasons. If power to act without reason is assumed, such power would tantamount to arbitrary exercise of power, - an anathema to Article 14 of the Constitution of India, and hence unsustainable in law. The twin reasons assigned by the Joint Secretary for recommending withdrawal of clearance, which has been uninterruptedly continuing since October 1, 2018, are no reasons in the eye of law and cannot legally and validly form the basis for withdrawal;(iii) The IB never advised withdrawal of clearance based only on inputs provided by it but left it to the Bureau to decide as it deemed fit. There was no attempt worth the name to find out any development over and above the IB report, and a mechanical approach is clearly discernible. There was no assessment or evaluation of the facts, much less proper assessment or evaluation, thereby causing a failure of justice at the administrative decision making level.(iv) Absence of any incriminating material in regard to dealings of the Company ever since the report of the IB reached the Bureau was a vital factor, which ought to have been taken note of but completely escaped the notice of the Joint Secretary;(v) The issue of disposal of the fresh request for security clearance had been pending before the Bureau since October, 2018 with the file moving from one desk to another without any tangible result. The judicial conscience of this Court is not satisfied that this is a case where emergent action of the nature under consideration was called for, dispensing with due process of law and compliance with natural justice principles;(vi) Although the subject is claimed by the respondents to be in overall charge of the affairs of the Company, there is not an iota of evidence in relation to his activities post December 10, 2018 and there is not even any hint of contravention of any of the provisions of the security programme since October 1, 2018, i.e., the date of issue of the security clearance;(vii) Concerns about national interest and State security have been urged as strong reasons for non-interference but nothing substantial on that front has also surfaced from the file warranting rejection of the prayer for interim relief; and(viii) There can be no two opinions that national interest must have precedence over any other interest but mere chanting of national interest without any evidence in support thereof would not afford ground for the respondents to resist a claim for interference in acts of illegality, arbitrariness and unreasonableness vitiating the proceedings which, at this stage, appears to be well-founded.15. It would amount to rupturing and hurting the Courts sense of justice if the patent injustice is allowed to be perpetrated and the cause of justice is not vindicated at this stage. A post-decisional hearing, in the present circumstances, would not serve the ends of justice.16. Apart from the exercise of power that this Court has found to be illegal, arbitrary and unreasonable, the ground reality as has been pleaded by the petitioners in paragraphs 15 and 17(k) of the writ petition cannot be overlooked. Abrupt closure of the business operations by the petitioners would render hundreds of employees who have been employed at the retail outlets, after the lockdown restrictions have been eased, jobless. The petitioners also have several third party contracts apart from their contractual obligation with the airport operator (MIAL), and may be liable for actions from these parties as contended by them. The inconvenience caused to the passengers, too, cannot be ignored.

THE STATE OF ARUNACHAL PRADESH Vs. RAMCHANDRA RABIDAS @ RATAN RABIDAS

the M.V. Act, as executive authorities cannot take away a beneficial provision under a special law enacted by Parliament (para 14 of the impugned judgment), while on the other hand, it has opined that the M.V. Act is not a complete code in itself, and there is no complete bar to investigate road traffic offences under the provisions of Cr.P.C. (para 23 of the impugned judgment). 15. In our considered view the position of law is well-settled. This Court has consistently held that the M.V. Act,1988 is a complete code in itself in so far as motor vehicles are concerned. (National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662) However, there is no bar under the M.V. Act or otherwise, to try and prosecute offences under the IPC for an offence relating to motor vehicle accidents. On this ground as well, the impugned judgment is liable to be set aside. 16. The object behind punishing persons found guilty of causing motor vehicle accidents has been succinctly stated by this Court in Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 in the following words: 11. Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down. When this Court lamented two decades ago that more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country, the saturation of accidents toll was not even half of what it is today. So V .R. Krishna Iyer, J., has suggested in the said decision [Rattan Singh v. State of Punjab, (1979) 4 SCC 719 : 1980 SCC (Cri) 17 ] thus: (SCC p. 720, para 3) Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. 12. In State of Karnataka v. Krishna [(1987) 1 SCC 538 : 1987 SCC (Cri) 198 ] this Court did not allow a sentence of fine, imposed on a driver who was convicted under Section 304-A IPC to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing the death of a human being. In that case this Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine. 13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles. [emphasis supplied] In Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 , the Court opined that there is a constant concern of the Court on imposition of adequate sentence in respect of commission of offences in cases of motor vehicle accidents. In that case, the appellant was found guilty for the offences punishable under Sections 337, 338, 279 and 304-A IPC and sentenced to undergo simple imprisonment for six months along with fine. The Court held that: 32. We may note with profit that an appropriate punishment works as an eye-opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like flies to the wanton boys. They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act. 33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored. [emphasis supplied]

1[ds]6. In our view there is no conflict between the provisions of the IPC and the MV Act. Both the statutes operate in entirely different spheres. The offences provided under both the statutes are separate and distinct from each other. The penal consequences provided under both the statutes are also independent and distinct from each other. The ingredients of offences under the both statutes, as discussed earlier, are different, and an offender can be tried and punished independently under both statutes. The principle that the special law should prevail over the general law, has no application in cases of prosecution of offenders in road accidents under the IPC and M.V. Act7. It is pertinent to mention that there is no provision under the M.V. Act which separately deals with offences causing death, or grievous hurt, or hurt by a motor vehicle in cases of motor vehicle accidents. Chapter XIII of the M.V. Act is silent about the act of rash and negligent driving resulting in death, or hurt, or grievous hurt, to persons nor does it prescribe any separate punishment for the same; whereas Sections 279, 304 Part II, 304A, 337 and 338 of the IPC have been specifically framed to deal with such offences8. Section 26 of the General Clauses Act, 1897 provides, Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offenceIt is well settled that an act or an omission can constitute an offence under the IPC and at the same time, be an offence under any other law. The finding of the High Court that the prosecution of offenders under two statutes i.e. the M.V. Act and the IPC, is unsustainable and contrary to law, is therefore, set aside9. The legislative intent of the MV Act, and in particular Chapter XIII of the MV Act, was not to override or supersede the provisions of the IPC in so far as convictions of offenders in motor vehicle accidents are concerned. Offences under Chapter XIII of the MV Act, cannot abrogate the applicability of the provisions under Sections 297, 304, 304A, 337 and 338 of the IPC. The offences do not overlap, and therefore, the maxim of generalia specialibus nonderogant is inapplicable, and could not have been invoked. The offences prescribed under the IPC are independent of the offences prescribed under the M.V. Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under the IPC would offend Section 5 of the IPC, as held by the High Court, in so far as punishment for offences under the M.V. Act is concerned10. Considering the matter from a different perspective, offences under Chapter XIII of the MV Act are compoundable in nature in view of Section 208(3) of the MV Act, whereas offences under Section 279, 304 Part II and 304A IPC are not12. The principle of proportionality between the crime and punishment has to be borne in mind. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. (Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608) The maximum imprisonment for a first time offence under Chapter XIII of the M.V. Act, is up to only six months; whereas the maximum imprisonment for a first time offence under the IPC in relation to road traffic offences can go upto 10 years under Section 304 Part II of the IPC. The sentence imposed by the courts should be commensurate with the seriousness of the offence, and should have a deterring effect on wrong-doers. ( State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 3 SCC 738 ) The punishment of offenders of motor vehicle accidents under the IPC is stricter and proportionate to the offence committed, as compared with the M.V. Act13. We thus hold that a prosecution, if otherwise maintainable, would lie both under the IPC and the MV Act, since both the statutes operate with full vigour, in their own independent spheres. Even assuming that some of the provisions of the MV Act and IPC are overlapping, it cannot be said that the offences under both the statutes are incompatible14. The High Court has given a contradictory finding by holding on the one hand that the provisions of the Cr.P.C must succumb to the provisions of the M.V. Act, as executive authorities cannot take away a beneficial provision under a special law enacted by Parliament (para 14 of the impugned judgment), while on the other hand, it has opined that the M.V. Act is not a complete code in itself, and there is no complete bar to investigate road traffic offences under the provisions of Cr.P.C. (para 23 of the impugned judgment)15. In our considered view the position of law is well-settled. This Court has consistently held that the M.V. Act,1988 is a complete code in itself in so far as motor vehicles are concerned. (National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662) However, there is no bar under the M.V. Act or otherwise, to try and prosecute offences under the IPC for an offence relating to motor vehicle accidents. On this ground as well, the impugned judgment is liable to be set aside.If the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committedIf the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: the M.V. Act, as executive authorities cannot take away a beneficial provision under a special law enacted by Parliament (para 14 of the impugned judgment), while on the other hand, it has opined that the M.V. Act is not a complete code in itself, and there is no complete bar to investigate road traffic offences under the provisions of Cr.P.C. (para 23 of the impugned judgment). 15. In our considered view the position of law is well-settled. This Court has consistently held that the M.V. Act,1988 is a complete code in itself in so far as motor vehicles are concerned. (National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662) However, there is no bar under the M.V. Act or otherwise, to try and prosecute offences under the IPC for an offence relating to motor vehicle accidents. On this ground as well, the impugned judgment is liable to be set aside. 16. The object behind punishing persons found guilty of causing motor vehicle accidents has been succinctly stated by this Court in Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 in the following words: 11. Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down. When this Court lamented two decades ago that more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country, the saturation of accidents toll was not even half of what it is today. So V .R. Krishna Iyer, J., has suggested in the said decision [Rattan Singh v. State of Punjab, (1979) 4 SCC 719 : 1980 SCC (Cri) 17 ] thus: (SCC p. 720, para 3) Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. 12. In State of Karnataka v. Krishna [(1987) 1 SCC 538 : 1987 SCC (Cri) 198 ] this Court did not allow a sentence of fine, imposed on a driver who was convicted under Section 304-A IPC to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing the death of a human being. In that case this Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine. 13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles. [emphasis supplied] In Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 , the Court opined that there is a constant concern of the Court on imposition of adequate sentence in respect of commission of offences in cases of motor vehicle accidents. In that case, the appellant was found guilty for the offences punishable under Sections 337, 338, 279 and 304-A IPC and sentenced to undergo simple imprisonment for six months along with fine. The Court held that: 32. We may note with profit that an appropriate punishment works as an eye-opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like flies to the wanton boys. They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act. 33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored. [emphasis supplied] ### Response: 1 ### Explanation: has no application in cases of prosecution of offenders in road accidents under the IPC and M.V. Act7. It is pertinent to mention that there is no provision under the M.V. Act which separately deals with offences causing death, or grievous hurt, or hurt by a motor vehicle in cases of motor vehicle accidents. Chapter XIII of the M.V. Act is silent about the act of rash and negligent driving resulting in death, or hurt, or grievous hurt, to persons nor does it prescribe any separate punishment for the same; whereas Sections 279, 304 Part II, 304A, 337 and 338 of the IPC have been specifically framed to deal with such offences8. Section 26 of the General Clauses Act, 1897 provides, Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offenceIt is well settled that an act or an omission can constitute an offence under the IPC and at the same time, be an offence under any other law. The finding of the High Court that the prosecution of offenders under two statutes i.e. the M.V. Act and the IPC, is unsustainable and contrary to law, is therefore, set aside9. The legislative intent of the MV Act, and in particular Chapter XIII of the MV Act, was not to override or supersede the provisions of the IPC in so far as convictions of offenders in motor vehicle accidents are concerned. Offences under Chapter XIII of the MV Act, cannot abrogate the applicability of the provisions under Sections 297, 304, 304A, 337 and 338 of the IPC. The offences do not overlap, and therefore, the maxim of generalia specialibus nonderogant is inapplicable, and could not have been invoked. The offences prescribed under the IPC are independent of the offences prescribed under the M.V. Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under the IPC would offend Section 5 of the IPC, as held by the High Court, in so far as punishment for offences under the M.V. Act is concerned10. Considering the matter from a different perspective, offences under Chapter XIII of the MV Act are compoundable in nature in view of Section 208(3) of the MV Act, whereas offences under Section 279, 304 Part II and 304A IPC are not12. The principle of proportionality between the crime and punishment has to be borne in mind. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. (Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608) The maximum imprisonment for a first time offence under Chapter XIII of the M.V. Act, is up to only six months; whereas the maximum imprisonment for a first time offence under the IPC in relation to road traffic offences can go upto 10 years under Section 304 Part II of the IPC. The sentence imposed by the courts should be commensurate with the seriousness of the offence, and should have a deterring effect on wrong-doers. ( State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 3 SCC 738 ) The punishment of offenders of motor vehicle accidents under the IPC is stricter and proportionate to the offence committed, as compared with the M.V. Act13. We thus hold that a prosecution, if otherwise maintainable, would lie both under the IPC and the MV Act, since both the statutes operate with full vigour, in their own independent spheres. Even assuming that some of the provisions of the MV Act and IPC are overlapping, it cannot be said that the offences under both the statutes are incompatible14. The High Court has given a contradictory finding by holding on the one hand that the provisions of the Cr.P.C must succumb to the provisions of the M.V. Act, as executive authorities cannot take away a beneficial provision under a special law enacted by Parliament (para 14 of the impugned judgment), while on the other hand, it has opined that the M.V. Act is not a complete code in itself, and there is no complete bar to investigate road traffic offences under the provisions of Cr.P.C. (para 23 of the impugned judgment)15. In our considered view the position of law is well-settled. This Court has consistently held that the M.V. Act,1988 is a complete code in itself in so far as motor vehicles are concerned. (National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662) However, there is no bar under the M.V. Act or otherwise, to try and prosecute offences under the IPC for an offence relating to motor vehicle accidents. On this ground as well, the impugned judgment is liable to be set aside.If the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committedIf the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence

Ranjit Chandra Chowdhury Vs. Mohitosh Mukherjee

rate of nine and three-eights per centum per annum from the day when the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.(2) Such date fixed for payment shall be the fifteenth day from the date of the order excluding the day of the order.(3) If within the time fixed in the order under sub-section (1), the tenant deposits in the court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the premises, shall be dismissed by the court. In default of such payment the court shall proceed with the hearing of the suit :Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in clause (i) of the proviso to sub-section (1) of Section 12 on three occasions within a period of eighteen months."* * * * * * *7. The tenant claims the benefit of Section 14 but the landlord relies upon the proviso to sub-section (3) quoted above. Further the tenant also relies upon Section 24 of the repealing Act which is to the following effect :"24. When there is no proceeding pending in Court for the recovery of possession of the premises the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default."Therefore it is contended that the acceptance of rent in respect of the period of default in payment of rent under Section 12 (1) (i) in September operates as a waiver of the default under Section 24.8. Mr. Bhattacharji on behalf of the tenant contends that the old tenancy was dead after the notice and on acceptance of rent a new tenancy came into existence. The other side contends that by the acceptance of rent, the old tenancy on the old terms continued. Each side as cited a number of rulings. We do not consider it necessary to refer to these rulings or to discuss the question. In Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 and in Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi, AIR 1965 SC 414 (particularly the first at page 1069)it was held in connection with a statutory tenancy that a landlord accepting rent does not assent to a new contractual tenancy but continues the old tenancy. In the Calcutta Credit Corporation Ltd. v. Happy Homes (P) Ltd., 1968-2 SCR 20 = (AIR 1968 SC 471 ) the subject has been discussed in detail. Under Section l13 of the Transfer of Property Act a notice is waived, by an act on the part of the person giving it showing an intention to treat the lease as subsisting, provided there is the express or implied consent of the person to whom it is given. Here the difficulty is sloved by the attitude the tenant took in this case. His case was that the old tenancy revived and continued. According to him the landlord acquiesced in having the old tenancy continued. If we go by the tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 14 of the repealed Act. There were two consecutive defaults and in the period of 18 months there were more than three defaults. The benefit of Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 24 of the new Act can hardly assist the tenant. That section is not retrospective and will operate from the date on which it came into force. Mr. Bhattacharji claimed that it may be taken as a rule of decision or laying down a rule of evidence but we think it impinges upon the substantive rights of landlord and tenants which can only be claimed after the commencement of the Act and not before. The section puts an embargo on any claim based on default in payment of rent when the landlord accepts rent after default and therefore it affects the substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so states or there is a clear intendment. There are no express words in the statute making S. 24 retrospective and we fail to see any intendment in it to apply to cases pending on March 31, 1956 when the new Act came into force, and this suit was then pending. If it had been merely a matter of procedure or creating a rule of decision we might have held that the provisions applied to the suit, but that is not the case here.As we said the section creates a change in the substantive rights and therefore must be held to be prospective in operation and not retrospective unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 12 (1) (i) because he had been paying rents beyond the period limited by the agreement or by the section . These defaults were also more than three and therefore the proviso to Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it.

0[ds]Under Section l13 of the Transfer of Property Act a notice is waived, by an act on the part of the person giving it showing an intention to treat the lease as subsisting, provided there is the express or implied consent of the person to whom it is given. Here the difficulty is sloved by the attitude the tenant took in this case. His case was that the old tenancy revived and continued. According to him the landlord acquiesced in having the old tenancy continued. If we go by the tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 14 of the repealed Act. There were two consecutive defaults and in the period of 18 months there were more than three defaults. The benefit of Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 24 of the new Act can hardly assist the tenant. That section is not retrospective and will operate from the date on which it came intosection puts an embargo on any claim based on default in payment of rent when the landlord accepts rent after default and therefore it affects the substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so states or there is a clear intendment. There are no express words in the statute making S. 24 retrospective and we fail to see any intendment in it to apply to cases pending on March 31, 1956 when the new Act came into force, and this suit was then pending. If it had been merely a matter of procedure or creating a rule of decision we might have held that the provisions applied to the suit, but that is not the case here.As we said the section creates a change in the substantive rights and therefore must be held to be prospective in operation and not retrospective unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 12 (1) (i) because he had been paying rents beyond the period limited by the agreement or by the section . These defaults were also more than three and therefore the proviso to Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: rate of nine and three-eights per centum per annum from the day when the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.(2) Such date fixed for payment shall be the fifteenth day from the date of the order excluding the day of the order.(3) If within the time fixed in the order under sub-section (1), the tenant deposits in the court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the premises, shall be dismissed by the court. In default of such payment the court shall proceed with the hearing of the suit :Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in clause (i) of the proviso to sub-section (1) of Section 12 on three occasions within a period of eighteen months."* * * * * * *7. The tenant claims the benefit of Section 14 but the landlord relies upon the proviso to sub-section (3) quoted above. Further the tenant also relies upon Section 24 of the repealing Act which is to the following effect :"24. When there is no proceeding pending in Court for the recovery of possession of the premises the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default."Therefore it is contended that the acceptance of rent in respect of the period of default in payment of rent under Section 12 (1) (i) in September operates as a waiver of the default under Section 24.8. Mr. Bhattacharji on behalf of the tenant contends that the old tenancy was dead after the notice and on acceptance of rent a new tenancy came into existence. The other side contends that by the acceptance of rent, the old tenancy on the old terms continued. Each side as cited a number of rulings. We do not consider it necessary to refer to these rulings or to discuss the question. In Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 and in Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi, AIR 1965 SC 414 (particularly the first at page 1069)it was held in connection with a statutory tenancy that a landlord accepting rent does not assent to a new contractual tenancy but continues the old tenancy. In the Calcutta Credit Corporation Ltd. v. Happy Homes (P) Ltd., 1968-2 SCR 20 = (AIR 1968 SC 471 ) the subject has been discussed in detail. Under Section l13 of the Transfer of Property Act a notice is waived, by an act on the part of the person giving it showing an intention to treat the lease as subsisting, provided there is the express or implied consent of the person to whom it is given. Here the difficulty is sloved by the attitude the tenant took in this case. His case was that the old tenancy revived and continued. According to him the landlord acquiesced in having the old tenancy continued. If we go by the tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 14 of the repealed Act. There were two consecutive defaults and in the period of 18 months there were more than three defaults. The benefit of Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 24 of the new Act can hardly assist the tenant. That section is not retrospective and will operate from the date on which it came into force. Mr. Bhattacharji claimed that it may be taken as a rule of decision or laying down a rule of evidence but we think it impinges upon the substantive rights of landlord and tenants which can only be claimed after the commencement of the Act and not before. The section puts an embargo on any claim based on default in payment of rent when the landlord accepts rent after default and therefore it affects the substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so states or there is a clear intendment. There are no express words in the statute making S. 24 retrospective and we fail to see any intendment in it to apply to cases pending on March 31, 1956 when the new Act came into force, and this suit was then pending. If it had been merely a matter of procedure or creating a rule of decision we might have held that the provisions applied to the suit, but that is not the case here.As we said the section creates a change in the substantive rights and therefore must be held to be prospective in operation and not retrospective unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 12 (1) (i) because he had been paying rents beyond the period limited by the agreement or by the section . These defaults were also more than three and therefore the proviso to Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it. ### Response: 0 ### Explanation: Under Section l13 of the Transfer of Property Act a notice is waived, by an act on the part of the person giving it showing an intention to treat the lease as subsisting, provided there is the express or implied consent of the person to whom it is given. Here the difficulty is sloved by the attitude the tenant took in this case. His case was that the old tenancy revived and continued. According to him the landlord acquiesced in having the old tenancy continued. If we go by the tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 14 of the repealed Act. There were two consecutive defaults and in the period of 18 months there were more than three defaults. The benefit of Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 24 of the new Act can hardly assist the tenant. That section is not retrospective and will operate from the date on which it came intosection puts an embargo on any claim based on default in payment of rent when the landlord accepts rent after default and therefore it affects the substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so states or there is a clear intendment. There are no express words in the statute making S. 24 retrospective and we fail to see any intendment in it to apply to cases pending on March 31, 1956 when the new Act came into force, and this suit was then pending. If it had been merely a matter of procedure or creating a rule of decision we might have held that the provisions applied to the suit, but that is not the case here.As we said the section creates a change in the substantive rights and therefore must be held to be prospective in operation and not retrospective unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 12 (1) (i) because he had been paying rents beyond the period limited by the agreement or by the section . These defaults were also more than three and therefore the proviso to Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it.

District Council Of United Khasi & Jaintia Hills& Ors. Etc Vs. Miss Sitimon Sawian Etc

plains, than the construction which would extend the District Councils power of making laws to the transfer of land. The report of the Sub-Committee referred to earlier clearly supports this construction. The passages from the report to which our attention has been drawn do not show that power to make laws for transfer of land was recommended to be vested in the District Councils. On the other hand, the recommendations contained in the report were restricted to the power to control only use and occupation of the land and it was this limited power which was recommended to be vested in the District Councils. The would be clear from the following passage in the report."Accepting this then as a fundamental feature of the administration of the hills, we recommend that the Hill Districts should have powers of legislation over occupation or use of land other than land comprising reserved forest under the Assam Forest Regulation of 1891 or other law applicable. The only limitation we would place upon this is to provide that the local councils should not require payment for the occupation of vacant land by the Provincial Government for public purposes or prevent the acquisition of private land, also required for public purposes, on payment of compensation." 11. The argument that in construing the provisions conferring power to legislate the words should be interpreted broadly and no narrow or pedantic interpretation should be placed upon them is, in our opinion, inapplicable to the case in hand. The power of legislation conferred on bodies like the District Councils which concerns us must be confined strictly within the limits prescribed by the plain language used and the doctrine of wide construction seems to be somewhat inapt. We are not concerned with the provisions conferring plenary nature of legislative power on the Parliament or State Legislatures in which case the appellants argument may be more appropriately accepted. We consider it proper at this stage to refer to Para 12 of the Sixth Schedule which provides:"12. Application of Acts of Parliament and of the Legislature of the State of autonomous districts and autonomous regions - (1) Notwithstanding anything in this Constitution- (a) no Act of the Legislature of the State in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region unless in either case the District Council for such district or having jurisdiction over such region by public notification so directs and the District Council in giving such direction with respect to any Act may direct that the Act shall in its application to such district or region or any part thereof have effect subject to such exceptions or modifications as it thinks fit; (b) the Governor may, by public notification, direct that any Act of Parliament or of the Legislature of the State to which the provisions of cl. (a) of this sub-paragraph do not apply shall not apply to any autonomous district or an autonomous region, or shall apply to such district or region or any part thereof subject to such exceptions or modification as he may specify in the notification. (2) Any direction given under sub-paragraph (1) of this paragraph may be given so as to have retrospective effect". It is clear from this provision read with para 3 (1) (a) already reproduced, that the District Councils unlike the Parliament and the State Legislatures are not intended to be clothed with plenary power of legislation. Their power to make laws is expressly limited by the provisions of the Sixth Schedule which has created them and they can do nothing beyond the limits which circumscribe their power. It is beyond the domain of the courts to enlarge constructively their power to make laws. 12. The proviso to para 3 (1) (a) merely serves to ensure that no law made by the Regional and District Councils with respect to allotment, occupation or use or setting apart of land as mentioned in that clause, shall have the effect of preventing compulsory acquisition of land for public purposes, by the Government of Assam in accordance with the law in force authorising such acquisition. This proviso by no means enlarges the scope of the power conferred on the Regional and District Councils by cl. (a) and indeed it has not been so claimed by the learned Attorney-General. A proviso may undoubtedly be sometimes inserted to allay fears considered by some to be unfounded. But the question must ultimately come back to the point whether or not power to make laws conferred by cl. (a) includes the power to do so with respect to transfer of land and this must turn upon the exact language and its primary meaning. The simple words used in cl. (a) are incapable of bearing the construction suggested by the learned Attorney-General and the provision found in the proviso does not in any way alter the operative effect of this clause. 13. The preamble of the impugned Act no doubt does speak of the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote the interests of the inhabitants thereof" but the subject of transfer is clearly beyond the scope of the law making power conferred on the District Council by the Constitution and to that extent, therefore, the impugned Act which means S.3 thereof is void being beyond the jurisdiction of the District Council. 14. On the view we have taken of the plain meaning of para 3 (1)(a) of the Sixth Schedule it is unnecessary to consider the other points relating to the violation of Art.14 of the Constitution. This Court normally does not decide points which are not strictly necessary for disposing of the appeal before it. 15. Thes

0[ds]It therefore seems to us to be quite clear that the framers of the Constitution wanted to confine the power of the District Councils to make laws under Para 3 (1) (a) to the distribution or setting apart, of the land mentioned therein only for the purposes of occupation or use as expressly stated therein, without intending to extend that power to transfer of land. This construction is not only in accord with the real sense discernible from the plain meaning of the language used in this clause, but it also serves more effectively to carry out the manifest purpose, policy and scheme underlying the provisions of the Constitution namely, protection of the hill people in the North-Eastern Hills Districts against exploitation by the more sophisticated outsiders from the plains, than the construction which would extend the District Councils power of making laws to the transfer of land. The report of the Sub-Committee referred to earlier clearly supports this construction. The passages from the report to which our attention has been drawn do not show that power to make laws for transfer of land was recommended to be vested in the District Councils. On the other hand, the recommendations contained in the report were restricted to the power to control only use and occupation of the land and it was this limited power which was recommended to be vested in the District Councils. The would be clear from the following passage in the report"Accepting this then as a fundamental feature of the administration of the hills, we recommend that the Hill Districts should have powers of legislation over occupation or use of land other than land comprising reserved forest under the Assam Forest Regulation of 1891 or other law applicable. The only limitation we would place upon this is to provide that the local councils should not require payment for the occupation of vacant land by the Provincial Government for public purposes or prevent the acquisition of private land, also required for public purposes, on payment of compensation."13. TheIt is clear from this provision read with para 3 (1) (a) already reproduced, that the District Councils unlike the Parliament and the State Legislatures are not intended to be clothed with plenary power of legislation. Their power to make laws is expressly limited by the provisions of the Sixth Schedule which has created them and they can do nothing beyond the limits which circumscribe their power. It is beyond the domain of the courts to enlarge constructively their power to make laws15. Theproviso to para 3 (1) (a) merely serves to ensure that no law made by the Regional and District Councils with respect to allotment, occupation or use or setting apart of land as mentioned in that clause, shall have the effect of preventing compulsory acquisition of land for public purposes, by the Government of Assam in accordance with the law in force authorising such acquisition. This proviso by no means enlarges the scope of the power conferred on the Regional and District Councils by cl. (a) and indeed it has not been so claimed by the learned Attorney-General. A proviso may undoubtedly be sometimes inserted to allay fears considered by some to be unfounded. But the question must ultimately come back to the point whether or not power to make laws conferred by cl. (a) includes the power to do so with respect to transfer of land and this must turn upon the exact language and its primary meaning. The simple words used in cl. (a) are incapable of bearing the construction suggested by the learned Attorney-General and the provision found in the proviso does not in any way alter the operative effect of this clausee preamble of theimpugned Act no doubt does speak of the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote the interests of the inhabitants thereof" but the subject of transfer is clearly beyond the scope of the law making power conferred on the District Council by the Constitution and to that extent, therefore, the impugned Act which means S.3 thereof is void being beyond the jurisdiction of the District CouncilOn the view we have taken of the plain meaning of para 3 (1)(a) of the Sixth Schedule it is unnecessary to consider the other points relating to the violation of Art.14 of the Constitution. This Court normally does not decide points which are not strictly necessary for disposing of the appeal before it.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: plains, than the construction which would extend the District Councils power of making laws to the transfer of land. The report of the Sub-Committee referred to earlier clearly supports this construction. The passages from the report to which our attention has been drawn do not show that power to make laws for transfer of land was recommended to be vested in the District Councils. On the other hand, the recommendations contained in the report were restricted to the power to control only use and occupation of the land and it was this limited power which was recommended to be vested in the District Councils. The would be clear from the following passage in the report."Accepting this then as a fundamental feature of the administration of the hills, we recommend that the Hill Districts should have powers of legislation over occupation or use of land other than land comprising reserved forest under the Assam Forest Regulation of 1891 or other law applicable. The only limitation we would place upon this is to provide that the local councils should not require payment for the occupation of vacant land by the Provincial Government for public purposes or prevent the acquisition of private land, also required for public purposes, on payment of compensation." 11. The argument that in construing the provisions conferring power to legislate the words should be interpreted broadly and no narrow or pedantic interpretation should be placed upon them is, in our opinion, inapplicable to the case in hand. The power of legislation conferred on bodies like the District Councils which concerns us must be confined strictly within the limits prescribed by the plain language used and the doctrine of wide construction seems to be somewhat inapt. We are not concerned with the provisions conferring plenary nature of legislative power on the Parliament or State Legislatures in which case the appellants argument may be more appropriately accepted. We consider it proper at this stage to refer to Para 12 of the Sixth Schedule which provides:"12. Application of Acts of Parliament and of the Legislature of the State of autonomous districts and autonomous regions - (1) Notwithstanding anything in this Constitution- (a) no Act of the Legislature of the State in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region unless in either case the District Council for such district or having jurisdiction over such region by public notification so directs and the District Council in giving such direction with respect to any Act may direct that the Act shall in its application to such district or region or any part thereof have effect subject to such exceptions or modifications as it thinks fit; (b) the Governor may, by public notification, direct that any Act of Parliament or of the Legislature of the State to which the provisions of cl. (a) of this sub-paragraph do not apply shall not apply to any autonomous district or an autonomous region, or shall apply to such district or region or any part thereof subject to such exceptions or modification as he may specify in the notification. (2) Any direction given under sub-paragraph (1) of this paragraph may be given so as to have retrospective effect". It is clear from this provision read with para 3 (1) (a) already reproduced, that the District Councils unlike the Parliament and the State Legislatures are not intended to be clothed with plenary power of legislation. Their power to make laws is expressly limited by the provisions of the Sixth Schedule which has created them and they can do nothing beyond the limits which circumscribe their power. It is beyond the domain of the courts to enlarge constructively their power to make laws. 12. The proviso to para 3 (1) (a) merely serves to ensure that no law made by the Regional and District Councils with respect to allotment, occupation or use or setting apart of land as mentioned in that clause, shall have the effect of preventing compulsory acquisition of land for public purposes, by the Government of Assam in accordance with the law in force authorising such acquisition. This proviso by no means enlarges the scope of the power conferred on the Regional and District Councils by cl. (a) and indeed it has not been so claimed by the learned Attorney-General. A proviso may undoubtedly be sometimes inserted to allay fears considered by some to be unfounded. But the question must ultimately come back to the point whether or not power to make laws conferred by cl. (a) includes the power to do so with respect to transfer of land and this must turn upon the exact language and its primary meaning. The simple words used in cl. (a) are incapable of bearing the construction suggested by the learned Attorney-General and the provision found in the proviso does not in any way alter the operative effect of this clause. 13. The preamble of the impugned Act no doubt does speak of the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote the interests of the inhabitants thereof" but the subject of transfer is clearly beyond the scope of the law making power conferred on the District Council by the Constitution and to that extent, therefore, the impugned Act which means S.3 thereof is void being beyond the jurisdiction of the District Council. 14. On the view we have taken of the plain meaning of para 3 (1)(a) of the Sixth Schedule it is unnecessary to consider the other points relating to the violation of Art.14 of the Constitution. This Court normally does not decide points which are not strictly necessary for disposing of the appeal before it. 15. Thes ### Response: 0 ### Explanation: It therefore seems to us to be quite clear that the framers of the Constitution wanted to confine the power of the District Councils to make laws under Para 3 (1) (a) to the distribution or setting apart, of the land mentioned therein only for the purposes of occupation or use as expressly stated therein, without intending to extend that power to transfer of land. This construction is not only in accord with the real sense discernible from the plain meaning of the language used in this clause, but it also serves more effectively to carry out the manifest purpose, policy and scheme underlying the provisions of the Constitution namely, protection of the hill people in the North-Eastern Hills Districts against exploitation by the more sophisticated outsiders from the plains, than the construction which would extend the District Councils power of making laws to the transfer of land. The report of the Sub-Committee referred to earlier clearly supports this construction. The passages from the report to which our attention has been drawn do not show that power to make laws for transfer of land was recommended to be vested in the District Councils. On the other hand, the recommendations contained in the report were restricted to the power to control only use and occupation of the land and it was this limited power which was recommended to be vested in the District Councils. The would be clear from the following passage in the report"Accepting this then as a fundamental feature of the administration of the hills, we recommend that the Hill Districts should have powers of legislation over occupation or use of land other than land comprising reserved forest under the Assam Forest Regulation of 1891 or other law applicable. The only limitation we would place upon this is to provide that the local councils should not require payment for the occupation of vacant land by the Provincial Government for public purposes or prevent the acquisition of private land, also required for public purposes, on payment of compensation."13. TheIt is clear from this provision read with para 3 (1) (a) already reproduced, that the District Councils unlike the Parliament and the State Legislatures are not intended to be clothed with plenary power of legislation. Their power to make laws is expressly limited by the provisions of the Sixth Schedule which has created them and they can do nothing beyond the limits which circumscribe their power. It is beyond the domain of the courts to enlarge constructively their power to make laws15. Theproviso to para 3 (1) (a) merely serves to ensure that no law made by the Regional and District Councils with respect to allotment, occupation or use or setting apart of land as mentioned in that clause, shall have the effect of preventing compulsory acquisition of land for public purposes, by the Government of Assam in accordance with the law in force authorising such acquisition. This proviso by no means enlarges the scope of the power conferred on the Regional and District Councils by cl. (a) and indeed it has not been so claimed by the learned Attorney-General. A proviso may undoubtedly be sometimes inserted to allay fears considered by some to be unfounded. But the question must ultimately come back to the point whether or not power to make laws conferred by cl. (a) includes the power to do so with respect to transfer of land and this must turn upon the exact language and its primary meaning. The simple words used in cl. (a) are incapable of bearing the construction suggested by the learned Attorney-General and the provision found in the proviso does not in any way alter the operative effect of this clausee preamble of theimpugned Act no doubt does speak of the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote the interests of the inhabitants thereof" but the subject of transfer is clearly beyond the scope of the law making power conferred on the District Council by the Constitution and to that extent, therefore, the impugned Act which means S.3 thereof is void being beyond the jurisdiction of the District CouncilOn the view we have taken of the plain meaning of para 3 (1)(a) of the Sixth Schedule it is unnecessary to consider the other points relating to the violation of Art.14 of the Constitution. This Court normally does not decide points which are not strictly necessary for disposing of the appeal before it.

The Premier Automobiles Ltd Vs. S.N. Shrivastava & Anr

that the previous year should have come to an end before liability can arise. The previous year of an assessee may in some cases end after the commencement but before the end of a financial year in which advance-tax is payable:"it may in other cases commence and end with the financial year. But the liability to pay advance-tax is not in any manner affected because the previous year ends before or with the financial year.Where an assessees previous year is the financial year, his total income may not be determined for the previous year before the commencement of the financial year, but on that account no exemption from payment of advance-tax is granted by the Act. On the commencement of a financial year, a person who is previously assessed to tax is liable to pay advance-tax on demand by the Income-tax Officer under Section 210. The quantum of tax will be determined by Section 209 and will be adjusted in the manner provided by Section 210 (3). That applies to every assessee whether the tax is liable to be paid by him on his own total income, or on the income assessed in his hands as a representative assessee. If he has not been previously assessed in the character in which he is liable to pay tax, an obligation is imposed by Section 212 (3) upon him to make an estimate of his income and to pay advance-tax.That provision applies to his own income and also to the income in respect of which he is a representative assessee. There is nothing in the Act under which the liability to pay advance-tax of a representative assessee depends upon determination of the total income for the previous year."5. An argument of hardship was also raised. It was said that an agent of a non-resident may not normally have in his possession any materials on which he may estimate the income in respect of which he may be chargeable to advance-tax, if he had not been previously assessed to tax as an agent of a non-resident.That again, in our judgment, is not a ground which exempts an agent from liability to pay advance-tax on behalf of his principal. Liability to submit an estimate necessarily implies the duty to secure the requisite information from the non-resident for submitting the estimate. The tax, it must be remembered, is assessed on the agent for and on behalf of the principal, and the Act as made an express provision enabling the agent to recover from the principal the tax so paid by him. Once the Income-tax Officer treats a person as an agent of non-resident, liability to pay tax on regular assessment arises; and his liability as a representative assessee to pay advance-tax is not excluded by any provision of the Act.6. In our judgment, Sections 207 and 208 which impose liability to pay advance-tax in a financial year, Section 210 which authorises the Income-tax Officer to make a demand for payment of advance-tax from a person who is previously assessed, and Section 212 (3) which imposes the duty to make an estimate of the total income likely to be received or to accrue or arise and to pay advance-tax if the total estimated income exceeds the maximum amount not chargeable to tax in his case by Rs. 2,500, apply to every person whether he is assessed in respect of his own income or as a representative assessee, and we are unable to imply an unexpressed limitation on the express words of the statute in favour of an agent of a non-resident principal.7. In the present case by order dated February 25, 1965, for the assessment year 1964-65 the Company was treated as an agent of the non-resident principal. Since the Company was treated as an agent of the non-resident it became liable to pay advance-tax in the financial year 1964-65. By virtue of Section 207 read with Section 208 the declaration that the Company was an agent involved liability to pay advance-tax as well as tax assessed on regular assessment. We are unable to hold that the liability to pay advance-tax did not arise against the Company.8.The plea that the provisions imposing liability to pay advance-tax upon an agent of a non-resident infringe the equality clause of the Constitution has no substance.As already observed, the liability to pay advance-tax arises under Sections 207 and 208 and its quantum is determined by Ss. 209, 210 and 212 (3) and it is not predicated of the accrual of liability that the total income of the previous year should be ascertained or precisely ascertainable when demand is made by the Income-tax Officer under Section 210, or when the assessee is required to make an estimate.The assumption that an assessee whose year of account coincides with the financial year is not in respect of that year liable to pay advance-tax is not warranted. The computation of advance-tax is not dependent upon the completion of the previous year: it depends upon the rules prescribed by Section 209, 210 and 212. Every person who has been previously assessed to tax is liable when ordered by the Income-tax Officer to pay advance-tax, subject to the right to make an estimate under Section 212 (1). A person who has not been previously assessed but whose income is likely to exceed the specified amount is also liable to pay advance-tax. The act does not accord discriminatory treatment between different assesses. Payment of advance-tax is on account and is always liable to be adjusted against the tax assessed on regular assessment.That again applies to all assesses. It is then difficult to appreciate the grounds on which the plea of denial of equal protection may be sustained. The only ground urged, that an assessee may escape liability to pay advance-tax where his previous year coincides with the financial year, is without substance, and no other ground is set up in support of the plea of violation of the guarantee of equality under Article 14 of the Constitution.

0[ds]The tax, it must be remembered, is assessed on the agent for and on behalf of the principal, and the Act as made an express provision enabling the agent to recover from the principal the tax so paid by him. Once the Income-tax Officer treats a person as an agent of non-resident, liability to pay tax on regular assessment arises; and his liability as a representative assessee to pay advance-tax is not excluded by any provision of the Act.In our judgment, Sections 207 and 208 which impose liability to pay advance-tax in a financial year, Section 210 which authorises the Income-tax Officer to make a demand for payment of advance-tax from a person who is previously assessed, and Section 212 (3) which imposes the duty to make an estimate of the total income likely to be received or to accrue or arise and to pay advance-tax if the total estimated income exceeds the maximum amount not chargeable to tax in his case by Rs. 2,500, apply to every person whether he is assessed in respect of his own income or as a representative assessee, and we are unable to imply an unexpressed limitation on the express words of the statute in favour of an agent of a non-resident principal.In the present case by order dated February 25, 1965, for the assessment year 1964-65 the Company was treated as an agent of the non-resident principal. Since the Company was treated as an agent of the non-resident it became liable to pay advance-tax in the financial year 1964-65. By virtue of Section 207 read with Section 208 the declaration that the Company was an agent involved liability to pay advance-tax as well as tax assessed on regular assessment. We are unable to hold that the liability to pay advance-tax did not arise against the Company.8.The plea that the provisions imposing liability to pay advance-tax upon an agent of a non-resident infringe the equality clause of the Constitution has no substance.As already observed, the liability to pay advance-tax arises under Sections 207 and 208 and its quantum is determined by Ss. 209, 210 and 212 (3) and it is not predicated of the accrual of liability that the total income of the previous year should be ascertained or precisely ascertainable when demand is made by the Income-tax Officer under Section 210, or when the assessee is required to make an estimate.The assumption that an assessee whose year of account coincides with the financial year is not in respect of that year liable to pay advance-tax is not warranted. The computation of advance-tax is not dependent upon the completion of the previous year: it depends upon the rules prescribed by Section 209, 210 and 212. Every person who has been previously assessed to tax is liable when ordered by the Income-tax Officer to pay advance-tax, subject to the right to make an estimate under Section 212 (1). A person who has not been previously assessed but whose income is likely to exceed the specified amount is also liable to pay advance-tax. The act does not accord discriminatory treatment between different assesses. Payment of advance-tax is on account and is always liable to be adjusted against the tax assessed on regular assessment.That again applies to all assesses. It is then difficult to appreciate the grounds on which the plea of denial of equal protection may be sustained. The only ground urged, that an assessee may escape liability to pay advance-tax where his previous year coincides with the financial year, is without substance, and no other ground is set up in support of the plea of violation of the guarantee of equality under Article 14 of the Constitution.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: that the previous year should have come to an end before liability can arise. The previous year of an assessee may in some cases end after the commencement but before the end of a financial year in which advance-tax is payable:"it may in other cases commence and end with the financial year. But the liability to pay advance-tax is not in any manner affected because the previous year ends before or with the financial year.Where an assessees previous year is the financial year, his total income may not be determined for the previous year before the commencement of the financial year, but on that account no exemption from payment of advance-tax is granted by the Act. On the commencement of a financial year, a person who is previously assessed to tax is liable to pay advance-tax on demand by the Income-tax Officer under Section 210. The quantum of tax will be determined by Section 209 and will be adjusted in the manner provided by Section 210 (3). That applies to every assessee whether the tax is liable to be paid by him on his own total income, or on the income assessed in his hands as a representative assessee. If he has not been previously assessed in the character in which he is liable to pay tax, an obligation is imposed by Section 212 (3) upon him to make an estimate of his income and to pay advance-tax.That provision applies to his own income and also to the income in respect of which he is a representative assessee. There is nothing in the Act under which the liability to pay advance-tax of a representative assessee depends upon determination of the total income for the previous year."5. An argument of hardship was also raised. It was said that an agent of a non-resident may not normally have in his possession any materials on which he may estimate the income in respect of which he may be chargeable to advance-tax, if he had not been previously assessed to tax as an agent of a non-resident.That again, in our judgment, is not a ground which exempts an agent from liability to pay advance-tax on behalf of his principal. Liability to submit an estimate necessarily implies the duty to secure the requisite information from the non-resident for submitting the estimate. The tax, it must be remembered, is assessed on the agent for and on behalf of the principal, and the Act as made an express provision enabling the agent to recover from the principal the tax so paid by him. Once the Income-tax Officer treats a person as an agent of non-resident, liability to pay tax on regular assessment arises; and his liability as a representative assessee to pay advance-tax is not excluded by any provision of the Act.6. In our judgment, Sections 207 and 208 which impose liability to pay advance-tax in a financial year, Section 210 which authorises the Income-tax Officer to make a demand for payment of advance-tax from a person who is previously assessed, and Section 212 (3) which imposes the duty to make an estimate of the total income likely to be received or to accrue or arise and to pay advance-tax if the total estimated income exceeds the maximum amount not chargeable to tax in his case by Rs. 2,500, apply to every person whether he is assessed in respect of his own income or as a representative assessee, and we are unable to imply an unexpressed limitation on the express words of the statute in favour of an agent of a non-resident principal.7. In the present case by order dated February 25, 1965, for the assessment year 1964-65 the Company was treated as an agent of the non-resident principal. Since the Company was treated as an agent of the non-resident it became liable to pay advance-tax in the financial year 1964-65. By virtue of Section 207 read with Section 208 the declaration that the Company was an agent involved liability to pay advance-tax as well as tax assessed on regular assessment. We are unable to hold that the liability to pay advance-tax did not arise against the Company.8.The plea that the provisions imposing liability to pay advance-tax upon an agent of a non-resident infringe the equality clause of the Constitution has no substance.As already observed, the liability to pay advance-tax arises under Sections 207 and 208 and its quantum is determined by Ss. 209, 210 and 212 (3) and it is not predicated of the accrual of liability that the total income of the previous year should be ascertained or precisely ascertainable when demand is made by the Income-tax Officer under Section 210, or when the assessee is required to make an estimate.The assumption that an assessee whose year of account coincides with the financial year is not in respect of that year liable to pay advance-tax is not warranted. The computation of advance-tax is not dependent upon the completion of the previous year: it depends upon the rules prescribed by Section 209, 210 and 212. Every person who has been previously assessed to tax is liable when ordered by the Income-tax Officer to pay advance-tax, subject to the right to make an estimate under Section 212 (1). A person who has not been previously assessed but whose income is likely to exceed the specified amount is also liable to pay advance-tax. The act does not accord discriminatory treatment between different assesses. Payment of advance-tax is on account and is always liable to be adjusted against the tax assessed on regular assessment.That again applies to all assesses. It is then difficult to appreciate the grounds on which the plea of denial of equal protection may be sustained. The only ground urged, that an assessee may escape liability to pay advance-tax where his previous year coincides with the financial year, is without substance, and no other ground is set up in support of the plea of violation of the guarantee of equality under Article 14 of the Constitution. ### Response: 0 ### Explanation: The tax, it must be remembered, is assessed on the agent for and on behalf of the principal, and the Act as made an express provision enabling the agent to recover from the principal the tax so paid by him. Once the Income-tax Officer treats a person as an agent of non-resident, liability to pay tax on regular assessment arises; and his liability as a representative assessee to pay advance-tax is not excluded by any provision of the Act.In our judgment, Sections 207 and 208 which impose liability to pay advance-tax in a financial year, Section 210 which authorises the Income-tax Officer to make a demand for payment of advance-tax from a person who is previously assessed, and Section 212 (3) which imposes the duty to make an estimate of the total income likely to be received or to accrue or arise and to pay advance-tax if the total estimated income exceeds the maximum amount not chargeable to tax in his case by Rs. 2,500, apply to every person whether he is assessed in respect of his own income or as a representative assessee, and we are unable to imply an unexpressed limitation on the express words of the statute in favour of an agent of a non-resident principal.In the present case by order dated February 25, 1965, for the assessment year 1964-65 the Company was treated as an agent of the non-resident principal. Since the Company was treated as an agent of the non-resident it became liable to pay advance-tax in the financial year 1964-65. By virtue of Section 207 read with Section 208 the declaration that the Company was an agent involved liability to pay advance-tax as well as tax assessed on regular assessment. We are unable to hold that the liability to pay advance-tax did not arise against the Company.8.The plea that the provisions imposing liability to pay advance-tax upon an agent of a non-resident infringe the equality clause of the Constitution has no substance.As already observed, the liability to pay advance-tax arises under Sections 207 and 208 and its quantum is determined by Ss. 209, 210 and 212 (3) and it is not predicated of the accrual of liability that the total income of the previous year should be ascertained or precisely ascertainable when demand is made by the Income-tax Officer under Section 210, or when the assessee is required to make an estimate.The assumption that an assessee whose year of account coincides with the financial year is not in respect of that year liable to pay advance-tax is not warranted. The computation of advance-tax is not dependent upon the completion of the previous year: it depends upon the rules prescribed by Section 209, 210 and 212. Every person who has been previously assessed to tax is liable when ordered by the Income-tax Officer to pay advance-tax, subject to the right to make an estimate under Section 212 (1). A person who has not been previously assessed but whose income is likely to exceed the specified amount is also liable to pay advance-tax. The act does not accord discriminatory treatment between different assesses. Payment of advance-tax is on account and is always liable to be adjusted against the tax assessed on regular assessment.That again applies to all assesses. It is then difficult to appreciate the grounds on which the plea of denial of equal protection may be sustained. The only ground urged, that an assessee may escape liability to pay advance-tax where his previous year coincides with the financial year, is without substance, and no other ground is set up in support of the plea of violation of the guarantee of equality under Article 14 of the Constitution.

Centre For Pil Vs. Union Of India

that one must give a purposive interpretation to the scheme of the Act. It was submitted that under Section 9 it has been inter alia stated that all business of the Commission shall, as far as possible, be transacted unanimously. It was submitted that since in Vineet Narains case (supra) this Court had observed that CVC would be selected by a three member Committee, including the Leader of the Opposition it was patently obvious that the said Committee would decide by unanimity or consensus. That, it was no where stated that the Committee would decide by majority. 50. We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. Under the proviso to Section 4(1) Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the Members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three Members, the working of the Act would become unworkable. One more aspect needs to be mentioned. Under Section 4(2) of the 2003 Act it has been stipulated that the vacancy in the Committee shall not invalidate the appointment. This provision militates against the argument of the petitioner that the recommendation under Section 4 has to be unanimous. Before concluding, we would like to quote the observations from the judgment in Grindley and Another v. Barker, 1 Bos. & Pul. 229, which reads as under : "I think it is now pretty well established, that where a number of persons are entrusted with the powers not of mere private confidence, but in some respects of a general nature and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole." 51. The Court, while explaining the raison detre behind the principle, observed : "It is impossible that bodies of men should always be brought to think alike. There is often a degree of coercion, and the majority is governed by the minority, and vice versa, according to the strength of opinions, tempers, prejudices, and even interests. We shall not therefore think ourselves bound in this case by the rule which holds in that. I lay no great stress on the clause of the act which appoints a majority to act in certain cases, because that appears to have been done for particular reasons which do not apply to the ultimate trial: it relates only to the assembling the searchers; now there is no doubt that all the six triers must assemble; and the only question, what they must do when assembled? We have no light to direct us in this part, except the argument from the nature of the subject. The leather being subject to seizure in every stage of the manufacture, the tribunal ought to be composed of persons skilful in every branch of the manufacture. And I cannot say there is no weight in the argument, drawn from the necessity of persons concurring in the judgments, who are possessed of different branches of knowledge, but standing alone it is not so conclusive as to oblige us to break through the general rule; besides, it is very much obviated by this consideration when all have assembled and communicated to each other the necessary information, it is fitter that the majority should decide than that all should be pressed to a concurrence. If this be so, then the reasons drawn from the act and which have been supposed to demand, that the whole body should unite in the judgment, have no sufficient avail, and consequently the general rule of law will take place; viz. that the judgment of four out of six being the whole body to which the authority is delegated regularly assemble and acting, is the judgment of the all." 52. Similarly, we would like to quote Halsburys Laws of England (4th Ed. Re-issue), on this aspect, which states as under: "Where a power of a public nature is committed to several persons, in the absence of statutory provision or implication to the contrary the act of the majority is binding upon the minority." 53. In the circumstances, we find no merit in the submission made on behalf of the petitioner on this point that the recommendation/decision dated 3rd September, 2010 stood vitiated on the ground that it was not unanimous. Guidelines/Directions of this Court 54. The 2003 Act came into force on and from 11th September, 2003. In the present case we find non-compliance of some of the provisions of the 2003 Act. Under Section 3(3), the Central Vigilance Commissioner and the Vigilance Commissioners are to be appointed from amongst persons – (a) who have been or who are in All-India Service or in any civil service of the Union or in a civil post under the Union having requisite knowledge and experience as indicated in Section 3(3)(a); or (b) who have held office or are holding office in a corporation established by or under any Central Act or a Central Government company and persons who have experience in finance including insurance and banking, law, vigilance and investigations.

1[ds]the registration of the FIR against the appellants and others cannot be held to be the result of mala fides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of the legal technicalities...".The Government Order granting sanction (Annexure R-I in that petition) was also upheld by this Court and it was further held that"our observations with respect to the legality of the Government Order are not conclusive regarding its constitutionality but are restricted so far as its applicability to the registration of the FIR against the appellant is concerned. We are, therefore, of the opinion that the aforesaid Government Order has not been shown to be in any way illegal or unconstitutional so far as the rights of the appellants are concerned...".Granting liberty to the parties to raise all pleas before the Trial Court, the appeal was dismissed. In the charge-sheet filed before the Trial Court, in paragraph 7, definite role was attributed to Accused No. 8 (respondent No. 2 herein) and allegations were made againstthe proviso to Section 4(1) Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the Members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three Members, the working of the Act would becomeAs stated above, we need to keep in mind the difference between judicial review and merit review. As stated above, in this case the judicial determination is confined to the integrity of the decision making process undertaken by the HPC in terms of the proviso to Section 4(1) of the 2003 Act. If one carefully examines the judgment of this Court in Ashok Kumar Yadavs case (supra) the facts indicate that the High Court had sat in appeal over the personal integrity of the Chairman and Members of the Haryana Public Service Commission in support of the collateral attack on the selections made by the State Public Service Commission. In that case, the High Court had failed to keep in mind the difference between judicial and merit review. Further, this Court found that the appointments of the Chairperson and Members of Haryana Public Service Commission was in accordance with the provisions of the Constitution. In that case, there was no issue as to the legality of theprocess. On the contrary the last sentence of para 9 supports our above reasoning when it says that it is always open to the Court to set aside the decision (selection) of the Haryana Public Service Commission if such decision is vitiated by the influence of extraneous considerations or if such selection is made in breach of the statute or the rules.45. Even in R.K. Jains case (supra), this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether procedure adopted was fair, just and reasonable. We reiterate that Government is not accountable to the courts for the choice made but Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction. We do not wish to multiply the authorities on thisthe circumstances, under the scheme of that Act it was held that while discharging the functions as a Chancellor, the Governor does everything in his discretion as a Chancellor and he does not act on the aid and advice of his Council of Ministers. This judgment has no application to the scheme of the 2003 Act. As stated hereinabove, the CVC is constituted under Section 3(1) of the 2003 Act. The Central Vigilance Commissioner is appointed under Section 4(1) of the 2003 Act by the President by warrant under her hand and seal after obtaining the recommendation of a Committee consisting of the Prime Minister as the Chairperson and two other Members. As submitted by the learned Attorney General although under the 2003 Act the Central Vigilance Commissioner is appointed after obtaining the recommendation of the High Powered Committee, such recommendation has got to be accepted by the Prime Minister, who is the concerned authority under Article 77(3), and if such recommendation is forwarded to the President under Article 74, then the President is bound to act in accordance with the advice tendered. Further under the Rules of Business the concerned authority is the Prime Minister. Therefore, the advice tendered to the President by the Prime Minister regarding appointment of the Central Vigilance Commissioner will be binding on the President. It may be noted that the above submissions of the Attorney General find support even in the judgment of the Division Bench of this Court in Bhuri Naths case (supra) which in turn has placed reliance on the judgment of this Court in Samsher Singh v. State of Punjab [(1974) 2 SCC 831] in which a Bench of 7 Judges of this Court held that under the Cabinet system of Government, as embodied in our Constitution, the Governor is the formal Head of the State. He exercises all his powers and functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers. That, the real executive power is vested in the Council of Ministers of the Cabinet. The same view is reiterated in R.K. Jains case (supra). However, in Bhuri Naths case (supra) it has been clarified that the Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is coextensive with the legislative power, is with the aid and advice of the Council of Ministers headed by the Chief Minister. Thus, we conclude that the judgment in Bhuri Naths case has no application as the scheme of the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 as well as the scheme of Maharshi Dayanand University Act, 1975 as well as the scheme of the various Endowment Acts is quite different from the scheme of the 2003 Act. Hence, there is no merit in the contention advanced on behalf of respondent No. 2 that in the matter of appointment of Central Vigilance Commissioner under Section 4(1) of the 2003 Act the President is not to act on the advice of the Council of Ministers as is provided in Article 74 of the Constitution. Unanimity or consensus under Section 4(2) of the 2003We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. Underthe proviso to Section 4(1) Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the Members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three Members, the working of the Act would becomeunworkable. One more aspect needs to be mentioned. Under Section 4(2) of the 2003 Act it has been stipulated that the vacancy in the Committee shall not invalidate the appointment. This provision militates against the argument of the petitioner that the recommendation under Section 4 has to be unanimous. Before concluding, we would like to quote the observations from the judgment inGrindley and Another v. Barker, 1 Bos. & Pul.which reads as underthink it is now pretty well established, that where a number of persons are entrusted with the powers not of mere private confidence, but in some respects of a general nature and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.The Court, while explaining the raison detre behind the principle, observedis impossible that bodies of men should always be brought to think alike. There is often a degree of coercion, and the majority is governed by the minority, and vice versa, according to the strength of opinions, tempers, prejudices, and even interests. We shall not therefore think ourselves bound in this case by the rule which holds in that. I lay no great stress on the clause of the act which appoints a majority to act in certain cases, because that appears to have been done for particular reasons which do not apply to the ultimate trial: it relates only to the assembling the searchers; now there is no doubt that all the six triers must assemble; and the only question, what they must do when assembled? We have no light to direct us in this part, except the argument from the nature of the subject. The leather being subject to seizure in every stage of the manufacture, the tribunal ought to be composed of persons skilful in every branch of the manufacture. And I cannot say there is no weight in the argument, drawn from the necessity of persons concurring in the judgments, who are possessed of different branches of knowledge, but standing alone it is not so conclusive as to oblige us to break through the general rule; besides, it is very much obviated by this consideration when all have assembled and communicated to each other the necessary information, it is fitter that the majority should decide than that all should be pressed to a concurrence. If this be so, then the reasons drawn from the act and which have been supposed to demand, that the whole body should unite in the judgment, have no sufficient avail, and consequently the general rule of law will take place; viz. that the judgment of four out of six being the whole body to which the authority is delegated regularly assemble and acting, is the judgment of the all."

### 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: that one must give a purposive interpretation to the scheme of the Act. It was submitted that under Section 9 it has been inter alia stated that all business of the Commission shall, as far as possible, be transacted unanimously. It was submitted that since in Vineet Narains case (supra) this Court had observed that CVC would be selected by a three member Committee, including the Leader of the Opposition it was patently obvious that the said Committee would decide by unanimity or consensus. That, it was no where stated that the Committee would decide by majority. 50. We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. Under the proviso to Section 4(1) Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the Members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three Members, the working of the Act would become unworkable. One more aspect needs to be mentioned. Under Section 4(2) of the 2003 Act it has been stipulated that the vacancy in the Committee shall not invalidate the appointment. This provision militates against the argument of the petitioner that the recommendation under Section 4 has to be unanimous. Before concluding, we would like to quote the observations from the judgment in Grindley and Another v. Barker, 1 Bos. & Pul. 229, which reads as under : "I think it is now pretty well established, that where a number of persons are entrusted with the powers not of mere private confidence, but in some respects of a general nature and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole." 51. The Court, while explaining the raison detre behind the principle, observed : "It is impossible that bodies of men should always be brought to think alike. There is often a degree of coercion, and the majority is governed by the minority, and vice versa, according to the strength of opinions, tempers, prejudices, and even interests. We shall not therefore think ourselves bound in this case by the rule which holds in that. I lay no great stress on the clause of the act which appoints a majority to act in certain cases, because that appears to have been done for particular reasons which do not apply to the ultimate trial: it relates only to the assembling the searchers; now there is no doubt that all the six triers must assemble; and the only question, what they must do when assembled? We have no light to direct us in this part, except the argument from the nature of the subject. The leather being subject to seizure in every stage of the manufacture, the tribunal ought to be composed of persons skilful in every branch of the manufacture. And I cannot say there is no weight in the argument, drawn from the necessity of persons concurring in the judgments, who are possessed of different branches of knowledge, but standing alone it is not so conclusive as to oblige us to break through the general rule; besides, it is very much obviated by this consideration when all have assembled and communicated to each other the necessary information, it is fitter that the majority should decide than that all should be pressed to a concurrence. If this be so, then the reasons drawn from the act and which have been supposed to demand, that the whole body should unite in the judgment, have no sufficient avail, and consequently the general rule of law will take place; viz. that the judgment of four out of six being the whole body to which the authority is delegated regularly assemble and acting, is the judgment of the all." 52. Similarly, we would like to quote Halsburys Laws of England (4th Ed. Re-issue), on this aspect, which states as under: "Where a power of a public nature is committed to several persons, in the absence of statutory provision or implication to the contrary the act of the majority is binding upon the minority." 53. In the circumstances, we find no merit in the submission made on behalf of the petitioner on this point that the recommendation/decision dated 3rd September, 2010 stood vitiated on the ground that it was not unanimous. Guidelines/Directions of this Court 54. The 2003 Act came into force on and from 11th September, 2003. In the present case we find non-compliance of some of the provisions of the 2003 Act. Under Section 3(3), the Central Vigilance Commissioner and the Vigilance Commissioners are to be appointed from amongst persons – (a) who have been or who are in All-India Service or in any civil service of the Union or in a civil post under the Union having requisite knowledge and experience as indicated in Section 3(3)(a); or (b) who have held office or are holding office in a corporation established by or under any Central Act or a Central Government company and persons who have experience in finance including insurance and banking, law, vigilance and investigations. ### Response: 1 ### Explanation: Vigilance Commissioner will be binding on the President. It may be noted that the above submissions of the Attorney General find support even in the judgment of the Division Bench of this Court in Bhuri Naths case (supra) which in turn has placed reliance on the judgment of this Court in Samsher Singh v. State of Punjab [(1974) 2 SCC 831] in which a Bench of 7 Judges of this Court held that under the Cabinet system of Government, as embodied in our Constitution, the Governor is the formal Head of the State. He exercises all his powers and functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers. That, the real executive power is vested in the Council of Ministers of the Cabinet. The same view is reiterated in R.K. Jains case (supra). However, in Bhuri Naths case (supra) it has been clarified that the Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is coextensive with the legislative power, is with the aid and advice of the Council of Ministers headed by the Chief Minister. Thus, we conclude that the judgment in Bhuri Naths case has no application as the scheme of the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 as well as the scheme of Maharshi Dayanand University Act, 1975 as well as the scheme of the various Endowment Acts is quite different from the scheme of the 2003 Act. Hence, there is no merit in the contention advanced on behalf of respondent No. 2 that in the matter of appointment of Central Vigilance Commissioner under Section 4(1) of the 2003 Act the President is not to act on the advice of the Council of Ministers as is provided in Article 74 of the Constitution. Unanimity or consensus under Section 4(2) of the 2003We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. Underthe proviso to Section 4(1) Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the Members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three Members, the working of the Act would becomeunworkable. One more aspect needs to be mentioned. Under Section 4(2) of the 2003 Act it has been stipulated that the vacancy in the Committee shall not invalidate the appointment. This provision militates against the argument of the petitioner that the recommendation under Section 4 has to be unanimous. Before concluding, we would like to quote the observations from the judgment inGrindley and Another v. Barker, 1 Bos. & Pul.which reads as underthink it is now pretty well established, that where a number of persons are entrusted with the powers not of mere private confidence, but in some respects of a general nature and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.The Court, while explaining the raison detre behind the principle, observedis impossible that bodies of men should always be brought to think alike. There is often a degree of coercion, and the majority is governed by the minority, and vice versa, according to the strength of opinions, tempers, prejudices, and even interests. We shall not therefore think ourselves bound in this case by the rule which holds in that. I lay no great stress on the clause of the act which appoints a majority to act in certain cases, because that appears to have been done for particular reasons which do not apply to the ultimate trial: it relates only to the assembling the searchers; now there is no doubt that all the six triers must assemble; and the only question, what they must do when assembled? We have no light to direct us in this part, except the argument from the nature of the subject. The leather being subject to seizure in every stage of the manufacture, the tribunal ought to be composed of persons skilful in every branch of the manufacture. And I cannot say there is no weight in the argument, drawn from the necessity of persons concurring in the judgments, who are possessed of different branches of knowledge, but standing alone it is not so conclusive as to oblige us to break through the general rule; besides, it is very much obviated by this consideration when all have assembled and communicated to each other the necessary information, it is fitter that the majority should decide than that all should be pressed to a concurrence. If this be so, then the reasons drawn from the act and which have been supposed to demand, that the whole body should unite in the judgment, have no sufficient avail, and consequently the general rule of law will take place; viz. that the judgment of four out of six being the whole body to which the authority is delegated regularly assemble and acting, is the judgment of the all."

Dr. P. Nalla Thampy Thera Vs. B.L. Shanker & Others

by any respondent.21. This Court in Dhoom Singh v. Prakash Chandra Sethi ((1975) 3 SCR 595 , 599 : (1975) 1 SCC 597 , 601-02 : AIR 1975 SC 1012 ), held : (SCC pp. 601-02, paras 9, 10)The Legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement. It has yet to thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent. It may be a case of casus omissus. It is a well-known rule of construction of statutes that "A statute, even more than a contract, must be construed, it res magis valeat quam pereat, so that the intentions of the Legislature may not be treated as vain or left to operate in the air." A second consequence of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" - See pages 69 and 70 of Craies on Statute Law - 6th edition.It seems plain the High Court is enjoined to dismiss an election petition which doses not comply with the provision of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collision between the election petitioner and the returned candidate the High Court is fraudulent misled to act under Section 86(1). Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. It there be any necessity of avoiding any such situation as the present one was said to be it is for the Legislature to intervene and make clear and express provision of law for the purpose.22. The ratio of this decision as also the observations in Basappa case (1959 SCR 611 , 624 : AIR 1958 SC 698 : 14 ELR 296), the appellant contends, are wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded. We do not think the appellants contention can be accepted. The earlier decisions of this Court do not in any way militate against the views taken in Dhoom Singh case ((1975) 3 SCR 595 , 599 : (1975) 1 SCC 597 , 601-02 : AIR 1975 SC 1012 ) and the observations made in Basappa case (1959 SCR 611 , 624 : AIR 1958 SC 698 : 14 ELR 296). Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied an to the extent provision has not been made, the Code would be applicable. About eight years back this Court had occasion to point out that if the intention of the Legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act. We find that even earlier in Sheodhan Singh v. Mohan Lal Gautam ((1969) 3 SCR 417 , 421 : (1969) 1 SCC 408 , 411 : 41 ELR 146), this Court had stated : (SCC p. 411, para 9)From the above provisions it is seen that in an election, petition, the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds.23. We must assume that the Legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning in Seaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155 : (1949) 2 KB 481 (CA)) :A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

0[ds]16. There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non-prosecution of the election petition must be treated as on par with withdrawal or abatement and, therefore, though there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in Section 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inacting or even incapacity or inability to prosecute. In the case of withdrawal steeps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a self-contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy. In fact, the terms of Section 87 of the Act clearly prescribed that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the electionis quite clear that there is no distinct provision in the Act laying down any particular on special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecution the petition. The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act. I am further of the opinion that any argument which could be pressed and was adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of Record and possesses all the inherent powers of a court while trying election petitions.The appellant was not the election petitioner. Order IX, Rule 9, of the Code (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition. That can be invoked in an appropriate case by the election petitioner only and not by a respondent. But its own language, Rule 9 provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit by he may apply for an order to set the dismissal aside. Under this rule, therefore, an application for restoration can be made only by the petitioner. Since it is a provision for restoration, it is logical that the provision should be applicable only when the party on account of whose default in appearance the petition was dismissal, makes an application to revive the petition to its former stage prior to dismissal. In the instance case the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration. The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the event of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent. The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations. Specific provisions have been made in the Act to deal with the two situations of withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition has been permitted to substitute himself in the election petition and to pursue the same in accordance with law. These provisions cannot be extended to an application under Order IX, Rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.20. The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for partition. In a suit for partition the position of the plaintiff and that of the defendant is interchangeable. So along as the suit is pending a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can also ask for being transposed as a defendant. The possibility of transposition during the pendency of the suit would to permit a defendant to apply for restoration of a suit for partition which is dismissed for default and the right to apply for transposition would certainly come to an end when the suit is no more alive. In our opinion the respondents position in an election petition would not be higher than that. We, therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.We must assume that the Legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning inSeaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155 : (1949) 2 KB 481 (CA)):A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: by any respondent.21. This Court in Dhoom Singh v. Prakash Chandra Sethi ((1975) 3 SCR 595 , 599 : (1975) 1 SCC 597 , 601-02 : AIR 1975 SC 1012 ), held : (SCC pp. 601-02, paras 9, 10)The Legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement. It has yet to thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent. It may be a case of casus omissus. It is a well-known rule of construction of statutes that "A statute, even more than a contract, must be construed, it res magis valeat quam pereat, so that the intentions of the Legislature may not be treated as vain or left to operate in the air." A second consequence of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" - See pages 69 and 70 of Craies on Statute Law - 6th edition.It seems plain the High Court is enjoined to dismiss an election petition which doses not comply with the provision of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collision between the election petitioner and the returned candidate the High Court is fraudulent misled to act under Section 86(1). Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. It there be any necessity of avoiding any such situation as the present one was said to be it is for the Legislature to intervene and make clear and express provision of law for the purpose.22. The ratio of this decision as also the observations in Basappa case (1959 SCR 611 , 624 : AIR 1958 SC 698 : 14 ELR 296), the appellant contends, are wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded. We do not think the appellants contention can be accepted. The earlier decisions of this Court do not in any way militate against the views taken in Dhoom Singh case ((1975) 3 SCR 595 , 599 : (1975) 1 SCC 597 , 601-02 : AIR 1975 SC 1012 ) and the observations made in Basappa case (1959 SCR 611 , 624 : AIR 1958 SC 698 : 14 ELR 296). Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied an to the extent provision has not been made, the Code would be applicable. About eight years back this Court had occasion to point out that if the intention of the Legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act. We find that even earlier in Sheodhan Singh v. Mohan Lal Gautam ((1969) 3 SCR 417 , 421 : (1969) 1 SCC 408 , 411 : 41 ELR 146), this Court had stated : (SCC p. 411, para 9)From the above provisions it is seen that in an election, petition, the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds.23. We must assume that the Legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning in Seaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155 : (1949) 2 KB 481 (CA)) :A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. ### Response: 0 ### Explanation: certainly not withdrawal. Withdrawal is a positive and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inacting or even incapacity or inability to prosecute. In the case of withdrawal steeps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a self-contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy. In fact, the terms of Section 87 of the Act clearly prescribed that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the electionis quite clear that there is no distinct provision in the Act laying down any particular on special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecution the petition. The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act. I am further of the opinion that any argument which could be pressed and was adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of Record and possesses all the inherent powers of a court while trying election petitions.The appellant was not the election petitioner. Order IX, Rule 9, of the Code (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition. That can be invoked in an appropriate case by the election petitioner only and not by a respondent. But its own language, Rule 9 provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit by he may apply for an order to set the dismissal aside. Under this rule, therefore, an application for restoration can be made only by the petitioner. Since it is a provision for restoration, it is logical that the provision should be applicable only when the party on account of whose default in appearance the petition was dismissal, makes an application to revive the petition to its former stage prior to dismissal. In the instance case the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration. The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the event of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent. The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations. Specific provisions have been made in the Act to deal with the two situations of withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition has been permitted to substitute himself in the election petition and to pursue the same in accordance with law. These provisions cannot be extended to an application under Order IX, Rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.20. The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for partition. In a suit for partition the position of the plaintiff and that of the defendant is interchangeable. So along as the suit is pending a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can also ask for being transposed as a defendant. The possibility of transposition during the pendency of the suit would to permit a defendant to apply for restoration of a suit for partition which is dismissed for default and the right to apply for transposition would certainly come to an end when the suit is no more alive. In our opinion the respondents position in an election petition would not be higher than that. We, therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.We must assume that the Legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning inSeaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155 : (1949) 2 KB 481 (CA)):A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

Tulip Star Hotels Ltd Vs. Special Director Of Enforcement

to the case of present nature, it can only be said that if such transaction had taken place as between the Appellants and the purchaser M/s Hotel Zam Zam, it should have been carried on only through their respective authorized representatives. The statement of Mr. Peter Kerkar, the Appellant in SLP (C) No.7657 of 2011, disclose that on each occasion the transaction was negotiated by the Branch Manager of the Appellant with one Ms. Pinky of M/s Hotel Zam Zam. It is not the case of the Respondent that neither of these two persons who indulged in the transaction of money changing business were not the authorized officials of their respective establishments. If the said factum relating to the business transactions, which had taken place as between the Appellants and M/s Hotel Zam Zam is not in controversy, we fail to see how a violation of paragraph 3 can be alleged as against the Appellants. 17. It is stated that after the transaction as between the Appellants and M/s Hotel Zam Zam concluded, M/s Hotel Zam Zam stated to have indulged in some transaction, which was in violation of the provisions of FERA with which the Appellants were not in any way concerned. It can also be safely held that for any violation or contravention of the provisions of FERA or FEMA at the instance of M/s Hotel Zam Zam after the money changing transaction as between the Appellants and the said concern had come to an end, the Appellants cannot in any way be held responsible or proceeded against. 18. In our considered opinion that in the peculiar facts of this case and having regard to the nature of transactions which had taken place as between the Appellants and M/s Hotel Zam Zam in the manner in which it has been narrated in the impugned order of the Original Authority as noted by the Tribunal, as well as the Division Bench of the High Court, we are convinced that there was no scope to allege a violation of paragraph 3 of the FLM or for that matter Sections 6(4) and 6(5) of FERA, 1973. Based on the interpretation of Sections 6(4), 6(5) of FERA, 1973 and paragraphs 3 & 9 of the FLM, we have held that the Original Authority, the Appellate Tribunal as well as the Division Bench of the High Court failed to appreciate the issue in the proper perspective while holding the appellant guilty of the violation alleged. Therefore, none of the judgments relied upon by the respondents for the proposition that concurrent findings of fact should not be interfered with does not apply to the facts of this case. 19. Once we steer clear of the above position, we come to the question of the higher value at which the foreign currency was alleged to have been sold by the Appellants to M/s Hotel Zam Zam. As pointed out by us earlier, the said act was not the basis for the contravention and imposition of the penalty as against the Appellants. To rule out any controversy, the conclusion of the Original Authority as recorded in its order for finding the Appellants guilty of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA, can be usefully extracted which reads as under: “…….Thus by not insisting on the authorization from the said Hotel Zam Zam disclosing the names, address and other particulars of the persons deputed by them for purchasing foreign exchange from M/s Cox and Kings Travel & Finance Ltd., the said M/s Cox and Kings Travel & Finance Ltd. has contravened the directions contained in para 3 of the Memorandum FLM R/w SEC. 6(4), 6(5) and 7 of the FERA, 1973. I, therefore hold them guilty for the said contraventions.” 20. This apart, when we refer to the confiscation order passed by the Commissioner of Customs in its order dated 21.08.1998, it has been specifically stated as under: “The statements of Mr. Chitrang Mehta, Manager of M/s LKP dated 06/7- 08-97 indicated that there is transaction at prices higher than those prevailing market rates. However, it is also a known fact that the rates for the foreign exchange can be fluctuating and there is hardly any transaction effected at the rates which are recorded for that day to be prevailing in the market not only for the foreign currency but also for to be other goods e.g. shares in the stock market or the metals and other commodities being traded in the specific markets. It is also to be considered that large transactions were being entered into by them and profit made on the sales of such large transactions would not ipso facto induce me to conclude that the mere fact of sales at higher prices would be a preconcerted knowledge that the dollars sold are to be smuggled out of India. I find that the price at which Ms. Pinky Jaisinghani was purchasing the dollars from other FFMCs were settled between her mentor Shri Suleman Tajuddin Patel and not considerations of any other kind.” 21. Therefore, in the impugned orders of the Original Authority, as well as the Tribunal and the Division Bench, the sale effected by the Appellants on a rate higher than the rate prevailing in the market was not the basis for the alleged violation of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA. In the confiscation order passed by the Customs Authorities, where again the Appellants were also one of the noticees, no fault was found as against the Appellants on that ground. In the light of our above conclusions, as regards the higher value at which foreign currency alleged to have been sold by the appellant to Hotel Zam Zam, the reliance placed upon the decision in P.V. Mohammad Barmay Sons (supra) has also no application. The said decision came to be rendered entirely under different facts which cannot be applied to the facts of the present case.

1[ds]21. Therefore, in the impugned orders of the Original Authority, as well as the Tribunal and the Division Bench, the sale effected by the Appellants on a rate higher than the rate prevailing in the market was not the basis for the alleged violation of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA. In the confiscation order passed by the Customs Authorities, where again the Appellants were also one of the noticees, no fault was found as against the Appellants on that ground. In the light of our above conclusions, as regards the higher value at which foreign currency alleged to have been sold by the appellant to Hotel Zam Zam, the reliance placed upon the decision in P.V. Mohammad Barmay Sons (supra) has also no application. The said decision came to be rendered entirely under different facts which cannot be applied to the facts of the present case.

### 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: to the case of present nature, it can only be said that if such transaction had taken place as between the Appellants and the purchaser M/s Hotel Zam Zam, it should have been carried on only through their respective authorized representatives. The statement of Mr. Peter Kerkar, the Appellant in SLP (C) No.7657 of 2011, disclose that on each occasion the transaction was negotiated by the Branch Manager of the Appellant with one Ms. Pinky of M/s Hotel Zam Zam. It is not the case of the Respondent that neither of these two persons who indulged in the transaction of money changing business were not the authorized officials of their respective establishments. If the said factum relating to the business transactions, which had taken place as between the Appellants and M/s Hotel Zam Zam is not in controversy, we fail to see how a violation of paragraph 3 can be alleged as against the Appellants. 17. It is stated that after the transaction as between the Appellants and M/s Hotel Zam Zam concluded, M/s Hotel Zam Zam stated to have indulged in some transaction, which was in violation of the provisions of FERA with which the Appellants were not in any way concerned. It can also be safely held that for any violation or contravention of the provisions of FERA or FEMA at the instance of M/s Hotel Zam Zam after the money changing transaction as between the Appellants and the said concern had come to an end, the Appellants cannot in any way be held responsible or proceeded against. 18. In our considered opinion that in the peculiar facts of this case and having regard to the nature of transactions which had taken place as between the Appellants and M/s Hotel Zam Zam in the manner in which it has been narrated in the impugned order of the Original Authority as noted by the Tribunal, as well as the Division Bench of the High Court, we are convinced that there was no scope to allege a violation of paragraph 3 of the FLM or for that matter Sections 6(4) and 6(5) of FERA, 1973. Based on the interpretation of Sections 6(4), 6(5) of FERA, 1973 and paragraphs 3 & 9 of the FLM, we have held that the Original Authority, the Appellate Tribunal as well as the Division Bench of the High Court failed to appreciate the issue in the proper perspective while holding the appellant guilty of the violation alleged. Therefore, none of the judgments relied upon by the respondents for the proposition that concurrent findings of fact should not be interfered with does not apply to the facts of this case. 19. Once we steer clear of the above position, we come to the question of the higher value at which the foreign currency was alleged to have been sold by the Appellants to M/s Hotel Zam Zam. As pointed out by us earlier, the said act was not the basis for the contravention and imposition of the penalty as against the Appellants. To rule out any controversy, the conclusion of the Original Authority as recorded in its order for finding the Appellants guilty of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA, can be usefully extracted which reads as under: “…….Thus by not insisting on the authorization from the said Hotel Zam Zam disclosing the names, address and other particulars of the persons deputed by them for purchasing foreign exchange from M/s Cox and Kings Travel & Finance Ltd., the said M/s Cox and Kings Travel & Finance Ltd. has contravened the directions contained in para 3 of the Memorandum FLM R/w SEC. 6(4), 6(5) and 7 of the FERA, 1973. I, therefore hold them guilty for the said contraventions.” 20. This apart, when we refer to the confiscation order passed by the Commissioner of Customs in its order dated 21.08.1998, it has been specifically stated as under: “The statements of Mr. Chitrang Mehta, Manager of M/s LKP dated 06/7- 08-97 indicated that there is transaction at prices higher than those prevailing market rates. However, it is also a known fact that the rates for the foreign exchange can be fluctuating and there is hardly any transaction effected at the rates which are recorded for that day to be prevailing in the market not only for the foreign currency but also for to be other goods e.g. shares in the stock market or the metals and other commodities being traded in the specific markets. It is also to be considered that large transactions were being entered into by them and profit made on the sales of such large transactions would not ipso facto induce me to conclude that the mere fact of sales at higher prices would be a preconcerted knowledge that the dollars sold are to be smuggled out of India. I find that the price at which Ms. Pinky Jaisinghani was purchasing the dollars from other FFMCs were settled between her mentor Shri Suleman Tajuddin Patel and not considerations of any other kind.” 21. Therefore, in the impugned orders of the Original Authority, as well as the Tribunal and the Division Bench, the sale effected by the Appellants on a rate higher than the rate prevailing in the market was not the basis for the alleged violation of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA. In the confiscation order passed by the Customs Authorities, where again the Appellants were also one of the noticees, no fault was found as against the Appellants on that ground. In the light of our above conclusions, as regards the higher value at which foreign currency alleged to have been sold by the appellant to Hotel Zam Zam, the reliance placed upon the decision in P.V. Mohammad Barmay Sons (supra) has also no application. The said decision came to be rendered entirely under different facts which cannot be applied to the facts of the present case. ### Response: 1 ### Explanation: 21. Therefore, in the impugned orders of the Original Authority, as well as the Tribunal and the Division Bench, the sale effected by the Appellants on a rate higher than the rate prevailing in the market was not the basis for the alleged violation of paragraph 3 of the FLM read with Sections 6(4), 6(5) and 7 of FERA. In the confiscation order passed by the Customs Authorities, where again the Appellants were also one of the noticees, no fault was found as against the Appellants on that ground. In the light of our above conclusions, as regards the higher value at which foreign currency alleged to have been sold by the appellant to Hotel Zam Zam, the reliance placed upon the decision in P.V. Mohammad Barmay Sons (supra) has also no application. The said decision came to be rendered entirely under different facts which cannot be applied to the facts of the present case.

M/S. Ramnarain Sons (Pr.) Ltd Vs. Commissioner Of Income Tax, Bombay

Dawn Mills were not the stock-in-trade of the appellants and that those shares were purchased by the appellants with the object of acquiring the managing agency. The High Court, however, held that the shares acquired by the appellants formed a capital assets and the loss suffered by sale of 400 out of those shares in the year of account being a capital loss, was not in the computation of income a permissible deduction. The High Court dismissed the notice of motion taken out by the appellants. 6. In considering whether, a transaction is or is not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee having regard to the "legal requirements which are associated with the concept of trade or business". The inference on this question raised by the Tribunal on the facts found is of mixed law and fact and is open to challenge before the High Court on a reference under S. 66 of the Income-tax Act - Venkataswami Naidu and Co., v. Commissioner of Income-tax, 1959-1 SCR Sup. 646 : (AIR 1959 SC 359 ).It was held in Oriental investment Co., Ltd. v. Commissioner of Income-tax, Bombay, 1958 SCR 49 : ((S) AIR 1957 SC 852 ), that the question whether the appellants transactions amounted to dealing in shares and properties or to investment, is a mixed question of law and fact, and that the legal effect of the facts found by the Tribunal on which the assessee could be treated as a dealer or an investor, is a question of law. The Tribunal held that the shares of the Dawn Mills purchased by the appellants did not become their stock-in-trade. But they held that the transaction having been effected in the regular course of the business of the appellants, viz., the acquisition of managing agencies, the loss resulting from the sale of shares was incidental to that business and was a revenue loss. It is not easy to appreciate the process by which this conclusion was reached. The shares were purchased for the purpose of acquiring the managing agency of the Dawn Mills; they were not purchased in the course of the appellants business as dealers in shares. By purchasing the shares which facilitated acquisition of the managing agency, a capital asset was acquired and merely because the managing agency could be utilised for earning profit, the acquisition of the shares which led to the acquisition of the managing agency could not, in the absence of an intention to trade in those shares, be regarded as acquisition of stock-in-trade of the share business. The appellants had undoubtedly purchased the shares of the Dawn Mills with money borrowed at interest, but that circumstance by itself does not evidence an intention to trade in the shares. Nor is the fact that the appellants are dealers in shares and their Memorandum of Association authorises them to carry on business in shares of any importance in the circumstances of this case. The appellants by entering the shares of the Dawn Mills in their statement of shares in which trading transaction were carried on could not alter the real character of the acquisition. The appellants were undoubtedly dealers in shares; but the transaction in the Dawn Mills shares was ex facie not a business transaction. The current market rate at the date of purchase was Rs. 1,610/- per share whereas the appellants acquired the shares at the rate of Rs. 2,321-8-0 per share. Even assuming that the appellants acquired the entire block of 2,507 shares from M/s. Sassoon, J. David and Co., Ltd., - the shares transferred to the names of the Directors being held by them merely as nominees of the appellants - the price per share was considerably in excess of the prevailing market rate. The only reason for entering into the transaction which could not otherwise be regarded as a prudent business transaction, was the acquisition of the managing agency. If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that intention in purchasing shares was not to acquire them as part of the trade of the appellants in shares. The Tribunal found that the Dawn Mills shares were acquired by the appellants for obtaining the managing agency of the Mills. The agency was acquired by virtue of the voting power which the appellants obtained having purchased a very large block of shares, and for acquiring the managing agency, the appellant did not pay any distinct consideration. The managing agency is manifestly the source of profits of the appellants; but the shares purchased and the managing agency acquired were both assets of a capital nature and did not constitute stock-in-trade of a trading venture. If the shares were acquired for obtaining control over the managing agency of the Dawn Mills, the fact that the acquisition of the shares was integrated with the acquisition of the managing agency did not affect the character of the acquisition of the shares. Subsequent disposal of some out of the shares by the appellants could also not convert what was a capital acquisition into an acquisition in the nature of trade. 7. The High Court was therefore right in holding that the acquisition of the managing agency was an acquisition of a capital asset and the loss incurred by sale of the 400 shares was of a capital nature. The High Court was also right in dismissing the notice of motion for an order directing the Tribunal to refer the questions suggested by the appellants. If the acquisition of the shares was not acquisition of a stock-in-trade, but of a capital asset, the appellants, by valuing the shares at cost or market price whichever was lower, could not bring the difference between the purchase price and the valuation made by them into their trading account.

0[ds]5. The High Court agreed with the opinion of the Tribunal that the shares of the Dawn Mills were not the stock-in-trade of the appellants and that those shares were purchased by the appellants with the object of acquiring the managing agency. The High Court, however, held that the shares acquired by the appellants formed a capital assets and the loss suffered by sale of 400 out of those shares in the year of account being a capital loss, was not in the computation of income a permissible deduction. The High Court dismissed the notice of motion taken out by the appellantsThe appellants had undoubtedly purchased the shares of the Dawn Mills with money borrowed at interest, but that circumstance by itself does not evidence an intention to trade in the shares. Nor is the fact that the appellants are dealers in shares and their Memorandum of Association authorises them to carry on business in shares of any importance in the circumstances of this case. The appellants by entering the shares of the Dawn Mills in their statement of shares in which trading transaction were carried on could not alter the real character of the acquisition. The appellants were undoubtedly dealers in shares; but the transaction in the Dawn Mills shares was ex facie not a business transaction. The current market rate at the date of purchase was Rs. 1,610/- per share whereas the appellants acquired the shares at the rate of Rs. 2,321-8-0 per share. Even assuming that the appellants acquired the entire block of 2,507 shares from M/s. Sassoon, J. David and Co., Ltd., - the shares transferred to the names of the Directors being held by them merely as nominees of the appellants - the price per share was considerably in excess of the prevailing market rate. The only reason for entering into the transaction which could not otherwise be regarded as a prudent business transaction, was the acquisition of the managing agency. If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that intention in purchasing shares was not to acquire them as part of the trade of the appellants in shares. The Tribunal found that the Dawn Mills shares were acquired by the appellants for obtaining the managing agency of the Mills. The agency was acquired by virtue of the voting power which the appellants obtained having purchased a very large block of shares, and for acquiring the managing agency, the appellant did not pay any distinct consideration. The managing agency is manifestly the source of profits of the appellants; but the shares purchased and the managing agency acquired were both assets of a capital nature and did not constitute stock-in-trade of a trading venture. If the shares were acquired for obtaining control over the managing agency of the Dawn Mills, the fact that the acquisition of the shares was integrated with the acquisition of the managing agency did not affect the character of the acquisition of the shares. Subsequent disposal of some out of the shares by the appellants could also not convert what was a capital acquisition into an acquisition in the nature of trade7. The High Court was therefore right in holding that the acquisition of the managing agency was an acquisition of a capital asset and the loss incurred by sale of the 400 shares was of a capital nature. The High Court was also right in dismissing the notice of motion for an order directing the Tribunal to refer the questions suggested by the appellants. If the acquisition of the shares was not acquisition of a stock-in-trade, but of a capital asset, the appellants, by valuing the shares at cost or market price whichever was lower, could not bring the difference between the purchase price and the valuation made by them into their trading account.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: Dawn Mills were not the stock-in-trade of the appellants and that those shares were purchased by the appellants with the object of acquiring the managing agency. The High Court, however, held that the shares acquired by the appellants formed a capital assets and the loss suffered by sale of 400 out of those shares in the year of account being a capital loss, was not in the computation of income a permissible deduction. The High Court dismissed the notice of motion taken out by the appellants. 6. In considering whether, a transaction is or is not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee having regard to the "legal requirements which are associated with the concept of trade or business". The inference on this question raised by the Tribunal on the facts found is of mixed law and fact and is open to challenge before the High Court on a reference under S. 66 of the Income-tax Act - Venkataswami Naidu and Co., v. Commissioner of Income-tax, 1959-1 SCR Sup. 646 : (AIR 1959 SC 359 ).It was held in Oriental investment Co., Ltd. v. Commissioner of Income-tax, Bombay, 1958 SCR 49 : ((S) AIR 1957 SC 852 ), that the question whether the appellants transactions amounted to dealing in shares and properties or to investment, is a mixed question of law and fact, and that the legal effect of the facts found by the Tribunal on which the assessee could be treated as a dealer or an investor, is a question of law. The Tribunal held that the shares of the Dawn Mills purchased by the appellants did not become their stock-in-trade. But they held that the transaction having been effected in the regular course of the business of the appellants, viz., the acquisition of managing agencies, the loss resulting from the sale of shares was incidental to that business and was a revenue loss. It is not easy to appreciate the process by which this conclusion was reached. The shares were purchased for the purpose of acquiring the managing agency of the Dawn Mills; they were not purchased in the course of the appellants business as dealers in shares. By purchasing the shares which facilitated acquisition of the managing agency, a capital asset was acquired and merely because the managing agency could be utilised for earning profit, the acquisition of the shares which led to the acquisition of the managing agency could not, in the absence of an intention to trade in those shares, be regarded as acquisition of stock-in-trade of the share business. The appellants had undoubtedly purchased the shares of the Dawn Mills with money borrowed at interest, but that circumstance by itself does not evidence an intention to trade in the shares. Nor is the fact that the appellants are dealers in shares and their Memorandum of Association authorises them to carry on business in shares of any importance in the circumstances of this case. The appellants by entering the shares of the Dawn Mills in their statement of shares in which trading transaction were carried on could not alter the real character of the acquisition. The appellants were undoubtedly dealers in shares; but the transaction in the Dawn Mills shares was ex facie not a business transaction. The current market rate at the date of purchase was Rs. 1,610/- per share whereas the appellants acquired the shares at the rate of Rs. 2,321-8-0 per share. Even assuming that the appellants acquired the entire block of 2,507 shares from M/s. Sassoon, J. David and Co., Ltd., - the shares transferred to the names of the Directors being held by them merely as nominees of the appellants - the price per share was considerably in excess of the prevailing market rate. The only reason for entering into the transaction which could not otherwise be regarded as a prudent business transaction, was the acquisition of the managing agency. If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that intention in purchasing shares was not to acquire them as part of the trade of the appellants in shares. The Tribunal found that the Dawn Mills shares were acquired by the appellants for obtaining the managing agency of the Mills. The agency was acquired by virtue of the voting power which the appellants obtained having purchased a very large block of shares, and for acquiring the managing agency, the appellant did not pay any distinct consideration. The managing agency is manifestly the source of profits of the appellants; but the shares purchased and the managing agency acquired were both assets of a capital nature and did not constitute stock-in-trade of a trading venture. If the shares were acquired for obtaining control over the managing agency of the Dawn Mills, the fact that the acquisition of the shares was integrated with the acquisition of the managing agency did not affect the character of the acquisition of the shares. Subsequent disposal of some out of the shares by the appellants could also not convert what was a capital acquisition into an acquisition in the nature of trade. 7. The High Court was therefore right in holding that the acquisition of the managing agency was an acquisition of a capital asset and the loss incurred by sale of the 400 shares was of a capital nature. The High Court was also right in dismissing the notice of motion for an order directing the Tribunal to refer the questions suggested by the appellants. If the acquisition of the shares was not acquisition of a stock-in-trade, but of a capital asset, the appellants, by valuing the shares at cost or market price whichever was lower, could not bring the difference between the purchase price and the valuation made by them into their trading account. ### Response: 0 ### Explanation: 5. The High Court agreed with the opinion of the Tribunal that the shares of the Dawn Mills were not the stock-in-trade of the appellants and that those shares were purchased by the appellants with the object of acquiring the managing agency. The High Court, however, held that the shares acquired by the appellants formed a capital assets and the loss suffered by sale of 400 out of those shares in the year of account being a capital loss, was not in the computation of income a permissible deduction. The High Court dismissed the notice of motion taken out by the appellantsThe appellants had undoubtedly purchased the shares of the Dawn Mills with money borrowed at interest, but that circumstance by itself does not evidence an intention to trade in the shares. Nor is the fact that the appellants are dealers in shares and their Memorandum of Association authorises them to carry on business in shares of any importance in the circumstances of this case. The appellants by entering the shares of the Dawn Mills in their statement of shares in which trading transaction were carried on could not alter the real character of the acquisition. The appellants were undoubtedly dealers in shares; but the transaction in the Dawn Mills shares was ex facie not a business transaction. The current market rate at the date of purchase was Rs. 1,610/- per share whereas the appellants acquired the shares at the rate of Rs. 2,321-8-0 per share. Even assuming that the appellants acquired the entire block of 2,507 shares from M/s. Sassoon, J. David and Co., Ltd., - the shares transferred to the names of the Directors being held by them merely as nominees of the appellants - the price per share was considerably in excess of the prevailing market rate. The only reason for entering into the transaction which could not otherwise be regarded as a prudent business transaction, was the acquisition of the managing agency. If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that intention in purchasing shares was not to acquire them as part of the trade of the appellants in shares. The Tribunal found that the Dawn Mills shares were acquired by the appellants for obtaining the managing agency of the Mills. The agency was acquired by virtue of the voting power which the appellants obtained having purchased a very large block of shares, and for acquiring the managing agency, the appellant did not pay any distinct consideration. The managing agency is manifestly the source of profits of the appellants; but the shares purchased and the managing agency acquired were both assets of a capital nature and did not constitute stock-in-trade of a trading venture. If the shares were acquired for obtaining control over the managing agency of the Dawn Mills, the fact that the acquisition of the shares was integrated with the acquisition of the managing agency did not affect the character of the acquisition of the shares. Subsequent disposal of some out of the shares by the appellants could also not convert what was a capital acquisition into an acquisition in the nature of trade7. The High Court was therefore right in holding that the acquisition of the managing agency was an acquisition of a capital asset and the loss incurred by sale of the 400 shares was of a capital nature. The High Court was also right in dismissing the notice of motion for an order directing the Tribunal to refer the questions suggested by the appellants. If the acquisition of the shares was not acquisition of a stock-in-trade, but of a capital asset, the appellants, by valuing the shares at cost or market price whichever was lower, could not bring the difference between the purchase price and the valuation made by them into their trading account.

Gurdial Singh Vs. State of Punjab

along with four others for offence punishable under sections 147, 148, 149, 302/149 I.P.C. and 27 of the Arms Act. The trial court acquitted all of them. The State preferred an appeal against the order of acquittal. The Division Bench of the Punjab and Haryana High Court, which confirming the acquittal of A-2 to A-5, convicted the appellant (A-1) under section 302 I.P.C. and sentenced him to life imprisonment. He is also convicted under sections 449 I.P.C. and 27 of the Arms Act, but no separate sentence is awarded. The prosecution case is a follows :- The appellant and the deceased Ujagar Singh were real brothers. One Saudagar Singh was also the brother of the appellant and the deceased, who had been living in England for the last 13/14 years. The three brothers had effected private partition of the ancestral land and the land of the share of Saudagar Singh was being cultivated by the appellant. The land which fell into the share of the deceased adjoins the land under cultivation of the appellant and there were disputes regarding the footpath across the field of the deceased. On 22-6-79, at about 4/5 p.m., the deceased and his son Hari Singh (P.W. 10) were present in their field. The appellant came that way and was proceeding on the footpath to his field and he was checked by the deceased and warned him not to cross the field. The matter developed into an exchange of harsh words between them. However, Hari Singh (P.W. 10) intervened and pacified them and separated them from each other. The deceased and Hari Singh (P.W. 10) then came back to their house. At about 9 p.m., after taking dinner the deceased was lying in his cot. Hari Singh (P.W. 10) and Gurcharan Singh (P.W. 11) are the neighbours of the deceased and they were sitting in another cot and gossiping. A lantern was burning in the court yard. It is alleged that at that time Gurdial Singh, the accused, armed with a double barrel gun of .12 bore trespassed into the courtyard and had raised a lalkara challenging the deceased and then shot at the deceased from his gun which hit him in the back. The pellets passed through the abdomen. Hari Singh (P.W. 10) and Gurcharan Singh (P.W. 11) raised cries for help. Thereupon, the appellant retreated into the land when he was in the company of the other accused. It is further alleged that he also shot 3/4 times into the air in the land. The injured was taken in the tractor-trolley to the Civil Hospital by one Lachman Singh on the way the deceased succumbed to the injury. However, at about 12.35 on the same night P.W. 10 gave a report to the police which is taken. The Investigating Officer held the inquest and an inquest report was made which was attested by Hari Singh and Bhajan Singh. The SHO, Gurbachan Singh, arrested the appellant and had recovered a .12 bore gun from him. After completion of the investigation, the charge-sheet was laid against the accused. The prosecution examined a number of witnesses, which included doctor (P.W. 1), Pharmacist (P.W. 2), Licence Clerk (P.W. 3) etc. and among others, Hari Singh (P.W. 10) and Gurcharan Singh (P.W. 11) were also examined3. The medical evidence establishes that the deceased died due to the gun injuries. The accused, however pleaded not guilty and stated that Hari Singh (P.W. 10) was not living with the deceased and his testimony is doubtful. He was living in a separate house thereby suggesting that Hari Singh (P.W. 10) could not witness the occurence. On examination it is found that Hari Singh was living a separate house. In his defence he also examined P.W. 2 which shows that there was hostility between the deceased and the appellant and all the members of the family were interested in implicating the appellant falsely 4. The trial court was not impressed upon with the prosecution evidence. However, the motive established was not important when there are eye-witnesses. Now coming to the evidence of P.W. 10 of the principal witness, the trial court having considered the same in detail, however, came to the conclusion that his presence is doubtful at the scene of occurence in asmuch as the trial court found from the defence version that he lived in a separate house and in his cross-examination Hari Singh (P.W. 10) admitted that his father, the deceased had enmity with other villagers and had litigations over lands. The trial court in this context also considered the size of the injury and in the manner in which it could have been inflicted and found that the version given by Hari Singh (P.W. 10) at the scene of occurence. Now, coming to P.W. 11, his presence at the scene of occurence, viz., at the house of the deceased is not supported by any reason in the sense as to why he should be present at that point of time when the trial court does not appear to be unreasonable. While that being the position, we have also to examine the view taken by the High Court. The High Court merely proceeded on the logic that Hari Singh (P.W. 10) is undoubtedly the son of the deceased and he would not falsely implicate. It is established that there was hostility between the two families and to some extent the same is the case of the prosecution. Therefore, the evidence of P.W. 10 cannot be accepted on its face value5. The High Court, as a matter of fact, was not prepared to accept the evidence of P.W. 11. Therefore, the whole reliance, was placed on Hari Singh (P.W. 10) in convicting the appellant. The discrepancies pointed out by the trial Court are quite material and introduce fairly serious infirmities in the evidence of P.W. 10. In such circumstances, the view taken by the trial court, even though another view is possible could not have been disturbed by the High Court.

1[ds]The trial court in this context also considered the size of the injury and in the manner in which it could have been inflicted and found that the version given by Hari Singh (P.W. 10) at the scene of occurence. Now, coming to P.W. 11, his presence at the scene of occurence, viz., at the house of the deceased is not supported by any reason in the sense as to why he should be present at that point of time when the trial court does not appear to be unreasonable. While that being the position, we have also to examine the view taken by the High Court. The High Court merely proceeded on the logic that Hari Singh (P.W. 10) is undoubtedly the son of the deceased and he would not falsely implicate. It is established that there was hostility between the two families and to some extent the same is the case of the prosecution. Therefore, the evidence of P.W. 10 cannot be accepted on its face value5. The High Court, as a matter of fact, was not prepared to accept the evidence of P.W. 11. Therefore, the whole reliance, was placed on Hari Singh (P.W. 10) in convicting the appellant. The discrepancies pointed out by the trial Court are quite material and introduce fairly serious infirmities in the evidence of P.W. 10. In such circumstances, the view taken by the trial court, even though another view is possible could not have been disturbed by the High Court.

### 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: along with four others for offence punishable under sections 147, 148, 149, 302/149 I.P.C. and 27 of the Arms Act. The trial court acquitted all of them. The State preferred an appeal against the order of acquittal. The Division Bench of the Punjab and Haryana High Court, which confirming the acquittal of A-2 to A-5, convicted the appellant (A-1) under section 302 I.P.C. and sentenced him to life imprisonment. He is also convicted under sections 449 I.P.C. and 27 of the Arms Act, but no separate sentence is awarded. The prosecution case is a follows :- The appellant and the deceased Ujagar Singh were real brothers. One Saudagar Singh was also the brother of the appellant and the deceased, who had been living in England for the last 13/14 years. The three brothers had effected private partition of the ancestral land and the land of the share of Saudagar Singh was being cultivated by the appellant. The land which fell into the share of the deceased adjoins the land under cultivation of the appellant and there were disputes regarding the footpath across the field of the deceased. On 22-6-79, at about 4/5 p.m., the deceased and his son Hari Singh (P.W. 10) were present in their field. The appellant came that way and was proceeding on the footpath to his field and he was checked by the deceased and warned him not to cross the field. The matter developed into an exchange of harsh words between them. However, Hari Singh (P.W. 10) intervened and pacified them and separated them from each other. The deceased and Hari Singh (P.W. 10) then came back to their house. At about 9 p.m., after taking dinner the deceased was lying in his cot. Hari Singh (P.W. 10) and Gurcharan Singh (P.W. 11) are the neighbours of the deceased and they were sitting in another cot and gossiping. A lantern was burning in the court yard. It is alleged that at that time Gurdial Singh, the accused, armed with a double barrel gun of .12 bore trespassed into the courtyard and had raised a lalkara challenging the deceased and then shot at the deceased from his gun which hit him in the back. The pellets passed through the abdomen. Hari Singh (P.W. 10) and Gurcharan Singh (P.W. 11) raised cries for help. Thereupon, the appellant retreated into the land when he was in the company of the other accused. It is further alleged that he also shot 3/4 times into the air in the land. The injured was taken in the tractor-trolley to the Civil Hospital by one Lachman Singh on the way the deceased succumbed to the injury. However, at about 12.35 on the same night P.W. 10 gave a report to the police which is taken. The Investigating Officer held the inquest and an inquest report was made which was attested by Hari Singh and Bhajan Singh. The SHO, Gurbachan Singh, arrested the appellant and had recovered a .12 bore gun from him. After completion of the investigation, the charge-sheet was laid against the accused. The prosecution examined a number of witnesses, which included doctor (P.W. 1), Pharmacist (P.W. 2), Licence Clerk (P.W. 3) etc. and among others, Hari Singh (P.W. 10) and Gurcharan Singh (P.W. 11) were also examined3. The medical evidence establishes that the deceased died due to the gun injuries. The accused, however pleaded not guilty and stated that Hari Singh (P.W. 10) was not living with the deceased and his testimony is doubtful. He was living in a separate house thereby suggesting that Hari Singh (P.W. 10) could not witness the occurence. On examination it is found that Hari Singh was living a separate house. In his defence he also examined P.W. 2 which shows that there was hostility between the deceased and the appellant and all the members of the family were interested in implicating the appellant falsely 4. The trial court was not impressed upon with the prosecution evidence. However, the motive established was not important when there are eye-witnesses. Now coming to the evidence of P.W. 10 of the principal witness, the trial court having considered the same in detail, however, came to the conclusion that his presence is doubtful at the scene of occurence in asmuch as the trial court found from the defence version that he lived in a separate house and in his cross-examination Hari Singh (P.W. 10) admitted that his father, the deceased had enmity with other villagers and had litigations over lands. The trial court in this context also considered the size of the injury and in the manner in which it could have been inflicted and found that the version given by Hari Singh (P.W. 10) at the scene of occurence. Now, coming to P.W. 11, his presence at the scene of occurence, viz., at the house of the deceased is not supported by any reason in the sense as to why he should be present at that point of time when the trial court does not appear to be unreasonable. While that being the position, we have also to examine the view taken by the High Court. The High Court merely proceeded on the logic that Hari Singh (P.W. 10) is undoubtedly the son of the deceased and he would not falsely implicate. It is established that there was hostility between the two families and to some extent the same is the case of the prosecution. Therefore, the evidence of P.W. 10 cannot be accepted on its face value5. The High Court, as a matter of fact, was not prepared to accept the evidence of P.W. 11. Therefore, the whole reliance, was placed on Hari Singh (P.W. 10) in convicting the appellant. The discrepancies pointed out by the trial Court are quite material and introduce fairly serious infirmities in the evidence of P.W. 10. In such circumstances, the view taken by the trial court, even though another view is possible could not have been disturbed by the High Court. ### Response: 1 ### Explanation: The trial court in this context also considered the size of the injury and in the manner in which it could have been inflicted and found that the version given by Hari Singh (P.W. 10) at the scene of occurence. Now, coming to P.W. 11, his presence at the scene of occurence, viz., at the house of the deceased is not supported by any reason in the sense as to why he should be present at that point of time when the trial court does not appear to be unreasonable. While that being the position, we have also to examine the view taken by the High Court. The High Court merely proceeded on the logic that Hari Singh (P.W. 10) is undoubtedly the son of the deceased and he would not falsely implicate. It is established that there was hostility between the two families and to some extent the same is the case of the prosecution. Therefore, the evidence of P.W. 10 cannot be accepted on its face value5. The High Court, as a matter of fact, was not prepared to accept the evidence of P.W. 11. Therefore, the whole reliance, was placed on Hari Singh (P.W. 10) in convicting the appellant. The discrepancies pointed out by the trial Court are quite material and introduce fairly serious infirmities in the evidence of P.W. 10. In such circumstances, the view taken by the trial court, even though another view is possible could not have been disturbed by the High Court.

Adnan Abu Athar Bakshi & Others Vs. The State of Maharashtra & Another

NareshH. Patil, J.Heard finally, by consent of the learned counsel appearing for the respective parties.2. The Application is moved for final disposal by the learned counsel appearing for the parties, as the parties have settled the dispute amicably. Consent Terms are filed on record. Both the parties are before the Court and are identified by their respective counsel. Consent Terms and Verification made by the parties, namely, Adnan Abu Athar Bakshi (Applicant No.1) and Mir Irshad Ali Mir Mahammad Ali (Respondent No.2), is taken on record and marked as "X" for identification.3. It is contended by the Applicants that Applicant No.3 is a Managing Director of a Tours and Travels Company, namely, "Sky Ship International Pvt. Ltd."(For short "said company"). An agreement was executed between every Hajji and the said Company wherein the terms and conditions were incorporated to avoid any complications to Hajjis during their Hajj tour. It is submitted by the Applicants that for the year 2010 they were allotted a quota of 206 Hajjis by the External Affairs Ministry, Government of India. The estimated cost that year for the Hajj package tour was Rs.1.60 Lacs. For the year 2010 Hajj tour, Respondent No.2 - Mir Irshad Ali, invited the Applicants at Aurangabad and arranged a programme. In the said programme the Respondent No.2 introduced the said Company of Applicant No.3 as one of the best Hajj Tour Operators of India. In the year 2011, a quota of 227 Hajjis was allotted to the said Company by the Central Government. The Applicants submit that over a period from 7th July, 2011 to 29th October 2011, a total amount of Rs.1.46 Crores only was remitted by Respondent No.2 towards the cost of 100 intending Hajjis for the Hajj Tour, 2011, out of the total amount of Rs.1.64 Crores. After the return of Respondent No.2 from the Hajj tour, the Applicant No.3 has been calling up Respondent No.2 since October, 2011 for claiming balance amount of Rs.18 Lacs but Respondent No.2, on one pretext or the other, kept on avoiding to make the balance payment of Rs.18 Lacs which was due.4. A complaint was filed by Respondent No.2 in the Court of Judicial Magistrate, First Class, Aurangabad, for the offences punishable under Sections 420, 468, 383 and 406 of the Indian Penal Code. On 29th October, 2012 the Judicial Magistrate, First Class, Aurangabad passed an order in M.A. No.1608 of 2012, under Section 156(3) of the Code of Criminal Procedure. Consequent to the said order, the police registered complaint against the Applicants.5. The learned counsel appearing for the Applicants submits that considering the issues raised in the Application, the Application was admitted and interim relief was granted.6. We find from the material placed on record and submissions advanced before us, that the complaint was the out-come of money transactions between the parties. The complaint was filed out of civil dispute between the parties and breach of contract.7. The learned counsel appearing for the contesting parties submit that for carrying out good relations, the parties have amicably settled the matter. They want to put an end to the dispute finally. The parties present in the Court, expressed their desire to settle the matter finally.8. The learned A.P.P. appearing for Respondent-State submits that some of the offences registered against the Applicants are non compoundable. But in the facts and circumstances and considering the Consent Terms filed on record, we find that the request made by the parties to quash and set aside the First Information Report registered with City Chowk Police Station, Aurangabad, bearing M-Case No.18/2012, deserves consideration. Hence Order:

1[ds]6. We find from the material placed on record and submissions advanced before us, that the complaint was theof money transactions between the parties. The complaint was filed out of civil dispute between the parties and breach ofin the facts and circumstances and considering the Consent Terms filed on record, we find that the request made by the parties to quash and set aside the First Information Report registered with City Chowk Police Station, Aurangabad, bearingNo.18/2012, deserves consideration. Hence Order:

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: NareshH. Patil, J.Heard finally, by consent of the learned counsel appearing for the respective parties.2. The Application is moved for final disposal by the learned counsel appearing for the parties, as the parties have settled the dispute amicably. Consent Terms are filed on record. Both the parties are before the Court and are identified by their respective counsel. Consent Terms and Verification made by the parties, namely, Adnan Abu Athar Bakshi (Applicant No.1) and Mir Irshad Ali Mir Mahammad Ali (Respondent No.2), is taken on record and marked as "X" for identification.3. It is contended by the Applicants that Applicant No.3 is a Managing Director of a Tours and Travels Company, namely, "Sky Ship International Pvt. Ltd."(For short "said company"). An agreement was executed between every Hajji and the said Company wherein the terms and conditions were incorporated to avoid any complications to Hajjis during their Hajj tour. It is submitted by the Applicants that for the year 2010 they were allotted a quota of 206 Hajjis by the External Affairs Ministry, Government of India. The estimated cost that year for the Hajj package tour was Rs.1.60 Lacs. For the year 2010 Hajj tour, Respondent No.2 - Mir Irshad Ali, invited the Applicants at Aurangabad and arranged a programme. In the said programme the Respondent No.2 introduced the said Company of Applicant No.3 as one of the best Hajj Tour Operators of India. In the year 2011, a quota of 227 Hajjis was allotted to the said Company by the Central Government. The Applicants submit that over a period from 7th July, 2011 to 29th October 2011, a total amount of Rs.1.46 Crores only was remitted by Respondent No.2 towards the cost of 100 intending Hajjis for the Hajj Tour, 2011, out of the total amount of Rs.1.64 Crores. After the return of Respondent No.2 from the Hajj tour, the Applicant No.3 has been calling up Respondent No.2 since October, 2011 for claiming balance amount of Rs.18 Lacs but Respondent No.2, on one pretext or the other, kept on avoiding to make the balance payment of Rs.18 Lacs which was due.4. A complaint was filed by Respondent No.2 in the Court of Judicial Magistrate, First Class, Aurangabad, for the offences punishable under Sections 420, 468, 383 and 406 of the Indian Penal Code. On 29th October, 2012 the Judicial Magistrate, First Class, Aurangabad passed an order in M.A. No.1608 of 2012, under Section 156(3) of the Code of Criminal Procedure. Consequent to the said order, the police registered complaint against the Applicants.5. The learned counsel appearing for the Applicants submits that considering the issues raised in the Application, the Application was admitted and interim relief was granted.6. We find from the material placed on record and submissions advanced before us, that the complaint was the out-come of money transactions between the parties. The complaint was filed out of civil dispute between the parties and breach of contract.7. The learned counsel appearing for the contesting parties submit that for carrying out good relations, the parties have amicably settled the matter. They want to put an end to the dispute finally. The parties present in the Court, expressed their desire to settle the matter finally.8. The learned A.P.P. appearing for Respondent-State submits that some of the offences registered against the Applicants are non compoundable. But in the facts and circumstances and considering the Consent Terms filed on record, we find that the request made by the parties to quash and set aside the First Information Report registered with City Chowk Police Station, Aurangabad, bearing M-Case No.18/2012, deserves consideration. Hence Order: ### Response: 1 ### Explanation: 6. We find from the material placed on record and submissions advanced before us, that the complaint was theof money transactions between the parties. The complaint was filed out of civil dispute between the parties and breach ofin the facts and circumstances and considering the Consent Terms filed on record, we find that the request made by the parties to quash and set aside the First Information Report registered with City Chowk Police Station, Aurangabad, bearingNo.18/2012, deserves consideration. Hence Order:

The Municipal Committee, Raipur Vs. Phoolchand And Others

Judge, it does appear that the constitutional question was urged before him.Against this order, a Letters Patent Appeal was filed, and the Divisional Bench, which heard the appeal, held, disagreeing with the learned single Judge, that duty was properly leviable only under item 4. Before the Divisional Bench also, it does not appear that the constitutional question was argued. The petition, out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench, which, following the earlier decision, decided against the appellant Committee. 3. The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality contain eight classes of goods. Under them are grouped 67 items, the serial numbers running consecutively through all the classes. Class I is headed "Articles of food or drink or use for men or animals". Item 4, which is in that Class reads "Oil-seeds of every description not specifically mentioned elsewhere". Class V is headed "Drugs, spices and gums, toilet requisites and perfumes", and item 44 reads "Betel-nuts, gums, spices, Indian herbs and Indian raw medicines and drugs, such as nuts, ilaichi, laung, jaiphal, jaipatri, dalchini., sont, katha, zeera, Dhania garlic, dry chillies, pepper, shahzeera, maithi, sarso, etc. and known as kirana" (groceries). Item 4 is chargeable to a duty of 2 annas per maund, and item 44 is chargeable ad valorem at Rs. 4-11-0 per cent. In addition to these entries, there is item 17, which reads "Vegetable oils (not hydrogenated) not provided elsewhere such as Tilli Tel, Sarso Tel, Alsi Tel, Falli Tel, Narial Tel, Andi Tel, which are chargeable to a duty of 4 annas per maund. 4. It is conceded on all hands that sarso is an oil seed, and if there was nothing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed. The dispute arises, because sarso is mentioned again in Item 44 with a very much higher duty, and it is contended by the appellant Committee that the words "not specifically mentioned elsewhere" in item 4 exclude sarso from that item, and that its specific mention in item 44 makes it liable to the higher duty indicated there. The learned single Judge of the High Court held in favour of the Municipality. According to him, this reason was sound and the higher duty demanded was the proper duty payable. The Divisional Bench on the other hand, points out that the two classes (I and V) are entirely different. Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes. The division indicates clearly that goods belonging to one category are not included in the goods belonging to the other. The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed. Item 4 deals with "oil seeds", and the specific mention must be as "oil-seeds" elsewhere in the Schedule. It was also argued for the respondents that "elsewhere" meant elsewhere in the same Class. But the appellant Committee pointed out that the serial numbers were all consecutive, and that the specific mention could be anywhere in the Schedule. The two arguments are equally plausible, and nothing much, therefore turns upon them.5. In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else. Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item. Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed. The extent of item 4, which deals with oil seeds of every descrip- tion, could only be cut down by a specific mention elsewhere of an item as an oil seed. 6. Item 44 contains fairly long list, out of which we have quoted a few illustrative items. Each of these items is referable to the general heading either as a drug or a spice or gum, etc. Sarso, it is admitted, is sold as kirana and as a spice. The mention of sarso there is limited by the general heading to which it belongs, namely, a spice, drug or herb sold as kirana. No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye-law and give effect to it. If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty. One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentioned. 7. Though the next argument is not conclusive because there is no logic behind a tax, still it is to be noticed that sarso oil (a maund of which, as the affidavit of the respondents shows, is expressed from three maunds of oil seed) bears only an octroi duty of 4 annas per maund, while three maunds of sarso oil seed under item 44, if it were applicable, bear a duty of Rs. 4-3-6 per maund, if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit. This leads to an anomaly, which, in our opinion, could hot have been intended. 8. Finally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer. 9.

1[ds]In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else. Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item. Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed. The extent of item 4, which deals with oil seeds of every descrip- tion, could only be cut down by a specific mention elsewhere of an item as an oil seed. No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye-law and give effect to it. If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty. One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentionedFinally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: Judge, it does appear that the constitutional question was urged before him.Against this order, a Letters Patent Appeal was filed, and the Divisional Bench, which heard the appeal, held, disagreeing with the learned single Judge, that duty was properly leviable only under item 4. Before the Divisional Bench also, it does not appear that the constitutional question was argued. The petition, out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench, which, following the earlier decision, decided against the appellant Committee. 3. The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality contain eight classes of goods. Under them are grouped 67 items, the serial numbers running consecutively through all the classes. Class I is headed "Articles of food or drink or use for men or animals". Item 4, which is in that Class reads "Oil-seeds of every description not specifically mentioned elsewhere". Class V is headed "Drugs, spices and gums, toilet requisites and perfumes", and item 44 reads "Betel-nuts, gums, spices, Indian herbs and Indian raw medicines and drugs, such as nuts, ilaichi, laung, jaiphal, jaipatri, dalchini., sont, katha, zeera, Dhania garlic, dry chillies, pepper, shahzeera, maithi, sarso, etc. and known as kirana" (groceries). Item 4 is chargeable to a duty of 2 annas per maund, and item 44 is chargeable ad valorem at Rs. 4-11-0 per cent. In addition to these entries, there is item 17, which reads "Vegetable oils (not hydrogenated) not provided elsewhere such as Tilli Tel, Sarso Tel, Alsi Tel, Falli Tel, Narial Tel, Andi Tel, which are chargeable to a duty of 4 annas per maund. 4. It is conceded on all hands that sarso is an oil seed, and if there was nothing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed. The dispute arises, because sarso is mentioned again in Item 44 with a very much higher duty, and it is contended by the appellant Committee that the words "not specifically mentioned elsewhere" in item 4 exclude sarso from that item, and that its specific mention in item 44 makes it liable to the higher duty indicated there. The learned single Judge of the High Court held in favour of the Municipality. According to him, this reason was sound and the higher duty demanded was the proper duty payable. The Divisional Bench on the other hand, points out that the two classes (I and V) are entirely different. Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes. The division indicates clearly that goods belonging to one category are not included in the goods belonging to the other. The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed. Item 4 deals with "oil seeds", and the specific mention must be as "oil-seeds" elsewhere in the Schedule. It was also argued for the respondents that "elsewhere" meant elsewhere in the same Class. But the appellant Committee pointed out that the serial numbers were all consecutive, and that the specific mention could be anywhere in the Schedule. The two arguments are equally plausible, and nothing much, therefore turns upon them.5. In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else. Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item. Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed. The extent of item 4, which deals with oil seeds of every descrip- tion, could only be cut down by a specific mention elsewhere of an item as an oil seed. 6. Item 44 contains fairly long list, out of which we have quoted a few illustrative items. Each of these items is referable to the general heading either as a drug or a spice or gum, etc. Sarso, it is admitted, is sold as kirana and as a spice. The mention of sarso there is limited by the general heading to which it belongs, namely, a spice, drug or herb sold as kirana. No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye-law and give effect to it. If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty. One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentioned. 7. Though the next argument is not conclusive because there is no logic behind a tax, still it is to be noticed that sarso oil (a maund of which, as the affidavit of the respondents shows, is expressed from three maunds of oil seed) bears only an octroi duty of 4 annas per maund, while three maunds of sarso oil seed under item 44, if it were applicable, bear a duty of Rs. 4-3-6 per maund, if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit. This leads to an anomaly, which, in our opinion, could hot have been intended. 8. Finally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer. 9. ### Response: 1 ### Explanation: In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else. Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item. Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed. The extent of item 4, which deals with oil seeds of every descrip- tion, could only be cut down by a specific mention elsewhere of an item as an oil seed. No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye-law and give effect to it. If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty. One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentionedFinally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer.

UNION OF INDIA & ORS Vs. AGRICAS LLP & ORS

WTO member countries, yet safeguard measures in the form of Quantitative Restrictions are not provided for under any Indian law. This is in accordance with the provision to incorporate safeguard measures in the form of Quantitative Restrictions, as provided in Article XIX of GATT and the WTO Agreement on Safeguards. Section 9A substantially incorporates, with some modifications, provisions of Article XIX of GATT-1994. Rules made in 2012 are also in conformity with the provisions of the WTO Agreement on Safeguards made in terms of Article XIX of GATT-1994. Sub-rule (3) to Rule 5 of the Safeguard Measures (Quantitative Restrictions) Rules, 2012 states and sets out the conditions for applicability of Rule 9A, which are: (i) increased imports; (ii) serious injury or threat of serious injury; and (iii) a causal link between increased imports and alleged serious injury or threat of serious injury. The expression increased imports has been defined in terms of increased quantity to mean increase in imports in absolute terms or relative to domestic production. The expressions serious injury and threat of serious injury have been defined in clauses (c) and (d) of sub-clause (4) to Section 9A to mean injury causing significant overall impairment in the position of a domestic industry and a clear and imminent danger of serious injury respectively. The expression domestic industry has also been defined in clause (b) to sub-section (4) to Section 9A. Similarly, the expression interested party has been defined in sub-rule (d) to Rule 2 of the Safeguard Measures (Quantitative Restriction) Rules, 2012 and includes exporter or foreign producer or the importer of goods for the purposes of imposition of safeguard quantitative restrictions on trade or business association. It also includes the government of the exporting country or producer of goods or directly competitive goods in India or a trade or business association . 41. The need to enact Section 9A arose from the obligations flowing from Article XIX, as restriction in form of quantitative restriction, require a procedure to be followed. Affected parties including exporters, importers have to be heard. Consequently, act of transformation was required. Article XIX of GATT-1994 is an escape provision, i.e. a provision which entitles a contracting state to escape from the rigours of paragraph (1) of Article XI of GATT- 1994. Similar acts of transformation have been undertaken by enacting Custom Valuation Rules, provision of antidumping, countervailing duty etc. but the entire GATT-1994 does not stand transposed and enacted by way of statutory law or delegated legislation. 42. This being the position, Section 9A has to be interpreted as an escape provision when the Central Government i.e. the Union of India may escape the rigours of paragraph (1) of Article XIX of GATT-1994. Section 9A is not a provision which incorporates or transposes paragraph (1) of Article XI into the domestic law either expressly or by necessary implication. To hold to the contrary, we would be holding that the Central Government has no right and power to impose quantitative restrictions except under Section 9A of the FTDR Act. This would be contrary to the legislative intent and objective. Section 9A of the FTDR Act does not elide or negate the power of the Central Government to impose restrictions on imports under sub-section (2) to Section 3 of the FTDR Act. 43. In other words, the impugned notifications would be valid as they have been issued in accordance with the power conferred in the Central Government in terms of sub-section (2) to Section 3 of the FTDR Act. The powers of the Central Government by an order imposing restriction on imports under sub-section (2) to Section 3 is, therefore, not entirely curtailed by Section 9A of the FTDR Act. 44. To be fair, learned counsel appearing for the importers had conceded that they cannot enforce or claim violation of paragraph (1) of Article XI of GATT-1994 in the domestic courts in India unless the said Article has been expressly or by necessary implication incorporated and transposed in the domestic law, that is, the FTDR Act. 45. In the present case, this Court is not called upon to decide and examine the obligations of the Contracting Parties in terms of GATT-1994. Our findings and ratio are confined and restricted to interpretation of Section 3 and 9A of the FTDR Act and in that context we have referred to GATT-1994. D. Contention of the importers of bona fide imports under interim orders and prayer for partial relief. 46. Learned counsel for some of the importers had placed reliance on Raj Prakash Chemical v. Union of India (1986) 2 SCC 297 , which judgment, in our opinion, has no application. In Raj Prakash Chemical (supra), the petitioner had acted under a bona fide belief in view of judgments and orders of High Courts and the interpretation placed by the authorities. In this background, observations were made to giving benefit to the importers, despite the contrary legal interpretation. In the instant case, the importers rely upon the interim orders passed by the High Courts whereas on the date when they filed the Writ Petitions and had obtained interim orders, the Madras High Court had dismissed the Writ Petition upholding the notification. Similarly, the High Court of adjudicature at Bombay, High Court of Gujarat and the High Court of Madhya Pradesh had dismissed the Writ Petitions filed before them and upheld the notifications and the trade notices. Notwithstanding the dismissals, the importers took their chance, obviously for personal gains and profits. They would accordingly face the consequences in law. In these circumstances, the importers it cannot be said had bona fide belief in the right pleaded. E. What is not decided 47. Learned counsel for some of the importers had submitted that they have preferred statutory appeals against orders suspending or terminating import export code. The said aspect has not been examined and decided and hence we make no comment and observation. The statutory appeals, if any, preferred by the importer(s) will be decided in accordance with law. F. Conclusion

0[ds]15. At the outset, we must record that the importers, and in our opinion rightly, have not raised the contention that the DGFT could not have notified the impugned notifications. The notifications themselves record that they were published by the Ministry of Commerce and Industry, Department of Commerce, Directorate General of Foreign Trade. The first paragraph of the notification states that they had been issued by the Central Government in exercise of powers conferred under Article 77 of the Constitution. Clearly, the notifications were issued by the Central Government, and not the DGFT that had performed the ministerial act of publication. The decision to amend and issue the notification was of the Central Government. Neither Section 3(2) nor Section 6(3) of the FTDR Act was violated. This Court in Delhi International Airport Limited v. International Lease Finance Corporation and others (2015) 8 SCC 446 , had referred to Articles 77 and 166 of the Constitution and held that the Constitution stipulates that whenever executive action is taken by way of an order or instrument it shall be expressed to be taken in the name of the President and Governor in whose name the executive power of the Union and the States, respectively, are vested. Article 77 does not provide for delegation of any power, albeit under sub-section (3) of Article 77, the President is to make Rules for more convenient transaction of business and allocation of same amongst Ministers. Under the Government of India (Transaction of Business) Rules, 1961, the government business is divided amongst Ministers and specific functions are allocated to different Ministries. The Director General of Foreign Trade is an ex officio Additional Secretary in the Government of India and is appointed by the Central Government under sub-section (1) to Section 6 of the FTDR Act to advise the Central Government in formulation and carrying out the Foreign Trade Policy. Wherefore, even the website of the Ministry of Commerce and Industry, Department of Commerce, states that the DGFT is an agent of the Central Government and attached office to it. Further, clause (2) of Article 77 provides that validity of an order or instrument made or executed in the name of the President, authenticated in the manner specified in the Rules made by the President, shall not be called in question on the ground that it is not an order or an instrument made or executed by the President. Therefore, the contention of issuance of the impugned notification sans authority, cannot be sustained.17. We would also without any hesitation reject the contention raised by some of the importers that the impugned notification is illegal because of vagueness or allows restricted quantity of 1/1.5 lakh MT of Peas (Pisum Sativum) including Yellow Peas, Green Peas, Dun Peas and Kaspa Peas as against a licence, meaning thereby each licensee is allowed to import the maximum quantity specified in the notification. In other words, the total quantity specified in the notification is per licensee and not for the total imports of the commodity specified in the notification. The submission has no merit as the notification expressly uses the expression total quantity of the commodity specified which could be imported. There is no ambiguity or vagueness in the notifications, relevant portions of which have been quoted above. Even otherwise the expression total quantity cannot be construed as quantity per licence issued as the number of licences issued concerning the subject goods could be numerable (as per the Union of India 2248,1016 and 2915 licences were issued in 2019-20 for import of Tur, Moong and Urad dals against restricted quota of 4,1.5 and 4 lakh MT, respectively). If each licence holder is allowed to import 1/1.5 lakh MT of Peas, the total import would well exceed the total annual consumption after we account for the production within India. In our opinion, the plea and interpretation of the importers if accepted will not only be contrary to the express language of the notification but would frustrate the intent and object of restricting the imports of the stated goods by prescribing a quota. We decline and would not accept this farfetched and somewhat drivel interpretation of simple and straight forward words.18. We would also reject the contention raised by the importers that the Trade Notices issued by the DGFT violate Sections 3 and 5 read with sub-section (3) of Section 6 of the FTDR Act as they had the effect of superseding the Notifications or imposing a new criterion and eligibility condition not envisaged by the notifications. The legal effect of the notifications was to amend the EXIM policy whereby the specified commodities would henceforth not be free (importable without restriction) but would fall in the restricted category. Once the commodities were shifted to the restricted category, the requirement of licence would flow from the mandate of Section 3 of the FTDR Act read with Rule 4 of the Foreign Trade (Regulation) Rules, 1993.Paragraph 2.10 sets the matter beyond controversy as it states that the goods which are freely importable without a restriction may be imported by any person. However, if goods require authorisation, actual user alone may import such goods. However, the DGFT can dilute and dispense with the actual user condition.19. The effect of the Notifications, as noticed and beyond doubt, is to bring the specified commodities from free to the restricted category and therefore the imports in question would require a prior authorisation for import. The requirement of licence is nothing but authorisation. Therefore, in terms of paragraph 2.10, the imports of the specified commodities would only be by the actual user, unless the actual user condition was specifically dispensed with or diluted by the DGFT. The Directorate by specifying that the licence would be issued to the miller or refiner has, therefore, just clarified that the actual user alone will be permitted to import the restricted goods mentioned in the notification for which a prior authorisation or licence is required. The importers are traders and it is not the case of any of the importers that they are the actual users. Further, none of the importers have applied for a licence or authorisation for import of the restricted commodities. Violation of clause 9.03 of the EXIM Policy defining the expression Actual User, is neither alleged nor argued before us.20. The importers have raised the contention that the expression if such imports used in the second sentence of paragraph 2.10 only qualifies the first sentence of paragraph 2.10. We do not accept the contention, for paragraph 2.10 consists of two parts. The first part relates to goods which are freely importable without any licence and states that such goods that can be imported by any person. The second part refers to such imports which require authorisation and not the imports which are freely importable without any restriction. Actual user condition, therefore, applies by default when imports require an authorisation. However, the DGFT can specifically dispense with or dilute the actual user condition.27. While interpreting the domestic law enshrining Human Rights (and sometimes environment issues) this Court on some occasions has relied on international conventions and treaties where the terms of any legislation are absent, not clear or are reasonably capable of more than one meaning. In such cases, where there are statutes, rules etc. the meaning which in consonance with the treaties can be relied upon, for there is a prima facie presumption that the Parliament did not intend to act in breach of international law, including State treaty obligations. Part-III of the Indian Constitution a-priori incorporates and recognises the Human Rights, consequently recourse to international conventions can be made to interpret and borrow explicit terminologies and nuances to bailiwick Human Right jurisprudence. However, in the present case we are examining an economic and fiscal legislation or rather economic policy decision taken by the Union of India. These decisions on human rights therefore would not be of much assistance.29. Indian Parliament, two years prior to the signing of GATT-1994, had enacted the FTDR Act which was enforced with effect from 7 th August 1992. Sections 11 to 14 of the FTDR Act came into force immediately and other provisions came into force on 19 th June 1992. The FTDR Act had repealed the Imports and Exports (Control) Act, 1947 and the Foreign Trade (Development and Regulation) Ordinance, 1992 with the stipulation that anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the corresponding provisions of the FTDR Act. The Statement of Objects and Reasons for enacting the FTDR Act, as recorded, are to acknowledge that foreign trade is the driving force of economic activity as this spurs economic growth and there is increasing interdependence and that the goals of the new policy were to increase productivity and competitiveness by ensuring that the trade policies serve as an instrument to create an environment that will provide a strong impetus to exports, facilitate imports and render export activity more profitable.31. Section 9A of the FTDR Act is the only section in Chapter IIIA with the heading Quantitative Restrictions and this section was inserted by Amendment Act 25 of 2010 with effect from 27 th August 2010. Subsequently, in exercise of powers conferred by sub-section (3) to Section 9A of the FTDR Act, the Central Government had published and notified the Safeguard Measures (Quantitative Restrictions) Rules, 2012, which became applicable on the date of their publication in the Gazette of India dated 24 th May 2012Sub-section (1) of Section 3 states that the Central Government may, by an Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. It is a general provision which has no reference to GATT-1994. It authorises the Central Government to publish an order in the Official Gazette for development and regulation of foreign trade, i.e. imports and exports. Sub-section (2) states that the Central Government can, by an order in the Official Gazette, make a provision for prohibiting or restricting or otherwise regulating, in all or specified cases and subject to such exceptions, if any, the import or export of goods and after the amendment vide Act 25 of 2010, services or technology. Sub-section (2) to Section 3, therefore, authorises the Central Government to, by an Order published in the Official Gazette, make provisions restricting the imports or exports. Imposition of quantitative restrictions on imports or exports would clearly fall within sub-section (2) to Section 3 of the FTDR Act. We are not concerned with the proviso to sub-section (2) in the present case. Sub-section (3) to Section 3 states that where an order is passed under sub-section (2) whereby the import or export of goods is prohibited, restricted or otherwise regulated, the goods in question would be deemed to be prohibited goods under Section 11 of the Customs Act, 1962 and accordingly the provisions of the latter Act would apply.36. Sub-section (4) to Section 9A of the FTDR Act introduced by Act 25 of 2010 with effect from 27 th August 2010, requires some elucidation. The sub-section on one hand states that no permit or licence shall be necessary for imports or exports of goods, nor any goods shall be prohibited from import or export, except as may be required under the FTDR Act, or the rules or orders made thereunder. At the same time, by using the phrase without prejudice to anything contained in any other law, rule, regulation, notification or order, it protects the operation of the other law, rule, regulation, notification or order to the extent that they do not directly or indirectly deal with the permit or licence necessary for import or export of goods or prohibit import or export of goods. Operation of such law, rule, regulation, notification or order not dealing with the permit or licence necessary for import or export on a prohibition of import of goods is, therefore, protected and not overridden. Sub-section (4) to Section 3 therefore gives limited primacy to the FTDR Act, restricting it to the scope and subject matter of the FTDR Act, and not to override other laws. This is also clear from Section 18A of the FTDR Act which was also enacted and inserted by Act 25 of 2010 with effect from 27 th August 2010The provisions of FTDR Act, therefore, are in addition to, and not in derogation of, the provisions of any other law for the time being in force. This would be the correct way to harmoniously read and interpret sub-section (4) to Section 3 and Section 18A of the FTDR Act. We may, at this stage, notice that the original amendment had used the phrase Notwithstanding anything contained in any other law, rule, regulation, notification or order, but the Standing Committee had noticed the contradiction and also the object and purpose behind enacting sub-rule (4) and had recommended that the said expression should be replaced with the expression Without prejudice to anything contained in any other law, rule, regulation, notification or order. Sub-section (4) to Section 3 of the FTDR Act, therefore, in the context of import and exports or prohibition of imports or exports of goods states that no permit or licence shall be necessary or required except as may be required under the FTDR Act, rules or orders made thereunder. The expression order, as per clause (h) to Section (2) of the FTA means any Order made by the Central Government under Section 3. It is, therefore, clear to us that there is no violation of Section 3 of the FTDR Act in the issuance of the impugned notifications or orders, which are intra vires and not ultra vires.37. We have already reproduced and quoted Article XI (Paragraph 47 (supra).) of the GATT- 1994 and have to say that the same has not been statutorily made a subject of act of transformation and incorporated in the domestic legislation, i.e. the FTDR Act. The FTDR Act does not legislate and transform Article XI of the GATT-1994. As noticed above, Section 3 of the FTDR Act empowers and authorises the Central Government, i.e. the Union of India to frame policy, rules or regulations for import or export of goods. The policy is framed under Section 5 of the ActThe policy is framed under Section 5 of thereads as under:5. Foreign Trade Policy. – The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in like manner, amend that policy:Provided that the Central Government may direct that, in respect of the Special Economic Zones, the foreign trade policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette.Thus, the Central Government i.e. the Union of India has been given the necessary discretion and election with regard to framing of policies for import and export of goods, services and technology. Therefore, implementation of GATT-1994, including Article XI, is left to the Central Government by means of delegated legislation.38. Clause (2) of Article XI of GATT-1994 states that provisions of paragraph (1) shall not extend to three specified situations as stated in sub-clauses (a), (b) or (c). Clause (c) deals with import restrictions on any agricultural or fisheries product, imported in any form necessary for enforcement of governmental measures specified therein. Similarly, Article XII of GATT-1994 states that notwithstanding the provisions of paragraph (1) of Article XI, any contracting party, in order to safeguard its external financial position and its balance of payments, may restrict the quantity or value of merchandise permitted to be imported, subject to the provisions of paragraphs of that Article. Paragraph 23 (supra) lists a number of other provisions, which allow and permit exceptions. We have referred to these provisions to highlight that paragraph (1) to Article XI is not an absolute rule. It is subject to exceptions in the form of paragraph (2) to Article XI, Article XII and other provisions. Of course, the conditions specified the respective Articles have to be satisfied for a contracting party to be GATT- 1994 compliant.39. Reference to this position is necessary and required when we interpret Section 9A of the FTDR Act which we would accept incorporates into the domestic law Article XIX of GATT-1994, but neither Article XI and nor all exceptions by implication. Consequently, Section 9A for the FTDR Act, is to be understood an enabling provision empowering imposition of quantitative restrictions after following the procedure in the situations referred to therein. However it does not limit and restrict the expans and power of the Central Government to prohibit, regulate or restrict imports of goods in terms of Section 3(2) of the FTDR Act. As a sequitur, it has to be held that notwithstanding Section 9A, the Central Government continues and has authority to impose quantitative restrictions by an order under Section 3(2) of the FTDR Act. Principle of Lex specialis derogat legi generali, therefore, is not applicable to the case in hand.Section 9A substantially incorporates, with some modifications, provisions of Article XIX of GATT-1994. Rules made in 2012 are also in conformity with the provisions of the WTO Agreement on Safeguards made in terms of Article XIX of GATT-1994. Sub-rule (3) to Rule 5 of the Safeguard Measures (Quantitative Restrictions) Rules, 2012 states and sets out the conditions for applicability of Rule 9A, which are: (i) increased imports; (ii) serious injury or threat of serious injury; and (iii) a causal link between increased imports and alleged serious injury or threat of serious injury. The expression increased imports has been defined in terms of increased quantity to mean increase in imports in absolute terms or relative to domestic production. The expressions serious injury and threat of serious injury have been defined in clauses (c) and (d) of sub-clause (4) to Section 9A to mean injury causing significant overall impairment in the position of a domestic industry and a clear and imminent danger of serious injury respectively. The expression domestic industry has also been defined in clause (b) to sub-section (4) to Section 9A. Similarly, the expression interested party has been defined in sub-rule (d) to Rule 2 of the Safeguard Measures (Quantitative Restriction) Rules, 2012 and includes exporter or foreign producer or the importer of goods for the purposes of imposition of safeguard quantitative restrictions on trade or business association. It also includes the government of the exporting country or producer of goods or directly competitive goods in India or a trade or business association .41. The need to enact Section 9A arose from the obligations flowing from Article XIX, as restriction in form of quantitative restriction, require a procedure to be followed. Affected parties including exporters, importers have to be heard. Consequently, act of transformation was required. Article XIX of GATT-1994 is an escape provision, i.e. a provision which entitles a contracting state to escape from the rigours of paragraph (1) of Article XI of GATT- 1994. Similar acts of transformation have been undertaken by enacting Custom Valuation Rules, provision of antidumping, countervailing duty etc. but the entire GATT-1994 does not stand transposed and enacted by way of statutory law or delegated legislation.42. This being the position, Section 9A has to be interpreted as an escape provision when the Central Government i.e. the Union of India may escape the rigours of paragraph (1) of Article XIX of GATT-1994. Section 9A is not a provision which incorporates or transposes paragraph (1) of Article XI into the domestic law either expressly or by necessary implication. To hold to the contrary, we would be holding that the Central Government has no right and power to impose quantitative restrictions except under Section 9A of the FTDR Act. This would be contrary to the legislative intent and objective. Section 9A of the FTDR Act does not elide or negate the power of the Central Government to impose restrictions on imports under sub-section (2) to Section 3 of the FTDR Act.43. In other words, the impugned notifications would be valid as they have been issued in accordance with the power conferred in the Central Government in terms of sub-section (2) to Section 3 of the FTDR Act. The powers of the Central Government by an order imposing restriction on imports under sub-section (2) to Section 3 is, therefore, not entirely curtailed by Section 9A of the FTDR Act.45. In the present case, this Court is not called upon to decide and examine the obligations of the Contracting Parties in terms of GATT-1994. Our findings and ratio are confined and restricted to interpretation of Section 3 and 9A of the FTDR Act and in that context we have referred to GATT-1994.46. Learned counsel for some of the importers had placed reliance on Raj Prakash Chemical v. Union of India (1986) 2 SCC 297 , which judgment, in our opinion, has no application. In Raj Prakash Chemical (supra), the petitioner had acted under a bona fide belief in view of judgments and orders of High Courts and the interpretation placed by the authorities. In this background, observations were made to giving benefit to the importers, despite the contrary legal interpretation. In the instant case, the importers rely upon the interim orders passed by the High Courts whereas on the date when they filed the Writ Petitions and had obtained interim orders, the Madras High Court had dismissed the Writ Petition upholding the notification. Similarly, the High Court of adjudicature at Bombay, High Court of Gujarat and the High Court of Madhya Pradesh had dismissed the Writ Petitions filed before them and upheld the notifications and the trade notices. Notwithstanding the dismissals, the importers took their chance, obviously for personal gains and profits. They would accordingly face the consequences in law. In these circumstances, the importers it cannot be said had bona fide belief in the right pleaded.E. What is not decided47. Learned counsel for some of the importers had submitted that they have preferred statutory appeals against orders suspending or terminating import export code. The said aspect has not been examined and decided and hence we make no comment and observation. The statutory appeals, if any, preferred by the importer(s) will be decided in accordance with law.6. Application of treaties into national legal systems and the hierarchical status of the norms to be so applied are extraordinarily complex and vary from country to country depending upon constitutional and other municipal rules. Further, a number of legal and constitutional issues regarding international treaties arise in domestic law, like the power to negotiate, sign and exit a binding international obligation or treaty, validity of a treaty under the national constitutional law, power to implement the treaty obligations and applicability of treaty in domestic law including the principle of invocability or justiciability as contrasted from direct applicability and hierarchy of norms in domestic law where the treaty norms conflict with the norms of the domestic law. There is no uniformity in approach on these aspects as there are different national systems of treaty applications . Two aspects relevant in the present case are; (i) applicability of the international treaty in domestic law and (ii) invocability of the treaty in municipal law and before the municipal courts.7. In spite of there being different constitutional and statutory approaches on applicability, the States as signatories to the international treaty are under an obligation to act in conformity and bear responsibility for breaches, be it as a consequence of legislative enactment, executive action or even judicial decisions. The State cannot plead and rely upon internal law including judicial decisions as a defence to a claim for breach of an international obligation. Acts of legislation, executive measures and judicial decision making are not treated as third party acts for which the State is not responsible. The national law, executive mandate and action and the decisions of the domestic courts are facts which express the will and constitutes activities of the State. In international law, municipal laws cannot prevail upon the treaties as internal actions must comply with the international obligation. They may constitute breach of the treaty.8. Thus, breach of a stipulation in international law cannot be justified by the State by referring to its domestic legal position. This rule of international law is unexceptionable and prosaic, as the contra view would permit the international obligations to be evaded by the simple method of domestic legislation, executive action or judicial decision. Contracting States are under an obligation to act in conformity with the rules of international law and bear responsibility for breaches whether committed by the legislature, executive or even judiciary. In a way, therefore, international treaties are constraint on sovereign activity, albeit voluntarily agreed.9. For the purpose of GATT-1994, municipal laws are evidences of fact, including evidence of conduct in violation of the norms and objective of the treaty. At the same time, failure to enact an internal domestic law in conformity with the international obligation is not a breach of international law, unless there is such requirement and obligation created by the international treaty. In the absence of any such binding clause, breach arises only when the State concerned fails to observe its obligation on a specific occasion.Invocability in simple terms refers to justiciability; admissibility of a claim before the national courts. It is not connected with the defence or merits of the defence. In case where an act of transformation is required, treaties may partially or entirely become part of the domestic law. Where the treaty or portion thereof become a part of the domestic law by act of transformation, it is obvious that only the part incorporated or transformed into domestic law is invocable and justiciable and not the parts that are not codified into domestic law. However, invocability can embrace several ideas which are intertwined and is of specific concern in cases of constitutions allowing direct application. Here invocability is a generic term which means to embrace a small inventory of means of judicial control over the use in a particular law suit of the direct applicability of the treaty. As in case of act of transformation, even in direct application cases, some jurisdictions accept the principle of partial direct application and, therefore, the treaty is directly applicable for some purposes and not others.11. Most jurists draw distinction between direct application of treaties in domestic law, and national legal systems that mandate and require act of transformation for an international treaty to apply and be a part of domestic law. Direct application means and mandates that the treaty norms, either wholly or to some extent, are directly treated as norms of domestic law and enjoy the statutory law status by default in the domestic legal system. The term direct application will also cover situations in which government or different levels of government utilise treaty norms as part of domestic jurisprudence and is not limited to situations in which private parties can sue on the basis of the treaty norms. As explained below, there is distinction between direct application and invocability. Act of transformation principle means and implies that an international treaty is not directly applicable in the domestic law system and requires provision in the domestic rules before it is applied. Transformation is a word of wide amplitude and does not refer to mere implementation as it includes the right of the country to adopt, amend or modify the treaty language into domestic jurisprudence. The act of transformation is different from direct application as in the former the treaty is not received and treated as part of domestic jurisprudence until it is published and made part of the domestic jurisdiction in the same manner as other law.Except to the extent that a treaty becomes incorporated into the laws by a statute, the courts in United Kingdom have no power to enforce treaty rights and obligations at the behest of foreign government or even a citizen of the United Kingdom. It has been also held that decision as to whether the terms of the treaty have been complied with are matters exclusively for the Crown as the court must speak with the same voice as the executive (Lonrho Exports v. ECGD, [1998] 3 W.L.R 394.) . This principle is subject to the exceptions in cases where reference to the treaty is needed to explain the relevant factual background in cases where terms of the treaty are incorporated in a contract or the legislation refers to a relevant but un-incorporated treaty. However, an unincorporated international treaty can give rise to legitimate expectations that the executive, in the absence of statutory or executive indications to the contrary, will act in conformity with the treaty. In all other cases, rights and duties of the British subjects are affected by an Act of Parliament which is necessary for the provisions of the particular treaty to be operative within the United Kingdom. Further and at the same time, there is a presumption in English law that legislation is to be construed as to avoid conflict with international law. This specifically applies when interpretation to the Act of Parliament is in question, i.e. while interpreting the enactment as a consequence of the act of transformation. The courts would intend to bring the treaty into effect if the provisions are unambiguous unless they have no choice. In United Kingdom, the legislature is required to enact laws, that incorporate and transform treaties or treaty norms into domestic law. Variation of this approach is to be found in other countries like Germany and Italy. Thus, there is great diversity of national constitutional systems regarding international treaty application.15. The law in India is not very different from other Commonwealth Countries. Article 73 of the Constitution delineates the extent of executive power of the Union which extends to all matters with respect to which the Parliament has the power to make laws and it extends to the exercise of such rights, authority and jurisdiction as are exercisable by the Central Government by virtue of any treaty or agreement. Proviso to the Article deals with limitation of the executive power under sub-clause (a) with which we are not concerned. Chapter I of Part XI of the Constitution, captioned Relations between the Union and the Sates vide different Articles stipulates that in respect of List 1 of the 7th Schedule the Parliament has exclusive power to make laws for the whole or any of the territory of India; in respect of List II (State List) the legislatures of the States have exclusive power to make laws for the whole or any part of the States; and in respect of List III (Concurrent List) the Parliament and the State Legislatures have the power to make laws. For the purpose of the present case, Article 253 of the Constitution is important as it states that notwithstanding anything in the foregoing provisions of this Chapter, the Parliament has the power to make laws for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or decisions made at any international conference, association or body.17. More important for our purpose is the concurring opinion of Shah, J. who had quoted the effect of international treaty on the rights of the citizen/subjects of the State as stated in Oppenheims International Law, 8 th Edition, in the following words:...Such treaties as affect private rights and, generally, as required for their enforcement by English Courts a modification of common law or of a statute must receive parliamentary assent through an enabling Act of Parliament. To that extent binding treaties which are part of International Law do not form part of the law of the land unless expressly made so by the Legislature.(page 40)The binding force of a treaty concerns in principle the contracting States only, and not their subjects. As International Law is primarily a law between States only and exclusively, treaties can normally have effect upon States only. This rule can, as has been pointed out by the Permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self- executory. Otherwise, if treaties contain provisions with regard to rights and duties of the subjects of the contracting States, their Courts, officials, and the like, these States must take steps as are necessary according to their Municipal Law, to make these provisions binding upon their subjects, Courts, officials, and the like.(page 924)Referring to the power under Article 73 of the Constitution and the power of the Parliament to make laws in terms of Article 253, Shah, J. had further observed:80...By Article 73, subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which the Parliament has power to make laws. Our Constitution makes no provision making legislation a condition of the entry into an international treaty in times either of war or peace. The executive power of the Union is vested in the President and is exercisable in accordance with the Constitution. The Executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are binding upon the State. But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals. The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty.. It was also clarified that Article 253 deals with the legislative power of the Parliament and thereby confers power on the Parliament which it may not otherwise possess. This provision does not seek to circumscribe the extent of power conferred under Article 73. In other words, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation; where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.21. Afore-quoted decisions are on the legal effect of international treaties in the domestic law in India. The ratio of these decisions primarily relates to and is confined to the requirement and mandate of the need for act of transformation to be a part and parcel of domestic law, which confers a right to invocability. The ratio of the above decisions has to be distinguished from decisions interpreting domestic law after the act of transformation consequent to which portions of GATT-1994 stand enacted thereby conferring right of invocability to parties.GATT-1994 is an international convention framed after great deliberation and exercise, to develop and promote international trade.

### 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: WTO member countries, yet safeguard measures in the form of Quantitative Restrictions are not provided for under any Indian law. This is in accordance with the provision to incorporate safeguard measures in the form of Quantitative Restrictions, as provided in Article XIX of GATT and the WTO Agreement on Safeguards. Section 9A substantially incorporates, with some modifications, provisions of Article XIX of GATT-1994. Rules made in 2012 are also in conformity with the provisions of the WTO Agreement on Safeguards made in terms of Article XIX of GATT-1994. Sub-rule (3) to Rule 5 of the Safeguard Measures (Quantitative Restrictions) Rules, 2012 states and sets out the conditions for applicability of Rule 9A, which are: (i) increased imports; (ii) serious injury or threat of serious injury; and (iii) a causal link between increased imports and alleged serious injury or threat of serious injury. The expression increased imports has been defined in terms of increased quantity to mean increase in imports in absolute terms or relative to domestic production. The expressions serious injury and threat of serious injury have been defined in clauses (c) and (d) of sub-clause (4) to Section 9A to mean injury causing significant overall impairment in the position of a domestic industry and a clear and imminent danger of serious injury respectively. The expression domestic industry has also been defined in clause (b) to sub-section (4) to Section 9A. Similarly, the expression interested party has been defined in sub-rule (d) to Rule 2 of the Safeguard Measures (Quantitative Restriction) Rules, 2012 and includes exporter or foreign producer or the importer of goods for the purposes of imposition of safeguard quantitative restrictions on trade or business association. It also includes the government of the exporting country or producer of goods or directly competitive goods in India or a trade or business association . 41. The need to enact Section 9A arose from the obligations flowing from Article XIX, as restriction in form of quantitative restriction, require a procedure to be followed. Affected parties including exporters, importers have to be heard. Consequently, act of transformation was required. Article XIX of GATT-1994 is an escape provision, i.e. a provision which entitles a contracting state to escape from the rigours of paragraph (1) of Article XI of GATT- 1994. Similar acts of transformation have been undertaken by enacting Custom Valuation Rules, provision of antidumping, countervailing duty etc. but the entire GATT-1994 does not stand transposed and enacted by way of statutory law or delegated legislation. 42. This being the position, Section 9A has to be interpreted as an escape provision when the Central Government i.e. the Union of India may escape the rigours of paragraph (1) of Article XIX of GATT-1994. Section 9A is not a provision which incorporates or transposes paragraph (1) of Article XI into the domestic law either expressly or by necessary implication. To hold to the contrary, we would be holding that the Central Government has no right and power to impose quantitative restrictions except under Section 9A of the FTDR Act. This would be contrary to the legislative intent and objective. Section 9A of the FTDR Act does not elide or negate the power of the Central Government to impose restrictions on imports under sub-section (2) to Section 3 of the FTDR Act. 43. In other words, the impugned notifications would be valid as they have been issued in accordance with the power conferred in the Central Government in terms of sub-section (2) to Section 3 of the FTDR Act. The powers of the Central Government by an order imposing restriction on imports under sub-section (2) to Section 3 is, therefore, not entirely curtailed by Section 9A of the FTDR Act. 44. To be fair, learned counsel appearing for the importers had conceded that they cannot enforce or claim violation of paragraph (1) of Article XI of GATT-1994 in the domestic courts in India unless the said Article has been expressly or by necessary implication incorporated and transposed in the domestic law, that is, the FTDR Act. 45. In the present case, this Court is not called upon to decide and examine the obligations of the Contracting Parties in terms of GATT-1994. Our findings and ratio are confined and restricted to interpretation of Section 3 and 9A of the FTDR Act and in that context we have referred to GATT-1994. D. Contention of the importers of bona fide imports under interim orders and prayer for partial relief. 46. Learned counsel for some of the importers had placed reliance on Raj Prakash Chemical v. Union of India (1986) 2 SCC 297 , which judgment, in our opinion, has no application. In Raj Prakash Chemical (supra), the petitioner had acted under a bona fide belief in view of judgments and orders of High Courts and the interpretation placed by the authorities. In this background, observations were made to giving benefit to the importers, despite the contrary legal interpretation. In the instant case, the importers rely upon the interim orders passed by the High Courts whereas on the date when they filed the Writ Petitions and had obtained interim orders, the Madras High Court had dismissed the Writ Petition upholding the notification. Similarly, the High Court of adjudicature at Bombay, High Court of Gujarat and the High Court of Madhya Pradesh had dismissed the Writ Petitions filed before them and upheld the notifications and the trade notices. Notwithstanding the dismissals, the importers took their chance, obviously for personal gains and profits. They would accordingly face the consequences in law. In these circumstances, the importers it cannot be said had bona fide belief in the right pleaded. E. What is not decided 47. Learned counsel for some of the importers had submitted that they have preferred statutory appeals against orders suspending or terminating import export code. The said aspect has not been examined and decided and hence we make no comment and observation. The statutory appeals, if any, preferred by the importer(s) will be decided in accordance with law. F. Conclusion ### Response: 0 ### Explanation: question, i.e. while interpreting the enactment as a consequence of the act of transformation. The courts would intend to bring the treaty into effect if the provisions are unambiguous unless they have no choice. In United Kingdom, the legislature is required to enact laws, that incorporate and transform treaties or treaty norms into domestic law. Variation of this approach is to be found in other countries like Germany and Italy. Thus, there is great diversity of national constitutional systems regarding international treaty application.15. The law in India is not very different from other Commonwealth Countries. Article 73 of the Constitution delineates the extent of executive power of the Union which extends to all matters with respect to which the Parliament has the power to make laws and it extends to the exercise of such rights, authority and jurisdiction as are exercisable by the Central Government by virtue of any treaty or agreement. Proviso to the Article deals with limitation of the executive power under sub-clause (a) with which we are not concerned. Chapter I of Part XI of the Constitution, captioned Relations between the Union and the Sates vide different Articles stipulates that in respect of List 1 of the 7th Schedule the Parliament has exclusive power to make laws for the whole or any of the territory of India; in respect of List II (State List) the legislatures of the States have exclusive power to make laws for the whole or any part of the States; and in respect of List III (Concurrent List) the Parliament and the State Legislatures have the power to make laws. For the purpose of the present case, Article 253 of the Constitution is important as it states that notwithstanding anything in the foregoing provisions of this Chapter, the Parliament has the power to make laws for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or decisions made at any international conference, association or body.17. More important for our purpose is the concurring opinion of Shah, J. who had quoted the effect of international treaty on the rights of the citizen/subjects of the State as stated in Oppenheims International Law, 8 th Edition, in the following words:...Such treaties as affect private rights and, generally, as required for their enforcement by English Courts a modification of common law or of a statute must receive parliamentary assent through an enabling Act of Parliament. To that extent binding treaties which are part of International Law do not form part of the law of the land unless expressly made so by the Legislature.(page 40)The binding force of a treaty concerns in principle the contracting States only, and not their subjects. As International Law is primarily a law between States only and exclusively, treaties can normally have effect upon States only. This rule can, as has been pointed out by the Permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self- executory. Otherwise, if treaties contain provisions with regard to rights and duties of the subjects of the contracting States, their Courts, officials, and the like, these States must take steps as are necessary according to their Municipal Law, to make these provisions binding upon their subjects, Courts, officials, and the like.(page 924)Referring to the power under Article 73 of the Constitution and the power of the Parliament to make laws in terms of Article 253, Shah, J. had further observed:80...By Article 73, subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which the Parliament has power to make laws. Our Constitution makes no provision making legislation a condition of the entry into an international treaty in times either of war or peace. The executive power of the Union is vested in the President and is exercisable in accordance with the Constitution. The Executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are binding upon the State. But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals. The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty.. It was also clarified that Article 253 deals with the legislative power of the Parliament and thereby confers power on the Parliament which it may not otherwise possess. This provision does not seek to circumscribe the extent of power conferred under Article 73. In other words, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation; where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.21. Afore-quoted decisions are on the legal effect of international treaties in the domestic law in India. The ratio of these decisions primarily relates to and is confined to the requirement and mandate of the need for act of transformation to be a part and parcel of domestic law, which confers a right to invocability. The ratio of the above decisions has to be distinguished from decisions interpreting domestic law after the act of transformation consequent to which portions of GATT-1994 stand enacted thereby conferring right of invocability to parties.GATT-1994 is an international convention framed after great deliberation and exercise, to develop and promote international trade.

Swarn Lata Vs. Union of India & Others

Secretary to the Govern­ment of Haryana, Industrial Training Department.62. Dr. A.C. Mathai, Under Secretary, Union Public Service Com­mission has on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by any ex­traneous considerations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that the Selec­tion Committee was wholly uninfluenced by any after consideration except merit. In S. Pratap Singh v. The State of Punjab AIR 1964 SC 72 this Court laid down that he who seeks to invalidate or nullify any Act or Order must establish the charge of bad faith and abuse or misuse by Govern­ment of its powers. The allegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On the appellant’s own showing, Dr. O.S. Sehgal is Director, Technical Education recorded appreciation of her as principal of the Insti­tute. This clearly shows that he had no particular animus against her.63. Furthermore, as the Division Bench observes, merely because Sri B.S. Ojja, Home Secretary, Chandigarh Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana, Indus­trial Training Department dated October 11/14, 1974 expressing his unwil­lingness to take the appellant on deputation because she was not holding a substantive rank in the pay scale of Rs. 350-900, contrary to the instruction of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarh Admi­nistration or Dr. O S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the suitability of a candidate for appointment. There is nothing to suggest that the reasons given by the Home Secretary were not his own reasons based upon his own information. It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully convergent with the realities. For aught we know, the Home Secretary had his own sources of information.64. In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuesion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essential qualifi­cations of the candidate called for interview or that respondent No. 6 was eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of the advertise­ment, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.65. Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was a denial of equal opportunity to her in violation of Article 16(1) can be easily dis­posed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons pos­sessing the qualifications advertised, as prescribed by the rules are available and have submitted their applications, to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application if she felt that she was better. If not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected.66. In conclusion, we cannot but express our sympathy for the appel­lant. This unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely an equi­table considerations. We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant to in the cadre of Head-Mistresses, who may be holding a post in the pay scale of Rs. 350-900 for appointment on deputation in an equivalent post, such officer, could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide.67.

0[ds]33. There is no warrant for the contention that the power of the Chandigarh Administration in relation to the mode of filling up the post in question, which admittedly is under the control of the Administrator,Administration, stands circumscribed by the terms of the directions issued by the Central Government under Section 14 of the Act.It seems to us that for a proper determination of question, it is necessary first of all to formulate as clearly as possible the precise nature and the effect of the directions issued by the Central Government under Section 84 of the Punjab Re-organisation Act,The use of the wordsthe purpose of giving effect to theprovisions of theclearly curtails the ambit of the Section. The directions that the Central Government issues under the Section are only for a limited purpose i.e., for the implementation of the scheme for theof services. When the process relating to integration of service as envisaged by the supplemental, incidental or consequential provisions forre-organisation of servicesunder a law made by the Parliament in exercise of its power under Arts. 2, 3 and 4 of the Constitution is completed, such an incidental provision like Section 84 necessarily ceases to have effect.39. While it is not disputed that the power to regulate matters relating to services under the Union of India and under the various States specified in the First Schedule to the Constitution is an exclusive function of the Union and the States under Entry 70, List 1 and Entry 41, List II of Seventh Schedule read with Article 309 and normally therefore, it is the exclusive power of the Union and the States to deal with their services either inof their Legislative functions or rule-making powers, or in the absence of any law or rules, in exercise of their executive power under Article 73 and Article 162 of the Constitution, which is co-extensive with their Legislative powers to regulate recruitment and conditions of service, nevertheless it is strenuously urged that his power of the Union and of the States which embraces within itself the power to regulate the mode of recruitment of service must yield to the supplemental, incidental or consequential directions issued by the Central Government in relation to the setting up of services in a newly formed State under a law made by the Parliament relatable to Art. 3 of the Constitution, in the context of re-organisation of States.For the reasons already stated there is no basis for thethat the supplemental, incidental or consequential provisions which the Parliament is competent to make while enacting a law under Articles 2 or 3 have an overriding effect for all times. On the plain words of Article 4 of the Constitution, a provision like Section 84 of the Act, or the directions issued thereunder are only supplemental, incidental or consequential to the scheme of re-organisation of a State. They cannot be given a wider effect than what is intended.There are thus no rules and regulations which requires the Chandigarh Administration to fill up by deputation the vacancy in the post of the Principal, Government Central Crafts Institute for Women,The Chandigarh Administration had, therefore, the option to either directly recruit persons to be appointed to the post through Union Public Service Commission or the request either of the State of Punjab or the State of Haryana to send the names of suitable persons whom the Chandigarh Administration might be willing to appoint. It must, accordingly, be held that the post of Principal of the Institute was not ad, therefore, the appointment of respondent No. 6, Smt. Prem Lata Dewan by the Chandigarh Administration to that post, by direct recruitment through the Commission was not invalid.Even assuming that the directions issued by the Centralunder Section 84 of the Act were binding on the Chandigarh Administration, it is clear that there is no breach thereof. From the correspondence that passed between the Chandigarh Administration and the Government of Haryana, there can be no doubt whatever that the Chandigarhmade their utmost endeavour to get a suitable person on deputation for appointment as Principal of the Institute. A long correspondence on the subject ensued and eventually the Government of Haryana by its letter dated July 7, 1974 informed the Chandigarh Administration that it was notto relieve any women officers in the grade of Rs. 350-900 from the Industrial Training Department except that of Smt. Champa Malhotra who was facing an inquiry, with a request that the appellant should instead be appointed. The Government of Haryana was obviously wrong in insisting upon the appointment of an officer in the scale of Rs, 300-500. This could obviously be done as it would be contrary to the instructions of theof India, Ministry of Home Affairs dated August 16, 1971 that an officer cannot be appointed on deputation to a post that carried a higher grade of pay in the Union Territory of Chandigarh. Thus, the post of Principal in the pay scale of Rs. 350-900 could only be filled by a person on deputation who manned a post the scale of pay of which was equivalent to the scale of pay of the Principal i.e., Rs.therefore, rightly pointed out that the post of Assistant Directoresses in the States of Punjab and Haryana were equivalent to the post of Principal of the Institute, as they also carried the scale of Rs. 350-900 and that throughout the Chandigarh Administration had - been appointing Principal of the Institute only from the cadre of Assistant Directoresses.It would, therefore, appear that right from March 7, 1974 till August 14, 1974 when the Chandigarh Administration forwarded requisition to the Union Public Service Commission to advertise the post for direct recruitment i.e., for nearly 6 months, the Government of Haryana took no action in the matter. During this period, it just persisted in its stand in forwarding a panel of names of officers carried on the scale of Rs. 300-500 and when it was fully apprised about the true legal position by theAdministration expressing their inability to take an officer working in a lower grade or to take back the appellant as Principal of the Institute, it still insisted in sponsoring her name, although this could not be done. This attitude of the Government of Haryana was just inexplicable. Nevertheless, the Chandigarh Administration by their letter dated August 20, 1974 i.e., just within six days of the requisition did what was expected of them and duly informed the Government of Haryana of their decision to recruit a Principal through the Commission and requested that it may direct the eligible officers from Haryana to apply for the post, In response, theof Haryana by its letter dated September 27/30, 1974 registered a protest staking a claim as if the post of Principal of the Institute was a Haryana-quota post, i.e., it could be filled in only by an officer onfrom the State of Haryana. In spite of repeated letters sent by the Chandigarh Administration, the Government of Punjab also did not send up the name of a suitable officer. In view of these circumstances, it cannot be asserted that there was any breach of the instructions issued by the Central Government under Section 84 of the Act, if all they were applicable.Viewed from any angle, we must hold that the Chandigarh Administration was within their rights in making the appointment to the post of Principal, Government Central Crafts Institute for Women,by direct recruitment through the Union Public Service Commission. Thus the appointment of respondent No. 6, Smt. Prem Lata Dewan as Principal of the Institute was not invalid as being contrary of the directions issued by the Central Government under Section 84 of the Act inasmuch as the said directions were not applicable and also because there was no breach thereof, if at all theyappellant has nowhere alleged in the writ petition that the Union Public Service Commission had no authority to relax the essentialview of this admission, she cannot be heard to say that the Union Public Service Commission had no such power. Since however the point was argued at length, we think it necessary to deal with it.It is undisputed that there is no statute or regulation having the force of law, by which any qualifications are prescribed for the post of Principal of the Institute Nor has the Administrator framed any rules to regulate the method of recruitment to such post, or laying down thenecessary for appointment to the post or the conditions of service .attached to thedo not see how this decision is of any avail to the appellant. On the contrary, while laving down that the Government has to fill up posts by appointing those who are selected by the Public Service Commission and must adhere to the order of merit in the list of candidates sent by thedecision, in our opinion, instead of supporting the appellant goes against her.We are of the view that the decision of this Court in Union of India and Ors. v. S. B. Kohli and Anr., (1973) 3 SCR 117 and that of the Bombay High Court in Maharashtra State Electricity Board Engineers Association, Nagpur v. Maharashtra State Electricity Board, AIR 1968 Bom. 75 are both ‘ distinguishable on facts.In the present case, as already pointed out, there was no statute or regulation having the force of law by which any qualifications were prescribed for post of Principal. There were also no rules framed to regulate recruitment and conditions of service of the post under the proviso to Article 309 of the Constitution. It was the exclusive power of the Chandigarh Administration in the absence of any law or rules, to prescribe the essential qualifications for direct recruitment to the post, and,the qualifications were prescribed in consultation with the Commission. The Commission while advertising the post, and had reserved to itself the power to relax the qualifications in deserving cases. It is not that thehad relaxed one of the essential qualifications viz., qualification No. (ii) ‘Diploma in Technology of three yearsin the case of respondent No. 6 alone. There were three other candidates who were also interviewed in relaxation of essential qualifications No. (ii) andin its primary sense it is true that the wordinvolves a technical process, invention, method of the like, in the broader sense it embraces non-engineering related curricula pertaining to applied and graphic arts, education, health-care, nutrition, etc. i.e. it includes technique or professional skill in any of the subjects enumerated above. The expression ‘Diploma inis, therefore, wide enough to include a Diploma in HomeUnion Public Service Commission was, therefore, perhaps not wrong in selecting respondent No. 6 as a suitable candidate for theare unable to hold from the material on record that there was any bias on the part of Dr. O.S. Sehgal, Director, Technical Education, Chandigarh or that he influenced the members of the Selection Committee in anyso as to vitiate the selection of respondent No. 6. In our view, the allegations in the writ petition are not sufficient to constitute an averment of mala fides or bias on the part of either the Chandigarh Administration or in particular against Dr. O.S. Sehgal sufficient to vitiate the appointment of respondent No. 6 mala fides as such are imputed against the Union Public Service Commission. The Court would be justified in refusing to carry on investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing Mala fides lies very heavily on the person who alleges.The Division Bench has pointed out, and we think tightly so that the principles laid down incase (supra) were not applicable in the facts and circumstances of the present case. It rightly observes that no question of mala fides or bias arises as it is clear from the letter written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, Chandigarh Administration wherein he had not said a word against the appellant. All that he said in his capacity as Director, Technical Education was that on account of the failure to appoint a Principal for quite sometime the Institute was in a bad condition, and that although he had given charge to the Vice Principal, she did not prove effective suggesting that the Government of Haryana should be requested to lend the services of Mrs. Champa Malhotra as he was prepared to take her back as she had worked for a long time principal in order that the work of the Institute should not suffer. The whole tenor of the document shows that it was written in the best interests of theHe is the Director of Technical Education was solely responsible for the due administration of the Institute. The Division Bench has also rightly held that no inference of mala fides arises from the letter written by Shri B.S. Ojha, Home Secretary, Chandigarh Administration dated October 11/14,is nothing on record to substantiate such general and vague allegations of the appellant as to Mala fides or bias on the part of Dr. Sehgal in his counter-affidavit has controverted the insinuations made against him. Not a word was said at the hearing about the alleged utterance attributed to him. Nothing was brought to our notice to show ill-will or malice on his part. The entire arguments are built around the two letters, the one written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, and the other addressed by Shri B.S. Ojha, Home Secretary, Chandigarh Administration to Shri S.N. Bhanot, Secretary to theof Haryana, Industrial Training Department.Dr. A.C. Mathai, Under Secretary, Union Public Servicehas on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by anyconsiderations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that theCommittee was wholly uninfluenced by any after consideration exceptallegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On theown showing, Dr. O.S. Sehgal is Director, Technical Education recorded appreciation of her as principal of theThis clearly shows that he had no particular animus against her.Furthermore, as the Division Bench observes, merely because Sri B.S. Ojja, Home Secretary, Chandigarh Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana,Training Department dated October 11/14, 1974 expressing histo take the appellant on deputation because she was not holding a substantive rank in the pay scale of Rs. 350-900, contrary to the instruction of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarhor Dr. O S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the suitability of a candidate for appointment. There is nothing to suggest that the reasons given by the Home Secretary were not his own reasons based upon his own information. It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully convergent with the realities. For aught we know, the Home Secretary had his own sources of information.In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuesion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essentialof the candidate called for interview or that respondent No. 6 was eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of thethe Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was a denial of equal opportunity to her in violation of Article 16(1) can be easilyof. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and personsthe qualifications advertised, as prescribed by the rules are available and have submitted their applications, to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application if she felt that she was better. If not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected.In conclusion, we cannot but express our sympathy for theThis unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely anconsiderations. We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant to in the cadre of Head-Mistresses, who may be holding a post in the pay scale of Rs. 350-900 for appointment on deputation in an equivalent post, such officer, could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide.

### 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: Secretary to the Govern­ment of Haryana, Industrial Training Department.62. Dr. A.C. Mathai, Under Secretary, Union Public Service Com­mission has on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by any ex­traneous considerations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that the Selec­tion Committee was wholly uninfluenced by any after consideration except merit. In S. Pratap Singh v. The State of Punjab AIR 1964 SC 72 this Court laid down that he who seeks to invalidate or nullify any Act or Order must establish the charge of bad faith and abuse or misuse by Govern­ment of its powers. The allegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On the appellant’s own showing, Dr. O.S. Sehgal is Director, Technical Education recorded appreciation of her as principal of the Insti­tute. This clearly shows that he had no particular animus against her.63. Furthermore, as the Division Bench observes, merely because Sri B.S. Ojja, Home Secretary, Chandigarh Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana, Indus­trial Training Department dated October 11/14, 1974 expressing his unwil­lingness to take the appellant on deputation because she was not holding a substantive rank in the pay scale of Rs. 350-900, contrary to the instruction of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarh Admi­nistration or Dr. O S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the suitability of a candidate for appointment. There is nothing to suggest that the reasons given by the Home Secretary were not his own reasons based upon his own information. It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully convergent with the realities. For aught we know, the Home Secretary had his own sources of information.64. In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuesion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essential qualifi­cations of the candidate called for interview or that respondent No. 6 was eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of the advertise­ment, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.65. Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was a denial of equal opportunity to her in violation of Article 16(1) can be easily dis­posed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons pos­sessing the qualifications advertised, as prescribed by the rules are available and have submitted their applications, to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application if she felt that she was better. If not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected.66. In conclusion, we cannot but express our sympathy for the appel­lant. This unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely an equi­table considerations. We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant to in the cadre of Head-Mistresses, who may be holding a post in the pay scale of Rs. 350-900 for appointment on deputation in an equivalent post, such officer, could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide.67. ### Response: 0 ### Explanation: part of Dr. Sehgal in his counter-affidavit has controverted the insinuations made against him. Not a word was said at the hearing about the alleged utterance attributed to him. Nothing was brought to our notice to show ill-will or malice on his part. The entire arguments are built around the two letters, the one written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, and the other addressed by Shri B.S. Ojha, Home Secretary, Chandigarh Administration to Shri S.N. Bhanot, Secretary to theof Haryana, Industrial Training Department.Dr. A.C. Mathai, Under Secretary, Union Public Servicehas on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by anyconsiderations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that theCommittee was wholly uninfluenced by any after consideration exceptallegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On theown showing, Dr. O.S. Sehgal is Director, Technical Education recorded appreciation of her as principal of theThis clearly shows that he had no particular animus against her.Furthermore, as the Division Bench observes, merely because Sri B.S. Ojja, Home Secretary, Chandigarh Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana,Training Department dated October 11/14, 1974 expressing histo take the appellant on deputation because she was not holding a substantive rank in the pay scale of Rs. 350-900, contrary to the instruction of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarhor Dr. O S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the suitability of a candidate for appointment. There is nothing to suggest that the reasons given by the Home Secretary were not his own reasons based upon his own information. It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully convergent with the realities. For aught we know, the Home Secretary had his own sources of information.In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuesion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essentialof the candidate called for interview or that respondent No. 6 was eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of thethe Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was a denial of equal opportunity to her in violation of Article 16(1) can be easilyof. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and personsthe qualifications advertised, as prescribed by the rules are available and have submitted their applications, to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application if she felt that she was better. If not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected.In conclusion, we cannot but express our sympathy for theThis unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely anconsiderations. We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant to in the cadre of Head-Mistresses, who may be holding a post in the pay scale of Rs. 350-900 for appointment on deputation in an equivalent post, such officer, could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide.

Union of India and Anr Vs. Ms. A. Shainamol, IAS and Anr

High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently………….. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court. 45. This Court in a Judgment reported as Alchemist Ltd. v. State Bank of Sikkim (2007) 11 SCC 335 , reviewing the entire case law to determine as to when the cause of action wholly or in part arises held that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. This Court held as under:- 37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a part of cause of action, nothing less than that. 46. The Full Bench of the Jurisdictional High Court in a judgment reported as Nakul Deo Singh v. Deputy Commandant 1999 SCC OnLine Ker 366 was considering an Original Petition filed before the Kerala High Court by a Head Constable working in the Central Industrial Security Force Unit at Bokkaro Steel Plant. In the said case, the disciplinary authority and the appellate authority were situated outside the territorial jurisdiction of the High Court. The applicant claimed that since the order of appellate authority was received within the jurisdiction of the Kerala High Court, therefore, it will have the jurisdiction to entertain the Original Petition. The Court held as under: 29. …….It appears to us that the decisions in Swaika At best receipt of the order or communication only gives the party a right of action based on the cause of action arising out of the action complained of. When that action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefore is dismissed by an authority located outside the jurisdiction of the High Court cause of action wholly arises outside the jurisdiction of the High Court and Art. 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this court, merely because the appellate order communicated from the seat of the appellate authority was received while the petitioner was residing or working within the jurisdiction of this court Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction can lead to a position where a litigant would be in a position to choose his own court for the purpose of redressal of his grievance. All that he need do is to move over to a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that that court had jurisdiction because the order of the appellate authority was served on him while he was residing within the jurisdiction of that High Court No litigant can have a right to choose the court for seeking relief and the mere introduction of clause 2 of Art. 226 does not alter that position. 47. It may be noticed that Union had not raised objection about the entertainment of an Original Application filed by the applicant before the Ernakulam Bench of the Central Administrative Tribunal. It appears that the applicant filed an application before the Ernakulam Bench for the reason that she was permanent resident in the State or may be for the reason, the order of allocation was received by her in the State of Kerala. Both of these reasons do not give rise to part of cause of action arising within the Jurisdiction of the Ernakulam Bench of Tribunal. At this stage, the applicant is not being non-suited on the ground that the Ernakulam Bench of the Tribunal had no jurisdiction.

1[ds]7. We find that the High Court has completely misread the statutory rules and the policy of allocation of cadre which would be discussed hereinafter.The said argument is however untenable. The applicant was allocated to the State of Himachal Pradesh and there was a consent duly given by the State of Himachal Pradesh for her allocation to that State. In fact, no consultation was required to be carried out in respect of the applicant with Kerala State. Therefore, mandate of Rule 5(1) of the Cadre Rules is satisfied when consultation was made with the State to which allocation was made.24. The State of Kerala has not disputed the decision arrived at in the meeting held on 04.07.2002, whereby the allocation of 89 vacancies to be filled up to the year 2007 was arrived at. Out of 89 vacancies, two vacancies were allocated to the State of Kerala, one to be filled up by an insider and other by an outsider OBC. The fact that the Kerala Cadre is deficient in respect of number of officers cannot be disputed by a successful candidate as such candidate had no right to claim additional vacancies so that the applicant can be assigned home state. The argument to claim that the entire deficient cadre should be made by allocation to one State in preference to other 23 States in the country is preposterous. The balancing of claims of all the States is to be carried by the Union and not by one State or by the Courts.25. The allocation order was approved by this Court in Rajiv Yadav. The number of vacancies allocated to each State was again based on logical mechanism as the number of districts in the entire country i.e., 595 divided by the number of districts in the State. Thus, in this manner, the vacancies available for allocation to the various States were arrived at. Accordingly, the two vacancies were allocated to the State of Kerala and the allocation in other States was in respect of number of districts available in each State.26. The applicant claimed allocation to the State of Kerala, i.e., her home cadre. There were 4 senior candidates in the general category. She was on merit as a general category candidate, having not availed any of the relaxed standards meant for a candidate of OBC category. In terms of proviso to Rule 7(3) of the Recruitment Rules and the proviso to clause 16(1) in the notification inviting applications for CSE-2006, the candidates including the applicant were put to notice, that SC/ST or OBC candidates will be treated as General Category Candidates who have not availed any concession or relaxation. The applicant was thus rightly treated as General Category candidate. In terms of Clause 16(2) of the CSE-2006 notification, the candidates belonging to the SC/ST or OBC recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government, if by this process they get a service of higher choice in the order of their preference. The applicant was already allocated IAS as there was no question of change of service.27. Therefore, as a general category candidate, there was no occasion for consultation with State of Kerala as the applicant was not even eligible to be considered for allocation to the said State in terms of the allocation order. The reasoning given by the High Court that there was cadre deficiency, therefore, the applicant was entitled to be allocated is strange and bereft of any merit.28. The consistent view of this Court has been that even if the name of the candidate appears in the merit list, such candidate has no right to claim appointment. The Constitution Bench in a judgment reported as Shankarsan Dash held as under:7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] , or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] .30. Therefore, the decision of the Union to fill only 89 vacancies in the cadre of IAS cannot be permitted to be disputed. The High Court had exceeded its jurisdiction to order allocation of Kerala Cadre to the applicant without examining the policy decision of the Union to fill up only 89 vacancies. The High Court again erred in law that an OBC candidate, who has not availed relaxation or concession, had to be treated as general category candidate.31. Rule 7(3) of the Recruitment Rules contemplates that the candidate belonging to the SC/ST or OBC found suitable by the Commission for appointment to the service shall be appointed against unreserved vacancies in case they qualify for appointment to the service based on their merit without recourse to the benefit of reservation. Such provision in the rule is a consonance with the judgment of this Court in Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp. 3 SCC 217 which reads thus:811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.32. Rule 7(4) is to be read as a proviso to Rule 7(3) of the Recruitment Rules which permits the appointment of candidates of SC/ST or OBC against the vacancies reserved for such candidates with due regard to the maintenance of efficiency of administration. Therefore, if a SC/ST or OBC candidate who has been found suitable for appointment against the unreserved vacancies can be appointed against the vacancy reserved for SC/ST or OBC, provided a conscious decision is taken with regard to the maintenance of efficiency of administration.33. The applicant though belonging to OBC has not availed any relaxations or concessions admissible to OBC candidates. She was a general merit candidate, thus not entitled to OBC reserved seat in her State. She was allocated to Himachal Pradesh cadre as a general category candidate falling in Rule 7(3) in view of her merit position as a general category candidate.35. We find that Sachindra Pratap Singh was the first OBC candidate who had availed concessions or relaxations as OBC and was allocated to Maharashtra cadre, being the first State in Group I in the scheme of grouping of States or cadres. Therefore, the applicant had no claim appointment to the Maharashtra cadre. She had no right to the Kerala cadre as well as the second post in the vacancies in the State of Kerala was meant for an OBC outsider candidate. Since Kerala was second last State in Group IV, the OBC candidate at Serial No. 131 was allocated such cadre.36. The appeal before this Court in Satya Prakash was against an order passed by the Delhi High Court reported as Satya Prakash v. Union of India Union of India, 2002 SCC On Line Del 1000 = (2002) 99 DLT 749 (DB). In the aforesaid case, an OBC candidate was not appointed to any of the Central Services as the Union had taken the candidates appointed on general merit though belonging to OBC to determine the percentage of appointed OBC candidates. The Delhi High Court was examining CSE-1996 which was a notification inviting applications for 28 different categories of services. In fact, rules mentioned in the said judgment are not the rules but clauses provided in the advertisement. The core question and the answer to the question posed are as under:12. The core question which arises for consideration in these writ petitions, is as to whether those OBC candidates were selected on merit and were placed in the list of open category candidate having regard to the decision of the Apex Court in Ritesh R. Sahs case (supra), could still for the purpose of placement be considered to be OBC candidate leading to deprivation of the other OBC category candidates from allocation of service whatsoever.13. ....So far as the reserved category candidates are concerned, the recommendations of the Commission have to be considered having regard to the relaxed standard applied in their case, as is evident from Sub-rule (ii) of Rule 16 aforementioned. The proviso appended to Rule 16 in no uncertain terms states that such candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes, who had been recommended by the Commission without resorting to the relaxed standard, i.e., on merit, shall not be adjusted against the vacancies reserved for the respective reserved category candidates.xxx xxx xxx15. The decision of the Apex Court in Ritesh R. Sahs case (supra), as also the proviso to Rule 16 clearly prohibit deprivation of the benefit of the reservation only because some reserved category candidates had also been selected on merit inasmuch as they were not to be treated as reserved category candidates except for a limited purpose, namely, for the purpose of allocation of service, but thereby OBC candidates cannot be deprived of their right to obtain allocation of any service.…. It cannot be contended that both for the purpose of allocation of job as also for the purpose of computation as regards number of OBC category candidates those OBC candidates selected on merit although were to be treated as general category candidates but for all intent and purport they would still be considered to be the reserved category candidates.xxx xxx xxx17. …..The Apex Court clearly held that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted as against the quota of the Scheduled Castes or Scheduled Tribes or any other reserved category since the same would be against the constitutional mandate of Article 16(4) of the Constitution of India.37. It is the appeal against the said judgment which was dismissed by this Court on 05.04.2006 in Satya Prakash. The clause in the advertisement published on 3.12.2005 is prior to the Judgement of this Court, therefore, certain clauses in the Rules and/ or advertisement may not be consistent with the law laid down by this Court in Indra Sawhney. But such question does not arise for consideration of this Court; therefore, it is not necessary to decide the legality and validity of the Rules.39. It is sub-clause (2) of Clause 16 of CSE-2006 which gives an option to SC/ST or OBC candidate recommended against unreserved vacancies to be adjusted against reserved vacancies, if by this process they get a service of higher choice in order of their preference. Thus, an SC/ST or OBC candidate selected against unreserved vacancy as a general merit candidate cannot make a grievance in respect of allocation of cadre but has a right to seek service as a reserved category candidate if that improves the selection of service. In fact, all the candidates including the applicant were put to notice as to how the cadre allocation would be made. But still, the applicant chose to claim home state though she was not eligible to be considered for such state. She had taken chance in appearing in the selection process but when she was unsuccessful in getting the home cadre, attempts were made to get into the home cadre on wholly untenable grounds.40. In the light of Rajiv Yadav, the allocation of cadre is not a matter of right. It was held that a selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home state. As stated above, allotment of cadre is an incidence of service. The applicant as a candidate for the All-India Service with eyes wide open has opted to serve anywhere in the country. Once an applicant gets selected to service, the scramble for the home cadre starts. The procedure for allocation of cadre is a mechanical process and admits no exception except in terms of Rule 7(4) which is to be read as proviso to Rule 7(3). The State has no discretion of allocation of a cadre at its whims and fancies. Therefore, the Tribunal or the High Court should have refrained from interfering with the allocation of cadre on the argument of alleged violation of the allocation circular.41. We find the observation of the High Court that there was a lack of consultation with the State of Kerala is not acceptable. Such consultation was not required to be carried out as discussed above. The finding of the High Court that the determination of total vacancies to be 89 was affected without any regard to cadre gap and on the ground that the requisition by the State Government was ignored as the rules and regulations warranted a mandatory consultation with the State of Kerala. We find that such conclusions are not supported by the documents on record including the additional affidavit filed by the Union. The findings of the High Court that the action of the Union was arbitrary as the allocation to certain States was more than the cadre gap is again not sustainable as the 89 vacancies were allocated to the States on the basis of the norms as disclosed in the brief notes submitted before this Court.42. The judgment of the Kerala High Court in Jyothilal again proceeds on the assumption that consultation was required to be carried out with the State of Kerala though the candidate was allocated to the State of Orissa. The judgment proceeds on basic fallacy that consultation has to be with the State to whom the officer is to be allocated, not with the State with whom the officers claim allocation.43. Before parting, we would like to observe that in terms of Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987, an application before the Central Administrative Tribunal is required to be filed where the applicant is posted for the time being or the cause of action wholly or in part has arisen. The applicant in her Original Application has not laid any foundation as to how the Ernakulam Bench of the Central Administrative Tribunal will have the jurisdiction to entertain an Original Application filed by her. It appears that the applicant had chosen the Ernakulam Bench for the reason that she was permanent resident of Kerala State. The applicant was not posted in the State of Kerala on the date of filing of the application. The applicant has not explained how the cause of action either wholly or partly had arisen within the jurisdiction of the Tribunal at Kerala.44. This Court in a judgment reported as Oil and Natural Gas Commission v. Utpal Kumar Basu & Ors. (1994) 4 SCC 711 was examining filing of a writ petition before the Calcutta High Court for the reason that the writ petitioner would suffer loss at its registered office which is situated within the jurisdiction of the Calcutta High Court. It may be stated that broadly language of Article 226 and Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 is similar. This Court considering Article 226 (2) of the Constitution held as under:8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently………….. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.46. The Full Bench of the Jurisdictional High Court in a judgment reported as Nakul Deo Singh v. Deputy Commandant 1999 SCC OnLine Ker 366 was considering an Original Petition filed before the Kerala High Court by a Head Constable working in the Central Industrial Security Force Unit at Bokkaro Steel Plant. In the said case, the disciplinary authority and the appellate authority were situated outside the territorial jurisdiction of the High Court. The applicant claimed that since the order of appellate authority was received within the jurisdiction of the Kerala High Court, therefore, it will have the jurisdiction to entertain the Original Petition. The Court held as under:29. …….It appears to us that the decisions in Swaika At best receipt of the order or communication only gives the party a right of action based on the cause of action arising out of the action complained of. When that action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefore is dismissed by an authority located outside the jurisdiction of the High Court cause of action wholly arises outside the jurisdiction of the High Court and Art. 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this court, merely because the appellate order communicated from the seat of the appellate authority was received while the petitioner was residing or working within the jurisdiction of this court Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction can lead to a position where a litigant would be in a position to choose his own court for the purpose of redressal of his grievance. All that he need do is to move over to a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that that court had jurisdiction because the order of the appellate authority was served on him while he was residing within the jurisdiction of that High Court No litigant can have a right to choose the court for seeking relief and the mere introduction of clause 2 of Art. 226 does not alter that position.47. It may be noticed that Union had not raised objection about the entertainment of an Original Application filed by the applicant before the Ernakulam Bench of the Central Administrative Tribunal. It appears that the applicant filed an application before the Ernakulam Bench for the reason that she was permanent resident in the State or may be for the reason, the order of allocation was received by her in the State of Kerala. Both of these reasons do not give rise to part of cause of action arising within the Jurisdiction of the Ernakulam Bench of Tribunal. At this stage, the applicant is not being non-suited on the ground that the Ernakulam Bench of the Tribunal had no jurisdiction.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently………….. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court. 45. This Court in a Judgment reported as Alchemist Ltd. v. State Bank of Sikkim (2007) 11 SCC 335 , reviewing the entire case law to determine as to when the cause of action wholly or in part arises held that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. This Court held as under:- 37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a part of cause of action, nothing less than that. 46. The Full Bench of the Jurisdictional High Court in a judgment reported as Nakul Deo Singh v. Deputy Commandant 1999 SCC OnLine Ker 366 was considering an Original Petition filed before the Kerala High Court by a Head Constable working in the Central Industrial Security Force Unit at Bokkaro Steel Plant. In the said case, the disciplinary authority and the appellate authority were situated outside the territorial jurisdiction of the High Court. The applicant claimed that since the order of appellate authority was received within the jurisdiction of the Kerala High Court, therefore, it will have the jurisdiction to entertain the Original Petition. The Court held as under: 29. …….It appears to us that the decisions in Swaika At best receipt of the order or communication only gives the party a right of action based on the cause of action arising out of the action complained of. When that action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefore is dismissed by an authority located outside the jurisdiction of the High Court cause of action wholly arises outside the jurisdiction of the High Court and Art. 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this court, merely because the appellate order communicated from the seat of the appellate authority was received while the petitioner was residing or working within the jurisdiction of this court Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction can lead to a position where a litigant would be in a position to choose his own court for the purpose of redressal of his grievance. All that he need do is to move over to a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that that court had jurisdiction because the order of the appellate authority was served on him while he was residing within the jurisdiction of that High Court No litigant can have a right to choose the court for seeking relief and the mere introduction of clause 2 of Art. 226 does not alter that position. 47. It may be noticed that Union had not raised objection about the entertainment of an Original Application filed by the applicant before the Ernakulam Bench of the Central Administrative Tribunal. It appears that the applicant filed an application before the Ernakulam Bench for the reason that she was permanent resident in the State or may be for the reason, the order of allocation was received by her in the State of Kerala. Both of these reasons do not give rise to part of cause of action arising within the Jurisdiction of the Ernakulam Bench of Tribunal. At this stage, the applicant is not being non-suited on the ground that the Ernakulam Bench of the Tribunal had no jurisdiction. ### Response: 1 ### Explanation: the jurisdiction to entertain an Original Application filed by her. It appears that the applicant had chosen the Ernakulam Bench for the reason that she was permanent resident of Kerala State. The applicant was not posted in the State of Kerala on the date of filing of the application. The applicant has not explained how the cause of action either wholly or partly had arisen within the jurisdiction of the Tribunal at Kerala.44. This Court in a judgment reported as Oil and Natural Gas Commission v. Utpal Kumar Basu & Ors. (1994) 4 SCC 711 was examining filing of a writ petition before the Calcutta High Court for the reason that the writ petitioner would suffer loss at its registered office which is situated within the jurisdiction of the Calcutta High Court. It may be stated that broadly language of Article 226 and Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 is similar. This Court considering Article 226 (2) of the Constitution held as under:8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently………….. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.46. The Full Bench of the Jurisdictional High Court in a judgment reported as Nakul Deo Singh v. Deputy Commandant 1999 SCC OnLine Ker 366 was considering an Original Petition filed before the Kerala High Court by a Head Constable working in the Central Industrial Security Force Unit at Bokkaro Steel Plant. In the said case, the disciplinary authority and the appellate authority were situated outside the territorial jurisdiction of the High Court. The applicant claimed that since the order of appellate authority was received within the jurisdiction of the Kerala High Court, therefore, it will have the jurisdiction to entertain the Original Petition. The Court held as under:29. …….It appears to us that the decisions in Swaika At best receipt of the order or communication only gives the party a right of action based on the cause of action arising out of the action complained of. When that action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefore is dismissed by an authority located outside the jurisdiction of the High Court cause of action wholly arises outside the jurisdiction of the High Court and Art. 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this court, merely because the appellate order communicated from the seat of the appellate authority was received while the petitioner was residing or working within the jurisdiction of this court Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction can lead to a position where a litigant would be in a position to choose his own court for the purpose of redressal of his grievance. All that he need do is to move over to a particular place for receiving the communication from the appellate authority and then approach the High Court of that place with a plea that that court had jurisdiction because the order of the appellate authority was served on him while he was residing within the jurisdiction of that High Court No litigant can have a right to choose the court for seeking relief and the mere introduction of clause 2 of Art. 226 does not alter that position.47. It may be noticed that Union had not raised objection about the entertainment of an Original Application filed by the applicant before the Ernakulam Bench of the Central Administrative Tribunal. It appears that the applicant filed an application before the Ernakulam Bench for the reason that she was permanent resident in the State or may be for the reason, the order of allocation was received by her in the State of Kerala. Both of these reasons do not give rise to part of cause of action arising within the Jurisdiction of the Ernakulam Bench of Tribunal. At this stage, the applicant is not being non-suited on the ground that the Ernakulam Bench of the Tribunal had no jurisdiction.

Union of India and Others Vs. Atic Industries Limited

of them must have a direct or indirect interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other. Now, in the present case, Atul Products Limited has undoubtedly interest in the business of the assessee, since Atul Products Limited holds 50 per cent of the share capital of the assessee and has interest as shareholder in the business carried on by the assessee. But it is not possible to say that the assessee has any interest in the business of Atul Products Limited. There are two points of view from which the relationship between the assessee and Atul Products Limited may be considered. First, it may be noted that Atul Products Limited is a shareholder of the assessee to the extent of 50 per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent. Secondly, Atul Products Limited is a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them are principal to principal, it is difficult to appreciate how the assessee could be said by virtue of that circumstance to have any interest, direct or indirect, in the business of Atul Products Limited. Atul Products Limited buys dyes from the assessee in wholesale on principal to principal basis and t hen sells such dyes in the market. The assessee is not concerned whether Atul Products Limited sells or does not sell the dyes purchased by it from the assessee nor is it concerned whether Atul Products Limited sells such dyes at a loss. It is impossible to contend that the assessee has any direct or indirect interest in the business of a wholesale dealer who purchases dyes from it on principal to principal basis. The same position obtains in regard to Crescent Dyes and Chemicals Limited. Perhaps the position in regard to Crescent Dyes and Chemicals Limited is much stronger then that in regard to Atul Products Limited. Crescent Dyes and Chemicals Limited is not even a shareholder of the assessee and it has, therefore , no interest direct or indirect in the business of the assessee. It is Imperial Chemical Industries Limited, London which holds 50 per cent of the share capital of the assessee and this foreign company also holds 40 per cent of the share capital of Crescent Chemicals and Dyes Limited. Imperial Chemicals Industries Limited, London would admittedly have an interest in the business of the assessee in its capacity as a shareholder, but how can Crescent Dyes and Chemicals Limited of which 40 per cent of the shares are held by Imperial Chemical Industries Limited, London which in its turn is a share holder of the assessee, can not be said to have any interest, direct or indirect, in, the business of the assessee. Equally t he assessee has no interest direct or indirect in the business of Crescent Dyes and Chemicals Limited, which is just a wholesale dealer purchasing dyes from the assessee in whole sale on principal to principal basis. It is obvious that for the same reasons which have prevailed with us while discussing the case of Atul Products Limited, the assessee has no direct or indirect interest in the business of Crescent Dyes and Chemicals Limited. The first part of the definition of related person in clause (c) of sub-section (4) of section 4 of the amended Act is, therefore, clearly not satisfied both in relation to Atul Products Limited as also in relation to Crescent Dyes and Chemicals Limited and neither of them can be said to be a "related person" vis-a-vis the assessee within the meaning of the definition of that term in clause (c) of sub-section (4) of section 4 of the amended Act. We, therefore, affirm the view taken by the High Court and hold that the assessable value of the dyes manufactured by the assessee cannot be determined with reference to the selling price charged by Atul Products Limited and Crescent Dyes and Chemicals Limited to their purchasers but must be determined on the basis of t he wholesale cash price charged by the assessee to Atul Products Limited and Crescent Dyes and Chemicals Limited. The demand made by the Assistant Collector for differential duty must, therefore, be held to be rightly quashed by the High Court.But there is one small matter on which the High Court has, in our view, erred in giving direction and it is in regard to payment of the costs incurred by the assessee in connection with the bank guarantee furnished by it in pursuance of the interim order made by the High Court. We do not think the High Court was right in giving this direction. The bank guarantee was required to be furnished by the assessee as a condition of grant of interim stay of enforcement of the demand for differential duty and if it is ultimately found that the demand for differential duty was not justified, the bank guarantee would certainly have to be discharged, but it is difficulty to see how the costs of furnishing the bank guarantee could be directed to be paid by the Revenue to the assessee. We would, therefore, set aside that part of the order made by the High Court which directs the Revenue to pay to the assessee the costs incurred in connection with the bank guarantee furnished by it in pursuance of the interim order of the High Court.

0[ds]What the first part of the definition requires is that the person who is sought to be branded as a "related person" must be a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other. It is not enough that the assessee has an interest, direct, or indirect in the business of the person allotted to be a related person nor is it enough that the person alleged to be a related person has an interest, direct or indirect, in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest, direct or indirect, in the business of each other. Each of them must have a direct or indirect interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other. Now, in the present case, Atul Products Limited has undoubtedly interest in the business of the assessee, since Atul Products Limited holds 50 per cent of the share capital of the assessee and has interest as shareholder in the business carried on by the assessee. But it is not possible to say that the assessee has any interest in the business of Atul Products Limited. There are two points of view from which the relationship between the assessee and Atul Products Limited may be considered. First, it may be noted that Atul Products Limited is a shareholder of the assessee to the extent of 50 per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent. Secondly, Atul Products Limited is a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them are principal to principal, it is difficult to appreciate how the assessee could be said by virtue of that circumstance to have any interest, direct or indirect, in the business of Atul Products Limited. Atul Products Limited buys dyes from the assessee in wholesale on principal to principal basis and t hen sells such dyes in the market. The assessee is not concerned whether Atul Products Limited sells or does not sell the dyes purchased by it from the assessee nor is it concerned whether Atul Products Limited sells such dyes at a loss. It is impossible to contend that the assessee has any direct or indirect interest in the business of a wholesale dealer who purchases dyes from it on principal to principal basis. The same position obtains in regard to Crescent Dyes and Chemicals Limited. Perhaps the position in regard to Crescent Dyes and Chemicals Limited is much stronger then that in regard to Atul Products Limited. Crescent Dyes and Chemicals Limited is not even a shareholder of the assessee and it has, therefore , no interest direct or indirect in the business of the assessee. It is Imperial Chemical Industries Limited, London which holds 50 per cent of the share capital of the assessee and this foreign company also holds 40 per cent of the share capital of Crescent Chemicals and Dyes Limited. Imperial Chemicals Industries Limited, London would admittedly have an interest in the business of the assessee in its capacity as a shareholder, but how can Crescent Dyes and Chemicals Limited of which 40 per cent of the shares are held by Imperial Chemical Industries Limited, London which in its turn is a share holder of the assessee, can not be said to have any interest, direct or indirect, in, the business of the assessee. Equally t he assessee has no interest direct or indirect in the business of Crescent Dyes and Chemicals Limited, which is just a wholesale dealer purchasing dyes from the assessee in whole sale on principal to principal basis. It is obvious that for the same reasons which have prevailed with us while discussing the case of Atul Products Limited, the assessee has no direct or indirect interest in the business of Crescent Dyes and Chemicals Limited. The first part of the definition of related person in clause (c) of sub-section (4) of section 4 of the amended Act is, therefore, clearly not satisfied both in relation to Atul Products Limited as also in relation to Crescent Dyes and Chemicals Limited and neither of them can be said to be a "related person" vis-a-vis the assessee within the meaning of the definition of that term in clause (c) of sub-section (4) of section 4 of the amended Act. We, therefore, affirm the view taken by the High Court and hold that the assessable value of the dyes manufactured by the assessee cannot be determined with reference to the selling price charged by Atul Products Limited and Crescent Dyes and Chemicals Limited to their purchasers but must be determined on the basis of t he wholesale cash price charged by the assessee to Atul Products Limited and Crescent Dyes and Chemicals Limited. The demand made by the Assistant Collector for differential duty must, therefore, be held to be rightly quashed by the High Court.But there is one small matter on which the High Court has, in our view, erred in giving direction and it is in regard to payment of the costs incurred by the assessee in connection with the bank guarantee furnished by it in pursuance of the interim order made by the High Court. We do not think the High Court was right in giving this direction. The bank guarantee was required to be furnished by the assessee as a condition of grant of interim stay of enforcement of the demand for differential duty and if it is ultimately found that the demand for differential duty was not justified, the bank guarantee would certainly have to be discharged, but it is difficulty to see how the costs of furnishing the bank guarantee could be directed to be paid by the Revenue to the assessee. We would, therefore, set aside that part of the order made by the High Court which directs the Revenue to pay to the assessee the costs incurred in connection with the bank guarantee furnished by it in pursuance of the interim order of the High Court.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: of them must have a direct or indirect interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other. Now, in the present case, Atul Products Limited has undoubtedly interest in the business of the assessee, since Atul Products Limited holds 50 per cent of the share capital of the assessee and has interest as shareholder in the business carried on by the assessee. But it is not possible to say that the assessee has any interest in the business of Atul Products Limited. There are two points of view from which the relationship between the assessee and Atul Products Limited may be considered. First, it may be noted that Atul Products Limited is a shareholder of the assessee to the extent of 50 per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent. Secondly, Atul Products Limited is a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them are principal to principal, it is difficult to appreciate how the assessee could be said by virtue of that circumstance to have any interest, direct or indirect, in the business of Atul Products Limited. Atul Products Limited buys dyes from the assessee in wholesale on principal to principal basis and t hen sells such dyes in the market. The assessee is not concerned whether Atul Products Limited sells or does not sell the dyes purchased by it from the assessee nor is it concerned whether Atul Products Limited sells such dyes at a loss. It is impossible to contend that the assessee has any direct or indirect interest in the business of a wholesale dealer who purchases dyes from it on principal to principal basis. The same position obtains in regard to Crescent Dyes and Chemicals Limited. Perhaps the position in regard to Crescent Dyes and Chemicals Limited is much stronger then that in regard to Atul Products Limited. Crescent Dyes and Chemicals Limited is not even a shareholder of the assessee and it has, therefore , no interest direct or indirect in the business of the assessee. It is Imperial Chemical Industries Limited, London which holds 50 per cent of the share capital of the assessee and this foreign company also holds 40 per cent of the share capital of Crescent Chemicals and Dyes Limited. Imperial Chemicals Industries Limited, London would admittedly have an interest in the business of the assessee in its capacity as a shareholder, but how can Crescent Dyes and Chemicals Limited of which 40 per cent of the shares are held by Imperial Chemical Industries Limited, London which in its turn is a share holder of the assessee, can not be said to have any interest, direct or indirect, in, the business of the assessee. Equally t he assessee has no interest direct or indirect in the business of Crescent Dyes and Chemicals Limited, which is just a wholesale dealer purchasing dyes from the assessee in whole sale on principal to principal basis. It is obvious that for the same reasons which have prevailed with us while discussing the case of Atul Products Limited, the assessee has no direct or indirect interest in the business of Crescent Dyes and Chemicals Limited. The first part of the definition of related person in clause (c) of sub-section (4) of section 4 of the amended Act is, therefore, clearly not satisfied both in relation to Atul Products Limited as also in relation to Crescent Dyes and Chemicals Limited and neither of them can be said to be a "related person" vis-a-vis the assessee within the meaning of the definition of that term in clause (c) of sub-section (4) of section 4 of the amended Act. We, therefore, affirm the view taken by the High Court and hold that the assessable value of the dyes manufactured by the assessee cannot be determined with reference to the selling price charged by Atul Products Limited and Crescent Dyes and Chemicals Limited to their purchasers but must be determined on the basis of t he wholesale cash price charged by the assessee to Atul Products Limited and Crescent Dyes and Chemicals Limited. The demand made by the Assistant Collector for differential duty must, therefore, be held to be rightly quashed by the High Court.But there is one small matter on which the High Court has, in our view, erred in giving direction and it is in regard to payment of the costs incurred by the assessee in connection with the bank guarantee furnished by it in pursuance of the interim order made by the High Court. We do not think the High Court was right in giving this direction. The bank guarantee was required to be furnished by the assessee as a condition of grant of interim stay of enforcement of the demand for differential duty and if it is ultimately found that the demand for differential duty was not justified, the bank guarantee would certainly have to be discharged, but it is difficulty to see how the costs of furnishing the bank guarantee could be directed to be paid by the Revenue to the assessee. We would, therefore, set aside that part of the order made by the High Court which directs the Revenue to pay to the assessee the costs incurred in connection with the bank guarantee furnished by it in pursuance of the interim order of the High Court. ### Response: 0 ### Explanation: of them must have a direct or indirect interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other. Now, in the present case, Atul Products Limited has undoubtedly interest in the business of the assessee, since Atul Products Limited holds 50 per cent of the share capital of the assessee and has interest as shareholder in the business carried on by the assessee. But it is not possible to say that the assessee has any interest in the business of Atul Products Limited. There are two points of view from which the relationship between the assessee and Atul Products Limited may be considered. First, it may be noted that Atul Products Limited is a shareholder of the assessee to the extent of 50 per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent. Secondly, Atul Products Limited is a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them are principal to principal, it is difficult to appreciate how the assessee could be said by virtue of that circumstance to have any interest, direct or indirect, in the business of Atul Products Limited. Atul Products Limited buys dyes from the assessee in wholesale on principal to principal basis and t hen sells such dyes in the market. The assessee is not concerned whether Atul Products Limited sells or does not sell the dyes purchased by it from the assessee nor is it concerned whether Atul Products Limited sells such dyes at a loss. It is impossible to contend that the assessee has any direct or indirect interest in the business of a wholesale dealer who purchases dyes from it on principal to principal basis. The same position obtains in regard to Crescent Dyes and Chemicals Limited. Perhaps the position in regard to Crescent Dyes and Chemicals Limited is much stronger then that in regard to Atul Products Limited. Crescent Dyes and Chemicals Limited is not even a shareholder of the assessee and it has, therefore , no interest direct or indirect in the business of the assessee. It is Imperial Chemical Industries Limited, London which holds 50 per cent of the share capital of the assessee and this foreign company also holds 40 per cent of the share capital of Crescent Chemicals and Dyes Limited. Imperial Chemicals Industries Limited, London would admittedly have an interest in the business of the assessee in its capacity as a shareholder, but how can Crescent Dyes and Chemicals Limited of which 40 per cent of the shares are held by Imperial Chemical Industries Limited, London which in its turn is a share holder of the assessee, can not be said to have any interest, direct or indirect, in, the business of the assessee. Equally t he assessee has no interest direct or indirect in the business of Crescent Dyes and Chemicals Limited, which is just a wholesale dealer purchasing dyes from the assessee in whole sale on principal to principal basis. It is obvious that for the same reasons which have prevailed with us while discussing the case of Atul Products Limited, the assessee has no direct or indirect interest in the business of Crescent Dyes and Chemicals Limited. The first part of the definition of related person in clause (c) of sub-section (4) of section 4 of the amended Act is, therefore, clearly not satisfied both in relation to Atul Products Limited as also in relation to Crescent Dyes and Chemicals Limited and neither of them can be said to be a "related person" vis-a-vis the assessee within the meaning of the definition of that term in clause (c) of sub-section (4) of section 4 of the amended Act. We, therefore, affirm the view taken by the High Court and hold that the assessable value of the dyes manufactured by the assessee cannot be determined with reference to the selling price charged by Atul Products Limited and Crescent Dyes and Chemicals Limited to their purchasers but must be determined on the basis of t he wholesale cash price charged by the assessee to Atul Products Limited and Crescent Dyes and Chemicals Limited. The demand made by the Assistant Collector for differential duty must, therefore, be held to be rightly quashed by the High Court.But there is one small matter on which the High Court has, in our view, erred in giving direction and it is in regard to payment of the costs incurred by the assessee in connection with the bank guarantee furnished by it in pursuance of the interim order made by the High Court. We do not think the High Court was right in giving this direction. The bank guarantee was required to be furnished by the assessee as a condition of grant of interim stay of enforcement of the demand for differential duty and if it is ultimately found that the demand for differential duty was not justified, the bank guarantee would certainly have to be discharged, but it is difficulty to see how the costs of furnishing the bank guarantee could be directed to be paid by the Revenue to the assessee. We would, therefore, set aside that part of the order made by the High Court which directs the Revenue to pay to the assessee the costs incurred in connection with the bank guarantee furnished by it in pursuance of the interim order of the High Court.

Jonas Woodhead & Sons Ltd., Madras Vs. Commissioner of Income Tax., Madras

in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is, therefore, not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case." * 7. Thus the so-called test of obtaining enduring benefit was held not to be a conclusive test and could not be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. 8. In the case of Alembic Chemical Works Co. Ltd. vs. Commissioner of Income-Tax, Gujarat, 177 1989 ITR 377, the question for consideration was whether the lump-sum payment made by the assessee for obtaining the know-how to produce higher yield and sub-culture of high yielding strain of Penicillin would be a capital expenditure or a revenue expenditure. The Tribunal had rejected the claim of the assessee holding the expenditure to be a capital expenditure. On appeal to this Court it was held: "(i) It would be unrealistic to ignore the rapid advances in research in antibiotic medical microbiology and to attribute a degree of endurability and permanence to the technical know- how at any particular stage in this fast changing area of medical science. The state of the art in some of these areas of high priority research is constantly updated so that the know-how could not be said to bear the element of the requisite degree of durability and nonephemerality to share the requirements and qualifications of an enduring capital asset. The rapid strides in science and technology in the field should make us a little slow and circumspect in too readily pigeon-holing an outlay, such as this, as capital. (ii) In the infinite variety of situational diversities in which the concept of what is capital expenditure and what is revenue arises, it is well nigh impossible to formulate any general rule, even in the generality of cases, sufficiently accurate and reasonably comprehensive, to draw any clear line of demarcation. However, some broad and general tests have been suggested from time to time to ascertain on which side of the line the outlay in any particular case might reasonably be held to fall. These tests are generally efficacious and serve as useful servants; but as masters they tend to be overexacting. (iii) The question in each case would necessarily be whether the tests relevant and significant in one set of circumstances are relevant and significant in the case on hand also. Judicial metaphors are narrowly to be watched, for, starting as devices to liberate thought, they end often by enslaving it. The idea of "once for all" payment and "enduring benefit" are not to be treated as something akin to statutory conditions; nor are the notions of "capital" or "revenue" a judicial fetish. What is capital expenditure and what is revenue are not eternal verities but must needs be flexible so as to respond to the changing economic realities of business. The expression "asset or advantage of an enduring nature" was evolved to emphasise the element of a sufficient degree of durability appropriate to the context.There is also no single definitive criterion which, by itself, is determinative whether a particular outlay is capital or revenue. The "once for all" payment test is also inconclusive. What is relevant is the purpose of the outlay and its intended object and effect, considered in a common-sense way having regard to the business realities. In a given case, the test of "enduring benefit" might break down." 9. It would thus appear that the courts have applied different tests like starting of a new business on the basis of technical know-how received from the foreign-firm, exclusive right of the company to use the patent or trademark which it receives from the foreign firm, the payments made by the company to the foreign-firm whether a definite one or dependant upon certain contingencies, right to use the technical know-how of production or the activity even after the completion of the agreement, obtaining enduring benefit for a considerable part on account of the technical informations received from a foreign-firm, payment whether made "once for all" or in different instalments co- relatable to the percentage of gross turnover of the product to ultimately find out whether the expenditure or payment thus made makes an accretion to the capital asset and after the court comes to the conclusion that it does so then it has to be held to be a capital expenditure. As has been held by this Court and already indicated in Alembic Chemical Works case [177 1989 ITR 377) no single definitive criterion by itself could be determinative and, therefore, bearing in mind the changing economic realities of business and the varieties of situational diversities the various clauses of the agreement are to be examined. But in the case in hand the Tribunal having considered the different clauses of the agreement and having come to the conclusion that under the agreement with the foreign firm what was set up by the assessee was a new business and the foreign firm had not only furnished information and the technical know-how but rendered valuable services in setting up of the factory itself and even after the expiry of the agreement there is no embargo on the assessee to continue to manufacture the product in question, it is difficult to hold that the entire payment made is a revenue expenditure merely because the payment is required to be made on a certain percentage of the rates of the gross turnover of the products of the income as royalty. In our considered opinion, in the facts and circumstances of the case the High Court was fully justified in answering the reference in favour of the revenue and against the assessee. 10.

0[ds]It would thus appear that the courts have applied different tests like starting of a new business on the basis of technical know-how received from the foreign-firm, exclusive right of the company to use the patent or trademark which it receives from the foreign firm, the payments made by the company to the foreign-firm whether a definite one or dependant upon certain contingencies, right to use the technical know-how of production or the activity even after the completion of the agreement, obtaining enduring benefit for a considerable part on account of the technical informations received from a foreign-firm, payment whether made "once for all" or in different instalments co- relatable to the percentage of gross turnover of the product to ultimately find out whether the expenditure or payment thus made makes an accretion to the capital asset and after the court comes to the conclusion that it does so then it has to be held to be a capital expenditure. As has been held by this Court and already indicated in Alembic Chemical Works case [177 1989 ITR 377) no single definitive criterion by itself could be determinative and, therefore, bearing in mind the changing economic realities of business and the varieties of situational diversities the various clauses of the agreement are to be examined. But in the case in hand the Tribunal having considered the different clauses of the agreement and having come to the conclusion that under the agreement with the foreign firm what was set up by the assessee was a new business and the foreign firm had not only furnished information and the technical know-how but rendered valuable services in setting up of the factory itself and even after the expiry of the agreement there is no embargo on the assessee to continue to manufacture the product in question, it is difficult to hold that the entire payment made is a revenue expenditure merely because the payment is required to be made on a certain percentage of the rates of the gross turnover of the products of the income as royalty. In our considered opinion, in the facts and circumstances of the case the High Court was fully justified in answering the reference in favour of the revenue and against the assessee.

### 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: in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is, therefore, not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case." * 7. Thus the so-called test of obtaining enduring benefit was held not to be a conclusive test and could not be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. 8. In the case of Alembic Chemical Works Co. Ltd. vs. Commissioner of Income-Tax, Gujarat, 177 1989 ITR 377, the question for consideration was whether the lump-sum payment made by the assessee for obtaining the know-how to produce higher yield and sub-culture of high yielding strain of Penicillin would be a capital expenditure or a revenue expenditure. The Tribunal had rejected the claim of the assessee holding the expenditure to be a capital expenditure. On appeal to this Court it was held: "(i) It would be unrealistic to ignore the rapid advances in research in antibiotic medical microbiology and to attribute a degree of endurability and permanence to the technical know- how at any particular stage in this fast changing area of medical science. The state of the art in some of these areas of high priority research is constantly updated so that the know-how could not be said to bear the element of the requisite degree of durability and nonephemerality to share the requirements and qualifications of an enduring capital asset. The rapid strides in science and technology in the field should make us a little slow and circumspect in too readily pigeon-holing an outlay, such as this, as capital. (ii) In the infinite variety of situational diversities in which the concept of what is capital expenditure and what is revenue arises, it is well nigh impossible to formulate any general rule, even in the generality of cases, sufficiently accurate and reasonably comprehensive, to draw any clear line of demarcation. However, some broad and general tests have been suggested from time to time to ascertain on which side of the line the outlay in any particular case might reasonably be held to fall. These tests are generally efficacious and serve as useful servants; but as masters they tend to be overexacting. (iii) The question in each case would necessarily be whether the tests relevant and significant in one set of circumstances are relevant and significant in the case on hand also. Judicial metaphors are narrowly to be watched, for, starting as devices to liberate thought, they end often by enslaving it. The idea of "once for all" payment and "enduring benefit" are not to be treated as something akin to statutory conditions; nor are the notions of "capital" or "revenue" a judicial fetish. What is capital expenditure and what is revenue are not eternal verities but must needs be flexible so as to respond to the changing economic realities of business. The expression "asset or advantage of an enduring nature" was evolved to emphasise the element of a sufficient degree of durability appropriate to the context.There is also no single definitive criterion which, by itself, is determinative whether a particular outlay is capital or revenue. The "once for all" payment test is also inconclusive. What is relevant is the purpose of the outlay and its intended object and effect, considered in a common-sense way having regard to the business realities. In a given case, the test of "enduring benefit" might break down." 9. It would thus appear that the courts have applied different tests like starting of a new business on the basis of technical know-how received from the foreign-firm, exclusive right of the company to use the patent or trademark which it receives from the foreign firm, the payments made by the company to the foreign-firm whether a definite one or dependant upon certain contingencies, right to use the technical know-how of production or the activity even after the completion of the agreement, obtaining enduring benefit for a considerable part on account of the technical informations received from a foreign-firm, payment whether made "once for all" or in different instalments co- relatable to the percentage of gross turnover of the product to ultimately find out whether the expenditure or payment thus made makes an accretion to the capital asset and after the court comes to the conclusion that it does so then it has to be held to be a capital expenditure. As has been held by this Court and already indicated in Alembic Chemical Works case [177 1989 ITR 377) no single definitive criterion by itself could be determinative and, therefore, bearing in mind the changing economic realities of business and the varieties of situational diversities the various clauses of the agreement are to be examined. But in the case in hand the Tribunal having considered the different clauses of the agreement and having come to the conclusion that under the agreement with the foreign firm what was set up by the assessee was a new business and the foreign firm had not only furnished information and the technical know-how but rendered valuable services in setting up of the factory itself and even after the expiry of the agreement there is no embargo on the assessee to continue to manufacture the product in question, it is difficult to hold that the entire payment made is a revenue expenditure merely because the payment is required to be made on a certain percentage of the rates of the gross turnover of the products of the income as royalty. In our considered opinion, in the facts and circumstances of the case the High Court was fully justified in answering the reference in favour of the revenue and against the assessee. 10. ### Response: 0 ### Explanation: It would thus appear that the courts have applied different tests like starting of a new business on the basis of technical know-how received from the foreign-firm, exclusive right of the company to use the patent or trademark which it receives from the foreign firm, the payments made by the company to the foreign-firm whether a definite one or dependant upon certain contingencies, right to use the technical know-how of production or the activity even after the completion of the agreement, obtaining enduring benefit for a considerable part on account of the technical informations received from a foreign-firm, payment whether made "once for all" or in different instalments co- relatable to the percentage of gross turnover of the product to ultimately find out whether the expenditure or payment thus made makes an accretion to the capital asset and after the court comes to the conclusion that it does so then it has to be held to be a capital expenditure. As has been held by this Court and already indicated in Alembic Chemical Works case [177 1989 ITR 377) no single definitive criterion by itself could be determinative and, therefore, bearing in mind the changing economic realities of business and the varieties of situational diversities the various clauses of the agreement are to be examined. But in the case in hand the Tribunal having considered the different clauses of the agreement and having come to the conclusion that under the agreement with the foreign firm what was set up by the assessee was a new business and the foreign firm had not only furnished information and the technical know-how but rendered valuable services in setting up of the factory itself and even after the expiry of the agreement there is no embargo on the assessee to continue to manufacture the product in question, it is difficult to hold that the entire payment made is a revenue expenditure merely because the payment is required to be made on a certain percentage of the rates of the gross turnover of the products of the income as royalty. In our considered opinion, in the facts and circumstances of the case the High Court was fully justified in answering the reference in favour of the revenue and against the assessee.

P.G.F. Limited and Ors Vs. Union of India and Anr

read along with Section 11AA (ii) of the SEBI Act and consequently the order of the second respondent dated 06.12.2002 is perfectly justified and there is no scope to interfere with the same. In the light of our above conclusions, the PGF Limited has to comply with the directions contained in last paragraph of the order of the second respondent dated 06.12.2002. We also hold that while ensuring compliance of the order dated 06.12.2002, the second respondent shall also examine the claim of the PGF Limited that it had stopped its joint venture scheme as from 01.02.2000 is correct or not by holding necessary inspection, enquiry and investigation of the premises of the PGF Limited in its registered office or any of its other offices wherever located and also examine the account books other records and based on such inspection, enquiry and investigation issue any further directions in accordance with law. Whatever amount deposited by the PGF Limited pursuant to the interim orders of this Court relating to joint venture scheme shall be kept in deposit by the second respondent in an Interest Bearing Escrow Account of a Nationalized Bank. The second respondent shall also verify the records of the PGF Limited relating to the refund of deposits of the customers who invested in the joint venture schemes and ascertain the correctness of such claim and based on such verification in the event of any default noted, appropriate further action shall be taken against the PGF Limited for settlement of the monies payable to such of those investors who participated in any such joint venture schemes operated by the PGF Limited. It will also be open to the second respondent while carrying out the above said exercise to claim for any further payment to be made by the PGF Limited towards settlement of such claims of the participants of the joint venture schemes and charge interest for any delayed/defaulted payments. As far as the deposit made by the PGF Limited with the second respondent on the ground that the such amount could not be disbursed to any of the investors for any reason whatsoever the second respondent, based on the verification of the records of the PGF Limited, arrange for refund/disbursement of such amount back to the participants of the joint venture schemes with proportionate interest payable on that amount. The above directions are in addition to the directions made by the Division Bench of the High Court.54. Having noted the conduct of the PGF Limited in having perpetrated this litigation which we have found to be frivolous and vexatious in every respect, right from its initiation in the High Court by challenging the vires of Section 11AA of the SEBI Act without any substantive grounds and in that process prolonged this litigation for more than a decade and thereby provided scope for defrauding its customers who invested their hard earned money in the scheme of sale of land and its development and since we have found that the appellants had not approached the Court with clean hands and there being very many incongruities in its documents placed before the Court as well as suppression of various factors in respect of the so called development of agricultural land, we are of the view that even while dismissing the Civil Appeal, the PGF Limited should be mulcted with the exemplary costs. We also feel it appropriate to quote what Mahatma Gandhi and the great poet Rabindranath Tagore mentioned about the greediness of human being which are as under: "Earth provides enough to satisfy every mans need, but not every mans greed.-Mahatma Gandhi-The greed of gain has no time or limit to its capaciousness. Its one object is to produce and consume. It has pity neither for beautiful nature nor for living human beings. It is ruthlessly ready without a moments hesitation to crush beauty and life out of them, molding them into money." -Rabindranath Tagore- 55. In this respect, it will be worthwhile to note what the PGF Limited disclosed before the second respondent in its letter dated 15.01.1998 alongwith the covering letter dated 20.05.2002. The details mentioned therein disclose that the total amount received by the PGF Limited under different schemes from 01.01.1997 to 31.12.1997 was approximately Rs.186.84 crores. Its paid up capital was stated to be Rs.94,90,000/- and it mobilized Rs.815.23 crores under joint venture schemes from 01.04.1996 to 30.06.2002. The future liabilities towards joint venture schemes was projected in a sum of Rs.655.41 crores. Total outstanding liabilities payable to investors under the old closed schemes as on 30.06.2002 was stated to be Rs.497 crores. As against the above, till 31.10.2002, the PGF Limited stated to have made a net payment of Rs.115.93 crores leaving the balance due in a sum of Rs.393.69 crores approximately. The above details have been noted by the second respondent while mentioning the submission of the PGF Limited in its order dated 06.12.2002. Thus, we are convinced that the PGF Limited deliberately did not furnish the amounts till this date what was collected from the customers who made their investments in the so-called venture of sale and development of agricultural lands. Therefore, it is explicit that the PGF Limited was playing a hide and seek not only before the second respondent, but was also taking the Courts for a ride. We have noted in more than one place in our order that inspite of our repeated asking the appellants did not come forward to disclose the details of any development it made in respect of the lands alleged to have been sold to its customers. There is also no valid reason for not disclosing the details before the court. As in one of its activities, namely, joint venture scheme alone, it had mobilized Rs.815.23 crores, it can be easily visualized that in its activities of sale and development of land such mobilization would have far exceeded several thousand crores. In such circumstances, the appeal is liable to be dismissed which may have costs. 56.

0[ds]25. With the above prelude to the nature of litigation launched by the appellants in the High Court and pursuing the same in this Court, when we consider the submission of the appellants, we find that the submission was fivefold. According to the appellants while the appellants as a company provided in the Memorandum and Articles of Association, various objects and business ventures, it was actually involved in the business of joint venture schemes, sale of agricultural lands and sale and development of agricultural lands. While the sale of agricultural land and sale and development of agricultural land was continued to be operated upon, according to the PGF Limited, its business of joint venture schemes were brought to an end on and from 01.02.2000. In fact, the said stand was made at the time when the second respondent extended its opportunity prior to the passing of the impugned order dated 06.12.2002. Certain details were also furnished before the second respondent as to what were the extent of monitory transactions carried on in respect of the joint venture schemes and also the action taken by the PGF Limited after stopping its joint venture activities on and after 01.02.2000. Before this Court also certain details were furnished as to what extent monies were refunded to those who were part of the joint venture schemes and certain funds, which were deposited with the second respondent and were to be refunded to those whose availability and identity could not be traced after the stopping of the operation of joint venture schemes. We shall, however, examine the scope and extent of acceptability of such a stand made on behalf of the PGF Limited in order to examine whether the stand of the PGF Limited that its joint venture schemes were stopped from 01.02.2000 while the provisions of Section 11AA of the SEBI Act was brought into the statute book from 22.02.2000 by Act 31 of 1999. We, however, hasten to add that admittedly even after 01.02.2000, according to the PGF Limited it continued to receive funds from various participants of the joint venture schemes on the pretext that such receipt of funds related to the involvement of those investors in the schemes, which were in operation prior to 01.02.2000. The contention of the PGF Limited was that since the operation of joint venture schemes were brought to an end as from 01.02.2000 and Section 11AA of the SEBI Act was inserted into statute book and became operational only from 22.02.2000, there was no scope for the second respondent to have called upon the PGF Limited to subject itself to the jurisdiction of the second respondent in purported exercise of its power under Section 11AA of the SEBI Act as well as in pursuance of its public notice issued in the yearsecond submission of the learned senior counsel for the appellants was that sale of agricultural land, which is one of the business activities of the PGF Limited being an activity of mere sale and purchase of agricultural land and there being no connected scheme relating to such sale transaction, there was no scope for any collective investment scheme in order to invoke Section 11AA of the SEBI Act.27. The third contention was that the other activities of sale and development of agricultural land of the PGF Limited was governed by Entry 18 of List II of the Seventh Schedule and, therefore, the connected developmental activity of the PGF Limited in regard to those agricultural land sold to its investors cannot form the subject matter of legislation by the Parliament and consequently even if the validity of Section 11AA of the SEBI Act can be upheld, the PGF Limiteds activity of the development of agricultural land should stand excluded from its coverage. In other words, according to learned counsel, even if the activities of the PGF Limited based with land sold and its further development, if at all any legislation could be passed, the same could have been done only by the State Legislature and not under Section 11AA of the SEBItherefore, hold that Section 11AA of the SEBI Act is constitutionally valid. We also hold that the activity of the PGF Limited, namely, the sale and development of agricultural land squarely falls within the definition of collective investment scheme under Section 2(ba) read along with Section 11AA (ii) of the SEBI Act and consequently the order of the second respondent dated 06.12.2002 is perfectly justified and there is no scope to interfere with the same. In the light of our above conclusions, the PGF Limited has to comply with the directions contained in last paragraph of the order of the second respondent dated 06.12.2002. We also hold that while ensuring compliance of the order dated 06.12.2002, the second respondent shall also examine the claim of the PGF Limited that it had stopped its joint venture scheme as from 01.02.2000 is correct or not by holding necessary inspection, enquiry and investigation of the premises of the PGF Limited in its registered office or any of its other offices wherever located and also examine the account books other records and based on such inspection, enquiry and investigation issue any further directions in accordance with law. Whatever amount deposited by the PGF Limited pursuant to the interim orders of this Court relating to joint venture scheme shall be kept in deposit by the second respondent in an Interest Bearing Escrow Account of a Nationalized Bank. The second respondent shall also verify the records of the PGF Limited relating to the refund of deposits of the customers who invested in the joint venture schemes and ascertain the correctness of such claim and based on such verification in the event of any default noted, appropriate further action shall be taken against the PGF Limited for settlement of the monies payable to such of those investors who participated in any such joint venture schemes operated by the PGF Limited. It will also be open to the second respondent while carrying out the above said exercise to claim for any further payment to be made by the PGF Limited towards settlement of such claims of the participants of the joint venture schemes and charge interest for any delayed/defaulted payments. As far as the deposit made by the PGF Limited with the second respondent on the ground that the such amount could not be disbursed to any of the investors for any reason whatsoever the second respondent, based on the verification of the records of the PGF Limited, arrange for refund/disbursement of such amount back to the participants of the joint venture schemes with proportionate interest payable on that amount. The above directions are in addition to the directions made by the Division Bench of the High Court.54. Having noted the conduct of the PGF Limited in having perpetrated this litigation which we have found to be frivolous and vexatious in every respect, right from its initiation in the High Court by challenging the vires of Section 11AA of the SEBI Act without any substantive grounds and in that process prolonged this litigation for more than a decade and thereby provided scope for defrauding its customers who invested their hard earned money in the scheme of sale of land and its development and since we have found that the appellants had not approached the Court with clean hands and there being very many incongruities in its documents placed before the Court as well as suppression of various factors in respect of the so called development of agricultural land, we are of the view that even while dismissing the Civil Appeal, the PGF Limited should be mulcted with the exemplary costs

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: read along with Section 11AA (ii) of the SEBI Act and consequently the order of the second respondent dated 06.12.2002 is perfectly justified and there is no scope to interfere with the same. In the light of our above conclusions, the PGF Limited has to comply with the directions contained in last paragraph of the order of the second respondent dated 06.12.2002. We also hold that while ensuring compliance of the order dated 06.12.2002, the second respondent shall also examine the claim of the PGF Limited that it had stopped its joint venture scheme as from 01.02.2000 is correct or not by holding necessary inspection, enquiry and investigation of the premises of the PGF Limited in its registered office or any of its other offices wherever located and also examine the account books other records and based on such inspection, enquiry and investigation issue any further directions in accordance with law. Whatever amount deposited by the PGF Limited pursuant to the interim orders of this Court relating to joint venture scheme shall be kept in deposit by the second respondent in an Interest Bearing Escrow Account of a Nationalized Bank. The second respondent shall also verify the records of the PGF Limited relating to the refund of deposits of the customers who invested in the joint venture schemes and ascertain the correctness of such claim and based on such verification in the event of any default noted, appropriate further action shall be taken against the PGF Limited for settlement of the monies payable to such of those investors who participated in any such joint venture schemes operated by the PGF Limited. It will also be open to the second respondent while carrying out the above said exercise to claim for any further payment to be made by the PGF Limited towards settlement of such claims of the participants of the joint venture schemes and charge interest for any delayed/defaulted payments. As far as the deposit made by the PGF Limited with the second respondent on the ground that the such amount could not be disbursed to any of the investors for any reason whatsoever the second respondent, based on the verification of the records of the PGF Limited, arrange for refund/disbursement of such amount back to the participants of the joint venture schemes with proportionate interest payable on that amount. The above directions are in addition to the directions made by the Division Bench of the High Court.54. Having noted the conduct of the PGF Limited in having perpetrated this litigation which we have found to be frivolous and vexatious in every respect, right from its initiation in the High Court by challenging the vires of Section 11AA of the SEBI Act without any substantive grounds and in that process prolonged this litigation for more than a decade and thereby provided scope for defrauding its customers who invested their hard earned money in the scheme of sale of land and its development and since we have found that the appellants had not approached the Court with clean hands and there being very many incongruities in its documents placed before the Court as well as suppression of various factors in respect of the so called development of agricultural land, we are of the view that even while dismissing the Civil Appeal, the PGF Limited should be mulcted with the exemplary costs. We also feel it appropriate to quote what Mahatma Gandhi and the great poet Rabindranath Tagore mentioned about the greediness of human being which are as under: "Earth provides enough to satisfy every mans need, but not every mans greed.-Mahatma Gandhi-The greed of gain has no time or limit to its capaciousness. Its one object is to produce and consume. It has pity neither for beautiful nature nor for living human beings. It is ruthlessly ready without a moments hesitation to crush beauty and life out of them, molding them into money." -Rabindranath Tagore- 55. In this respect, it will be worthwhile to note what the PGF Limited disclosed before the second respondent in its letter dated 15.01.1998 alongwith the covering letter dated 20.05.2002. The details mentioned therein disclose that the total amount received by the PGF Limited under different schemes from 01.01.1997 to 31.12.1997 was approximately Rs.186.84 crores. Its paid up capital was stated to be Rs.94,90,000/- and it mobilized Rs.815.23 crores under joint venture schemes from 01.04.1996 to 30.06.2002. The future liabilities towards joint venture schemes was projected in a sum of Rs.655.41 crores. Total outstanding liabilities payable to investors under the old closed schemes as on 30.06.2002 was stated to be Rs.497 crores. As against the above, till 31.10.2002, the PGF Limited stated to have made a net payment of Rs.115.93 crores leaving the balance due in a sum of Rs.393.69 crores approximately. The above details have been noted by the second respondent while mentioning the submission of the PGF Limited in its order dated 06.12.2002. Thus, we are convinced that the PGF Limited deliberately did not furnish the amounts till this date what was collected from the customers who made their investments in the so-called venture of sale and development of agricultural lands. Therefore, it is explicit that the PGF Limited was playing a hide and seek not only before the second respondent, but was also taking the Courts for a ride. We have noted in more than one place in our order that inspite of our repeated asking the appellants did not come forward to disclose the details of any development it made in respect of the lands alleged to have been sold to its customers. There is also no valid reason for not disclosing the details before the court. As in one of its activities, namely, joint venture scheme alone, it had mobilized Rs.815.23 crores, it can be easily visualized that in its activities of sale and development of land such mobilization would have far exceeded several thousand crores. In such circumstances, the appeal is liable to be dismissed which may have costs. 56. ### Response: 0 ### Explanation: Limited in order to examine whether the stand of the PGF Limited that its joint venture schemes were stopped from 01.02.2000 while the provisions of Section 11AA of the SEBI Act was brought into the statute book from 22.02.2000 by Act 31 of 1999. We, however, hasten to add that admittedly even after 01.02.2000, according to the PGF Limited it continued to receive funds from various participants of the joint venture schemes on the pretext that such receipt of funds related to the involvement of those investors in the schemes, which were in operation prior to 01.02.2000. The contention of the PGF Limited was that since the operation of joint venture schemes were brought to an end as from 01.02.2000 and Section 11AA of the SEBI Act was inserted into statute book and became operational only from 22.02.2000, there was no scope for the second respondent to have called upon the PGF Limited to subject itself to the jurisdiction of the second respondent in purported exercise of its power under Section 11AA of the SEBI Act as well as in pursuance of its public notice issued in the yearsecond submission of the learned senior counsel for the appellants was that sale of agricultural land, which is one of the business activities of the PGF Limited being an activity of mere sale and purchase of agricultural land and there being no connected scheme relating to such sale transaction, there was no scope for any collective investment scheme in order to invoke Section 11AA of the SEBI Act.27. The third contention was that the other activities of sale and development of agricultural land of the PGF Limited was governed by Entry 18 of List II of the Seventh Schedule and, therefore, the connected developmental activity of the PGF Limited in regard to those agricultural land sold to its investors cannot form the subject matter of legislation by the Parliament and consequently even if the validity of Section 11AA of the SEBI Act can be upheld, the PGF Limiteds activity of the development of agricultural land should stand excluded from its coverage. In other words, according to learned counsel, even if the activities of the PGF Limited based with land sold and its further development, if at all any legislation could be passed, the same could have been done only by the State Legislature and not under Section 11AA of the SEBItherefore, hold that Section 11AA of the SEBI Act is constitutionally valid. We also hold that the activity of the PGF Limited, namely, the sale and development of agricultural land squarely falls within the definition of collective investment scheme under Section 2(ba) read along with Section 11AA (ii) of the SEBI Act and consequently the order of the second respondent dated 06.12.2002 is perfectly justified and there is no scope to interfere with the same. In the light of our above conclusions, the PGF Limited has to comply with the directions contained in last paragraph of the order of the second respondent dated 06.12.2002. We also hold that while ensuring compliance of the order dated 06.12.2002, the second respondent shall also examine the claim of the PGF Limited that it had stopped its joint venture scheme as from 01.02.2000 is correct or not by holding necessary inspection, enquiry and investigation of the premises of the PGF Limited in its registered office or any of its other offices wherever located and also examine the account books other records and based on such inspection, enquiry and investigation issue any further directions in accordance with law. Whatever amount deposited by the PGF Limited pursuant to the interim orders of this Court relating to joint venture scheme shall be kept in deposit by the second respondent in an Interest Bearing Escrow Account of a Nationalized Bank. The second respondent shall also verify the records of the PGF Limited relating to the refund of deposits of the customers who invested in the joint venture schemes and ascertain the correctness of such claim and based on such verification in the event of any default noted, appropriate further action shall be taken against the PGF Limited for settlement of the monies payable to such of those investors who participated in any such joint venture schemes operated by the PGF Limited. It will also be open to the second respondent while carrying out the above said exercise to claim for any further payment to be made by the PGF Limited towards settlement of such claims of the participants of the joint venture schemes and charge interest for any delayed/defaulted payments. As far as the deposit made by the PGF Limited with the second respondent on the ground that the such amount could not be disbursed to any of the investors for any reason whatsoever the second respondent, based on the verification of the records of the PGF Limited, arrange for refund/disbursement of such amount back to the participants of the joint venture schemes with proportionate interest payable on that amount. The above directions are in addition to the directions made by the Division Bench of the High Court.54. Having noted the conduct of the PGF Limited in having perpetrated this litigation which we have found to be frivolous and vexatious in every respect, right from its initiation in the High Court by challenging the vires of Section 11AA of the SEBI Act without any substantive grounds and in that process prolonged this litigation for more than a decade and thereby provided scope for defrauding its customers who invested their hard earned money in the scheme of sale of land and its development and since we have found that the appellants had not approached the Court with clean hands and there being very many incongruities in its documents placed before the Court as well as suppression of various factors in respect of the so called development of agricultural land, we are of the view that even while dismissing the Civil Appeal, the PGF Limited should be mulcted with the exemplary costs

Swami Saran Saksena Vs. State of Uttar Pradesh

against the order of the Allahabad High Court dismissing his writ petition challenging an order of compulsory retirement. 2. The appellant was appointed by the Government of Uttar Pradesh in November, 1954 as a temporary judicial officer. The State Government terminated his services in December, 1962 but, on representation made by him, the termination order was withdrawn on January 16, 1963. The appellant rejoined service and resumed his duties. However, by an order dated May 18, 1966, his services were terminated again. On a writ petition filed by him in the Allahabad High Court, the termination order was quashed by the High Court on August 8, 1969. The appellant was reinstated with the benefit of continuity of service. His troubles did not end there. Although he had served for about fifteen years, several representation made by him to the State Government for his confirmation met with no response, and he continued to remain a temporary Government servant. Meanwhile, in June, 1973 he was allowed to cross the second Efficiency Bar. But on August 2, 1974 the State Government made an order compulsorily retiring the appellant from service. The order purports to have been made in exercise of the powers mentioned in Note I to Article 465-A of the Civil Service Regulations, which provide for compulsory retirement of a temporary Government servant on attaining the age of SO years. The appellant had reached the age of 54 years rt was recited in the order that the Governor on being satisfied that it was not in the public interest to retain the appellant, who was described as a temporary judicial officer, required him to retire from service with immediate effect, with three months pay in lieu of notice. The order was assailed by the appellant by a writ petition, and a learned single judge of the High Court allowed the writ petition on September 17, 1975 and quashing the order he declared that the appellant continued to remain in service. The learned single judge held that the appellant was not covered by the terms of Article 465-A and as regards Article 465, which was invoked in the alternative in support of the impugned order, he took the view that as the appellant was a temporary Government servant only and not entitled to pension, Article 465 also did not apply. The State of Uttar Pradesh appealed, and a Division Bench of the High Court has, by its order dated May 7, 1976 allowed the appeal and dismissed the writ petition. The Division Bench confirmed that as the appellant-was a temporary judicial officer, Note 1 to Article 465-A could not be pressed into service by the State Government for retiring him, but it maintained the order with reference to Note 1 to Article 465 holding that the provision entitled the State Government to retire any Government servant attaining the age of SO years on three months notice or pay in lieu thereof. It observed that the power of the State Government to compulsorily retire a Government servant was not dependent on his eligibility for pension. It was of the view that the appellant, although a temporary Government servant, could be compulsorily retired under Note 1 to Article 465. The further contention of the appellant was also rejected that the impugned order was arbitrary inasmuch as he had been allowed to cross the second Efficiency Bar in June, 1973, which could only have been if his work showed distinct ability and his integrity was beyond doubt and, he urged, nothing had taken place since to justify the order of compulsory retirement passed shortly thereafter.Several contentions have been raised in this appeal by the appellant, who appears in person. In our judgment, one of them suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstance, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority o n the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellants work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.The appellant pressed us vehemently to make an order directing his confirmation and pointed out that after he was compulsorily retired as many as 12 temporary judicial officers were considered for confirmation We consider that it would not be right to make the direction prayed for by the appellant. Whether he should be confirmed or not is a matter for the relevant authority. That is a matter to which the authority has yet to apply its mind, and in the circumstances it is not proper that we should pre-empt its judgment. 3.

1[ds]The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstance, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority o n the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellants work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.The appellant pressed us vehemently to make an order directing his confirmation and pointed out that after he was compulsorily retired as many as 12 temporary judicial officers were considered for confirmation We consider that it would not be right to make the direction prayed for by the appellant. Whether he should be confirmed or not is a matter for the relevant authority. That is a matter to which the authority has yet to apply its mind, and in the circumstances it is not proper that we should pre-empt its judgment.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: against the order of the Allahabad High Court dismissing his writ petition challenging an order of compulsory retirement. 2. The appellant was appointed by the Government of Uttar Pradesh in November, 1954 as a temporary judicial officer. The State Government terminated his services in December, 1962 but, on representation made by him, the termination order was withdrawn on January 16, 1963. The appellant rejoined service and resumed his duties. However, by an order dated May 18, 1966, his services were terminated again. On a writ petition filed by him in the Allahabad High Court, the termination order was quashed by the High Court on August 8, 1969. The appellant was reinstated with the benefit of continuity of service. His troubles did not end there. Although he had served for about fifteen years, several representation made by him to the State Government for his confirmation met with no response, and he continued to remain a temporary Government servant. Meanwhile, in June, 1973 he was allowed to cross the second Efficiency Bar. But on August 2, 1974 the State Government made an order compulsorily retiring the appellant from service. The order purports to have been made in exercise of the powers mentioned in Note I to Article 465-A of the Civil Service Regulations, which provide for compulsory retirement of a temporary Government servant on attaining the age of SO years. The appellant had reached the age of 54 years rt was recited in the order that the Governor on being satisfied that it was not in the public interest to retain the appellant, who was described as a temporary judicial officer, required him to retire from service with immediate effect, with three months pay in lieu of notice. The order was assailed by the appellant by a writ petition, and a learned single judge of the High Court allowed the writ petition on September 17, 1975 and quashing the order he declared that the appellant continued to remain in service. The learned single judge held that the appellant was not covered by the terms of Article 465-A and as regards Article 465, which was invoked in the alternative in support of the impugned order, he took the view that as the appellant was a temporary Government servant only and not entitled to pension, Article 465 also did not apply. The State of Uttar Pradesh appealed, and a Division Bench of the High Court has, by its order dated May 7, 1976 allowed the appeal and dismissed the writ petition. The Division Bench confirmed that as the appellant-was a temporary judicial officer, Note 1 to Article 465-A could not be pressed into service by the State Government for retiring him, but it maintained the order with reference to Note 1 to Article 465 holding that the provision entitled the State Government to retire any Government servant attaining the age of SO years on three months notice or pay in lieu thereof. It observed that the power of the State Government to compulsorily retire a Government servant was not dependent on his eligibility for pension. It was of the view that the appellant, although a temporary Government servant, could be compulsorily retired under Note 1 to Article 465. The further contention of the appellant was also rejected that the impugned order was arbitrary inasmuch as he had been allowed to cross the second Efficiency Bar in June, 1973, which could only have been if his work showed distinct ability and his integrity was beyond doubt and, he urged, nothing had taken place since to justify the order of compulsory retirement passed shortly thereafter.Several contentions have been raised in this appeal by the appellant, who appears in person. In our judgment, one of them suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstance, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority o n the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellants work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.The appellant pressed us vehemently to make an order directing his confirmation and pointed out that after he was compulsorily retired as many as 12 temporary judicial officers were considered for confirmation We consider that it would not be right to make the direction prayed for by the appellant. Whether he should be confirmed or not is a matter for the relevant authority. That is a matter to which the authority has yet to apply its mind, and in the circumstances it is not proper that we should pre-empt its judgment. 3. ### Response: 1 ### Explanation: The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstance, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority o n the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellants work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.The appellant pressed us vehemently to make an order directing his confirmation and pointed out that after he was compulsorily retired as many as 12 temporary judicial officers were considered for confirmation We consider that it would not be right to make the direction prayed for by the appellant. Whether he should be confirmed or not is a matter for the relevant authority. That is a matter to which the authority has yet to apply its mind, and in the circumstances it is not proper that we should pre-empt its judgment.

Dhannalal Vs. Kalawatibai

claim for eviction is filed by a landlord, or a co-landlord, belonging to any one of the five categories defined in Section 23-J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by Section 23-A(b) of the Act, the proceedings would lie only before the Rent Controlling Authority;(ii) where a claim for eviction is filed by a landlord or by such a co-landlord who does not belong to any of the categories defined by Section 23-J and the other co-landlord/landlady falling in one of the categories defined in Section 23-J is not joined as co-plaintiff the claim shall have to be filed only by way of a suit instituted in a Civil Court;(iii) if the proceedings are initiated by such co-owner landlords, one or more of whom belong to Section 23-J category while some others are those not falling within the definition of landlord under Section 23-J and the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. under Chapter III-A or may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable. 26. We are, therefore, of the opinion that there is no merit in the plea raised on behalf of the appellants that the three respondents, one widow and her two major sons, could not have initiated proceedings for eviction before the Rent Controlling Authority. We have carefully perused the two applications for eviction filed by the respondents. The bonafide requirement pleaded is of the widow landlady, the respondent no. 1, who requires the suit premises for Govinda, respondent no. 2 for starting his business and that of another son Hemant, the respondent no. 3 fo continuing the business which presently he is carrying on in rented premises. Respondents 2 and 3 being major sons of the widow respondent no. 1, such requirement clearly falls also within the purview of Section 23-A (b) of the Act. The proceedings initiated before R.C.A. do not suffer from want of jurisdictional competence.27. So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Section 23-A(b) it must be of his own, that is, the one owned by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no. 3. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents no. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Moreover, there is no evidence adduced by the appellants to show that in M.T. Cloth market shops are also situated on first floor of buildings and attract the same business as the shops on ground floor do. The High Court and the R.C.A. have held none f the premises pointed out by the tenant-appellants such alternate accommodation as may defeat the respondents claim. e find no reason to take a different view. Between the year 1987 and 1989 late Krishna Das, the then sole owner of the building, had sold three shops but that was an event which had taken place in the life-time of late Krishna Das and cannot have relevance for denying the claim of the respondent-landlords filed in the year 1995.

0[ds]Though the requirement pleaded is of all the landlords, i.e. the widow as also the other twoit is only the widow who can take advantage of the special procedure for eviction but the others two, who actually require the premises for theiruse, should have gone to Civil Court and cannot, under the law, have recourse to the forum of Rent Controlling Authority.We find ourselves in agreement with the view of the law taken by the High Court of M.P. in Shivraj Jats case (supra) and Harbans Singhs case (supra). An analysis of Section(b) of the Act shows that an application seeking eviction of tenant thereunder is maintainable if(i) the accommodation is let forpurpose; (ii) it is required bona fide by the landlord for the purpose of continuing or starting (a) his business, or (b) business of any of his major sons or unmarried daughters; (iii) the landlord is the owner of such accommodation or is holding accommodation for benefit of any person who requires the accommodation; and (iv) the landlord or such person has no other reasonably suitableaccommodation of his own in his occupation in the city or town concerned.16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha vs. Jagannath and Ors. (1976) 4 SCC 184 , Kanta Goel vs. B.P. Pathan and Ors.(1977) 2 SCC 814 and Pal Singh vs. Sunder Singh (dead) by Lrs. and Ors. (1989) 1 SCC 444 that one of thecan alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that otherwere not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, everyowns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the otherif such otherdo not object. In Shri Ram Pasrichas case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English Law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)(f) of W.B. Premises Tenancy Act, 1956.Both the learned senior counsel for the parties stated that there is no specific statutory provision nor a building precedent available providing resolution to the problem posed. Procedural law cannot betray the substantive law by submitting to subordination of complexity. Courts equipped with power to interpret law are often posed with queries which may be ultimate. The judicial steps of judge then do stir to solve novel problems by neat innovations. When the statute does not provide the path and precedents abstain to lead, then they are the sound logic, rational reasoning, common sense and urge for public good which play as guides of those who decide. Wrong must not be left unredeemed and right not left unenforced. Forum ought to be revealed when it does not clearly exist or when it is doubted where it exists. When the lawes not debar any two seekers of justice from joining hands and moving together, they must have a common path. Multiplicity of proceedings should be avoided and same cause of action available to two at a time must not be forced to split and tried in two different fora as far as practicable and permissible.21. Reference to, or deriving aid from, certain legal maxims will be useful. Ubi jus ibi remediumthere is no wrong without a remedy. Where there is a right there is a forum for its enforcement. According to Brooms Legal Maxims (Tenth Edition,the maxim has been considered so valuable that it led to the invention of the form of action called an action on the case. Where no precedent of a writ can be produced, the clerks in Chancery shall agree in forming a new one. The principle adopted by courts of law accordingly is, that the novelty of the particular complaint alleged in an action on the case is no objection, provided that an injury cognizable by law be shown to have been inflicted on the plaintiff, in which case, although there be no precedent, the common law will judge according to the law of nature and the public good. If a man has a right, he must, "have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it, and, indeed, it is vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal".Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiffs choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.24. Reference may also be had to Section 17 of CPC which provides that where a suit is to obtain relief respecting immoveable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situated; provided that, in respect of the value of theof the suit, the entire claim is congnisable by such Court. The provision confers right on plaintiff suing on consolidate cause of action to choose one out of several fora available to him and it is his convenience and sweet will which will prevail. The provision is not an answer to the problem posed in the present case; nevertheless the principle underlying thereunder can be read out and pressed in servie. In Nrisingha Charan Nandy Choudhry vs. Rajniti Prasad Singh and Ors. AIR 1936 PC 189 , their Lordships referred to Section 17 of the CPC and termed it as the ordinary rule for determining the Court which can take congnizance of a suit for immoveable property situated within the local limits of two or more tribunals. Where cause of action is one against several defendants and they reside in different jurisdictions, the plaintiff may, under Section 20 of CPC file the suit in a court within whose jurisdiction any one of the defendants, at the time of the commencement of the suit, actually and voluntarily resides. Thus in case of a cause of action being triable in more than one forum it may be tried by any one forum subject to any other provision or rule of law.25. Reverting back to the issue before us, the cause of action is onerequirement of a major son, who himself is aIt is capable of being construed in two ways, depending on from the point of view of which of the landlords we look at. From the point of view of the widow landlady and owner it is a case of the accommodation let forpurpose required bona fide by the landlady for the purpose of continuing or staring the business of any of her major sons, within the meaning of Sectionof the Act.From the point of view of the major son himself, who is also himself an owner, it is a case of the accommodation let forpurpose required bona fide by the landlord for the purpose of continuing or starting his business as he is owner thereof, within the meaning of Section 12(1)(f)of the Act.In the former case the cause of action is triable by way of an application before R.C.A. In the latter case the cause of action is triable in a suit instituted in Civil Court. Any one of them may singally commence the proceedings without impleading the other or by impleading the other as aor defendant incapacity in which case the choice of forum would present no difficulty. The former shall go to R.C.A. The latter shall go to Civil Court. However, the law does not prevent thelandlords from joining together to sue on the cause of action common to them all. And if they do so the conflict of jurisdiction arises. The choice of forum, in such a case, must of necessity be left open to the plaintiffs. Otherwise they will be left withoutin view the three relevant principles (i) that every wrong must have a remedy and every right to relief must have a forum for enforcement, (ii) that plaintiff is dominus litis, and (iii) that onecan file a suit for ejectment of tenant and it is not necessary that allmust jointly sue for ejectment though they are not prevented fromrather entitled tojoining together and suing jointly if they wish to do so, we proceed to state our conclusions aswhere a claim for eviction is filed by a landlord, or abelonging to any one of the five categories defined in Sectionof the Act, as the sole applicant without objection by otherwho have not joined asand the nature of claim for eviction is covered by Sectionof the Act, the proceedings would lie only before the Rent Controlling Authority;(ii) where a claim for eviction is filed by a landlord or by such awho does not belong to any of the categories defined by Sectionand the otherfalling in one of the categories defined in Sectionis not joined asthe claim shall have to be filed only by way of a suit instituted in a Civil Court;(iii) if the proceedings are initiated by suchlandlords, one or more of whom belong to Sectioncategory while some others are those not falling within the definition of landlord under Sectionand the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. under Chapteror may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable.We are, therefore, of the opinion that there is no merit in the plea raised on behalf of the appellants that the three respondents, one widow and her two major sons, could not have initiated proceedings for eviction before the Rent Controlling Authority. We have carefully perused the two applications for eviction filed by the respondents. The bonafide requirement pleaded is of the widow landlady, the respondent no. 1, who requires the suit premises for Govinda, respondent no. 2 for starting his business and that of another son Hemant, the respondent no. 3 fo continuing the business which presently he is carrying on in rented premises. Respondents 2 and 3 being major sons of the widow respondent no. 1, such requirement clearly falls also within the purview of Section(b) of theThe proceedings initiated before R.C.A. do not suffer from want of jurisdictional competence.27. So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Sectionit must be of his own, that is, the one owned by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no. 3. To amount to an alternateaccommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitableaccommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents no. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Moreover, there is no evidence adduced by the appellants to show that in M.T. Cloth market shops are also situated on first floor of buildings and attract the same business as the shops on ground floor do. The High Court and the R.C.A. have held none f the premises pointed out by thesuch alternate accommodation as may defeat the respondents claim. e find no reason to take a different view. Between the year 1987 and 1989 late Krishna Das, the then sole owner of the building, had sold three shops but that was an event which had taken place in theof late Krishna Das and cannot have relevance for denying the claim of thefiled in the year 1995.

### 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: claim for eviction is filed by a landlord, or a co-landlord, belonging to any one of the five categories defined in Section 23-J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by Section 23-A(b) of the Act, the proceedings would lie only before the Rent Controlling Authority;(ii) where a claim for eviction is filed by a landlord or by such a co-landlord who does not belong to any of the categories defined by Section 23-J and the other co-landlord/landlady falling in one of the categories defined in Section 23-J is not joined as co-plaintiff the claim shall have to be filed only by way of a suit instituted in a Civil Court;(iii) if the proceedings are initiated by such co-owner landlords, one or more of whom belong to Section 23-J category while some others are those not falling within the definition of landlord under Section 23-J and the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. under Chapter III-A or may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable. 26. We are, therefore, of the opinion that there is no merit in the plea raised on behalf of the appellants that the three respondents, one widow and her two major sons, could not have initiated proceedings for eviction before the Rent Controlling Authority. We have carefully perused the two applications for eviction filed by the respondents. The bonafide requirement pleaded is of the widow landlady, the respondent no. 1, who requires the suit premises for Govinda, respondent no. 2 for starting his business and that of another son Hemant, the respondent no. 3 fo continuing the business which presently he is carrying on in rented premises. Respondents 2 and 3 being major sons of the widow respondent no. 1, such requirement clearly falls also within the purview of Section 23-A (b) of the Act. The proceedings initiated before R.C.A. do not suffer from want of jurisdictional competence.27. So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Section 23-A(b) it must be of his own, that is, the one owned by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no. 3. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents no. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Moreover, there is no evidence adduced by the appellants to show that in M.T. Cloth market shops are also situated on first floor of buildings and attract the same business as the shops on ground floor do. The High Court and the R.C.A. have held none f the premises pointed out by the tenant-appellants such alternate accommodation as may defeat the respondents claim. e find no reason to take a different view. Between the year 1987 and 1989 late Krishna Das, the then sole owner of the building, had sold three shops but that was an event which had taken place in the life-time of late Krishna Das and cannot have relevance for denying the claim of the respondent-landlords filed in the year 1995. ### Response: 0 ### Explanation: onecan file a suit for ejectment of tenant and it is not necessary that allmust jointly sue for ejectment though they are not prevented fromrather entitled tojoining together and suing jointly if they wish to do so, we proceed to state our conclusions aswhere a claim for eviction is filed by a landlord, or abelonging to any one of the five categories defined in Sectionof the Act, as the sole applicant without objection by otherwho have not joined asand the nature of claim for eviction is covered by Sectionof the Act, the proceedings would lie only before the Rent Controlling Authority;(ii) where a claim for eviction is filed by a landlord or by such awho does not belong to any of the categories defined by Sectionand the otherfalling in one of the categories defined in Sectionis not joined asthe claim shall have to be filed only by way of a suit instituted in a Civil Court;(iii) if the proceedings are initiated by suchlandlords, one or more of whom belong to Sectioncategory while some others are those not falling within the definition of landlord under Sectionand the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. under Chapteror may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable.We are, therefore, of the opinion that there is no merit in the plea raised on behalf of the appellants that the three respondents, one widow and her two major sons, could not have initiated proceedings for eviction before the Rent Controlling Authority. We have carefully perused the two applications for eviction filed by the respondents. The bonafide requirement pleaded is of the widow landlady, the respondent no. 1, who requires the suit premises for Govinda, respondent no. 2 for starting his business and that of another son Hemant, the respondent no. 3 fo continuing the business which presently he is carrying on in rented premises. Respondents 2 and 3 being major sons of the widow respondent no. 1, such requirement clearly falls also within the purview of Section(b) of theThe proceedings initiated before R.C.A. do not suffer from want of jurisdictional competence.27. So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords. To be an alternative accommodation relevant within the meaning of Section 12(1)(f) or Sectionit must be of his own, that is, the one owned by the landlord. Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent no. 3. To amount to an alternateaccommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitableaccommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents no. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Moreover, there is no evidence adduced by the appellants to show that in M.T. Cloth market shops are also situated on first floor of buildings and attract the same business as the shops on ground floor do. The High Court and the R.C.A. have held none f the premises pointed out by thesuch alternate accommodation as may defeat the respondents claim. e find no reason to take a different view. Between the year 1987 and 1989 late Krishna Das, the then sole owner of the building, had sold three shops but that was an event which had taken place in theof late Krishna Das and cannot have relevance for denying the claim of thefiled in the year 1995.

Britannia Industries Ltd Vs. Commnr. Of Income Tax

of Section 37(4) of the Act. 21. Dr. Pal submitted that apart from the said two decisions of the Calcutta High Court, the uniform decision of most of the High Courts appears to be that since the expenditure incurred for rents, rates, taxes, repairs and insurance of buildings and premises and furniture used for the purposes of business or profession, have been specifically provided for in Sections 30, 31 and 32 of the Act, benefits thereof could not be denied to the assessee under the relevant provisions of Section 37 of the Act.22. Dr. Pal urged that the judgment under appeal did not give any independent reasoning but was rendered following the decision of the Calcutta High Court in Century Spinning and Manufacturing Co. Ltd. and Upper Ganges Sugar Mills Ltd. (supra) and could not therefore be sustained.23. Appearing for the Revenue, Mr. Rajeev Dutta, learned Senior Counsel, however, contended that the provisions of Section 37 would have to be read in isolation from the provisions of Sections 30 to 36 of the Act as contemplated by the non obstante Clause in Sub-section (1) of Section 37. Mr. Dutta urged that the provisions of Section 37 had been correctly interpreted in the two decisions of the Calcutta High Court in Century Spinning and Manufacturing Co. Ltd.and Upper Ganges Sugar Mills Ltd. (supra).24. Mr. Dutta urged that it was the clear intention of the Legislature to exclude the benefit of deduction in respect of guest houses which were being run and maintained by companies in a lavish manner. Mr. Dutta submitted that while premises and buildings had been referred to in general terms in Sections 30, 31 and 32 of the Act, guest houses had been separately categorized for the purposes of Section 37 which would be quite evident from the manner in which expenses, including rent and maintenance, were sought to be withdrawn in respect of such guest houses. Mr. Dutta submitted that the intention of the Legislature would be further clear from the insertion of Sub-section (5) which brought within the scope and ambit of Section 37(4) all accommodation by whatever name called in the nature of a guest house. 25. In support of his submissions, Mr. Dutta referred to the decision of Rajasthan High Court in Commissioner of Income Tax v. Instrumentation Ltd., reported in (2002) 258 ITR 513 , where upon considering the views expressed by the Bombay High Court and the Gujarat High Court in the cases of Chase Bright Steel Ltd. andAhmedabad Mfg. and Calico Printing Co. Ltd. (supra), it was urged that expenditure incurred towards rent and maintenance of guest houses after 28th February, 1970, was not deductible in view of Section 37(4) of the Act. 26. Reference has also been made to a decision of the Madras High Court in Commissioner of Income Tax v. Mathurantakam Co-operative Sugar Mills Ltd., reported in (2000) 241 ITR 817; wherein certain expenses, which came within the mischief of Section 37(4) of the Act were disallowed. 27. Other similar decisions of the Madras and the Rajasthan High Courts were also referred to. 28. Mr. Dutta lastly referred to another decision of the Calcutta High Court in the case of Commissioner of Income Tax v. Biswanath Tea Co. Ltd., (2003) 264 ITR 166 to which one of us (Hon’ble Altamas Kabir, J.) was a party. In the said case the Calcutta High Court had occasion to consider the various decisions which have also been cited by Dr. Pal in the instant case and upon a consideration of the language of Section 37(4), it was held that having regard to the unambiguous bar incorporated under Sub-section (4) of Section 37, the benefits indicated in Sections 30 to 36 although, independent of Section 37, could not be related to the guest house maintained by the assessee. It was held that apart from the view taken in Upper Ganges Sugar Mills Ltd. and Kesoram Industries and Cotton Mills Ltd., any other interpretation would negate the object of the prohibition engrafted in Sub-section (4). 29. The only question which we are called upon to consider in the instant case is whether the expression ‘premises and buildings’ referred to in Sections 30 and 32 and used for the purposes of the business or profession would include within its scope and ambit the expression ‘residential accommodation including any accommodation in the nature of guest house’ used in Sub-sections (3), (4) and (5) of Section 37 of the Act. While the two expressions can be similarly interpreted, a distinction has been sought to be introduced for the purposes of Section 37 by specifying the nature of building to be a guest house. In our view, the intention of the Legislature appears to be clear and unambiguous and was intended to exclude the expenses towards rents, repairs and also maintenance of premises/accommodation used for the purposes of a guest house of the nature indicated in Sub-Section (4) of Section 37. When the language of a statue is clear and unambiguous, the Courts are to interpret the same in its literal sense and not to give it a meaning which would cause violence to the provisions of the statute. If the Legislature had intended that deduction would be allowable in respect of all types of buildings/accommodations used for the purposes of business or profession, then it would not have felt the need to amend the provisions of Section 37 so as to make a definite distinction with regard to buildings used as guest houses as defined in Sub-section (5) of Section 37 and the provisions of Sections 31 and 32 would have been sufficient for the said purpose. The decisions cited by Dr. Pal contemplate situations where specific provision had been made in Sections 30 to 36 of the Act and it was felt that what had been specifically provided therein could not be excluded under Section 37. The clarification introduced by way of Sub-section (5) to Section 37 was also not considered in the said case.

0[ds]4. Sections 31 and 32 deal with the amounts which are allowable in respect of repairs and insurance of machinery, plant and furniture used for the purposes of the business or profession and in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets along with other intangible assets.Sections 31 and 32 deal with the amounts which are allowable in respect of repairs and insurance of machinery, plant and furniture used for the purposes of the business or profession and in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets along with other intangible assets.As will be apparent from a reading of Sub-section (1) of Section 37 of the Act, any expenditure not being expenditure of the nature described in Sections 30 to 36, inter alia, allowed and expended wholly and exclusively for the purposes of business or profession, is to be allowed in computing the income chargeable under the headingand gains of business orIn other words, Section 37 is to be read to the exclusion of the amounts allowable under Sections 30 to 36.9. Although, the expressionused for the purposes of the business orhas been used along with the expressionunder Sections 30, 31 and 32 of the Act, for the first time the expressionaccommoda-tion including any accommodation in the nature of a guesthas been used in Sub-section (3) of Section 37 of the Act. As will be seen, Sub-section (3) of Section 37 indicates that notwithstanding anything contained in Sub-section (1) any expenditure incurred by an assessee after 31st of March, 1964, inter alia, on maintenance of any residential accommodation in the nature of a guest house and hotel expenses, would be allowed only to the extent and subject to such conditions, if any, as may be prescribed.10. Sub-section (4), which was inserted in the statute book with effect from 1st April, 1970, is specific and provides that notwithstanding anything contained in Sub-section (1) and Sub-section (3) no allowance shall be made in respect of any expenditure incurred by the assessee after 28th February, 1970, on the maintenance of any residential accommodation in the nature of guest house and no allowance shall be made in respect of depreciation of any building used as a guest house or depreciation of any assets in the guest house. However, a guest house maintained as holiday home in the circumstances indicated have been excluded from the purview of Sub-section (4) referred to hereinabove.11. Inasmuch as, doubts still remained regarding the nature of accommodation used as a guest house by the companies, Sub-section (5) was included in Section 37 by the Finance Act in 1983 with effect from 1st April, 1979 and was subsequently omitted by the Finance Act, 1997 with effect from 1st April, 1998. At the relevant point of time, namely, the assessment year 1994-1995, all the aforesaid provisions of Section 37 were available and, therefore, applicable to the case of the appellant-company.e only question which we are called upon to consider in the instant case is whether the expression ‘premises andreferred to in Sections 30 and 32 andused for the purposes of the business orprofession would include within its scope and ambit the expression ‘residential accommodation including any accommodation in the nature of guestused in Sub-sections (3), (4) and (5) of Section 37 of the Act.

### 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: of Section 37(4) of the Act. 21. Dr. Pal submitted that apart from the said two decisions of the Calcutta High Court, the uniform decision of most of the High Courts appears to be that since the expenditure incurred for rents, rates, taxes, repairs and insurance of buildings and premises and furniture used for the purposes of business or profession, have been specifically provided for in Sections 30, 31 and 32 of the Act, benefits thereof could not be denied to the assessee under the relevant provisions of Section 37 of the Act.22. Dr. Pal urged that the judgment under appeal did not give any independent reasoning but was rendered following the decision of the Calcutta High Court in Century Spinning and Manufacturing Co. Ltd. and Upper Ganges Sugar Mills Ltd. (supra) and could not therefore be sustained.23. Appearing for the Revenue, Mr. Rajeev Dutta, learned Senior Counsel, however, contended that the provisions of Section 37 would have to be read in isolation from the provisions of Sections 30 to 36 of the Act as contemplated by the non obstante Clause in Sub-section (1) of Section 37. Mr. Dutta urged that the provisions of Section 37 had been correctly interpreted in the two decisions of the Calcutta High Court in Century Spinning and Manufacturing Co. Ltd.and Upper Ganges Sugar Mills Ltd. (supra).24. Mr. Dutta urged that it was the clear intention of the Legislature to exclude the benefit of deduction in respect of guest houses which were being run and maintained by companies in a lavish manner. Mr. Dutta submitted that while premises and buildings had been referred to in general terms in Sections 30, 31 and 32 of the Act, guest houses had been separately categorized for the purposes of Section 37 which would be quite evident from the manner in which expenses, including rent and maintenance, were sought to be withdrawn in respect of such guest houses. Mr. Dutta submitted that the intention of the Legislature would be further clear from the insertion of Sub-section (5) which brought within the scope and ambit of Section 37(4) all accommodation by whatever name called in the nature of a guest house. 25. In support of his submissions, Mr. Dutta referred to the decision of Rajasthan High Court in Commissioner of Income Tax v. Instrumentation Ltd., reported in (2002) 258 ITR 513 , where upon considering the views expressed by the Bombay High Court and the Gujarat High Court in the cases of Chase Bright Steel Ltd. andAhmedabad Mfg. and Calico Printing Co. Ltd. (supra), it was urged that expenditure incurred towards rent and maintenance of guest houses after 28th February, 1970, was not deductible in view of Section 37(4) of the Act. 26. Reference has also been made to a decision of the Madras High Court in Commissioner of Income Tax v. Mathurantakam Co-operative Sugar Mills Ltd., reported in (2000) 241 ITR 817; wherein certain expenses, which came within the mischief of Section 37(4) of the Act were disallowed. 27. Other similar decisions of the Madras and the Rajasthan High Courts were also referred to. 28. Mr. Dutta lastly referred to another decision of the Calcutta High Court in the case of Commissioner of Income Tax v. Biswanath Tea Co. Ltd., (2003) 264 ITR 166 to which one of us (Hon’ble Altamas Kabir, J.) was a party. In the said case the Calcutta High Court had occasion to consider the various decisions which have also been cited by Dr. Pal in the instant case and upon a consideration of the language of Section 37(4), it was held that having regard to the unambiguous bar incorporated under Sub-section (4) of Section 37, the benefits indicated in Sections 30 to 36 although, independent of Section 37, could not be related to the guest house maintained by the assessee. It was held that apart from the view taken in Upper Ganges Sugar Mills Ltd. and Kesoram Industries and Cotton Mills Ltd., any other interpretation would negate the object of the prohibition engrafted in Sub-section (4). 29. The only question which we are called upon to consider in the instant case is whether the expression ‘premises and buildings’ referred to in Sections 30 and 32 and used for the purposes of the business or profession would include within its scope and ambit the expression ‘residential accommodation including any accommodation in the nature of guest house’ used in Sub-sections (3), (4) and (5) of Section 37 of the Act. While the two expressions can be similarly interpreted, a distinction has been sought to be introduced for the purposes of Section 37 by specifying the nature of building to be a guest house. In our view, the intention of the Legislature appears to be clear and unambiguous and was intended to exclude the expenses towards rents, repairs and also maintenance of premises/accommodation used for the purposes of a guest house of the nature indicated in Sub-Section (4) of Section 37. When the language of a statue is clear and unambiguous, the Courts are to interpret the same in its literal sense and not to give it a meaning which would cause violence to the provisions of the statute. If the Legislature had intended that deduction would be allowable in respect of all types of buildings/accommodations used for the purposes of business or profession, then it would not have felt the need to amend the provisions of Section 37 so as to make a definite distinction with regard to buildings used as guest houses as defined in Sub-section (5) of Section 37 and the provisions of Sections 31 and 32 would have been sufficient for the said purpose. The decisions cited by Dr. Pal contemplate situations where specific provision had been made in Sections 30 to 36 of the Act and it was felt that what had been specifically provided therein could not be excluded under Section 37. The clarification introduced by way of Sub-section (5) to Section 37 was also not considered in the said case. ### Response: 0 ### Explanation: 4. Sections 31 and 32 deal with the amounts which are allowable in respect of repairs and insurance of machinery, plant and furniture used for the purposes of the business or profession and in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets along with other intangible assets.Sections 31 and 32 deal with the amounts which are allowable in respect of repairs and insurance of machinery, plant and furniture used for the purposes of the business or profession and in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets along with other intangible assets.As will be apparent from a reading of Sub-section (1) of Section 37 of the Act, any expenditure not being expenditure of the nature described in Sections 30 to 36, inter alia, allowed and expended wholly and exclusively for the purposes of business or profession, is to be allowed in computing the income chargeable under the headingand gains of business orIn other words, Section 37 is to be read to the exclusion of the amounts allowable under Sections 30 to 36.9. Although, the expressionused for the purposes of the business orhas been used along with the expressionunder Sections 30, 31 and 32 of the Act, for the first time the expressionaccommoda-tion including any accommodation in the nature of a guesthas been used in Sub-section (3) of Section 37 of the Act. As will be seen, Sub-section (3) of Section 37 indicates that notwithstanding anything contained in Sub-section (1) any expenditure incurred by an assessee after 31st of March, 1964, inter alia, on maintenance of any residential accommodation in the nature of a guest house and hotel expenses, would be allowed only to the extent and subject to such conditions, if any, as may be prescribed.10. Sub-section (4), which was inserted in the statute book with effect from 1st April, 1970, is specific and provides that notwithstanding anything contained in Sub-section (1) and Sub-section (3) no allowance shall be made in respect of any expenditure incurred by the assessee after 28th February, 1970, on the maintenance of any residential accommodation in the nature of guest house and no allowance shall be made in respect of depreciation of any building used as a guest house or depreciation of any assets in the guest house. However, a guest house maintained as holiday home in the circumstances indicated have been excluded from the purview of Sub-section (4) referred to hereinabove.11. Inasmuch as, doubts still remained regarding the nature of accommodation used as a guest house by the companies, Sub-section (5) was included in Section 37 by the Finance Act in 1983 with effect from 1st April, 1979 and was subsequently omitted by the Finance Act, 1997 with effect from 1st April, 1998. At the relevant point of time, namely, the assessment year 1994-1995, all the aforesaid provisions of Section 37 were available and, therefore, applicable to the case of the appellant-company.e only question which we are called upon to consider in the instant case is whether the expression ‘premises andreferred to in Sections 30 and 32 andused for the purposes of the business orprofession would include within its scope and ambit the expression ‘residential accommodation including any accommodation in the nature of guestused in Sub-sections (3), (4) and (5) of Section 37 of the Act.

THE BRANCH MANAGER INDIGO AIRLINES KOLKATA Vs. KALPANA RANI DEBBARMA

The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them. 23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR. Clause 3.2 of the CAR reads thus: - 3.2 Denied Boarding 3.2.1 When the number of passengers, who have been given confirmed bookings for travel on the flight and who have reported for the flight well within the specified time ahead of the departure of the flight, are more than the number of seats available, an airline must first ask for volunteers to give up their seats so as to make seats available for other booked passengers to travel on the flight, in exchange of such benefits/facilities as the airline, at its own discretion, may wish to offer, provided airports concerned have dedicated check-in facilities/gate areas which make it practical for the airline to do so. 3.2.2 If the boarding is denied due to condition stated at Para 3.2.1 to passengers against their will, the airline shall not be liable for any compensation in case alternate flight is arranged that is scheduled to depart within one hour of the original schedule departure time of the initial reservation. Failing to do so, the airline shall compensate the passengers as per the following provisions: a) An amount equal to 200% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 10,000, in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure. b) An amount equal to 400% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 20,000, in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure. c) In case passenger does not opt for alternate flight, refund of full value of ticket and compensation equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000. 3.2.3 A passenger booked on connecting flights of the same airline or of the other airline, shall be compensated by the airline of the first flight for the first leg in accordance with the provisions of Para 3.2.2 of this CAR, when he has been delayed at the departure station on account of denied boarding, but has arrived at the final destination at least three hours later than the scheduled arrival time. 24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boarding. 25. As a matter of fact, the coordinate Bench of the National Commission in the case of The Manager, Southern Region (supra) has had occasion to observe that it would not be appropriate to cast an obligation on any airlines to delay the departure of an aircraft beyond the scheduled time of the departure and to await late arrival of any passenger, whosoever he may be, howsoever highly or lowly placed. Even in that case, the complainant had failed to present himself at the departure lounge in time and there was no kind of negligence or deficiency in service on the part of the airlines. Similar situation obtains in the present case. The appellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed. 26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.

0[ds]11. The present appeals emanate from the complaint filed before the consumer fora. While dealing with such a complaint, the jurisdiction or the nature of enquiry to be undertaken by the consumer fora is limited to the factum of deficiency in service and to award compensation only if that fact is substantiated by the party alleging the same. The expression deficiency in service has been defined in Section 2(1)(g) of the Consumer Protection Act, 1986, to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service12. Thus, the enquiry in such proceedings is limited to grievance about deficiency in service, which is distinct from the tortuous acts of the other partyEven on a fair reading of the complaint and the evidence given on the same lines, all that can be discerned is that the respondents had reported at the check-in counter well in time and were issued boarding passes for flight No. 6E-861, which was scheduled to depart at 08:45 a.m., and that the flight took off leaving them (respondents) at the airport without informing them about the departure. There is no assertion that no public announcement was made at the boarding gate or on the T.V. screens displayed across within the airport before closure of the boarding gate and as to how they (respondents) were prevented or misled from reporting at the boarding gate 25 (twenty-five) minutes before the scheduled departure time (08:45 a.m.) of the flight in question, and moreso before the boarding gates were actually closed at 08:58 a.m. Be that as it may, the consumer fora committed manifest error in shifting the burden on the appellants and drawing adverse inference against them for having failed to produce evidence regarding announcements having been made to inform the passengers including the respondents to arrive at the boarding gate before its closure at 08:58 a.m. The appellants had clearly stated that as per the standard practice, such announcements are made at the boarding gate itself and the record in that behalf is not maintained by the Airlines (appellants), but by the airport authorities. The need to prove that fact would have arisen only if the respondents had clearly pleaded all relevant material facts and also discharged their initial burden of producing proof regarding deficiency in service by the ground-staff of the appellants at the airport after issuing boarding passes and before the closure of the boarding gate and departure of the flight13. Concededly, boarding passes were issued to the respondents at 07:35 a.m. at the check-in counters, whereafter they entered the security channel area and like any other prudent passenger, were expected to proceed towards the concerned boarding gate in right earnestAs aforementioned, there is no averment in the complaint or the evidence of the witness examined by the respondents to even remotely suggest as to what prevented the respondents, after entering the security channel area upon issue of boarding passes at 07:35 a.m., from reaching at the boarding gate before 08:20 a.m. and in any case when the boarding gate was actually closed at 08:58 a.m. Further, there is no averment in the complaint or deposed to by the witness of the complainants/respondents as to how the ground-staff of the appellant-Airlines was responsible and that it was not their own acts of commission or omission. It is not the case of the respondents that they were prevented, misled or obstructed by the ground-staff of the appellants from reaching at the boarding gate well in time and until it was closed treating as Gate No Show. It is also not the case of respondents that they had sought assistance of the ground-staff of the appellants and that was denied to them. In absence of such a case made out in the complaint or in the deposition and other evidence produced by the respondents, it is unfathomable as to how the respondents had substantiated the allegation of deficiency in service by the ground-staff of the appellants. Such a complaint ought not to proceed further for want of material facts constituting deficiency in service14. The fact that the respondents were not accommodated in the next flight for Agartala without payment of airfare, per se, cannot be regarded as deficiency in service in relation to the contract which stood discharged and accomplished after Gate No Show by the respondents and departure of the flight in terms of Articles 8.2 and 8.3 of the CoCIt is not the case of the respondents that the appellants had refused to refund the Government and Airport fees and/or taxes, as may be applicable. As aforesaid, the follow-up event of not accommodating the respondents in the next available flight for Agartala until payment of air-tickets would be of no avail, in the context of the contractual obligations of both the parties in terms of the CoC. The appellants at best were liable only to refund the Government and airport fees and/or taxes (if applicable) and not liable for any loss caused to the passenger(s). Had it been a case of denied boarding, the obligation of the appellants would have been somewhat different including to accommodate the passengers without insisting for air-ticket charges for the next flight available for reaching the desired destination. Therefore, in case of Gate No Show, not acceding to the request of the respondents until they paid air charges for the next flight, may or may not be a case of tortuous claim which, however, can be proceeded before any other forum but not consumer fora. For, the contract relating to travel plan of the respondents upon issue of the boarding passes at the airport check-in counters, was accomplished after Gate No Show and resultantly closure of the boarding gate at 08:58 a.m. At the cost of repetition, we hold that the deficiency in service must be ascribed only in respect of the stated contractual obligations of the parties15. Indubitably, the CoC is binding on both parties as predicated by this Court in N. Satchidanand (supra)We may usefully refer to paragraph 31 of the said decision, where the Court observed thus: -31. The fact that the conditions of carriage contain the exclusive jurisdiction clause is not disputed. The e- tickets do not contain the complete conditions of carriage but incorporate the conditions of carriage by reference. The interested passengers can ask the airline for a copy of the contract of carriage or visit the website and ascertain the same. Placing the conditions of carriage on the website and referring to the same in the e-ticket and making copies of conditions of carriage available at the airport counters for inspection is sufficient notice in regard to the terms of conditions of the carriage and will bind the parties. The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of contract of carriage. We cannot therefore, accept the finding of the High Court that the term relating to exclusive jurisdiction should be ignored on the ground that the passengers would not have read itThese observations apply on all fours to the case in hand. However, the State Commission distinguished this decision on the basis of facts of the case disregarding the underlying principle expounded in the aforesaid extracted portion of the judgment of this Court. The respondents, however, urge that in the present case, the air ticket did not contain the reference to the CoC. It is, however, not the case of the respondents (who are well educated, as respondent Nos. 1 and 2 claim to be Engineers working in Government establishment), that the website of the appellant-Airlines does not display the CoC or that the same was not made available at the airport check-in counter for inspection, which is the standard operating procedure followed by all the airlines. No such assertion has been made in the complaint as filed16. In our opinion, the approach of the consumer fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground-staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The consumer fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service17. The appellants have produced a boarding pass issued in the name of the Advocate for the appellant, to illustrate that the same contains the relevant information regarding the flight number, date, boarding time, departure time and more importantly, the notification that boarding gate closes 25 (twenty-five) minutes prior to the departure time and that boarding gate numbers are subject to change, which may be seen from the screen(s) displayed at the airport for latest updates. Admittedly, the boarding passes were issued to the respondents. Presumably, the same must have set out similar information being the standard practice followed by all the airlines. Indeed, the respondents have asserted in the complaint that the boarding passes were snatched away by the ground-staff of the appellants at the airport itself. As a matter of fact, this allegation is blissfully vague and bereft of any material facts. Further, it is crucial to note that it is not the case of the respondents that after the boarding passes were issued to them, they did not read the same to reassure themselves about the relevant information and the departure time of the flight indicated therein including the reporting time at the boarding gate. Nor is the case of the respondents that they had read the boarding pass and it did not contain the relevant information including regarding the necessity of reporting 25 (twenty-five) minutes before the departure time at the boarding gate. Nothing of this sort is either pleaded or stated in the evidence by the respondents. A similar plea that the boarding passes were snatched away by the ground-staff was taken in the case of The Manager, Southern Region, Air India, Madras & Ors. vs. V. Krishnaswamy 1994 (2) C.P.C. 171 decided by the National Commission on 19.7.1994 in First Appeal No. 445/1992, which came to be rejected. Even in the present case, the appellant-Airlines has denied the allegation and also suggested to the witness examined by the respondents that the complaint was false18. Concededly, it is the primary obligation of the passenger, who has been issued boarding pass to undergo the security-check procedure and reach at the boarding gate well before (at least 25 minutes before) the scheduled departure time. No doubt, it is said that the consumer is the king and the legislation is intended to safeguard and protect the rights and interests of the consumer, but that does not mean that he is extricated from the obligations under the contract in question much less to observe prudence and due care. It is not the case of the respondents that they were delayed during the security check much less due to the acts of commission or omission of the ground-staff of the appellants. In fact, nothing has been stated in the complaint or the evidence as to what activities were undertaken by the respondents after issue of boarding passes at the check-in counter at 07:35 a.m. until the departure of the flight and in particular, closure of the boarding gate at 08:58 a.m. The respondents having failed to take any initiative to ensure that they present themselves at the boarding gate before the scheduled time and considering the layout of the check-in counter upto the boarding gate, the respondents cannot be heard to complain about the deficiency in service by the ground-staff. Notably, the distance between the check-in counter, where boarding passes were issued, upto the boarding gate is so insignificant that there could be no just reason for the respondents not to report at the boarding gate between 07:35 a.m. till 08:58 a.m. The respondents have not offered any explanation for their inaction nor have mentioned about any act of commission or omission by the ground-staff of the appellant-Airlines at the airport during this period19. As aforesaid, after boarding pass is issued, the passenger is expected to proceed towards security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate. Further, the Airlines issuing boarding passes cannot be made liable for the misdeeds, inaction or so to say misunderstanding caused to the passengers, until assistance is sought from the ground-staff of the airlines at the airport well in time. It is not the case of the respondents that the boarding gate was changed at the last minute or there was any reason which created confusion attributable to airport/airlines officials, so as to invoke an expansive meaning of denied boarding. The fact situation of the present case is clearly one of Gate No Show, the making of the respondents and not that of denied boarding as such20. The National Commission erroneously relied on the dictum in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (2011) 11 SCC 269 to deny itself of the jurisdiction to entertain the revision petitions despite the fact that decisions assailed in the revision petitions were manifestly wrong and suffered from error of jurisdiction. In the fact situation of the present case, the National Commission ought to have exercised its jurisdiction and corrected the palpable and manifest error committed by the two consumer fora below21. The State Commission has referred to the observations in Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) (Decided on 22.2.2018 in Appeal Case No. A/42/2017) decided by the Commission taking the view that after issuing boarding pass, it is the duty of the airlines authority to help the passengers, so that they can board the flight well in time on completion of the security check-up. This is a sweeping observation. We do not agree with the same. We have already taken the view that there is no obligation on the airlines to escort every passenger after issuing him/her a boarding pass at the check-in counter until he/she reaches the boarding gate. That would be a very tall claim to make. Indeed, in a given case, if the passenger encounters difficulty or impediment to report at the boarding gate, he/she is expected to seek assistance of the ground-staff of the concerned airlines well in time. If such request is made, there is no reason to presume that the ground-staff of the concerned airlines will not extend logistical assistance to facilitate the passenger for reporting at the boarding gate in time. That, however, would be a matter to be enquired into on case to case basis. That question does not arise in the present case, as no such plea has been taken in the complaint or the evidence given on behalf of the respondents22. Additionally, the National Commission has invoked the principle of right to care of the passengers. The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boardingappellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them. 23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR. Clause 3.2 of the CAR reads thus: - 3.2 Denied Boarding 3.2.1 When the number of passengers, who have been given confirmed bookings for travel on the flight and who have reported for the flight well within the specified time ahead of the departure of the flight, are more than the number of seats available, an airline must first ask for volunteers to give up their seats so as to make seats available for other booked passengers to travel on the flight, in exchange of such benefits/facilities as the airline, at its own discretion, may wish to offer, provided airports concerned have dedicated check-in facilities/gate areas which make it practical for the airline to do so. 3.2.2 If the boarding is denied due to condition stated at Para 3.2.1 to passengers against their will, the airline shall not be liable for any compensation in case alternate flight is arranged that is scheduled to depart within one hour of the original schedule departure time of the initial reservation. Failing to do so, the airline shall compensate the passengers as per the following provisions: a) An amount equal to 200% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 10,000, in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure. b) An amount equal to 400% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 20,000, in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure. c) In case passenger does not opt for alternate flight, refund of full value of ticket and compensation equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000. 3.2.3 A passenger booked on connecting flights of the same airline or of the other airline, shall be compensated by the airline of the first flight for the first leg in accordance with the provisions of Para 3.2.2 of this CAR, when he has been delayed at the departure station on account of denied boarding, but has arrived at the final destination at least three hours later than the scheduled arrival time. 24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boarding. 25. As a matter of fact, the coordinate Bench of the National Commission in the case of The Manager, Southern Region (supra) has had occasion to observe that it would not be appropriate to cast an obligation on any airlines to delay the departure of an aircraft beyond the scheduled time of the departure and to await late arrival of any passenger, whosoever he may be, howsoever highly or lowly placed. Even in that case, the complainant had failed to present himself at the departure lounge in time and there was no kind of negligence or deficiency in service on the part of the airlines. Similar situation obtains in the present case. The appellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed. 26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf. ### Response: 0 ### Explanation: issued, the passenger is expected to proceed towards security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate. Further, the Airlines issuing boarding passes cannot be made liable for the misdeeds, inaction or so to say misunderstanding caused to the passengers, until assistance is sought from the ground-staff of the airlines at the airport well in time. It is not the case of the respondents that the boarding gate was changed at the last minute or there was any reason which created confusion attributable to airport/airlines officials, so as to invoke an expansive meaning of denied boarding. The fact situation of the present case is clearly one of Gate No Show, the making of the respondents and not that of denied boarding as such20. The National Commission erroneously relied on the dictum in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (2011) 11 SCC 269 to deny itself of the jurisdiction to entertain the revision petitions despite the fact that decisions assailed in the revision petitions were manifestly wrong and suffered from error of jurisdiction. In the fact situation of the present case, the National Commission ought to have exercised its jurisdiction and corrected the palpable and manifest error committed by the two consumer fora below21. The State Commission has referred to the observations in Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) (Decided on 22.2.2018 in Appeal Case No. A/42/2017) decided by the Commission taking the view that after issuing boarding pass, it is the duty of the airlines authority to help the passengers, so that they can board the flight well in time on completion of the security check-up. This is a sweeping observation. We do not agree with the same. We have already taken the view that there is no obligation on the airlines to escort every passenger after issuing him/her a boarding pass at the check-in counter until he/she reaches the boarding gate. That would be a very tall claim to make. Indeed, in a given case, if the passenger encounters difficulty or impediment to report at the boarding gate, he/she is expected to seek assistance of the ground-staff of the concerned airlines well in time. If such request is made, there is no reason to presume that the ground-staff of the concerned airlines will not extend logistical assistance to facilitate the passenger for reporting at the boarding gate in time. That, however, would be a matter to be enquired into on case to case basis. That question does not arise in the present case, as no such plea has been taken in the complaint or the evidence given on behalf of the respondents22. Additionally, the National Commission has invoked the principle of right to care of the passengers. The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boardingappellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.

Associated Hotels of India Limited Vs. R.N. Kapoor

. .. . ... .... ... .... .... .... .... ..... but does not include a room in a dharmashala, hotel or lodging house."What is the construction of the words "a room in a hotel"? The object of the Act as disclosed in the preamble is "to provide for the control of rents and evictions, and for the lease to Government of premises upon their becoming vacant, in certain areas in the Provinces of Delhi and Ajmer-Merwara". The Act was, therefore, passed to control exorbitant rents of buildings prevailing in the said States. But S. 2 exempts a room in a hotel from the operation of the Act. The reason for the exemption may be to encourage running of hotels in the cities, or it may be for other reasons. Whatever may be the object of the Act, the scope of the exemption cannot be enlarged so as to limit the operation of the Act. The exemption from the Act is only in respect of a room in a hotel. The collocation of the words brings out the characteristics of the exempted room. The room is part of a hotel. It partakes its character and does not cease to be one after it is let out. It is, therefore, necessary to ascertain the meaning of the word "hotel". The word "hotel" is not defined in the Act. A hotel in common parlance means a place where a proprietor makes it his business to furnish food or lodging or both to travellers or other persons.A building cannot be run as a hotel unless services necessary for the comfortable stay of lodgers and boarders are maintained. Services so maintained vary with the standard of the hotel and the class of persons to which it caters; but the amenities must have relation to the hotel business.Provisions for heating or lighting, supply of hot water, sanitary arrangements, sleeping facilities, and such others are some of the amenities a hotel offers to its constituents.But every amenity however remote and unconnected with the business of a hotel cannot be described as service in a hotel.The idea of a hotel can be better clarified by illustration than by definition and by giving examples of what is a room in a hotel and also what is not a room in a hotel: (1) A owns a building in a part whereof he runs a hotel but leases out a room to B in the part of the building not used as hotel; (2) A runs a hotel in the entire building but lets out a room to B for a purpose unconnected with the hotel business; (3) A runs a hotel in the entire building and lets out a room to B for carrying on his business different from that of a hotel, though incidentally the inmates of the hotel take advantage of it because of its proximity; (4) A lets out a room in such a building to another with an express condition that he should cater only to the needs of the inmates of the hotel; and (5) A lets out a room in a hotel to a lodger, who can command all the services and amenities of a hotel. In the first illustration, the room has never been a part of a hotel though it is part of a building where a hotel is run. In the second, though a room was once part of a hotel, it ceased to be one, for it as been let out for a non-hotel purpose. In the fifth, it is let out as part o a hotel, and, therefore, it is definitely a room in a hotel. In the fourth, the room may still continue as part of the hotel as it is let out to provide an amenity or service connected with the hotel. But to extend the scope of the words to the third illustration is to obliterate the distinction between a room in a hotel and a room in any other building. If a room in a building, which is not a hotel but situated near a hotel, is let out to a tenant to carry on his business of a hair-dresser, it is not exempted from the operation of the Act. But if the argument of the appellants be accepted, if a similar room in a building, wherein a hotel is situated is let out for a similar purpose, it would be exempted. In either case, the tenant is put in exclusive possession of the room and he is entitled to carry on his business without any reference to the activities of the hotel.Can it be said that there is any reasonable nexus between the business of the tenant and that of the hotel. The only thing that can be said is that a lodger in a hotel building can step into the saloon to have a shave or haircut. So too, he can do so in the case of a saloon in the neighbouring house. The tenant is not bound by the contract to give any preferential treatment to the lodger. He may take his turn along with others, and when he is served, he is served not in his capacity as a lodger but as one of the general customers.What is more, under the document the tenant is not even bound to carry on the business of a hair-dresser. His only liability is to pay the stipulated amount to the landlord.The room, therefore, for the purpose of the Act, ceases to be a part of the hotel and becomes a place of business of the respondent. As the rooms in question were not let out as part of a hotel or for hotel purposes, I must hold that they are not rooms in a hotel within the meaning of S. 2 of the Act.29. In this view, the appellants are not exempted from the operation of the Act. The judgment of the High Court is correct. The appeal fails and is dismissed.

1[ds]15. The learned Rent Controller took the view that a room in an hotel would be a room normally used for purposes of lodging and not any room in an hotel. He took this view because he thought that if, for example, there was a three storeyed building, the ground floor of which was used for shops and the two upper floors for an hotel, it could not have been intended to exclude the entire building from the operation of the Act, and so the rooms on the ground floor would not have been rooms in an hotel. I am unable to appreciate how this illustration leads to the conclusion that a room in an hotel contemplated is a room normally used for lodging. The learned Rent Controllers reasoning is clearly fallacious. Because in a part of a building there is a hotel, the entire building does not become a hotel. Under the definition, a part of a building may be a premises and there is nothing to prevent a part only of a building being a hotel and the rest of it not being one. In the illustration imagined the ground floor is not a part of the hotel. The shoprooms in the ground floor cannot for this reason be rooms in a hotel at all. No question of these rooms being rooms in an hotel normally used for lodging, arises.We see no reason why a room in an hotel within the Act must be a room normally used for lodging. The Act does not say so. It would be difficult to say which is a room normally used for lodging or the hotel owner may use a room in an hotel for any purpose of the hotel he likes.Again, it would be an unusual hotel which lets out its lodging rooms; the usual thing is to give licenses to boarders to live in these rooms.16. I now pass on to the judgment of the High Court. Khosla J. who delivered the judgment, thought that a room in a hotel would be within the definition if it was let out to a person to whom board or other service was also given.It would seem that according to the learned Judge a room in an hotel within the Act is a room let out to a guest in an hotel, for only a guest bargains for lodging and food and services in an hotel. But the section does not contain words indicating that this is the meaning contemplated.In defining a room in an hotel it does not circumscribe the terms of the letting. If this was the intention, the tenant would be entirely unprotected. Ex hypothesi he would be outside the protection of the Act. Though he would be for all practical purposes a boarder in an hotel, he would also be outside the protection of the cognate Act. The Bombay Rents, Hotels and Lodging House, Rates Control Act, 1947, (Bom. 57 of 1947), which has been made applicable to Delhi, for that Act deals with lodging rates in an hotel which are entirely different from rents payable when hotel rooms are let out. A lodger in an hotel is a mere licensee and not a tenant for "there is involved in the term "lodger" that the man must lodge in the house of another" : see Foa on Landlord and Tenant (8th Ed.) p. 9. It could hardly have been intended to leave a person who is practically a boarder in an hotel in that situation. As I have earlier said, it would be a most unusual hotel which lets out its rooms to a guest, and the Act could not have been contemplating such a thing.17. Khosla, J. also said that the room in a hotel need not necessarily be a bed room but it must be so intimately connected with the hotel as to be a part and parcel of it, that it must be a room which is an essential amenity provided by an hotel e.g., the dining room in an hotel. I am unable to agree.I do not appreciate why any room in an hotel is not intimately connected with it, by which apparently is meant, the business of the hotel. The business of the hotel is carried on in the whole building and therefore in every part of it. It would be difficult to say that one part of the building is more intimately connected with the hotel business than another. Nor do I see any reason why the Act should exempt from its protection a part which is intimately connected as it is said, and which I confess I do not understand, and not a part not so intimately connected.I also do not understand what is meant by saying that a part of an hotel supplies essential amenities. The idea of essentiality of an amenity is so vague as to be unworkable. This test would introduce great uncertainty in the working of the Act which could not have been intended. Nor do I see any reason why the Act should have left out of its protection a room which is an essential amenity of the hotel and not other rooms in it.Though it is not clear, it may be that Khosla J. was thinking that in order that a room in an hotel may be within the definition it must be let out for the purposes of the hotel. By this it is apparently meant that the room must be let out to supply board or give other services to the guests, to do which are the purposes of an hotel. Again, I find no justification for the view. There is nothing in the definition about the purposes of the letting out.Nor am I aware that hotel proprietors are in the habit of letting out portions of the hotel premises to others for supplying board and services to the guests in the hotels. It may be that an hotel proprietor grants licenses to contractors to use parts of his premises to provide board and services to the guests in the hotel. This however is a different matter and with such licenses we are not concerned. Again, a proprietor of a different kind of business who lets out a portion of his business premises for the purposes of his business does not get an exemption from the operation of the Act. I am unable to see why the proprietor of an hotel business should have special consideration. The Act no doubt exempts a room in an hotel but it says nothing about the purposes for which the room must be let out to get the exemption. Further, not only a room in an hotel is exempted by the definition but at the same time also a roam in a dharamsala. If a room in an hotel within the Act is a room let out for the purposes of the hotel so must therefore be a room in a dharamsala. It would however be difficult to see how a room in a dharamsala can be let out for the purposes of the dharamsala for a dharamsala does not as a rule supply food or give any services, properly so called.19. Having given the matter my best consideration I have not been able to find any reason why the words used in the definition should not have their plain meaning given to them.I therefore came to the conclusion that a room in an hotel within the definition is any room in a building in the whole of which the business of an hotel is run. So understood, the definition would include the spaces in the cloak rooms of the Imperial Hotel with which we are concerned. These spaces are, in my view, rooms in an hotel and excluded from the operation of the Act. The Rent Controller had no power to fix any standard rent in respect of them.20. The appellant also contended that Kapoor was not a tenant of the spaces but only a licensee and so again the Act did not apply. The question so raised depends on the construction of the written agreement under which Kapoor came to occupy the spaces and the circumstances of the case. I do not consider it necessary to express any opinion on this question for this appeal must in my view be allowed as the spaces are outside the Act being rooms in an hotel.

### 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: . .. . ... .... ... .... .... .... .... ..... but does not include a room in a dharmashala, hotel or lodging house."What is the construction of the words "a room in a hotel"? The object of the Act as disclosed in the preamble is "to provide for the control of rents and evictions, and for the lease to Government of premises upon their becoming vacant, in certain areas in the Provinces of Delhi and Ajmer-Merwara". The Act was, therefore, passed to control exorbitant rents of buildings prevailing in the said States. But S. 2 exempts a room in a hotel from the operation of the Act. The reason for the exemption may be to encourage running of hotels in the cities, or it may be for other reasons. Whatever may be the object of the Act, the scope of the exemption cannot be enlarged so as to limit the operation of the Act. The exemption from the Act is only in respect of a room in a hotel. The collocation of the words brings out the characteristics of the exempted room. The room is part of a hotel. It partakes its character and does not cease to be one after it is let out. It is, therefore, necessary to ascertain the meaning of the word "hotel". The word "hotel" is not defined in the Act. A hotel in common parlance means a place where a proprietor makes it his business to furnish food or lodging or both to travellers or other persons.A building cannot be run as a hotel unless services necessary for the comfortable stay of lodgers and boarders are maintained. Services so maintained vary with the standard of the hotel and the class of persons to which it caters; but the amenities must have relation to the hotel business.Provisions for heating or lighting, supply of hot water, sanitary arrangements, sleeping facilities, and such others are some of the amenities a hotel offers to its constituents.But every amenity however remote and unconnected with the business of a hotel cannot be described as service in a hotel.The idea of a hotel can be better clarified by illustration than by definition and by giving examples of what is a room in a hotel and also what is not a room in a hotel: (1) A owns a building in a part whereof he runs a hotel but leases out a room to B in the part of the building not used as hotel; (2) A runs a hotel in the entire building but lets out a room to B for a purpose unconnected with the hotel business; (3) A runs a hotel in the entire building and lets out a room to B for carrying on his business different from that of a hotel, though incidentally the inmates of the hotel take advantage of it because of its proximity; (4) A lets out a room in such a building to another with an express condition that he should cater only to the needs of the inmates of the hotel; and (5) A lets out a room in a hotel to a lodger, who can command all the services and amenities of a hotel. In the first illustration, the room has never been a part of a hotel though it is part of a building where a hotel is run. In the second, though a room was once part of a hotel, it ceased to be one, for it as been let out for a non-hotel purpose. In the fifth, it is let out as part o a hotel, and, therefore, it is definitely a room in a hotel. In the fourth, the room may still continue as part of the hotel as it is let out to provide an amenity or service connected with the hotel. But to extend the scope of the words to the third illustration is to obliterate the distinction between a room in a hotel and a room in any other building. If a room in a building, which is not a hotel but situated near a hotel, is let out to a tenant to carry on his business of a hair-dresser, it is not exempted from the operation of the Act. But if the argument of the appellants be accepted, if a similar room in a building, wherein a hotel is situated is let out for a similar purpose, it would be exempted. In either case, the tenant is put in exclusive possession of the room and he is entitled to carry on his business without any reference to the activities of the hotel.Can it be said that there is any reasonable nexus between the business of the tenant and that of the hotel. The only thing that can be said is that a lodger in a hotel building can step into the saloon to have a shave or haircut. So too, he can do so in the case of a saloon in the neighbouring house. The tenant is not bound by the contract to give any preferential treatment to the lodger. He may take his turn along with others, and when he is served, he is served not in his capacity as a lodger but as one of the general customers.What is more, under the document the tenant is not even bound to carry on the business of a hair-dresser. His only liability is to pay the stipulated amount to the landlord.The room, therefore, for the purpose of the Act, ceases to be a part of the hotel and becomes a place of business of the respondent. As the rooms in question were not let out as part of a hotel or for hotel purposes, I must hold that they are not rooms in a hotel within the meaning of S. 2 of the Act.29. In this view, the appellants are not exempted from the operation of the Act. The judgment of the High Court is correct. The appeal fails and is dismissed. ### Response: 1 ### Explanation: not contain words indicating that this is the meaning contemplated.In defining a room in an hotel it does not circumscribe the terms of the letting. If this was the intention, the tenant would be entirely unprotected. Ex hypothesi he would be outside the protection of the Act. Though he would be for all practical purposes a boarder in an hotel, he would also be outside the protection of the cognate Act. The Bombay Rents, Hotels and Lodging House, Rates Control Act, 1947, (Bom. 57 of 1947), which has been made applicable to Delhi, for that Act deals with lodging rates in an hotel which are entirely different from rents payable when hotel rooms are let out. A lodger in an hotel is a mere licensee and not a tenant for "there is involved in the term "lodger" that the man must lodge in the house of another" : see Foa on Landlord and Tenant (8th Ed.) p. 9. It could hardly have been intended to leave a person who is practically a boarder in an hotel in that situation. As I have earlier said, it would be a most unusual hotel which lets out its rooms to a guest, and the Act could not have been contemplating such a thing.17. Khosla, J. also said that the room in a hotel need not necessarily be a bed room but it must be so intimately connected with the hotel as to be a part and parcel of it, that it must be a room which is an essential amenity provided by an hotel e.g., the dining room in an hotel. I am unable to agree.I do not appreciate why any room in an hotel is not intimately connected with it, by which apparently is meant, the business of the hotel. The business of the hotel is carried on in the whole building and therefore in every part of it. It would be difficult to say that one part of the building is more intimately connected with the hotel business than another. Nor do I see any reason why the Act should exempt from its protection a part which is intimately connected as it is said, and which I confess I do not understand, and not a part not so intimately connected.I also do not understand what is meant by saying that a part of an hotel supplies essential amenities. The idea of essentiality of an amenity is so vague as to be unworkable. This test would introduce great uncertainty in the working of the Act which could not have been intended. Nor do I see any reason why the Act should have left out of its protection a room which is an essential amenity of the hotel and not other rooms in it.Though it is not clear, it may be that Khosla J. was thinking that in order that a room in an hotel may be within the definition it must be let out for the purposes of the hotel. By this it is apparently meant that the room must be let out to supply board or give other services to the guests, to do which are the purposes of an hotel. Again, I find no justification for the view. There is nothing in the definition about the purposes of the letting out.Nor am I aware that hotel proprietors are in the habit of letting out portions of the hotel premises to others for supplying board and services to the guests in the hotels. It may be that an hotel proprietor grants licenses to contractors to use parts of his premises to provide board and services to the guests in the hotel. This however is a different matter and with such licenses we are not concerned. Again, a proprietor of a different kind of business who lets out a portion of his business premises for the purposes of his business does not get an exemption from the operation of the Act. I am unable to see why the proprietor of an hotel business should have special consideration. The Act no doubt exempts a room in an hotel but it says nothing about the purposes for which the room must be let out to get the exemption. Further, not only a room in an hotel is exempted by the definition but at the same time also a roam in a dharamsala. If a room in an hotel within the Act is a room let out for the purposes of the hotel so must therefore be a room in a dharamsala. It would however be difficult to see how a room in a dharamsala can be let out for the purposes of the dharamsala for a dharamsala does not as a rule supply food or give any services, properly so called.19. Having given the matter my best consideration I have not been able to find any reason why the words used in the definition should not have their plain meaning given to them.I therefore came to the conclusion that a room in an hotel within the definition is any room in a building in the whole of which the business of an hotel is run. So understood, the definition would include the spaces in the cloak rooms of the Imperial Hotel with which we are concerned. These spaces are, in my view, rooms in an hotel and excluded from the operation of the Act. The Rent Controller had no power to fix any standard rent in respect of them.20. The appellant also contended that Kapoor was not a tenant of the spaces but only a licensee and so again the Act did not apply. The question so raised depends on the construction of the written agreement under which Kapoor came to occupy the spaces and the circumstances of the case. I do not consider it necessary to express any opinion on this question for this appeal must in my view be allowed as the spaces are outside the Act being rooms in an hotel.

Indian Express Newspapers (P) Ltd. Etc. Etc Vs. Union Of India And Others Etc. Etc

at Madurai and another at Hyderabad. The gross revenue of all the units was Rs 7918.18 crores. They are all consigned to Class I, although their main unit at Bombay and their unit at Madurai belong to Class II and their subsidiary unit at Bombay and their unit at Hyderabad belong to Classes IV and V respectively. It is not necessary to multiply these instances. According to us, in view of the definition of "newspaper establishment" in section 2(d) and the Explanation to Section 10(4) of the Act and also in view of the fifth and sixth propositions of law laid down by this Court in Express Newspapers case as extracted above, the units of an establishment which as branches all over India, can be clubbed together for the purpose of fixation of wages on all-India basis. Since all the units of an establishments are not expected to fare similarly, uniform pay scales for the employees in all the units can be prescribed taking into consideration the financial capacity of the establishment as a whole. The instances pointed out above are the result of the clubbing of the different units of the same establishment15. However, there is much force in the contention of the petitioners that the principle of fixation of the wages on all-India basis has not been applied by the Board with uniform yardstick as is evident from paragraph 6(2) of Section II of Part I of Chapter IX of the Report. Whereas the units of the newspaper establishments falling in any of the Classes VI to IX, as detailed above, on the basis of their own gross revenue are, for the fixation of wages not to be stepped up by more than two classes, the units of the newspaper establishments falling in Classes I-A to V are all to be classified as belonging to the class to which the said establishment belongs on the basis of the gross revenue of all the said units. The result of this discrimination is that for the purposes of fixing the wage scales, the units of the newspaper establishments belonging to Classes VI to IX would not be considered as belonging to the said classes but to the classes which are only two grades above the class to which the said units on the basis of their own revenue properly belong. On the other hand, the units of the establishments belonging to Classes I-A to V would all be considered as belonging to the class to which the establishment itself belongs. The Board has not given any reason as to why while applying the principle of uniform wage scales to all units of an establishment on all-India basis, it has made the discrimination in question between the newspaper establishments belonging to Classes I-A to V and those belonging to Classes VI to IX. The respondents also could not offer any satisfactory explanation or advance a plausible contention to defend the said discrimination. We are, therefore, of the view that the impugned award to be made legally enforceable will have to be modified by extending the limitation of upgradation up to the maximum of two classes laid down in the said para 6(2) also to the newspapers establishments falling in Classes I-A to V16. As regards the other grounds of attack, we are afraid we see no reason to interfere with the award on the said grounds. In view of the amended definition of the "newspaper establishment" under Section 2(d) which came into operation retrospectively from the inception of the Act and the Explanation added to Section 10(4), and in view further of the fact that in clubbing the units of the establishment together, the Board cannot be said to have acted contrary to the law laid down by this Court in Express Newspapers case the classification of the newspaper establishments on all-India basis for the purpose of fixation of wages is not bad in law. Hence it is not violative of the petitioners rights under Articles 19(1)(a) and 19(1)(g) of the Constitution. Financial capacity of an all-India newspaper establishment has to be considered on the basis of the gross revenue and the financial capacity of all the units taken together. Hence, it cannot be said that the petitioner-companies as all-India newspaper establishments are not viable whatever the financial incapacity of their individual units. After amendments of Section 2(d) retrospectively read with the addition of the Explanation to Section 10(4), the old provisions can no longer be pressed into service to contend against the grouping of the units of the all-India establishments, into one class 17. The other contentions advanced on behalf of the Indian Express Newspapers (P) Ltd. are as follows. Firstly, it is contended that the benefit of the provisions of paragraph 12 of Section II of Part I of Chapter IX is not given to the petitioner-establishment while classifying it. Secondly, while calculating the financial capacity, the award has made no provision even for a reasonable depreciation and to that extent the estimates of the capacity of the establishment to pay the revised wages are seriously flawed. The third contention is that the Board has not considered the burden of retrospective effect it has given to its recommendations from 1-1-1988. Lastly, it is contended that the award has not taken into consideration the cost of newsprint which had in the meanwhile gone up by about 76.6 per cent 18. More or less similar contentions were raised on behalf of other petitioner-establishments. We have made clear at the very outset that some of these contentions raised disputed questions of facts and others, mixed questions of facts and law and hence we will not entertain them. In addition, as far as Indian Express Newspapers (Pvt.) Ltd. is concerned the record shows that the said petitioners had not produced by material before the Board in support of its aforesaid contentions which are for the first time advanced before this Court. In fact, the company had virtually boycotted the proceedings of the Board

1[ds]This has manifestly resulted in the weaker units of the newspaper establishments belonging to the said classes being ranked with the highest in the same class, thus, crippling the weaker units with the heavy unbearable financial burden and forcing them to close. Such classification directly offends the petitioners rights under Articles 19(1)(a) and 19(1)(g) of the Constitution12. Among the other infirmities which are pointed out in the impugned award, the first that while classifying the establishments, the benefit of paragraph 12 of Section II of Part I of Chapter IX is not given to them by ascertaining whether their advertisement revenue is less or more than 45 per cent of its gross revenue. If this was done and where it was found that it was less than 45 per cent of the gross revenue, the establishments concerned would have been placed in the class next below that in which they are classified on the basis of their gross revenue. Secondly, the award while calculating the financial capacity, has made no provision even for a reasonable depreciation and to that extent the estimates of the capacity of the establishments to pay are seriously flawed. Thirdly, the award has not considered the burden of retrospective effect it has given to its recommendations fromThe burden on the establishments from89 is enormous and the Board wasto calculate the said burden to find out whether the establishments were capable of bearing the same. Lastly, the award has also not taken into consideration the costs of newsprint which had in the meanwhile gone up by about 76.6 per cent13. We find much substance in the contention that the Board has arbitrarily clubbed together the different units of the same establishment and classified all of them with the highest of the class to which itsunit belongs so are as Classesto V are concerned and has not followed in respect of those classes, its own guideline given in the said paragraph 6(2) in respect of the establishments which belong to Classes VI to IX. The Wage Board in paragraph 11 of Section II of Part I of Chapter IX of its Report has classified the different newspaper establishments on the basis of their gross revenueto us, in view of the definition of "newspaper establishment" in section 2(d) and the Explanation to Section 10(4) of the Act and also in view of the fifth and sixth propositions of law laid down by this Court in Express Newspapers case as extracted above, the units of an establishment which as branches all over India, can be clubbed together for the purpose of fixation of wages onbasis. Since all the units of an establishments are not expected to fare similarly, uniform pay scales for the employees in all the units can be prescribed taking into consideration the financial capacity of the establishment as a whole. The instances pointed out above are the result of the clubbing of the different units of the same establishment15. However, there is much force in the contention of the petitioners that the principle of fixation of the wages onbasis has not been applied by the Board with uniform yardstick as is evident from paragraph 6(2) of Section II of Part I of Chapter IX of the Report. Whereas the units of the newspaper establishments falling in any of the Classes VI to IX, as detailed above, on the basis of their own gross revenue are, for the fixation of wages not to be stepped up by more than two classes, the units of the newspaper establishments falling in Classesto V are all to be classified as belonging to the class to which the said establishment belongs on the basis of the gross revenue of all the said units. The result of this discrimination is that for the purposes of fixing the wage scales, the units of the newspaper establishments belonging to Classes VI to IX would not be considered as belonging to the said classes but to the classes which are only two grades above the class to which the said units on the basis of their own revenue properly belong. On the other hand, the units of the establishments belonging to Classesto V would all be considered as belonging to the class to which the establishment itself belongs. The Board has not given any reason as to why while applying the principle of uniform wage scales to all units of an establishment onbasis, it has made the discrimination in question between the newspaper establishments belonging to Classesto V and those belonging to Classes VI to IX. The respondents also could not offer any satisfactory explanation or advance a plausible contention to defend the said discrimination. We are, therefore, of the view that the impugned award to be made legally enforceable will have to be modified by extending the limitation of upgradation up to the maximum of two classes laid down in the said para 6(2) also to the newspapers establishments falling in Classesto V16. As regards the other grounds of attack, we are afraid we see no reason to interfere with the award on the said grounds. In view of the amended definition of the "newspaper establishment" under Section 2(d) which came into operation retrospectively from the inception of the Act and the Explanation added to Section 10(4), and in view further of the fact that in clubbing the units of the establishment together, the Board cannot be said to have acted contrary to the law laid down by this Court in Express Newspapers case the classification of the newspaper establishments onbasis for the purpose of fixation of wages is not bad in law. Hence it is not violative of the petitioners rights under Articles 19(1)(a) and 19(1)(g) of the Constitution. Financial capacity of annewspaper establishment has to be considered on the basis of the gross revenue and the financial capacity of all the units taken together. Hence, it cannot be said that theia newspaper establishments are not viable whatever the financial incapacity of their individual units. After amendments of Section 2(d) retrospectively read with the addition of the Explanation to Section 10(4), the old provisions can no longer be pressed into service to contend against the grouping of the units of theestablishments, into oneMore or less similar contentions were raised on behalf of otherWe have made clear at the very outset that some of these contentions raised disputed questions of facts and others, mixed questions of facts and law and hence we will not entertain them. In addition, as far as Indian Express Newspapers (Pvt.) Ltd. is concerned the record shows that the said petitioners had not produced by material before the Board in support of its aforesaid contentions which are for the first time advanced before this Court. In fact, the company had virtually boycotted the proceedings of the Board

### 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: at Madurai and another at Hyderabad. The gross revenue of all the units was Rs 7918.18 crores. They are all consigned to Class I, although their main unit at Bombay and their unit at Madurai belong to Class II and their subsidiary unit at Bombay and their unit at Hyderabad belong to Classes IV and V respectively. It is not necessary to multiply these instances. According to us, in view of the definition of "newspaper establishment" in section 2(d) and the Explanation to Section 10(4) of the Act and also in view of the fifth and sixth propositions of law laid down by this Court in Express Newspapers case as extracted above, the units of an establishment which as branches all over India, can be clubbed together for the purpose of fixation of wages on all-India basis. Since all the units of an establishments are not expected to fare similarly, uniform pay scales for the employees in all the units can be prescribed taking into consideration the financial capacity of the establishment as a whole. The instances pointed out above are the result of the clubbing of the different units of the same establishment15. However, there is much force in the contention of the petitioners that the principle of fixation of the wages on all-India basis has not been applied by the Board with uniform yardstick as is evident from paragraph 6(2) of Section II of Part I of Chapter IX of the Report. Whereas the units of the newspaper establishments falling in any of the Classes VI to IX, as detailed above, on the basis of their own gross revenue are, for the fixation of wages not to be stepped up by more than two classes, the units of the newspaper establishments falling in Classes I-A to V are all to be classified as belonging to the class to which the said establishment belongs on the basis of the gross revenue of all the said units. The result of this discrimination is that for the purposes of fixing the wage scales, the units of the newspaper establishments belonging to Classes VI to IX would not be considered as belonging to the said classes but to the classes which are only two grades above the class to which the said units on the basis of their own revenue properly belong. On the other hand, the units of the establishments belonging to Classes I-A to V would all be considered as belonging to the class to which the establishment itself belongs. The Board has not given any reason as to why while applying the principle of uniform wage scales to all units of an establishment on all-India basis, it has made the discrimination in question between the newspaper establishments belonging to Classes I-A to V and those belonging to Classes VI to IX. The respondents also could not offer any satisfactory explanation or advance a plausible contention to defend the said discrimination. We are, therefore, of the view that the impugned award to be made legally enforceable will have to be modified by extending the limitation of upgradation up to the maximum of two classes laid down in the said para 6(2) also to the newspapers establishments falling in Classes I-A to V16. As regards the other grounds of attack, we are afraid we see no reason to interfere with the award on the said grounds. In view of the amended definition of the "newspaper establishment" under Section 2(d) which came into operation retrospectively from the inception of the Act and the Explanation added to Section 10(4), and in view further of the fact that in clubbing the units of the establishment together, the Board cannot be said to have acted contrary to the law laid down by this Court in Express Newspapers case the classification of the newspaper establishments on all-India basis for the purpose of fixation of wages is not bad in law. Hence it is not violative of the petitioners rights under Articles 19(1)(a) and 19(1)(g) of the Constitution. Financial capacity of an all-India newspaper establishment has to be considered on the basis of the gross revenue and the financial capacity of all the units taken together. Hence, it cannot be said that the petitioner-companies as all-India newspaper establishments are not viable whatever the financial incapacity of their individual units. After amendments of Section 2(d) retrospectively read with the addition of the Explanation to Section 10(4), the old provisions can no longer be pressed into service to contend against the grouping of the units of the all-India establishments, into one class 17. The other contentions advanced on behalf of the Indian Express Newspapers (P) Ltd. are as follows. Firstly, it is contended that the benefit of the provisions of paragraph 12 of Section II of Part I of Chapter IX is not given to the petitioner-establishment while classifying it. Secondly, while calculating the financial capacity, the award has made no provision even for a reasonable depreciation and to that extent the estimates of the capacity of the establishment to pay the revised wages are seriously flawed. The third contention is that the Board has not considered the burden of retrospective effect it has given to its recommendations from 1-1-1988. Lastly, it is contended that the award has not taken into consideration the cost of newsprint which had in the meanwhile gone up by about 76.6 per cent 18. More or less similar contentions were raised on behalf of other petitioner-establishments. We have made clear at the very outset that some of these contentions raised disputed questions of facts and others, mixed questions of facts and law and hence we will not entertain them. In addition, as far as Indian Express Newspapers (Pvt.) Ltd. is concerned the record shows that the said petitioners had not produced by material before the Board in support of its aforesaid contentions which are for the first time advanced before this Court. In fact, the company had virtually boycotted the proceedings of the Board ### Response: 1 ### Explanation: concerned would have been placed in the class next below that in which they are classified on the basis of their gross revenue. Secondly, the award while calculating the financial capacity, has made no provision even for a reasonable depreciation and to that extent the estimates of the capacity of the establishments to pay are seriously flawed. Thirdly, the award has not considered the burden of retrospective effect it has given to its recommendations fromThe burden on the establishments from89 is enormous and the Board wasto calculate the said burden to find out whether the establishments were capable of bearing the same. Lastly, the award has also not taken into consideration the costs of newsprint which had in the meanwhile gone up by about 76.6 per cent13. We find much substance in the contention that the Board has arbitrarily clubbed together the different units of the same establishment and classified all of them with the highest of the class to which itsunit belongs so are as Classesto V are concerned and has not followed in respect of those classes, its own guideline given in the said paragraph 6(2) in respect of the establishments which belong to Classes VI to IX. The Wage Board in paragraph 11 of Section II of Part I of Chapter IX of its Report has classified the different newspaper establishments on the basis of their gross revenueto us, in view of the definition of "newspaper establishment" in section 2(d) and the Explanation to Section 10(4) of the Act and also in view of the fifth and sixth propositions of law laid down by this Court in Express Newspapers case as extracted above, the units of an establishment which as branches all over India, can be clubbed together for the purpose of fixation of wages onbasis. Since all the units of an establishments are not expected to fare similarly, uniform pay scales for the employees in all the units can be prescribed taking into consideration the financial capacity of the establishment as a whole. The instances pointed out above are the result of the clubbing of the different units of the same establishment15. However, there is much force in the contention of the petitioners that the principle of fixation of the wages onbasis has not been applied by the Board with uniform yardstick as is evident from paragraph 6(2) of Section II of Part I of Chapter IX of the Report. Whereas the units of the newspaper establishments falling in any of the Classes VI to IX, as detailed above, on the basis of their own gross revenue are, for the fixation of wages not to be stepped up by more than two classes, the units of the newspaper establishments falling in Classesto V are all to be classified as belonging to the class to which the said establishment belongs on the basis of the gross revenue of all the said units. The result of this discrimination is that for the purposes of fixing the wage scales, the units of the newspaper establishments belonging to Classes VI to IX would not be considered as belonging to the said classes but to the classes which are only two grades above the class to which the said units on the basis of their own revenue properly belong. On the other hand, the units of the establishments belonging to Classesto V would all be considered as belonging to the class to which the establishment itself belongs. The Board has not given any reason as to why while applying the principle of uniform wage scales to all units of an establishment onbasis, it has made the discrimination in question between the newspaper establishments belonging to Classesto V and those belonging to Classes VI to IX. The respondents also could not offer any satisfactory explanation or advance a plausible contention to defend the said discrimination. We are, therefore, of the view that the impugned award to be made legally enforceable will have to be modified by extending the limitation of upgradation up to the maximum of two classes laid down in the said para 6(2) also to the newspapers establishments falling in Classesto V16. As regards the other grounds of attack, we are afraid we see no reason to interfere with the award on the said grounds. In view of the amended definition of the "newspaper establishment" under Section 2(d) which came into operation retrospectively from the inception of the Act and the Explanation added to Section 10(4), and in view further of the fact that in clubbing the units of the establishment together, the Board cannot be said to have acted contrary to the law laid down by this Court in Express Newspapers case the classification of the newspaper establishments onbasis for the purpose of fixation of wages is not bad in law. Hence it is not violative of the petitioners rights under Articles 19(1)(a) and 19(1)(g) of the Constitution. Financial capacity of annewspaper establishment has to be considered on the basis of the gross revenue and the financial capacity of all the units taken together. Hence, it cannot be said that theia newspaper establishments are not viable whatever the financial incapacity of their individual units. After amendments of Section 2(d) retrospectively read with the addition of the Explanation to Section 10(4), the old provisions can no longer be pressed into service to contend against the grouping of the units of theestablishments, into oneMore or less similar contentions were raised on behalf of otherWe have made clear at the very outset that some of these contentions raised disputed questions of facts and others, mixed questions of facts and law and hence we will not entertain them. In addition, as far as Indian Express Newspapers (Pvt.) Ltd. is concerned the record shows that the said petitioners had not produced by material before the Board in support of its aforesaid contentions which are for the first time advanced before this Court. In fact, the company had virtually boycotted the proceedings of the Board

GURSHINDER SINGH Vs. SRIRAM GENERAL INSURANCE CO. LTD

be given in writing to the company immediately upon the occurrence of any accidental loss or damage. It further provides, that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides, that every letter claim writ summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides, that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy. 14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle. 15. We find, that the second part of Condition No. 1 deals with the theft or criminal act other than the accident. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle. 16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen. 17. That the term co-operate as used under the contract needs to be assessed in facts and circumstances. While assessing the duty to co-operate for the insured, inter alia the Court should have regards to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of duty to co-operate of the insured. 18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator. 19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.

1[ds]10. We are of the view that much would depend upon the words co-operate and immediate, in condition No. 1 of the Standard Form for Commercial Vehicles Package Policy11. A perusal of the aforesaid shows that this contract is to be interpreted according to the context involved in the contract. The contract we are interpreting is a Commercial Vehicle Package Policy. There is no gainsaying that in a contract, the bargaining power is usually at equal footing. In this regard, the joint intention of the parties is taken into consideration for interpretation of a contract. However, in most standard form contracts, that is not so. In this regard, the Court in such circumstances would consider the application of the rule of contra preferatum, when ambiguity exists and an interpretation of the contract is preferred which favors the party with lesser bargaining power13. In our view, applying the aforesaid principles, Condition No. 1 of the Standard Form for Commercial Vehicles Package Policy will have to be divided into two parts. The perusal of the first part of Condition No. 1 would reveal, that it provides that a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage. It further provides, that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides, that every letter claim writ summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides, that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle15. We find, that the second part of Condition No. 1 deals with the theft or criminal act other than the accident. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine22. In the present case, the facts are undisputed. The theft had occurred on 28.10.2010. The FIR was lodged at P.S. Nakodar, Jalandhar, Punjab on the same day i.e. 28.10.2010. The police have admittedly lodged the final report. The investigators appointed by the insurance company have submitted their investigation report on 25.02.2011, finding the claim of the appellant to be genuineIn this background, the National Commission was not justified in reversing the concurrent orders of the District Forum and the State Commission.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: be given in writing to the company immediately upon the occurrence of any accidental loss or damage. It further provides, that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides, that every letter claim writ summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides, that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy. 14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle. 15. We find, that the second part of Condition No. 1 deals with the theft or criminal act other than the accident. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle. 16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen. 17. That the term co-operate as used under the contract needs to be assessed in facts and circumstances. While assessing the duty to co-operate for the insured, inter alia the Court should have regards to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of duty to co-operate of the insured. 18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator. 19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine. ### Response: 1 ### Explanation: that a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage. It further provides, that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides, that every letter claim writ summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides, that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle15. We find, that the second part of Condition No. 1 deals with the theft or criminal act other than the accident. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine22. In the present case, the facts are undisputed. The theft had occurred on 28.10.2010. The FIR was lodged at P.S. Nakodar, Jalandhar, Punjab on the same day i.e. 28.10.2010. The police have admittedly lodged the final report. The investigators appointed by the insurance company have submitted their investigation report on 25.02.2011, finding the claim of the appellant to be genuineIn this background, the National Commission was not justified in reversing the concurrent orders of the District Forum and the State Commission.

State Of West Bengal And Ors Vs. R.K.B.K. Ltd.

Division Bench has found support from Rani Sati Kerosene Supply Company and Others (supra) wherein it has been held that if an order is communicated after 30 days, an order of cancellation can easily be frustrated and, therefore, the phrase by an order in writing to be made appearing in proviso to Paragraph 9 of the Control Order is to be construed as by an order in writing to be communicated. 27. The Division Bench has read the prescription of 30 days passing of an order in writing within 30 days from the date of serving the show cause notice or suspension of licence to be mandatory. To elaborate, if the order is not passed within the said period, the authority cannot pass any order or if it passes an order, it is a nullity. In this context, we may fruitfully refer to a passage from G.P. Singh’s book, as has been reproduced by the three-Judge Bench in Kailash v. Nankhu and others (2005) 4 SCC 480 ). It reads as under:- “Justice G.P. Singh notes in his celebrated work Principles of Statutory Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions:“The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ ” (p. 338)“ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” (pp. 339-40)” 28. Keeping in view the aforesaid principles, if it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the considered opinion that the view expressed by the High Court on this score also is absolutely incorrect and wholly unsustainable.29. Apart from above, the words used in Paragraph 10 are “date of the order”. In the scheme of the Control Order, the order comes into effect from the date of receipt by the agent or the dealer. Once that becomes the decision, the commencement of limitation of 30 days for the purpose of Paragraph 10 would be the date when the order is effective. The High Court in Rani Sati Kerosene Supply Company and Others (supra) has opined that if the order of cancellation is not served on the affected person and the appeal period expires, there is the possibility that the adverse order would become unassailable. The reasoning is totally fallacious. An appeal can only be preferred when the order is effective. The ineffective order, that is to say, uncommunicated order cannot be challenged. Therefore, the reasoning given by the court in earlier judgment is erroneous and hence, the reliance thereupon by the impugned order is faulty. There has to be a purposive construction of the words “from the date of order”. To place a construction that the date of an order would mean passing of the order, though not made effective would lead to an absurdity.

1[ds]18. On a reading of that paragraph it is clear that power conferred on the Director and the District Magistrate are different, for the Director is a higher authority and the rule clothes him with more authority. Needless to say, the said paragraph has to be read in juxtaposition with other paragraphs. It is clear from paragraph 5 that the Director alone is authorised to grant a licence to an agent whereas alicence can be granted either by the Director or by the District Magistrate.3 of Paragraph 5 of the Control Order is also indicative of the fact that the agent operates at a larger scale than the dealer. An agent can sell, supply or transfer kerosene to a dealer, holder of a permit or delivery order and no other person.2 of Paragraph 6 of the Control Order is differently worded as it postulates that conditions can be specified by the Director or the District Magistrate having the jurisdiction. The conditions imposed may vary from time to time for the sake of fair distribution of kerosene. The authorities are also different as per the dictionary clause.Keeping in view the aforesaid rule of interpretation, we are constrained to think that it would be incongruous to hold that even when the licence of an agent at the State level is granted and issued by the Director, a District Magistrate, as defined in paragraph 3(e) of the Control Order, in exercise of concurrent jurisdiction can suspend or cancel the State level licence. Be it noted, as per Section 21 of the General Clauses Act, power to issue notification/etc. includes the power to amend/ vary or rescind. Though the said provision is not applicable, yet it is indicative that generally unless the statute or rule provides to the contrary, either expressly or impliedly, issuing or appointing authority would also exercise the right to cancel or suspend the licence. As has been stated earlier, on a cursory reading it may appear that paragraph 9 confers concurrent jurisdiction. The said paragraph deals with suspension or cancellation of licence and is a composite paragraph, which applies to licence granted to an agent as well as the dealer. It refers to the power of a Director and District Magistrate having jurisdiction. The wordsare also used in paragraph 6. The expressionreflects the legislative intent that District Magistrate having jurisdiction under paragraph 9 would be the same District Magistrate or authority which has the power to grant licence to a dealer in Form B under paragraph 6. Read in this manner, we have no hesitation in holding that it is the Director alone who could have issued the show cause notice under paragraph 9 and has the authority and jurisdiction to pass an order in terms of paragraph 9 of the Control Order. The earlier notice issued by SCFS has to be regarded at best a show cause notice to ascertain and affirm facts alleged and it ensured a response and reply from the first respondent. The said notice by SCFS could not have culminated in the order under paragraph 9, for he has no authority and jurisdiction to pass an order suspending or cancelling the licence. Therefore, the matter was rightly referred to the Director for action, if required, in terms of paragraph 9 of the Control Order.22. Having held that, we think it appropriate to refer to the aspect of communication pertaining to period as prescribed in paragraphs 9 and 10. The High Court has taken note of the fact that SCFS had issued the notice of show cause to which the agent had replied. The said authority has forwarded the matter to the Director, Consumer Goods for his perusal and necessary action, who in exercise of his authority had passed the order on 22.7.2013 which was received by the first respondent on 12.8.2013. The Division Bench has opined that as per Paragraph 9, the order has to be passed within 30 days after the issue of the notice to show cause and same has to be communicated within the said period and passing an order on the file would not tantamount to an order.Keeping in view the aforesaid principles, if it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the considered opinion that the view expressed by the High Court on this score also is absolutely incorrect and wholly unsustainable.29. Apart from above, the words used in Paragraph 10 areIn the scheme of the Control Order, the order comes into effect from the date of receipt by the agent or the dealer. Once that becomes the decision, the commencement of limitation of 30 days for the purpose of Paragraph 10 would be the date when the order is effective. The High Court in Rani Sati Kerosene Supply Company and Others (supra) has opined that if the order of cancellation is not served on the affected person and the appeal period expires, there is the possibility that the adverse order would become unassailable. The reasoning is totally fallacious. An appeal can only be preferred when the order is effective. The ineffective order, that is to say, uncommunicated order cannot be challenged. Therefore, the reasoning given by the court in earlier judgment is erroneous and hence, the reliance thereupon by the impugned order is faulty. There has to be a purposive construction of the wordsthe date ofTo place a construction thatthe date ofan order would mean passing of the order, though not made effective would lead to an absurdity.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: Division Bench has found support from Rani Sati Kerosene Supply Company and Others (supra) wherein it has been held that if an order is communicated after 30 days, an order of cancellation can easily be frustrated and, therefore, the phrase by an order in writing to be made appearing in proviso to Paragraph 9 of the Control Order is to be construed as by an order in writing to be communicated. 27. The Division Bench has read the prescription of 30 days passing of an order in writing within 30 days from the date of serving the show cause notice or suspension of licence to be mandatory. To elaborate, if the order is not passed within the said period, the authority cannot pass any order or if it passes an order, it is a nullity. In this context, we may fruitfully refer to a passage from G.P. Singh’s book, as has been reproduced by the three-Judge Bench in Kailash v. Nankhu and others (2005) 4 SCC 480 ). It reads as under:- “Justice G.P. Singh notes in his celebrated work Principles of Statutory Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions:“The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ ” (p. 338)“ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” (pp. 339-40)” 28. Keeping in view the aforesaid principles, if it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the considered opinion that the view expressed by the High Court on this score also is absolutely incorrect and wholly unsustainable.29. Apart from above, the words used in Paragraph 10 are “date of the order”. In the scheme of the Control Order, the order comes into effect from the date of receipt by the agent or the dealer. Once that becomes the decision, the commencement of limitation of 30 days for the purpose of Paragraph 10 would be the date when the order is effective. The High Court in Rani Sati Kerosene Supply Company and Others (supra) has opined that if the order of cancellation is not served on the affected person and the appeal period expires, there is the possibility that the adverse order would become unassailable. The reasoning is totally fallacious. An appeal can only be preferred when the order is effective. The ineffective order, that is to say, uncommunicated order cannot be challenged. Therefore, the reasoning given by the court in earlier judgment is erroneous and hence, the reliance thereupon by the impugned order is faulty. There has to be a purposive construction of the words “from the date of order”. To place a construction that the date of an order would mean passing of the order, though not made effective would lead to an absurdity. ### Response: 1 ### Explanation: that it would be incongruous to hold that even when the licence of an agent at the State level is granted and issued by the Director, a District Magistrate, as defined in paragraph 3(e) of the Control Order, in exercise of concurrent jurisdiction can suspend or cancel the State level licence. Be it noted, as per Section 21 of the General Clauses Act, power to issue notification/etc. includes the power to amend/ vary or rescind. Though the said provision is not applicable, yet it is indicative that generally unless the statute or rule provides to the contrary, either expressly or impliedly, issuing or appointing authority would also exercise the right to cancel or suspend the licence. As has been stated earlier, on a cursory reading it may appear that paragraph 9 confers concurrent jurisdiction. The said paragraph deals with suspension or cancellation of licence and is a composite paragraph, which applies to licence granted to an agent as well as the dealer. It refers to the power of a Director and District Magistrate having jurisdiction. The wordsare also used in paragraph 6. The expressionreflects the legislative intent that District Magistrate having jurisdiction under paragraph 9 would be the same District Magistrate or authority which has the power to grant licence to a dealer in Form B under paragraph 6. Read in this manner, we have no hesitation in holding that it is the Director alone who could have issued the show cause notice under paragraph 9 and has the authority and jurisdiction to pass an order in terms of paragraph 9 of the Control Order. The earlier notice issued by SCFS has to be regarded at best a show cause notice to ascertain and affirm facts alleged and it ensured a response and reply from the first respondent. The said notice by SCFS could not have culminated in the order under paragraph 9, for he has no authority and jurisdiction to pass an order suspending or cancelling the licence. Therefore, the matter was rightly referred to the Director for action, if required, in terms of paragraph 9 of the Control Order.22. Having held that, we think it appropriate to refer to the aspect of communication pertaining to period as prescribed in paragraphs 9 and 10. The High Court has taken note of the fact that SCFS had issued the notice of show cause to which the agent had replied. The said authority has forwarded the matter to the Director, Consumer Goods for his perusal and necessary action, who in exercise of his authority had passed the order on 22.7.2013 which was received by the first respondent on 12.8.2013. The Division Bench has opined that as per Paragraph 9, the order has to be passed within 30 days after the issue of the notice to show cause and same has to be communicated within the said period and passing an order on the file would not tantamount to an order.Keeping in view the aforesaid principles, if it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the considered opinion that the view expressed by the High Court on this score also is absolutely incorrect and wholly unsustainable.29. Apart from above, the words used in Paragraph 10 areIn the scheme of the Control Order, the order comes into effect from the date of receipt by the agent or the dealer. Once that becomes the decision, the commencement of limitation of 30 days for the purpose of Paragraph 10 would be the date when the order is effective. The High Court in Rani Sati Kerosene Supply Company and Others (supra) has opined that if the order of cancellation is not served on the affected person and the appeal period expires, there is the possibility that the adverse order would become unassailable. The reasoning is totally fallacious. An appeal can only be preferred when the order is effective. The ineffective order, that is to say, uncommunicated order cannot be challenged. Therefore, the reasoning given by the court in earlier judgment is erroneous and hence, the reliance thereupon by the impugned order is faulty. There has to be a purposive construction of the wordsthe date ofTo place a construction thatthe date ofan order would mean passing of the order, though not made effective would lead to an absurdity.

MARVEL OMEGA BUILDERS PVT. LTD. AND ANR Vs. SHRIHARI GOKHALE AND ANR

Uday Umesh Lalit, J. 1. These Appeals under Section 23 of the Consumer Protection Act, 1986 are directed against (i) the judgment and final order dated 31.05.2018 passed in Consumer Case No.2010 of 2016 and (ii) the order dated 05.09.2018 passed in Miscellaneous Application No.578 of 2018 by the Commission . 2. The Respondents had booked a residential villa viz: Emerald07 in a project named Marvel Selva Ridge Estate to be developed by the Appellants. The total consideration for the villa with three covered car parking spaces and open terrace was to be Rs.8,31,04,425/-. An agreement was entered into between the parties on 22.03.2013 incorporating mutual obligations and paras 5(a) and (b) thereof were as under:- 5. The Promoter declares that: a) The said Unit shall be constructed in accordance with the plans and specifications approved and sanctioned by the Municipal Corporation of Pune. b) Possession of the said Unit agreed to be purchased by the Purchaser/s shall be handed over to the Purchaser/s by the Promoter on or before 31.12.2014 provided that the Purchaser/s shall have made payment of the instalments towards the purchase price of the said Unit and other charges/ deposit/s as mentioned in Clauses 20 to 23 hereinbelow as agreed upon without delay at the times stipulated for payment therefor. 3. It is a matter of record that during the period July, 2012 to November, 2013 the Respondents had deposited Rs.8.14 crores with the Appellants. Though the Appellants had agreed to deliver possession on or before 31.12.2014, neither the villa was complete by the due date nor was any refund made by the Appellants. It was the case of the Appellants that sometime in April, 2014 the Respondents had suggested extra work amounting to Rs.2,67,000/- and that Stop Work Notices were issued by the Pune Municipal Corporation on 23.07.2014 and 15.11.2014. 4. Since the possession of the villa was not delivered, the Respondents filed Complaint Case No.2010 of 2016 before the Commission praying inter alia for the following reliefs:- a) Grant a sum of Rs.13,24,07,052/- (towards principal amount of Rs.8.14 crores paid towards purchase of villa along with compensation in the form of interest of Rs.5.1 crores) at the rate of 18% per annum calculated upto 31st October, 2016, along with pendente lite and future interest at the same rate or such higher rate of interest which this Honble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realisation of the payment b) Grant cost of Litigation to the complainants. 5. The matter was contested by the Appellants. The Commission observed that the additional work requested by th Respondents was of such nature that at best three months additional period could be granted for executing such extra work. It was observed that even till the filing of the Complaint, the possession of the villa was not offered to the Respondents and that if there were Stop Work Notices issued by the Pune Municipal Corporation, the Respondents could not in any way be held responsible for the same. While allowing the Complaint by its judgment and final order dated 31.05.2018, the Commission directed:- (i) The opposite party shall refund the entire principal amount of Rs.8.14 crores to the complainants, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund. (ii) The opposite party shall pay a sum of Rs.25,000/- as cost of litigation to the complainants. 6. The Appellants thereafter filed Miscellaneous Application No.578 of 2018 seeking extension of time to comply with the aforementioned judgment and order passed by the Commission. Said Miscellaneous Application was rejected by the Commission vide its order dated 05.09.2018. 7. The aforesaid judgment and orders of the Commission are presently under challenge in these appeals, which were preferred with 93 days delay. When the matters were taken up on 03.12.2018, the learned counsel appearing for the Appellants submitted that the villa was ready in all respects and the Completion Certificate would be obtained within 21 days. 8. In their affidavit in reply, with the help of photographs and other material, it was asserted by the Respondents that the villa was still incomplete. It was stated that on 28.05.2014 the Revised Construction Schedule was sent by the Appellants through e-mail which had promised delivery of possession by October, 2014 and even after five years from said commitment the villa was still incomplete. 9. In this factual background, the basic issues that arise are whether the view taken by the Commission was correct and whether it requires any interference by this Court? 10. The facts on record clearly indicate that as against the total consideration of Rs.8.31 crores, the Respondents had paid Rs.8.14 crores by November, 2013. Though the Appellants had undertaken to complete the villa by 31.12.2014, they failed to discharge the obligation. As late as on 28.05.2014, the Revised Construction Schedule had shown the date of delivery of possession to be October, 2014. There was, thus, total failure on part of the Appellants and they were deficient in rendering service in terms of the obligations that they had undertaken. Even assuming that the villa is now ready for occupation (as asserted by the Appellants), the delay of almost five years is a crucial factor and the bargain cannot now be imposed upon the Respondents. The Respondents were, therefore, justified in seeking refund of the amounts that they had deposited with reasonable interest on said deposited amount. The findings rendered by the Commission cannot therefore be said to be incorrect or unreasonable on any count

0[ds]10. The facts on record clearly indicate that as against the total consideration of Rs.8.31 crores, the Respondents had paid Rs.8.14 crores by November, 2013. Though the Appellants had undertaken to complete the villa by 31.12.2014, they failed to discharge the obligation. As late as on 28.05.2014, the Revised Construction Schedule had shown the date of delivery of possession to be October, 2014. There was, thus, total failure on part of the Appellants and they were deficient in rendering service in terms of the obligations that they had undertaken.Even assuming that the villa is now ready for occupation (as asserted by the Appellants), the delay of almost five years is a crucial factor and the bargain cannot now be imposed upon the Respondents. The Respondents were, therefore, justified in seeking refund of the amounts that they had deposited with reasonable interest on said deposited amount. The findings rendered by the Commission cannot therefore be said to be incorrect or unreasonable on any count

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: Uday Umesh Lalit, J. 1. These Appeals under Section 23 of the Consumer Protection Act, 1986 are directed against (i) the judgment and final order dated 31.05.2018 passed in Consumer Case No.2010 of 2016 and (ii) the order dated 05.09.2018 passed in Miscellaneous Application No.578 of 2018 by the Commission . 2. The Respondents had booked a residential villa viz: Emerald07 in a project named Marvel Selva Ridge Estate to be developed by the Appellants. The total consideration for the villa with three covered car parking spaces and open terrace was to be Rs.8,31,04,425/-. An agreement was entered into between the parties on 22.03.2013 incorporating mutual obligations and paras 5(a) and (b) thereof were as under:- 5. The Promoter declares that: a) The said Unit shall be constructed in accordance with the plans and specifications approved and sanctioned by the Municipal Corporation of Pune. b) Possession of the said Unit agreed to be purchased by the Purchaser/s shall be handed over to the Purchaser/s by the Promoter on or before 31.12.2014 provided that the Purchaser/s shall have made payment of the instalments towards the purchase price of the said Unit and other charges/ deposit/s as mentioned in Clauses 20 to 23 hereinbelow as agreed upon without delay at the times stipulated for payment therefor. 3. It is a matter of record that during the period July, 2012 to November, 2013 the Respondents had deposited Rs.8.14 crores with the Appellants. Though the Appellants had agreed to deliver possession on or before 31.12.2014, neither the villa was complete by the due date nor was any refund made by the Appellants. It was the case of the Appellants that sometime in April, 2014 the Respondents had suggested extra work amounting to Rs.2,67,000/- and that Stop Work Notices were issued by the Pune Municipal Corporation on 23.07.2014 and 15.11.2014. 4. Since the possession of the villa was not delivered, the Respondents filed Complaint Case No.2010 of 2016 before the Commission praying inter alia for the following reliefs:- a) Grant a sum of Rs.13,24,07,052/- (towards principal amount of Rs.8.14 crores paid towards purchase of villa along with compensation in the form of interest of Rs.5.1 crores) at the rate of 18% per annum calculated upto 31st October, 2016, along with pendente lite and future interest at the same rate or such higher rate of interest which this Honble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realisation of the payment b) Grant cost of Litigation to the complainants. 5. The matter was contested by the Appellants. The Commission observed that the additional work requested by th Respondents was of such nature that at best three months additional period could be granted for executing such extra work. It was observed that even till the filing of the Complaint, the possession of the villa was not offered to the Respondents and that if there were Stop Work Notices issued by the Pune Municipal Corporation, the Respondents could not in any way be held responsible for the same. While allowing the Complaint by its judgment and final order dated 31.05.2018, the Commission directed:- (i) The opposite party shall refund the entire principal amount of Rs.8.14 crores to the complainants, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund. (ii) The opposite party shall pay a sum of Rs.25,000/- as cost of litigation to the complainants. 6. The Appellants thereafter filed Miscellaneous Application No.578 of 2018 seeking extension of time to comply with the aforementioned judgment and order passed by the Commission. Said Miscellaneous Application was rejected by the Commission vide its order dated 05.09.2018. 7. The aforesaid judgment and orders of the Commission are presently under challenge in these appeals, which were preferred with 93 days delay. When the matters were taken up on 03.12.2018, the learned counsel appearing for the Appellants submitted that the villa was ready in all respects and the Completion Certificate would be obtained within 21 days. 8. In their affidavit in reply, with the help of photographs and other material, it was asserted by the Respondents that the villa was still incomplete. It was stated that on 28.05.2014 the Revised Construction Schedule was sent by the Appellants through e-mail which had promised delivery of possession by October, 2014 and even after five years from said commitment the villa was still incomplete. 9. In this factual background, the basic issues that arise are whether the view taken by the Commission was correct and whether it requires any interference by this Court? 10. The facts on record clearly indicate that as against the total consideration of Rs.8.31 crores, the Respondents had paid Rs.8.14 crores by November, 2013. Though the Appellants had undertaken to complete the villa by 31.12.2014, they failed to discharge the obligation. As late as on 28.05.2014, the Revised Construction Schedule had shown the date of delivery of possession to be October, 2014. There was, thus, total failure on part of the Appellants and they were deficient in rendering service in terms of the obligations that they had undertaken. Even assuming that the villa is now ready for occupation (as asserted by the Appellants), the delay of almost five years is a crucial factor and the bargain cannot now be imposed upon the Respondents. The Respondents were, therefore, justified in seeking refund of the amounts that they had deposited with reasonable interest on said deposited amount. The findings rendered by the Commission cannot therefore be said to be incorrect or unreasonable on any count ### Response: 0 ### Explanation: 10. The facts on record clearly indicate that as against the total consideration of Rs.8.31 crores, the Respondents had paid Rs.8.14 crores by November, 2013. Though the Appellants had undertaken to complete the villa by 31.12.2014, they failed to discharge the obligation. As late as on 28.05.2014, the Revised Construction Schedule had shown the date of delivery of possession to be October, 2014. There was, thus, total failure on part of the Appellants and they were deficient in rendering service in terms of the obligations that they had undertaken.Even assuming that the villa is now ready for occupation (as asserted by the Appellants), the delay of almost five years is a crucial factor and the bargain cannot now be imposed upon the Respondents. The Respondents were, therefore, justified in seeking refund of the amounts that they had deposited with reasonable interest on said deposited amount. The findings rendered by the Commission cannot therefore be said to be incorrect or unreasonable on any count

Kalooram Govindram Vs. Commissioner Of Incometax, Madhya Pradesh

ignore the valuation placed by the parties in the deed of partition in ascertaining the true value for the purpose of such computation. 18. Death or birth of coparceners does not alter the identity of the Hindu undivided family which utilizes as asset for earning income or profit. Death of a coparcener merely extinguishes an existing interest, but there is no devolution of that interest. But where the joint family status is severed and the rights of the parties are crystallised and a member acquires the interest of the other in any item of property through arbitration agreement, decree of the Court or a private auction, there is a transfer of interest from one to the other in that property and the value paid or taken into account for acquisition of that interest would normally be regarded qua that share as the actual cost to the acquirer for the purpose of S. 10(2)(vi), but the value of his own share is determined by the actual cost to the family. 19. Counsel for the appellant placed strong reliance upon Commr. of Income-tax v. Bai Shirinbai K. Kooka, (1962) 46 ITR 86 : (AIR 1963 SC 477 ) which belongs to a different branch of the law of Income-tax. Where an assessee brings his investments into his business, the question arises whether in assessing income-tax payable on income earned by sale or disposition of such investment the original value at which they were acquired or the market value as at the date on which they were brought into the business has to be taken into account. In Shirinbais case, (1962) 46 ITR 86 : (AIR 1963 SC 477 ) the assessee who held by way of investment several shares in different companies commenced a business in shares by converting the shares into stock-in-trade of the business. The assessee subsequently sold those shares in the course of the business at a profit. A majority of this Court held that the assessees assessable profits on the sale of the shares was the difference between the sale price of the shares and the market price of the shares prevailing on the date when the shares were converted into stock-in-trade of the business, and not the difference between the sale price and the price at which the shares were originally purchased by the assessee. The Court in that case distinguished in earlier case decided by this Court Kikabhai Premchand v. Commr. of Income-tax, (1953) 24 ITR 506 : (AIR 1953 SC 509 ) in which it was held that the assessee was entitled to value at cost price, certain business assets which were after withdrawal from the business settled upon trust. But neither of these cases has bearing on the computation of depreciation allowance which is qua building, machinery, plant (not being ships) or furniture to be a percentage of the written down value. A person who transfers his investments which are not part of his business into the stream of his business may value the investments at the prevailing market rate on the date on which they are brought into the business. In Shirinbais case, (1962) 46 ITR 86 : (AIR 1963 SC 477 ) the Court was called upon to ascertain commercial profits earned by sale of stock-in-trade and in so doing regarded the owner as investor and as businessman as two different entities. S. K. Das, J., speaking for the majority observed that normally the commercial profits out of a transaction of sale of an article must be the difference between what the article cost the business and what it fetched on sale. But it is difficult to appreciate how that principle would apply in the computation of depreciation allowance. The asset viz. the sugar factory at all material times remained a business asset. It was at one time owned by Govindram and Bachhulal, and if the Income-tax Act, 1922 had then applied, depreciation allowance would have been computed on the basis of the value to the family. Acquisition of the interest of Bachhulal by Govindram did not alter the character or use of the assets nor did it make any fundamental alteration in its value to the appellant so as wholly to displace its original value even in respect of the share which Govindram continued to own. Superficial analogies are often misleading and more so in taxation laws. In computing profits assets brought into the business and subsequently sold be regarded as inducted at the prevailing market rates, for the taxing authority is concerned to deal with the business profits arising out of a transaction of sale to the business.When depreciation allowance is to be computed, the taxing authorities have to consider what the original cost to the assessee was and valuation of a business asset adopted for the purpose of valuing the share of one of the owners from whom his share was purchased cannot be regarded by any principle of commercial accounting as notionally altering the original cost of his own share in the asset to the acquirer. The assessee does not purchase his own share at the valuation put by him at the private auction; he merely purchases the share of the other sharer at a valuation made on the bid offered by him. I am unable therefore to agree with counsel for the appellant that for the purpose of valuing 10/16th share of Govindram the basis should be the valuation of Rs. 34 lakhs which was adopted for valuing Bachhulals share. 20. I therefore answer the question as follows: That depreciation allowance should be computed on the basis of 10/16th share of the original cost to the joint family of the assets which are admissible to depreciation allowance plus an appropriate amount attributable to the assets admissible to depreciation allowance on the footing that the value of 6/16th share of Bachhulal in the factory was Rs. 12,75,000. 21. The order passed by the High Court will accordingly be modified. There will be no order as to costs. ORDER

1[ds]6. Analogy drawn from comparable cases may also throw some light on the question. In the case of an assessee acquiring a property by purchase, gift, bequest or succession, courts have held that the cost of the property to the assessee was not the original cost of it to his predecessor but its actual cost to him at the time of the purchase, gift, bequest or succession, as the case may be: see Commr. of, Madras v. Buckingham and Carnatic Co. Ltd., Madras, (1935) 3 ITR 384 (AIR 1936 PC 5) , and Jogta Coal Co. Ltd. v. Commr. of, West Bengal, (1959) 36 ITR 521 : (AIR 1959 SC 1232 )purchase; Indian Iron and Steel Co. Ltd. v. Commr. of, Bengal, (1943) 11 ITR 328: (AIR 1943 PC 124 ) and Francis Vallaberayar v. Commr. ofx Madras, (1960) 40 ITR 426 (Mad)succession; and Commr. of, Burma v. Solomon and Sons, (1933) 1 ITR 324: (AIR 1933 Rang 348)bequest. A Division Bench of the Nagpur High Court in Commr. of, U. P. and C. P. v. Mathuradas Mohta, (1939) 7 ITR 160 (Nag) dealt with a case of partition. Therein, it held that the cost to the property was the cost of it to the original joint Hindu family at the time it was acquired. The learned Judges gave various illustrations in support of their conclusion. It is true that, if the valuation of the properties was given notionally as a mode of choosing property, there will be some plausibility in the contention that there is no change in the valuation between the date the property was purchased and the date when it was allotted to one of the members of the family. But, if the valuation of a property was not notional but was real and that was the basis for allocating properties to different shares, we do not see how the cost of a property allocated to a member would be that at which it purchased in the remote past. We cannot agree with the view expressed by the Nagpur High Court7. In substance we do not see any difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser legatee successor or a divided member of a joint Hindu family. It may be that in strick legal theory partition may not involve transfer, but the substance of the transaction is that an erstwhile member of a joint Hindu family, who has only an interest in the entire joint family property acquires an absolute title to a specific property. The cost of the property to the member at the date of partition would be the value given to it for the purpose of allotment, provided it was real, or the price at which he purchased it in auction or the value of it ascertained otherwise8. It is nobodys case in the present appeal that the valuation given to the property was notional and not a real one; indeed, the property was sold in open auction between the members of the larger joint family and the value fetched thereunder entered into the scheme of the partitionWe, therefore, answer the question as follows:That depreciation allowance should be computed on the basis of the valuation at which the assessee took over the assets.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: ignore the valuation placed by the parties in the deed of partition in ascertaining the true value for the purpose of such computation. 18. Death or birth of coparceners does not alter the identity of the Hindu undivided family which utilizes as asset for earning income or profit. Death of a coparcener merely extinguishes an existing interest, but there is no devolution of that interest. But where the joint family status is severed and the rights of the parties are crystallised and a member acquires the interest of the other in any item of property through arbitration agreement, decree of the Court or a private auction, there is a transfer of interest from one to the other in that property and the value paid or taken into account for acquisition of that interest would normally be regarded qua that share as the actual cost to the acquirer for the purpose of S. 10(2)(vi), but the value of his own share is determined by the actual cost to the family. 19. Counsel for the appellant placed strong reliance upon Commr. of Income-tax v. Bai Shirinbai K. Kooka, (1962) 46 ITR 86 : (AIR 1963 SC 477 ) which belongs to a different branch of the law of Income-tax. Where an assessee brings his investments into his business, the question arises whether in assessing income-tax payable on income earned by sale or disposition of such investment the original value at which they were acquired or the market value as at the date on which they were brought into the business has to be taken into account. In Shirinbais case, (1962) 46 ITR 86 : (AIR 1963 SC 477 ) the assessee who held by way of investment several shares in different companies commenced a business in shares by converting the shares into stock-in-trade of the business. The assessee subsequently sold those shares in the course of the business at a profit. A majority of this Court held that the assessees assessable profits on the sale of the shares was the difference between the sale price of the shares and the market price of the shares prevailing on the date when the shares were converted into stock-in-trade of the business, and not the difference between the sale price and the price at which the shares were originally purchased by the assessee. The Court in that case distinguished in earlier case decided by this Court Kikabhai Premchand v. Commr. of Income-tax, (1953) 24 ITR 506 : (AIR 1953 SC 509 ) in which it was held that the assessee was entitled to value at cost price, certain business assets which were after withdrawal from the business settled upon trust. But neither of these cases has bearing on the computation of depreciation allowance which is qua building, machinery, plant (not being ships) or furniture to be a percentage of the written down value. A person who transfers his investments which are not part of his business into the stream of his business may value the investments at the prevailing market rate on the date on which they are brought into the business. In Shirinbais case, (1962) 46 ITR 86 : (AIR 1963 SC 477 ) the Court was called upon to ascertain commercial profits earned by sale of stock-in-trade and in so doing regarded the owner as investor and as businessman as two different entities. S. K. Das, J., speaking for the majority observed that normally the commercial profits out of a transaction of sale of an article must be the difference between what the article cost the business and what it fetched on sale. But it is difficult to appreciate how that principle would apply in the computation of depreciation allowance. The asset viz. the sugar factory at all material times remained a business asset. It was at one time owned by Govindram and Bachhulal, and if the Income-tax Act, 1922 had then applied, depreciation allowance would have been computed on the basis of the value to the family. Acquisition of the interest of Bachhulal by Govindram did not alter the character or use of the assets nor did it make any fundamental alteration in its value to the appellant so as wholly to displace its original value even in respect of the share which Govindram continued to own. Superficial analogies are often misleading and more so in taxation laws. In computing profits assets brought into the business and subsequently sold be regarded as inducted at the prevailing market rates, for the taxing authority is concerned to deal with the business profits arising out of a transaction of sale to the business.When depreciation allowance is to be computed, the taxing authorities have to consider what the original cost to the assessee was and valuation of a business asset adopted for the purpose of valuing the share of one of the owners from whom his share was purchased cannot be regarded by any principle of commercial accounting as notionally altering the original cost of his own share in the asset to the acquirer. The assessee does not purchase his own share at the valuation put by him at the private auction; he merely purchases the share of the other sharer at a valuation made on the bid offered by him. I am unable therefore to agree with counsel for the appellant that for the purpose of valuing 10/16th share of Govindram the basis should be the valuation of Rs. 34 lakhs which was adopted for valuing Bachhulals share. 20. I therefore answer the question as follows: That depreciation allowance should be computed on the basis of 10/16th share of the original cost to the joint family of the assets which are admissible to depreciation allowance plus an appropriate amount attributable to the assets admissible to depreciation allowance on the footing that the value of 6/16th share of Bachhulal in the factory was Rs. 12,75,000. 21. The order passed by the High Court will accordingly be modified. There will be no order as to costs. ORDER ### Response: 1 ### Explanation: 6. Analogy drawn from comparable cases may also throw some light on the question. In the case of an assessee acquiring a property by purchase, gift, bequest or succession, courts have held that the cost of the property to the assessee was not the original cost of it to his predecessor but its actual cost to him at the time of the purchase, gift, bequest or succession, as the case may be: see Commr. of, Madras v. Buckingham and Carnatic Co. Ltd., Madras, (1935) 3 ITR 384 (AIR 1936 PC 5) , and Jogta Coal Co. Ltd. v. Commr. of, West Bengal, (1959) 36 ITR 521 : (AIR 1959 SC 1232 )purchase; Indian Iron and Steel Co. Ltd. v. Commr. of, Bengal, (1943) 11 ITR 328: (AIR 1943 PC 124 ) and Francis Vallaberayar v. Commr. ofx Madras, (1960) 40 ITR 426 (Mad)succession; and Commr. of, Burma v. Solomon and Sons, (1933) 1 ITR 324: (AIR 1933 Rang 348)bequest. A Division Bench of the Nagpur High Court in Commr. of, U. P. and C. P. v. Mathuradas Mohta, (1939) 7 ITR 160 (Nag) dealt with a case of partition. Therein, it held that the cost to the property was the cost of it to the original joint Hindu family at the time it was acquired. The learned Judges gave various illustrations in support of their conclusion. It is true that, if the valuation of the properties was given notionally as a mode of choosing property, there will be some plausibility in the contention that there is no change in the valuation between the date the property was purchased and the date when it was allotted to one of the members of the family. But, if the valuation of a property was not notional but was real and that was the basis for allocating properties to different shares, we do not see how the cost of a property allocated to a member would be that at which it purchased in the remote past. We cannot agree with the view expressed by the Nagpur High Court7. In substance we do not see any difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser legatee successor or a divided member of a joint Hindu family. It may be that in strick legal theory partition may not involve transfer, but the substance of the transaction is that an erstwhile member of a joint Hindu family, who has only an interest in the entire joint family property acquires an absolute title to a specific property. The cost of the property to the member at the date of partition would be the value given to it for the purpose of allotment, provided it was real, or the price at which he purchased it in auction or the value of it ascertained otherwise8. It is nobodys case in the present appeal that the valuation given to the property was notional and not a real one; indeed, the property was sold in open auction between the members of the larger joint family and the value fetched thereunder entered into the scheme of the partitionWe, therefore, answer the question as follows:That depreciation allowance should be computed on the basis of the valuation at which the assessee took over the assets.

Chief Justice of Andhra Pradesh and Ors Vs. L.V.A. Dixitulu and Ors

what consequences will flow if we give this general, undefined and flexible phrase, "Civil services of the State" in Article 371-D (3), the wider construction so as to include in it the High Court staff and the members of the subordinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordinate Judiciary will become shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D (5), is the supreme authority, having full power to confirm, not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisions. 76. It is true that this very phrase in the context of the provision in Article 311 includes the employees of the High Court and members of the judicial services. But it must be remembered that the provisions of Article 311 are of a general nature. They give constitutional recognition to a fundamental principle of natural justice, by making its protection available uniformly to all Government servants. That is, why in the context of that Article this phrase has been spaciously construed. As against this, Article 371-D is a special provision which marks a departure from the general scheme of the Constitution. The area of the departure cannot be extended beyond what is unmistakably and specifically delineated by the words employed therein. A phrase used in the context of a general provision may not carry the same meaning when employed in the context of a special provision, particularly when that phrase has nowhere been defined in the enactment. "Words used with reference to one set of circumstances", said Lord Blackburn in Edinburgh Street Tramways Co. v. V. Torbain (1877) 3 AC 58 at p.68, "may convey an intention quite different from what the self same set of words used in reference to another set of circumstances would or might have produced". This holds true even when the same words are used in different contexts in the same enactment. Therefore, in a special provision like Article 371-D as its heading itself proclaims - which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include Officers and servants of the High Court and members of the judicial service of the State and of the cadre of District Judges, in the phrase civil services of the State occurring in Clause (3) of Article 371-D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this : -"Class or classes of posts in the civil services of the State including posts in the "judicial service of the State", and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court"....." 77. In our opinion, non use of the phrases "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "officers and servants of the High Court" which has been designedly adopted in Article 235 and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of Clause (3) of Art. 371-D. The scope of the non obstante provision in sub-article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses. 78. The officers and servants of the High Court and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non obstante provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Arts. 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371-D, such as Article 229 and 235. Provisions not otherwise covered by Article 371-D, cannot be brought within its sweep because of the non obstante Clause (10). It follows as a necessary corollary that nothing in the Order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary. 79. For the foregoing reasons, we hold that the impugned Order dated August 24, 1977 of the Administrative Tribunal, having been passed without jurisdiction, is a nullity.

1[ds]In the context of Art. 229, read as a whole this power is of wide amplitude. The word "appointment" in Article 229 (1) is to be construed according to the axiom that the greater includes the less. This cardinal canon of interpretation underlies Sec. 16 of the General Clauses Act which has been made applicable by Article 317 (1) of the Constitution. Construed in the light of this juristic principle, the power of "appointment" conferred by Article 229 (1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc. including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no. extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee except to a very limited extent indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the Founding Fathers had in view, was to ensure independence of the High Court28. The nature and scope of the powers of the Chief Jusitce under Art. 229 has been the subject of several decisions of this Court. In Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta (AIR 1956 SC 285 ) (supra), two questions, among others, came up for consideration : (i) Whether the Chief Justice of a High Court has the power to dismiss from service an officer of the High Court? (ii) If so, whether the Chief Justice could pass an order of such dismissal without previous consultation with the Public Service Commission, as provided by Art. 320 of the Constitution. The Court answered both the questions in the affirmative36. Article 234 enjoins that the rules in accordance with which appointments of persons other than district judges to the judicial service of a State are to be made, shall be framed by the Governor in consultation with the High Court and the Public Service Commission. The expression "judicial service" in this Article, carries the same connotation as defined in Article 23637. Article 235 is the pivot around which the entire scheme of the Chapter revolves. Under it, "the control over district courts and courts subordinate thereto including the posting and promotions of, and the grant of leave to persons belonging to the judicial service of a State" is vested in the High Court38. The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position crystallised by those decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes :(a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Article 311 (2)(ii) In Article 235, the word control is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court being exclusive, and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no. other authority. (State of West Bengal v. Nripendra Nath Bagchi (AIR 1966 SC 447 ) (supra), Shamsher Singh v. State of Punjab (1975) 1 SCR 814 ) : (AIR 1974 SC 2192 ); Punjab and Haryana High Court v. State of Haryana (sub-nom Narendra Singh Rao) (1975) 3 SCR 365 : (AIR 1975 SC 613 )(iii) Suspension from service of a member of the judiciary with a view to hold a disciplinary inquiry(b) Transfers, promotions and confirmation of such promotions, of persons holding posts in the judicial service inferior to that of District Judge. (State of Assam v. S. N. Sen (1971) 2 SCC 889 : (AIR 1972 SC 1028 ) State of Assam v. Kuseswar Saikia (1970) 2 SCR 928 : (AIR 1970 SC 1616 ))(c) Transfers of District Judges (State of Assam v. Ranga Muhammad (AIR 1967 SC 903 ) (supra); Chandra Mouleshwar v. Patna High Court (AIR 1970 SC 370 ) (supra)(d) Recall of District Judges posted on ex-cadre posts or on deputation on administrative posts. (State of Orissa v. Sudhansu Sekhar Misra (1968) 2 SCR 154 : (AIR 1968 SC 647 )(e) Award of selection grade to the members of the judicial service, including District Judges, being their further promotion after their initial appointment to the cadre. (State of Assam v. Kuseswar Saikia (supra))(f) Confirmation of District Judges, who have been on probation or are officiating, after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233, (Punjab and Haryana High Court v. State of Haryana) (supra)(g) Premature or compulsory retirement of Judges of the District Courts and of Subordinate Courts (State of U.P. v. Batuk Deo Pati Tripathi (1978 Lab IC 839) (SC) (supra))39. Since in both these appeals, order of the premature retirement of the Respondents, viz. of Shri Dikshitulu made by the Chief Justice, and of Shri Krishnamoorthy by the Governor in consonance with the decision of the High Court are in question, it will be appropriate to amplify the point a little. It is well settled that compulsory retirement, simpliciter, in accordance with the terms and conditions of service, does not amount to dismissal or removal or reduction in rank under Article 311 or under the Service Rules because, the Government servant does not lose the terminal benefits already earned by him. (See Tara Singh v. State of Rajasthan AIR 1975 SC 1487 ; State of Haryana v. Inder Prakash Anand, AIR 1976 SC 1841 )40. In the last mentioned case the Government servant was officiating in the cadre of District Judges. The High Court recommended that he should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and, as such, allowed to continnue in service till the age of 58 years. Contrary to the recommendation of the High Court, the State Government passed an order under Rule 5.32 (c) of the Punjab Civil Service Rules, compulsorily retiring him from service at the age of 55 years. Holding that the order of compulsory retirement was invalid, this Court stressed that the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years up to the age of 58 years, vests in the High Court, and to hold otherwise "will seriously affect the independence of the judiciary and take away the control vested in the High Court". The formal order of retirement however, is passed by the Governor acting on the recommendation of the High Court, that being "the broad basis of Article 235". It was explained that "in such cases it is contemplation in the Constitution, that the Governor as the head of the State will act in harmony with the recommendation of the High Court". It was concluded that "the vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its juridiction will bind the State". In other words, while in form, the High Courts decision to compulsorily retire a subordinate judicial officer in the exercise of its administrative or disciplinary jurisdiction under Article 235 is advisory, in substance and effect, it is wellnigh peremptoryIn sum, the entire scheme of Chapters V and VI in Part VI epitomised in Articles 229 and 235, has been assiduously designed by the Founding Fathers to insure independence of the High Court and the subordinate judiciary70. It will be seen from the above extract, that the primary purpose of enacting Article 371-D was twofold : (i) To promote "accelerated development of the backward areas of the State of Andhra so as to secure the balanced development of the State as a whole", and (ii) to provide "equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service72. From the foregoing conspectus it is evident that the evil which was sought to be remedied, (viz., inequitable opportunites and facilities for the people belonging to different parts of the State of Andhra Pradesh in matters of public employment and education) had no. causal nexus, whatever, with the independence of the High Court and subordinate judiciary which the Founding Fathers have with solemn concern vouchsafed in Arts. 229 and 235. Nor did the public agitation which led to the enactment of Article 371-D make any grievance against the basic scheme of Chapters V and VI in Part VI of the Constitution73. The Statement of Objects and Reasons does not indicate that there was any intention, whatever, on the part of the legislature to impair or derogate from the scheme of securing independence of the Judiciary as enshrined in Article 229 and 235. Indeed, the amendment or abridgment of this basic scheme was never an issue of debate in Parliament when the Constitution (32nd Amendment) Bill was considered75. Let us now apply another test which in the circumstances of the case will be decisive. In that connection, we have to see what consequences will flow if we give this general, undefined and flexible phrase, "Civil services of the State" in Article 371-D (3), the wider construction so as to include in it the High Court staff and the members of the subordinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordinate Judiciary will become shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D (5), is the supreme authority, having full power to confirm, not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisionsTherefore, in a special provision like Article 371-D as its heading itself proclaims - which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include Officers and servants of the High Court and members of the judicial service of the State and of the cadre of District Judges, in the phrase civil services of the State occurring in Clause (3) of Article 371-D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this : -"Class or classes of posts in the civil services of the State including posts in the "judicial service of the State", and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court"....."In our opinion, non use of the phrases "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "officers and servants of the High Court" which has been designedly adopted in Article 235 and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of Clause (3) of Art. 371-D. The scope of the non obstante provision in sub-article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses78. The officers and servants of the High Court and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non obstante provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Arts. 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371-D, such as Article 229 and 235. Provisions not otherwise covered by Article 371-D, cannot be brought within its sweep because of the non obstante Clause (10). It follows as a necessary corollary that nothing in the Order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary79. For the foregoing reasons, we hold that the impugned Order dated August 24, 1977 of the Administrative Tribunal, having been passed without jurisdiction, is a nullity58. We have seen that the substantive provision is in Clause (3). This clause defines the extent and delimits the area of the "jurisdiction, power and authority" with respect to certain matters mentioned therein, which may be conferred, wholly or in part, on the Administrative Tribunal by an order made by the President, thereunder59. Clause (4) only subserves and elucidates the substantive Clause (3)60. It is undisputed that compulsory retirement is a condition of serviceFor reaching a correct finding on this issue, it is not necessary to dilate on the Administrative Tribunal Order made by the President or to explore the scope of the expression "public post" defined in Paragraph 6 thereof, for, the order has, merely for the sake of convenience, adopted this brief expression to cover compendiously all the three phrases commonly employed in sub-clauses (a), (b) and (c) of Clause (3) of the Article. Though the content of the first limb of each of the sub-clauses (a), (b) and (c) varies, the rest of the language employed therein is identical. Each of these three sub-clauses, in terms, relates to class or classes of :(i) "posts in any civil service of the State", or(ii) "civil posts under the State", or(iii) "posts under the control of any local authority within the State"It is manifest that posts on the establishment of the High Court or held by the members of the judiciary are not "posts under the control of any local authority." Neither the Chief Justice, nor the High Court can be called a "local authority" within the meaning of class (iii). As regards (ii), it is conceded even by Shri Vepa Sarathy, that persons holding posts on the staff of the High Court or in the subordinate judiciary do not hold their posts under the control of the State Government, and as such, those class or classes of posts do not fall within the purview of phrase (ii), either.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: what consequences will flow if we give this general, undefined and flexible phrase, "Civil services of the State" in Article 371-D (3), the wider construction so as to include in it the High Court staff and the members of the subordinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordinate Judiciary will become shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D (5), is the supreme authority, having full power to confirm, not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisions. 76. It is true that this very phrase in the context of the provision in Article 311 includes the employees of the High Court and members of the judicial services. But it must be remembered that the provisions of Article 311 are of a general nature. They give constitutional recognition to a fundamental principle of natural justice, by making its protection available uniformly to all Government servants. That is, why in the context of that Article this phrase has been spaciously construed. As against this, Article 371-D is a special provision which marks a departure from the general scheme of the Constitution. The area of the departure cannot be extended beyond what is unmistakably and specifically delineated by the words employed therein. A phrase used in the context of a general provision may not carry the same meaning when employed in the context of a special provision, particularly when that phrase has nowhere been defined in the enactment. "Words used with reference to one set of circumstances", said Lord Blackburn in Edinburgh Street Tramways Co. v. V. Torbain (1877) 3 AC 58 at p.68, "may convey an intention quite different from what the self same set of words used in reference to another set of circumstances would or might have produced". This holds true even when the same words are used in different contexts in the same enactment. Therefore, in a special provision like Article 371-D as its heading itself proclaims - which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include Officers and servants of the High Court and members of the judicial service of the State and of the cadre of District Judges, in the phrase civil services of the State occurring in Clause (3) of Article 371-D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this : -"Class or classes of posts in the civil services of the State including posts in the "judicial service of the State", and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court"....." 77. In our opinion, non use of the phrases "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "officers and servants of the High Court" which has been designedly adopted in Article 235 and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of Clause (3) of Art. 371-D. The scope of the non obstante provision in sub-article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses. 78. The officers and servants of the High Court and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non obstante provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Arts. 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371-D, such as Article 229 and 235. Provisions not otherwise covered by Article 371-D, cannot be brought within its sweep because of the non obstante Clause (10). It follows as a necessary corollary that nothing in the Order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary. 79. For the foregoing reasons, we hold that the impugned Order dated August 24, 1977 of the Administrative Tribunal, having been passed without jurisdiction, is a nullity. ### Response: 1 ### Explanation: after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D (5), is the supreme authority, having full power to confirm, not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisionsTherefore, in a special provision like Article 371-D as its heading itself proclaims - which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include Officers and servants of the High Court and members of the judicial service of the State and of the cadre of District Judges, in the phrase civil services of the State occurring in Clause (3) of Article 371-D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this : -"Class or classes of posts in the civil services of the State including posts in the "judicial service of the State", and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court"....."In our opinion, non use of the phrases "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "officers and servants of the High Court" which has been designedly adopted in Article 235 and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of Clause (3) of Art. 371-D. The scope of the non obstante provision in sub-article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses78. The officers and servants of the High Court and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non obstante provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Arts. 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371-D, such as Article 229 and 235. Provisions not otherwise covered by Article 371-D, cannot be brought within its sweep because of the non obstante Clause (10). It follows as a necessary corollary that nothing in the Order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary79. For the foregoing reasons, we hold that the impugned Order dated August 24, 1977 of the Administrative Tribunal, having been passed without jurisdiction, is a nullity58. We have seen that the substantive provision is in Clause (3). This clause defines the extent and delimits the area of the "jurisdiction, power and authority" with respect to certain matters mentioned therein, which may be conferred, wholly or in part, on the Administrative Tribunal by an order made by the President, thereunder59. Clause (4) only subserves and elucidates the substantive Clause (3)60. It is undisputed that compulsory retirement is a condition of serviceFor reaching a correct finding on this issue, it is not necessary to dilate on the Administrative Tribunal Order made by the President or to explore the scope of the expression "public post" defined in Paragraph 6 thereof, for, the order has, merely for the sake of convenience, adopted this brief expression to cover compendiously all the three phrases commonly employed in sub-clauses (a), (b) and (c) of Clause (3) of the Article. Though the content of the first limb of each of the sub-clauses (a), (b) and (c) varies, the rest of the language employed therein is identical. Each of these three sub-clauses, in terms, relates to class or classes of :(i) "posts in any civil service of the State", or(ii) "civil posts under the State", or(iii) "posts under the control of any local authority within the State"It is manifest that posts on the establishment of the High Court or held by the members of the judiciary are not "posts under the control of any local authority." Neither the Chief Justice, nor the High Court can be called a "local authority" within the meaning of class (iii). As regards (ii), it is conceded even by Shri Vepa Sarathy, that persons holding posts on the staff of the High Court or in the subordinate judiciary do not hold their posts under the control of the State Government, and as such, those class or classes of posts do not fall within the purview of phrase (ii), either.

SANJAY JAIN Vs. NATIONAL AVIATION CO. OF INDIA LTD

the employer and the employee is one governed by a contract of employment. Since FR 56 is a statutory condition of service which operates in law, without reference to a contract of employment, there is nothing inconsistent between Rule 119 and FR 56. 16. The appellant has voluntarily retired by giving three months notice not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule. Explanation 2 to Rule 119 makes no mention of retirement under a statutory rule and hence the same is clearly out of the way. The submission that rule 119 is superimposed on F.R.56 has no force in this case. 17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R.56(c). Since the conditions of FR 56(c) are fulfilled, in the instant case, the appellant must be held to have lawfully retired as notified by him with effect from 2nd August 1976. 16. In view of the aforesaid enunciation of law and on consideration of the provisions contained in Standing order 18 in the facts and circumstances of the case, we are of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation. To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services. Thus, we are of the opinion that the High Court has erred in law in holding otherwise. 17. Learned counsel appearing on behalf of the respondent has relied upon the decision in Moti Ram vs. Param Dev and Anr. (1993) 2 SCC 725 Para 16 and 18: 16. As pointed out by this Court, resignation means the spontaneous relinquishment of ones own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Union of India v. Shri Gopal Chandra Misra & Ors., [1978] 3 SCR 12 at p. 21). If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event, it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and conditions governing it. 18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, [1968] 3 SCR 857 , it has been held "But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter". (emphasis supplied) 18. Relying on said decisions, the learned counsel for the respondent has contended that in the case of a contract of employment same is required to be terminated. It cannot be unilateral action. The factual matrix of the aforesaid decision was totally different. Though the employee had tendered the resignation it had not been accepted on the date on which he filled the nomination form in order to contest an election. In that context, observations have been made. However, it was observed that it would depend upon the phraseology used in a particular provision whether there is a necessity for acceptance or any other formality is required when it could be said person ceases to hold the office. With all fairness, the aforesaid proposition has not been disputed by the learned counsel appearing on behalf of the respondent. In this case, there is no such requirement of acceptance by such an employee under the provisions of the Standing Order 18 read with 17. Thus, the decision in Moti Ram (supra) is not applicable.

1[ds]9. It is apparent from a bare reading of the provisions contained in Standing Order 18 that workman has a right to resign from the services by giving a notice of the period as prescribed under Standing Order 17 which provides termination of services by serving 30 days notice upon a permanent workmen and seven days notice with respect to workman who is on probation and temporary workman by serving a 24 hours notice. Thus, for a permanent employee, a period of 30 days is provided to terminate or to resign as apparent from a conjoint reading of provisions of Standing Orders 17 and 1811. In our opinion, from a bare reading of the provisions contained in Standing order 18, it is crystal clear that a permanent employee has a right to resign from the services by giving a notice of the period of 30 days as prescribed under Standing Order 17, and is entitled to obtain certificate from the employer for the period services have been rendered12. Clause 2 of the Standing Order 18 provides that in case of resignation is submitted with immediate effect or any time before the expiry of notice period, acceptance is necessary. Acceptance of resignation is not required in case a notice has been given of 30 days. It would be operative and effective on the lapse of the period. It is right of a workman to serve an employer and to resign also by serving notice of 30 days. The bond to serve was only for five years as stipulated in the order of his appointment. The period of bond to serve was admittedly over. There is no other Standing Order or rule which puts a fetter on an employee to resign or confers power on the employer to reject a resignation13. No disciplinary proceeding was pending or contemplated against an employee in the case when he resigned. The resignation became effective on the lapse of 30 days period. There was no power with the employer as per Standing Order 18 to reject such a resignation. Moreover, the bond period of five years service was already over. A case of voluntary retirement stands on a different footing than that of resignation. Voluntary retirement is with certain civil consequences of monetary benefits. It would depend upon the phraseology used in a particular provision whether prayer made for the resignation or for voluntary retirement is required to be accepted or it takes effect without acceptance. In the facts of the case, since in the Standing Order 18, there is no provision for acceptance of resignation. In case, notice is served for the requisite period of 30 days, obviously, the appellant had the right to resign from the services16. In view of the aforesaid enunciation of law and on consideration of the provisions contained in Standing order 18 in the facts and circumstances of the case, we are of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation. To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services. Thus, we are of the opinion that the High Court has erred in law in holding otherwiseThe factual matrix of the aforesaid decision was totally different. Though the employee had tendered the resignation it had not been accepted on the date on which he filled the nomination form in order to contest an election. In that context, observations have been made. However, it was observed that it would depend upon the phraseology used in a particular provision whether there is a necessity for acceptance or any other formality is required when it could be said person ceases to hold the office. With all fairness, the aforesaid proposition has not been disputed by the learned counsel appearing on behalf of the respondent. In this case, there is no such requirement of acceptance by such an employee under the provisions of the Standing Order 18 read with 17. Thus, the decision in Moti Ram (supra) is not applicable.

### 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 employer and the employee is one governed by a contract of employment. Since FR 56 is a statutory condition of service which operates in law, without reference to a contract of employment, there is nothing inconsistent between Rule 119 and FR 56. 16. The appellant has voluntarily retired by giving three months notice not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule. Explanation 2 to Rule 119 makes no mention of retirement under a statutory rule and hence the same is clearly out of the way. The submission that rule 119 is superimposed on F.R.56 has no force in this case. 17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R.56(c). Since the conditions of FR 56(c) are fulfilled, in the instant case, the appellant must be held to have lawfully retired as notified by him with effect from 2nd August 1976. 16. In view of the aforesaid enunciation of law and on consideration of the provisions contained in Standing order 18 in the facts and circumstances of the case, we are of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation. To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services. Thus, we are of the opinion that the High Court has erred in law in holding otherwise. 17. Learned counsel appearing on behalf of the respondent has relied upon the decision in Moti Ram vs. Param Dev and Anr. (1993) 2 SCC 725 Para 16 and 18: 16. As pointed out by this Court, resignation means the spontaneous relinquishment of ones own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Union of India v. Shri Gopal Chandra Misra & Ors., [1978] 3 SCR 12 at p. 21). If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event, it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and conditions governing it. 18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, [1968] 3 SCR 857 , it has been held "But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter". (emphasis supplied) 18. Relying on said decisions, the learned counsel for the respondent has contended that in the case of a contract of employment same is required to be terminated. It cannot be unilateral action. The factual matrix of the aforesaid decision was totally different. Though the employee had tendered the resignation it had not been accepted on the date on which he filled the nomination form in order to contest an election. In that context, observations have been made. However, it was observed that it would depend upon the phraseology used in a particular provision whether there is a necessity for acceptance or any other formality is required when it could be said person ceases to hold the office. With all fairness, the aforesaid proposition has not been disputed by the learned counsel appearing on behalf of the respondent. In this case, there is no such requirement of acceptance by such an employee under the provisions of the Standing Order 18 read with 17. Thus, the decision in Moti Ram (supra) is not applicable. ### Response: 1 ### Explanation: 9. It is apparent from a bare reading of the provisions contained in Standing Order 18 that workman has a right to resign from the services by giving a notice of the period as prescribed under Standing Order 17 which provides termination of services by serving 30 days notice upon a permanent workmen and seven days notice with respect to workman who is on probation and temporary workman by serving a 24 hours notice. Thus, for a permanent employee, a period of 30 days is provided to terminate or to resign as apparent from a conjoint reading of provisions of Standing Orders 17 and 1811. In our opinion, from a bare reading of the provisions contained in Standing order 18, it is crystal clear that a permanent employee has a right to resign from the services by giving a notice of the period of 30 days as prescribed under Standing Order 17, and is entitled to obtain certificate from the employer for the period services have been rendered12. Clause 2 of the Standing Order 18 provides that in case of resignation is submitted with immediate effect or any time before the expiry of notice period, acceptance is necessary. Acceptance of resignation is not required in case a notice has been given of 30 days. It would be operative and effective on the lapse of the period. It is right of a workman to serve an employer and to resign also by serving notice of 30 days. The bond to serve was only for five years as stipulated in the order of his appointment. The period of bond to serve was admittedly over. There is no other Standing Order or rule which puts a fetter on an employee to resign or confers power on the employer to reject a resignation13. No disciplinary proceeding was pending or contemplated against an employee in the case when he resigned. The resignation became effective on the lapse of 30 days period. There was no power with the employer as per Standing Order 18 to reject such a resignation. Moreover, the bond period of five years service was already over. A case of voluntary retirement stands on a different footing than that of resignation. Voluntary retirement is with certain civil consequences of monetary benefits. It would depend upon the phraseology used in a particular provision whether prayer made for the resignation or for voluntary retirement is required to be accepted or it takes effect without acceptance. In the facts of the case, since in the Standing Order 18, there is no provision for acceptance of resignation. In case, notice is served for the requisite period of 30 days, obviously, the appellant had the right to resign from the services16. In view of the aforesaid enunciation of law and on consideration of the provisions contained in Standing order 18 in the facts and circumstances of the case, we are of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation. To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services. Thus, we are of the opinion that the High Court has erred in law in holding otherwiseThe factual matrix of the aforesaid decision was totally different. Though the employee had tendered the resignation it had not been accepted on the date on which he filled the nomination form in order to contest an election. In that context, observations have been made. However, it was observed that it would depend upon the phraseology used in a particular provision whether there is a necessity for acceptance or any other formality is required when it could be said person ceases to hold the office. With all fairness, the aforesaid proposition has not been disputed by the learned counsel appearing on behalf of the respondent. In this case, there is no such requirement of acceptance by such an employee under the provisions of the Standing Order 18 read with 17. Thus, the decision in Moti Ram (supra) is not applicable.

Surinder Pal Soni Vs. Sohan Lal (D) Thru LR & Ors

the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree 22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties. 20. Learned Counsel appearing on behalf of the respondents placed reliance on the decision in V S Palanichamy Chettiar Firm v C Alagappan (1999) 4 SCC 702. While adverting to the decision of this Court in Ramankutty Guptan v Avara (1994) 2 SCC 642 , the two judge Bench held: 15. …This Court observed that when the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. The Court held, after noticing the conflict of decisions by the Bombay High Court and the Andhra Pradesh High Court, that when the court which passed the decree and the executing court is the same, application under Section 28 can be filed in the executing court. However, where a decree is transferred for execution to a transferee executing court then certainly the transferee court is not the original court and the executing court is not the same court within the meaning of Section 28 of the Act. But when an application has been made in the court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 is maintainable in the same court… 21. In the above case, the facts before this Court were that an agreement to sell had been executed nineteen years earlier on 16 February 1980 and no explanation was forthcoming as to why the balance of the sale consideration was not deposited within the time granted by the court. No application for extension was made under Section 28 of the Specific Relief Act. This Court observed that merely because a suit was filed within a period of three years prescribed by Article 54 of the Limitation Act 1963, that did not absolve the vendee-plaintiff from demonstrating that he was ready and willing to perform the agreement and whether the non-performance was on account of obstacles placed by the vendor or otherwise. In that context, this Court held: 17. …The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court, as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decree. The facts noted in the above extract from the judgment indicate a situation which is factually distinct. In that case, the balance of the sale consideration was sought to be deposited three years after the confirmation of the decree by the Appellate Court. In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in rejecting the specious objections of the respondents. The High Court acted in excess of its revisional jurisdiction. The High Court impermissibly substituted the decree for specific performance with an order for refund of the sale consideration, beyond the earnest money of Rs. 2,00,000/- to the decree holder. The reasons which weighed with the High Court in doing so as well as its ultimate directions are unsustainable. In a Civil Revision arising out of an execution proceeding, the High Court has modified the decree. Such a course was not open in law.

1[ds]13. Upon the decision of the Appellate Court, there was a merger of the judgment of the Trial Court with the decision which was rendered in appeal. Consequent upon the passing of the decree of an Appellate Court, the decree of the Trial Court merges with that of the Appellate Court. The doctrine of merger is founded on the rationale that there cannot be more than one operative decree at a given point in time. The doctrine of merger applies irrespective of whether the Appellate Court has affirmed, modified or reversed the decree of the Trial Court17. We are unable to accept the submission. The doctrine of merger operates as a principle upon a judgment being rendered by the Appellate Court. In the present case, once the Appellate Court confirmed the judgment and decree of the Trial Court, there was evidently a merger of the judgment of the Trial Court with the decision of the Appellate Court. Once the Appellate Court renders its judgment, it is the decree of the Appellate Court which becomes executable. Hence, the entitlement of the decree holder to execute the decree of the Appellate Court cannot be defeated21. In the above case, the facts before this Court were that an agreement to sell had been executed nineteen years earlier on 16 February 1980 and no explanation was forthcoming as to why the balance of the sale consideration was not deposited within the time granted by the court. No application for extension was made under Section 28 of the Specific Relief Act. This Court observed that merely because a suit was filed within a period of three years prescribed by Article 54 of the Limitation Act 1963, that did not absolve the vendee-plaintiff from demonstrating that he was ready and willing to perform the agreement and whether the non-performance was on account of obstacles placed by the vendor or otherwise. In that context, this Court held:17. …The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court, as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decreeThe facts noted in the above extract from the judgment indicate a situation which is factually distinct. In that case, the balance of the sale consideration was sought to be deposited three years after the confirmation of the decree by the Appellate Court. In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in rejecting the specious objections of the respondents. The High Court acted in excess of its revisional jurisdiction. The High Court impermissibly substituted the decree for specific performance with an order for refund of the sale consideration, beyond the earnest money of Rs. 2,00,000/- to the decree holder. The reasons which weighed with the High Court in doing so as well as its ultimate directions are unsustainable. In a Civil Revision arising out of an execution proceeding, the High Court has modified the decree. Such a course was not open 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: the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree 22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties. 20. Learned Counsel appearing on behalf of the respondents placed reliance on the decision in V S Palanichamy Chettiar Firm v C Alagappan (1999) 4 SCC 702. While adverting to the decision of this Court in Ramankutty Guptan v Avara (1994) 2 SCC 642 , the two judge Bench held: 15. …This Court observed that when the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. The Court held, after noticing the conflict of decisions by the Bombay High Court and the Andhra Pradesh High Court, that when the court which passed the decree and the executing court is the same, application under Section 28 can be filed in the executing court. However, where a decree is transferred for execution to a transferee executing court then certainly the transferee court is not the original court and the executing court is not the same court within the meaning of Section 28 of the Act. But when an application has been made in the court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 is maintainable in the same court… 21. In the above case, the facts before this Court were that an agreement to sell had been executed nineteen years earlier on 16 February 1980 and no explanation was forthcoming as to why the balance of the sale consideration was not deposited within the time granted by the court. No application for extension was made under Section 28 of the Specific Relief Act. This Court observed that merely because a suit was filed within a period of three years prescribed by Article 54 of the Limitation Act 1963, that did not absolve the vendee-plaintiff from demonstrating that he was ready and willing to perform the agreement and whether the non-performance was on account of obstacles placed by the vendor or otherwise. In that context, this Court held: 17. …The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court, as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decree. The facts noted in the above extract from the judgment indicate a situation which is factually distinct. In that case, the balance of the sale consideration was sought to be deposited three years after the confirmation of the decree by the Appellate Court. In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in rejecting the specious objections of the respondents. The High Court acted in excess of its revisional jurisdiction. The High Court impermissibly substituted the decree for specific performance with an order for refund of the sale consideration, beyond the earnest money of Rs. 2,00,000/- to the decree holder. The reasons which weighed with the High Court in doing so as well as its ultimate directions are unsustainable. In a Civil Revision arising out of an execution proceeding, the High Court has modified the decree. Such a course was not open in law. ### Response: 1 ### Explanation: 13. Upon the decision of the Appellate Court, there was a merger of the judgment of the Trial Court with the decision which was rendered in appeal. Consequent upon the passing of the decree of an Appellate Court, the decree of the Trial Court merges with that of the Appellate Court. The doctrine of merger is founded on the rationale that there cannot be more than one operative decree at a given point in time. The doctrine of merger applies irrespective of whether the Appellate Court has affirmed, modified or reversed the decree of the Trial Court17. We are unable to accept the submission. The doctrine of merger operates as a principle upon a judgment being rendered by the Appellate Court. In the present case, once the Appellate Court confirmed the judgment and decree of the Trial Court, there was evidently a merger of the judgment of the Trial Court with the decision of the Appellate Court. Once the Appellate Court renders its judgment, it is the decree of the Appellate Court which becomes executable. Hence, the entitlement of the decree holder to execute the decree of the Appellate Court cannot be defeated21. In the above case, the facts before this Court were that an agreement to sell had been executed nineteen years earlier on 16 February 1980 and no explanation was forthcoming as to why the balance of the sale consideration was not deposited within the time granted by the court. No application for extension was made under Section 28 of the Specific Relief Act. This Court observed that merely because a suit was filed within a period of three years prescribed by Article 54 of the Limitation Act 1963, that did not absolve the vendee-plaintiff from demonstrating that he was ready and willing to perform the agreement and whether the non-performance was on account of obstacles placed by the vendor or otherwise. In that context, this Court held:17. …The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court, as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decreeThe facts noted in the above extract from the judgment indicate a situation which is factually distinct. In that case, the balance of the sale consideration was sought to be deposited three years after the confirmation of the decree by the Appellate Court. In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in rejecting the specious objections of the respondents. The High Court acted in excess of its revisional jurisdiction. The High Court impermissibly substituted the decree for specific performance with an order for refund of the sale consideration, beyond the earnest money of Rs. 2,00,000/- to the decree holder. The reasons which weighed with the High Court in doing so as well as its ultimate directions are unsustainable. In a Civil Revision arising out of an execution proceeding, the High Court has modified the decree. Such a course was not open in law.

Railway Board Vs. A. Pitchumani

that under cl. (b) of rule 2046, as introduced on January 11, 1967, the original employees of the Indian Railway Administration, as well as persons, like the respondent, who came into the Indian Railway Administration in 1947, were both entitled, as of right, to continue in service till they attained the age of 60 years. This position admittedly has been changed, by altering the definition of the expression "Government Service" by the new Note to cl. (b) introduced on December 28, 1967. Under that Note, it cannot be gainsaid, that a distinction has been made between the original employees of the Indian Railway Administration, and the new employees, who were amalgamated with the Indian Railway Administration in 1947, but who had their previous service, with either a former provincial Government, or an Ex-Company or Ex-State Railways. In the case of such employees, the benefit of the extended age of retirement, that has been given to the other employees of the Indian Railway Administration, was made available, only if the new employees had the same benefit under their previous employers. Therefore, the position employers. Therefore, the position is that on and after December 23, 1967, though all the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending upon the fact whether they were in the original employment of the Indian Railway Administration or on the fact of their coming from one or the new Note. It is in consequence of the new Note, that the order dated January 17, 1968 was issued by the Divisional Accounts Officer, Hubli, that the respondent has to retire at the age of 58 years, on April 14, 1958.23. The question is whether the distinction made under the new Note to cl. (b) substituted on December 23, 1967 valid? In our opinion, such a rule, which makes a distinction between the employees working under the same Indian Railway Administration is not valid. The position, after the new Note was added, is that the employees who had throughout been under the Indian Railway Administration is entitled to continue in service till he attains the ago of 60 years; whereas the persons, like the respondent, who are also the employees of the Indian Railway Administration, but whose previous services were with the Company, will have to retire at the age of 58 years, because a provision similar to cl. (b) did not exist in the service conditions of the Company. Discrimination, on the face of it, is writ large in the new Note, which is under challenge.24. Mr. Setalvad, no doubt, urged that the ministerial railway servant, who was originally employee of a Company, Ex-State Railway or a former Provincial Government dealt with under the new Note are a class by themselves, and therefore there is a reasonable classification. Once the employees dealt with under the new Note, have taken up service under the Indian Railway Administration and have been treated alike upto January 11, 1967, it follows, in our opinion that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore, we are not inclined to accept the contention that the classification of these officers, under the new Note, is a reasonable classification and satisfies one of the essential requisites of Art. 14 of the Constitution, as inter-preted by this Court.25. We will assume, that in dealing with the types of employees under the new Note, there is a reasonable classification. Nevertheless, the further question arises whether the reasonable classification, with the added condition in the Note incorporated on December 23, 1967, can be said to have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046? The object of rule 2046 itself is to provide for the age of retirement of the two types of officers coming under cls. (a) and (b). Where there is no indication that any further distinction inter se is sought to be made amongst the officers mentioned in cls (a) and (b) and when a uniform age of retirement has also been fixed in respect of the officers coming under these two clauses, the classification, carving cut the ex-employees of the three authorities mentioned therein, with the added condition that the rules of the Company or the State should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule.26. For the reasons given above, we are of the view that the High Court was justified in striking down the order of the Divisional Accounts Officer, Hubli, dated January 17, 1968 directing the respondent to retire from service on April 14, 1968, on which date he will attain the age of 58 years. However, it is not clear from the judgment of the High Court whether the entire new Note substituted under cl. (b) of rule 2046 on December 23, 1967 has been struck down or whether it has struck down only the new condition incorporated in the said Note. Even as per the Note under cl. (b), Incorporated along with the new R. 2046 an January 11, 1967, the expression "Government Service" included service rendered in Ex-Company, Ex-State Railways and in a former provincial Government, and such a provision is beneficial to the employees like the respondent.27. In the new substituted Note dated December 23, 1967, the first part of the Note including in "government service" any service rendernment service" any service rendered in a former provincial Government, Ex-Company and Ex-State Railways is more or less identical with the original Note of January 11, 1967, though in the new Note the order of the former employees has been slightly changed. In our opinion, that part of the new rule providing that for the purpose of cl. (b) the expression "Government Service" includes service rendered in a former provincial Government and in a Ex-Company and Ex-State Railways can be allowed to stand to this extent.

0[ds]19. It is in view of the above principles laid down by this Court, we have observed, earlier that Mr. Setalvads contention in respect of the vads contention in respect of the rule 2046, as it originally stood, is well founded. But this Court in the above decision, had no occasion to consider the problem that how arises, by virtue of the new Note added to cl. (b) of rule 2046. There is no controversy that after the amalgamation of the Company with the Indian Railway Administration, the respondent has become an employee of the latter. If so in our opinion, the respondent is entitled to be given the same rights and privileges that are available to the other employees employed by the Indian Railway Administration. That exactly was the position under the rule 2046, as it originally stood; after Rs amendment on December 5, 1962 increasing the age of retirement to 58 years; as also under the new rule 2046, incorporated on January 11, 1967. All these rules upto and inclusive of January 11, 1967 treated the former employees of the Ex-Company, Ex-State Railways and former Provincial Governments, who were amalgamated with the Indian Railway Administration in 1947, on a par with the other original employees of the Indian Railway Administration. In fact, the Note to cl. (b) of rule 2046 incorporated on January 11, 1967, reinforced this position, by making it clear that the expression "Government Service" in cl. (b) will include service under the various employers referred topoint to be not is that though a distinction has been made in the rule between a railway servant coming under cl. (a) and a ministerial railway servant coming under cl. (b), those clause will apply uniformly to all members of the Indian Railway Administration depending upon whether they are railway servants coming under cl. (a) or a ministerial railway servant coming under cl. (b), as the case may be. To all railway servants coming under cl. (a) the age of retirement is the same. Similarly to all ministerial railway servants coming under cl. (b), the age of retirement is again the same. Further if a ministerial railway servant does not satisfy the requirements of cl. (b) he will not be eligible to get the extended period of retirement. That again will apply to all ministerial railway servants, who do not satisfy the requirements of cl. (b). We are emphasising this aspect to show that no distinction has been made either in cl. (a) or cl. (b) regarding the uniform application in respect of the age of retirement to the officers mentioned therein and who are governed by those clauses. That is, there is no inter se distinction made. The distinction made in cl. (b) regarding the ministerial railway servants who entered government service on or before March 31, 1938 is again of uniform application. That rule only makes a broad distinction between the ministerial railway servants who entered government service on or before March 31, 1938 and who entered government service after that date. As per the Note to cl. (b) to rule 2046, incorporated on January 11, 1967, the respondent is a person who has entered government service on or before March 31, 1938 and satisfies also the requirements under sub-cl. (ii) of cl (b). Similarly, another railway servant may have entered government service under the Indian Railway Administration on or before March 31, 1938. He also, under cl (b) will be a ministerial railway servant who has entered government service on or before March 31, 1938 and if he satisfies one or other of the conditions mentioned in sub-clauses (I) and (ii) of cl. (b) vice till 60 years. That means both persons, like the respondent, and the officers who have straight joined the service under the Indian Railway Administration, prior to March 31, 1938 and who satisfy the requirements under sub-clause (I) or sub-clause (ii) of clause (b) will be equally entitled to continue in service till they attain the age of 60 years. These facts clearly show that cls. (a) and (b) of rule 2046 had uniform application to all the employees of the Indian Railway Administration.21. Coming to the new rule 2046 incorporated on January 11, 1967, the conditions of service of persons, like the respondent, have been better crystallised. Read with the Note, under cl. (b), the respondent is a ministerial railway servant, who had entered government service on or before March 31, 1938. By virtue of cl. (b), he was entitled to be retained in service till he attains the age of 60 years. It is to be noted that there is no option left with the employer, but to retain such a ministerial railway servant upto 60 years. In other words, if the ministerial railway servant satisfies the requirements of cl. (b), he is, as of right, entitled to be in service, till he attains the age of 60 years. Similarly, cl. (a) introduced on January 11, 1967, gives a right to a railway servants to continue in office, till he attains the age of 58 years. Here again, there is no option vested with the authorities except to continue him till that age. The option to extent the period of service of the officers mentioned in cls. (a) and (b) is dealt with under sub-clause (d) and (c) respectively, which we have not quoted. Sub-clauses (c) and (d) deal with the granting of extention of service beyond the period mentioned in sub-clauses (b) and (a). The option to extend the service beyond the period mentioned in sub-clauses (a) and (b) mentioned in sub-clauses (a) and (b) may be with the authorities; but they have no voice in a railway servant coming under cl. (b), continuing upto 60 years.22. That the authorities also understood the position in the manner mentioned above, is clear from the order dated March 31, 1967, of the Divisional Accounts Officer, Hubli declaring the right of the respondent to continue in service upto 60 years. In fact, this order was passed in consequence of the new rule 2046 substituted on January 11, 1967. Therefore, from what is stated above, it is clear that upto and inclusive of January 11, 1967, no distinction inter se apart from that made by clauses (a) and (b), between the officers of the Indian Railway Administration from whatever source they the risk of repetition, we may state that under cl. (b) of rule 2046, as introduced on January 11, 1967, the original employees of the Indian Railway Administration, as well as persons, like the respondent, who came into the Indian Railway Administration in 1947, were both entitled, as of right, to continue in service till they attained the age of 60 years. This position admittedly has been changed, by altering the definition of the expression "Government Service" by the new Note to cl. (b) introduced on December 28, 1967. Under that Note, it cannot be gainsaid, that a distinction has been made between the original employees of the Indian Railway Administration, and the new employees, who were amalgamated with the Indian Railway Administration in 1947, but who had their previous service, with either a former provincial Government, or an Ex-Company or Ex-State Railways. In the case of such employees, the benefit of the extended age of retirement, that has been given to the other employees of the Indian Railway Administration, was made available, only if the new employees had the same benefit under their previous employers. Therefore, the position employers. Therefore, the position is that on and after December 23, 1967, though all the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending upon the fact whether they were in the original employment of the Indian Railway Administration or on the fact of their coming from one or the new Note. It is in consequence of the new Note, that the order dated January 17, 1968 was issued by the Divisional Accounts Officer, Hubli, that the respondent has to retire at the age of 58 years, on April 14,our opinion, such a rule, which makes a distinction between the employees working under the same Indian Railway Administration is not valid. The position, after the new Note was added, is that the employees who had throughout been under the Indian Railway Administration is entitled to continue in service till he attains the ago of 60 years; whereas the persons, like the respondent, who are also the employees of the Indian Railway Administration, but whose previous services were with the Company, will have to retire at the age of 58 years, because a provision similar to cl. (b) did not exist in the service conditions of the Company. Discrimination, on the face of it, is writ large in the new Note, which is under challenge.24. Mr. Setalvad, no doubt, urged that the ministerial railway servant, who was originally employee of a Company, Ex-State Railway or a former Provincial Government dealt with under the new Note are a class by themselves, and therefore there is a reasonable classification. Once the employees dealt with under the new Note, have taken up service under the Indian Railway Administration and have been treated alike upto January 11, 1967, it follows, in our opinion that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore, we are not inclined to accept the contention that the classification of these officers, under the new Note, is a reasonable classification and satisfies one of the essential requisites of Art. 14 of the Constitution, as inter-preted by this Court.25. We will assume, that in dealing with the types of employees under the new Note, there is a reasonable classification. Nevertheless, the further question arises whether the reasonable classification, with the added condition in the Note incorporated on December 23, 1967, can be said to have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046? The object of rule 2046 itself is to provide for the age of retirement of the two types of officers coming under cls. (a) and (b). Where there is no indication that any further distinction inter se is sought to be made amongst the officers mentioned in cls (a) and (b) and when a uniform age of retirement has also been fixed in respect of the officers coming under these two clauses, the classification, carving cut the ex-employees of the three authorities mentioned therein, with the added condition that the rules of the Company or the State should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule.26. For the reasons given above, we are of the view that the High Court was justified in striking down the order of the Divisional Accounts Officer, Hubli, dated January 17, 1968 directing the respondent to retire from service on April 14, 1968, on which date he will attain the age of 58 years. However, it is not clear from the judgment of the High Court whether the entire new Note substituted under cl. (b) of rule 2046 on December 23, 1967 has been struck down or whether it has struck down only the new condition incorporated in the said Note. Even as per the Note under cl. (b), Incorporated along with the new R. 2046 an January 11, 1967, the expression "Government Service" included service rendered in Ex-Company, Ex-State Railways and in a former provincial Government, and such a provision is beneficial to the employees like the respondent.27. In the new substituted Note dated December 23, 1967, the first part of the Note including in "government service" any service rendernment service" any service rendered in a former provincial Government, Ex-Company and Ex-State Railways is more or less identical with the original Note of January 11, 1967, though in the new Note the order of the former employees has been slightly changed. In our opinion, that part of the new rule providing that for the purpose of cl. (b) the expression "Government Service" includes service rendered in a former provincial Government and in a Ex-Company and Ex-State Railways can be allowed to stand to this extent.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: that under cl. (b) of rule 2046, as introduced on January 11, 1967, the original employees of the Indian Railway Administration, as well as persons, like the respondent, who came into the Indian Railway Administration in 1947, were both entitled, as of right, to continue in service till they attained the age of 60 years. This position admittedly has been changed, by altering the definition of the expression "Government Service" by the new Note to cl. (b) introduced on December 28, 1967. Under that Note, it cannot be gainsaid, that a distinction has been made between the original employees of the Indian Railway Administration, and the new employees, who were amalgamated with the Indian Railway Administration in 1947, but who had their previous service, with either a former provincial Government, or an Ex-Company or Ex-State Railways. In the case of such employees, the benefit of the extended age of retirement, that has been given to the other employees of the Indian Railway Administration, was made available, only if the new employees had the same benefit under their previous employers. Therefore, the position employers. Therefore, the position is that on and after December 23, 1967, though all the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending upon the fact whether they were in the original employment of the Indian Railway Administration or on the fact of their coming from one or the new Note. It is in consequence of the new Note, that the order dated January 17, 1968 was issued by the Divisional Accounts Officer, Hubli, that the respondent has to retire at the age of 58 years, on April 14, 1958.23. The question is whether the distinction made under the new Note to cl. (b) substituted on December 23, 1967 valid? In our opinion, such a rule, which makes a distinction between the employees working under the same Indian Railway Administration is not valid. The position, after the new Note was added, is that the employees who had throughout been under the Indian Railway Administration is entitled to continue in service till he attains the ago of 60 years; whereas the persons, like the respondent, who are also the employees of the Indian Railway Administration, but whose previous services were with the Company, will have to retire at the age of 58 years, because a provision similar to cl. (b) did not exist in the service conditions of the Company. Discrimination, on the face of it, is writ large in the new Note, which is under challenge.24. Mr. Setalvad, no doubt, urged that the ministerial railway servant, who was originally employee of a Company, Ex-State Railway or a former Provincial Government dealt with under the new Note are a class by themselves, and therefore there is a reasonable classification. Once the employees dealt with under the new Note, have taken up service under the Indian Railway Administration and have been treated alike upto January 11, 1967, it follows, in our opinion that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore, we are not inclined to accept the contention that the classification of these officers, under the new Note, is a reasonable classification and satisfies one of the essential requisites of Art. 14 of the Constitution, as inter-preted by this Court.25. We will assume, that in dealing with the types of employees under the new Note, there is a reasonable classification. Nevertheless, the further question arises whether the reasonable classification, with the added condition in the Note incorporated on December 23, 1967, can be said to have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046? The object of rule 2046 itself is to provide for the age of retirement of the two types of officers coming under cls. (a) and (b). Where there is no indication that any further distinction inter se is sought to be made amongst the officers mentioned in cls (a) and (b) and when a uniform age of retirement has also been fixed in respect of the officers coming under these two clauses, the classification, carving cut the ex-employees of the three authorities mentioned therein, with the added condition that the rules of the Company or the State should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule.26. For the reasons given above, we are of the view that the High Court was justified in striking down the order of the Divisional Accounts Officer, Hubli, dated January 17, 1968 directing the respondent to retire from service on April 14, 1968, on which date he will attain the age of 58 years. However, it is not clear from the judgment of the High Court whether the entire new Note substituted under cl. (b) of rule 2046 on December 23, 1967 has been struck down or whether it has struck down only the new condition incorporated in the said Note. Even as per the Note under cl. (b), Incorporated along with the new R. 2046 an January 11, 1967, the expression "Government Service" included service rendered in Ex-Company, Ex-State Railways and in a former provincial Government, and such a provision is beneficial to the employees like the respondent.27. In the new substituted Note dated December 23, 1967, the first part of the Note including in "government service" any service rendernment service" any service rendered in a former provincial Government, Ex-Company and Ex-State Railways is more or less identical with the original Note of January 11, 1967, though in the new Note the order of the former employees has been slightly changed. In our opinion, that part of the new rule providing that for the purpose of cl. (b) the expression "Government Service" includes service rendered in a former provincial Government and in a Ex-Company and Ex-State Railways can be allowed to stand to this extent. ### Response: 0 ### Explanation: clauses (a) and (b), between the officers of the Indian Railway Administration from whatever source they the risk of repetition, we may state that under cl. (b) of rule 2046, as introduced on January 11, 1967, the original employees of the Indian Railway Administration, as well as persons, like the respondent, who came into the Indian Railway Administration in 1947, were both entitled, as of right, to continue in service till they attained the age of 60 years. This position admittedly has been changed, by altering the definition of the expression "Government Service" by the new Note to cl. (b) introduced on December 28, 1967. Under that Note, it cannot be gainsaid, that a distinction has been made between the original employees of the Indian Railway Administration, and the new employees, who were amalgamated with the Indian Railway Administration in 1947, but who had their previous service, with either a former provincial Government, or an Ex-Company or Ex-State Railways. In the case of such employees, the benefit of the extended age of retirement, that has been given to the other employees of the Indian Railway Administration, was made available, only if the new employees had the same benefit under their previous employers. Therefore, the position employers. Therefore, the position is that on and after December 23, 1967, though all the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending upon the fact whether they were in the original employment of the Indian Railway Administration or on the fact of their coming from one or the new Note. It is in consequence of the new Note, that the order dated January 17, 1968 was issued by the Divisional Accounts Officer, Hubli, that the respondent has to retire at the age of 58 years, on April 14,our opinion, such a rule, which makes a distinction between the employees working under the same Indian Railway Administration is not valid. The position, after the new Note was added, is that the employees who had throughout been under the Indian Railway Administration is entitled to continue in service till he attains the ago of 60 years; whereas the persons, like the respondent, who are also the employees of the Indian Railway Administration, but whose previous services were with the Company, will have to retire at the age of 58 years, because a provision similar to cl. (b) did not exist in the service conditions of the Company. Discrimination, on the face of it, is writ large in the new Note, which is under challenge.24. Mr. Setalvad, no doubt, urged that the ministerial railway servant, who was originally employee of a Company, Ex-State Railway or a former Provincial Government dealt with under the new Note are a class by themselves, and therefore there is a reasonable classification. Once the employees dealt with under the new Note, have taken up service under the Indian Railway Administration and have been treated alike upto January 11, 1967, it follows, in our opinion that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore, we are not inclined to accept the contention that the classification of these officers, under the new Note, is a reasonable classification and satisfies one of the essential requisites of Art. 14 of the Constitution, as inter-preted by this Court.25. We will assume, that in dealing with the types of employees under the new Note, there is a reasonable classification. Nevertheless, the further question arises whether the reasonable classification, with the added condition in the Note incorporated on December 23, 1967, can be said to have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046? The object of rule 2046 itself is to provide for the age of retirement of the two types of officers coming under cls. (a) and (b). Where there is no indication that any further distinction inter se is sought to be made amongst the officers mentioned in cls (a) and (b) and when a uniform age of retirement has also been fixed in respect of the officers coming under these two clauses, the classification, carving cut the ex-employees of the three authorities mentioned therein, with the added condition that the rules of the Company or the State should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule.26. For the reasons given above, we are of the view that the High Court was justified in striking down the order of the Divisional Accounts Officer, Hubli, dated January 17, 1968 directing the respondent to retire from service on April 14, 1968, on which date he will attain the age of 58 years. However, it is not clear from the judgment of the High Court whether the entire new Note substituted under cl. (b) of rule 2046 on December 23, 1967 has been struck down or whether it has struck down only the new condition incorporated in the said Note. Even as per the Note under cl. (b), Incorporated along with the new R. 2046 an January 11, 1967, the expression "Government Service" included service rendered in Ex-Company, Ex-State Railways and in a former provincial Government, and such a provision is beneficial to the employees like the respondent.27. In the new substituted Note dated December 23, 1967, the first part of the Note including in "government service" any service rendernment service" any service rendered in a former provincial Government, Ex-Company and Ex-State Railways is more or less identical with the original Note of January 11, 1967, though in the new Note the order of the former employees has been slightly changed. In our opinion, that part of the new rule providing that for the purpose of cl. (b) the expression "Government Service" includes service rendered in a former provincial Government and in a Ex-Company and Ex-State Railways can be allowed to stand to this extent.

Pramod Jain Vs. Sebi

has found that permitting the respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer. Mr Nariman has referred to a tabular statement and data to show that there is no substantial variation in the share prices that ensued making of the public offer. Having seen the Table, we find substance in the submission of Mr Nariman that there is hardly any variation in the shares of the target company from 20-10-2011 till 30-11-2011. The variation seems to have been between Rs 78.10 (on 24-11-2011) and Rs 87.60 (on 20-10-2011). Such a variation cannot be said to be the result of the public offer. But this will not detract from the well-known phenomena that public announcement of the public offering affects the securities market and the shares of the target company. The impact is immediate.35. We are also not impressed by the submission of Mr Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. We reiterate our opinion in Nirma Industries Ltd. that under Regulations 27(1)(b), (c) and (d), a public offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the public offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.”OUR FINDINGSRe. Question (i)26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly.Re. Question (ii)27. As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.28. In view of the above, we

0[ds]26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly.As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.

### 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: has found that permitting the respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer. Mr Nariman has referred to a tabular statement and data to show that there is no substantial variation in the share prices that ensued making of the public offer. Having seen the Table, we find substance in the submission of Mr Nariman that there is hardly any variation in the shares of the target company from 20-10-2011 till 30-11-2011. The variation seems to have been between Rs 78.10 (on 24-11-2011) and Rs 87.60 (on 20-10-2011). Such a variation cannot be said to be the result of the public offer. But this will not detract from the well-known phenomena that public announcement of the public offering affects the securities market and the shares of the target company. The impact is immediate.35. We are also not impressed by the submission of Mr Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. We reiterate our opinion in Nirma Industries Ltd. that under Regulations 27(1)(b), (c) and (d), a public offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the public offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.”OUR FINDINGSRe. Question (i)26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly.Re. Question (ii)27. As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.28. In view of the above, we ### Response: 0 ### Explanation: 26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly.As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.

Banamali Das Vs. Rajendra Chandra Mardaraj Harichandan & Ors

instead of 86; respondent No. 2 - 360 votes instead of 304; respondent No. 3 - 19 votes instead of 7; respondent No. 4 - 74 votes instead of 15, and respondent No. 5-225 votes instead of 524. In short, whereas the appellant had truly secured 21 votes only in the second round of counting on Table No.13, the Final Result Sheet, Form No.20 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes. The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was to the extent of 23 votes only. As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1, it is plain that respondent 1 and not the appellant had polled the largest number of votes.14. A mere look at the entries in Form No. 20 relating to the second round of counting on Tables Nos. 13 and 14 would disclose the error committed in making the entries therein. The entries made in respect of Table No. 14 were accurate, but precisely those very figures were through some error carried to the second round of Table No, 13. It can seldom happen that five contesting candidates would secure precisely the same number of votes in the same round of counting on two different tables, when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle. It is, however, unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the appropriate column of Form No. 20.We therefore uphold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No.13 was entirely omitted while making entries in Form No. 20. It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate.15. This really should be an end of the matter because the only ground on which respondent 1 had challenged the appellants election was that the relevant entries in Form No. 20 did not reflect the true picture. But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt here and a doubt there regarding the manner in which the votes were counted and the ballot papers preserved. In our opinion the learned Judge was in error in directing, merely because his suggestion was accepted by the parties appearing before him, that the court should take a recount of all the ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in Form No. 20 reflected a true picture and contained no error. The consent to the recount was given only by the appellant and respondents 1 and 2. The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parties. The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue. After the Deputy Registrar submitted his report, the learned Judge felt "serious doubts about the correctness of the recount" but all that he did in order to allay those doubts was to take a re-recount of a packet of votes where he thought the error of the recount could with assurance be located. And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to see the light of the day as a result of the recount and the re-recount. Even election petitions must end at some stage and they cannot, for the reason that elections are a democratic venture be permitted to procreate points during the course of their pendency. As we were listening to the appellants argument, we thought we were hearing an independent election petition filed by the appellant in order to challenge the result of the recount.Mr. Somnath Chatterjee, appearing for the appellant, argued that the facts which have emerged out of the recount throw considerable doubt on the manner in which the election was held and therefore instead of declaring respondent No. 1 as the successful candidate we should order that a fresh election be held. Elections, says the learned counsel, are not a matter of technicalities and the court must satisfy its conscience that the election before it was free and fair. Justice may be a matter of the Judges conscience but even a strong and sensitive conscience must not brook an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder. The new errors on which the appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail.16. As respondent 1 truly secured the maximum number of votes and as the appellant was, through an error, shown to have secured the maximum number of votes, we must uphold the judgment of the Orissa High Court setting aside the appellants election and declaring respondent 1 as the successful candidate.

0[ds]5. Issues Nos. 6 to 8 are the ones with which alone we are concerned in this appeal and those issues arise out of the contentions in regard to the entries made by the Returning Officer in Form No. 20. The ninth issue is consequential.In order to avoid errors in counting of votes, the Election Commission has compiled a hand-book for the use of returning officers containing instructions for their guidance at various stages of the elections. Before the results of the election are entered in Form No. 20, it is necessary that a record be maintained of the result of counting of eachCheck Memo which is required to be maintained by the officer in charge of the counting table is a document forming record of the acts of a public officer and therefore, a certified copy thereof given by the Collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of the original document.13. The certified copy (Ex. 1) of the Check Memo concerning the second round of counting on Table No. 13 shows that 40 bundles each containing 25 ballot papers (i.e. 1000 ballot papers) were distributed for counting in the second round. Part I of Ex. I contains these details. Part II of Ex. 1 shows the result of counting at the second round. According to the entries contained therein, the appellant secured 21 valid votes, respondent 1 secured 86, while respondents 2 to 5 secured 304, 7, 15 and 524 votes respectively. Forty-two ballot papers were rejected, thus making up a total of 999 ballot papers. Evidently, there was an error regarding one ballot paper either at the stage of distribution or at the stage of counting. What is relevant is not that there was an error in the counting of one ballot paper but that the result of counting which is entered in the Check Memo ought to have been incorporated in Form No. 20 in the appropriate column. Surprisingly, in Form No. 20, the votes secured by the various candidates in the second round of counting on Table No. 13 were shown as: the appellant - 144 votes instead of 21; respondent 1-109 votes instead of 86; respondent No. 2 - 360 votes instead of 304; respondent No. 3 - 19 votes instead of 7; respondent No. 4 - 74 votes instead of 15, and respondent No. 5-225 votes instead of 524. In short, whereas the appellant had truly secured 21 votes only in the second round of counting on Table No.13, the Final Result Sheet, Form No.20 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes. The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was to the extent of 23 votes only. As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1, it is plain that respondent 1 and not the appellant had polled the largest number of votes.14. A mere look at the entries in Form No. 20 relating to the second round of counting on Tables Nos. 13 and 14 would disclose the error committed in making the entries therein. The entries made in respect of Table No. 14 were accurate, but precisely those very figures were through some error carried to the second round of Table No, 13. It can seldom happen that five contesting candidates would secure precisely the same number of votes in the same round of counting on two different tables, when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle. It is, however, unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the appropriate column of Form No. 20.We therefore uphold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No.13 was entirely omitted while making entries in Form No. 20. It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate.15. This really should be an end of the matter because the only ground on which respondent 1 had challenged the appellants election was that the relevant entries in Form No. 20 did not reflect the true picture. But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt here and a doubt there regarding the manner in which the votes were counted and the ballot papers preserved. In our opinion the learned Judge was in error in directing, merely because his suggestion was accepted by the parties appearing before him, that the court should take a recount of all the ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in Form No. 20 reflected a true picture and contained no error. The consent to the recount was given only by the appellant and respondents 1 and 2. The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parties. The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue. After the Deputy Registrar submitted his report, the learned Judge felt "serious doubts about the correctness of the recount" but all that he did in order to allay those doubts was to take a re-recount of a packet of votes where he thought the error of the recount could with assurance be located. And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to see the light of the day as a result of the recount and the re-recount. Even election petitions must end at some stage and they cannot, for the reason that elections are a democratic venture be permitted to procreate points during the course of their pendency. As we were listening to the appellants argument, we thought we were hearing an independent election petition filed by the appellant in order to challenge the result of the recount.As respondent 1 truly secured the maximum number of votes and as the appellant was, through an error, shown to have secured the maximum number of votes, we must uphold the judgment of the Orissa High Court setting aside the appellants election and declaring respondent 1 as the successfulnew errors on which the appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail.

### 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: instead of 86; respondent No. 2 - 360 votes instead of 304; respondent No. 3 - 19 votes instead of 7; respondent No. 4 - 74 votes instead of 15, and respondent No. 5-225 votes instead of 524. In short, whereas the appellant had truly secured 21 votes only in the second round of counting on Table No.13, the Final Result Sheet, Form No.20 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes. The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was to the extent of 23 votes only. As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1, it is plain that respondent 1 and not the appellant had polled the largest number of votes.14. A mere look at the entries in Form No. 20 relating to the second round of counting on Tables Nos. 13 and 14 would disclose the error committed in making the entries therein. The entries made in respect of Table No. 14 were accurate, but precisely those very figures were through some error carried to the second round of Table No, 13. It can seldom happen that five contesting candidates would secure precisely the same number of votes in the same round of counting on two different tables, when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle. It is, however, unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the appropriate column of Form No. 20.We therefore uphold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No.13 was entirely omitted while making entries in Form No. 20. It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate.15. This really should be an end of the matter because the only ground on which respondent 1 had challenged the appellants election was that the relevant entries in Form No. 20 did not reflect the true picture. But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt here and a doubt there regarding the manner in which the votes were counted and the ballot papers preserved. In our opinion the learned Judge was in error in directing, merely because his suggestion was accepted by the parties appearing before him, that the court should take a recount of all the ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in Form No. 20 reflected a true picture and contained no error. The consent to the recount was given only by the appellant and respondents 1 and 2. The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parties. The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue. After the Deputy Registrar submitted his report, the learned Judge felt "serious doubts about the correctness of the recount" but all that he did in order to allay those doubts was to take a re-recount of a packet of votes where he thought the error of the recount could with assurance be located. And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to see the light of the day as a result of the recount and the re-recount. Even election petitions must end at some stage and they cannot, for the reason that elections are a democratic venture be permitted to procreate points during the course of their pendency. As we were listening to the appellants argument, we thought we were hearing an independent election petition filed by the appellant in order to challenge the result of the recount.Mr. Somnath Chatterjee, appearing for the appellant, argued that the facts which have emerged out of the recount throw considerable doubt on the manner in which the election was held and therefore instead of declaring respondent No. 1 as the successful candidate we should order that a fresh election be held. Elections, says the learned counsel, are not a matter of technicalities and the court must satisfy its conscience that the election before it was free and fair. Justice may be a matter of the Judges conscience but even a strong and sensitive conscience must not brook an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder. The new errors on which the appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail.16. As respondent 1 truly secured the maximum number of votes and as the appellant was, through an error, shown to have secured the maximum number of votes, we must uphold the judgment of the Orissa High Court setting aside the appellants election and declaring respondent 1 as the successful candidate. ### Response: 0 ### Explanation: 5 secured 304, 7, 15 and 524 votes respectively. Forty-two ballot papers were rejected, thus making up a total of 999 ballot papers. Evidently, there was an error regarding one ballot paper either at the stage of distribution or at the stage of counting. What is relevant is not that there was an error in the counting of one ballot paper but that the result of counting which is entered in the Check Memo ought to have been incorporated in Form No. 20 in the appropriate column. Surprisingly, in Form No. 20, the votes secured by the various candidates in the second round of counting on Table No. 13 were shown as: the appellant - 144 votes instead of 21; respondent 1-109 votes instead of 86; respondent No. 2 - 360 votes instead of 304; respondent No. 3 - 19 votes instead of 7; respondent No. 4 - 74 votes instead of 15, and respondent No. 5-225 votes instead of 524. In short, whereas the appellant had truly secured 21 votes only in the second round of counting on Table No.13, the Final Result Sheet, Form No.20 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes. The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was to the extent of 23 votes only. As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1, it is plain that respondent 1 and not the appellant had polled the largest number of votes.14. A mere look at the entries in Form No. 20 relating to the second round of counting on Tables Nos. 13 and 14 would disclose the error committed in making the entries therein. The entries made in respect of Table No. 14 were accurate, but precisely those very figures were through some error carried to the second round of Table No, 13. It can seldom happen that five contesting candidates would secure precisely the same number of votes in the same round of counting on two different tables, when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle. It is, however, unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the appropriate column of Form No. 20.We therefore uphold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No.13 was entirely omitted while making entries in Form No. 20. It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate.15. This really should be an end of the matter because the only ground on which respondent 1 had challenged the appellants election was that the relevant entries in Form No. 20 did not reflect the true picture. But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt here and a doubt there regarding the manner in which the votes were counted and the ballot papers preserved. In our opinion the learned Judge was in error in directing, merely because his suggestion was accepted by the parties appearing before him, that the court should take a recount of all the ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in Form No. 20 reflected a true picture and contained no error. The consent to the recount was given only by the appellant and respondents 1 and 2. The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parties. The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue. After the Deputy Registrar submitted his report, the learned Judge felt "serious doubts about the correctness of the recount" but all that he did in order to allay those doubts was to take a re-recount of a packet of votes where he thought the error of the recount could with assurance be located. And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to see the light of the day as a result of the recount and the re-recount. Even election petitions must end at some stage and they cannot, for the reason that elections are a democratic venture be permitted to procreate points during the course of their pendency. As we were listening to the appellants argument, we thought we were hearing an independent election petition filed by the appellant in order to challenge the result of the recount.As respondent 1 truly secured the maximum number of votes and as the appellant was, through an error, shown to have secured the maximum number of votes, we must uphold the judgment of the Orissa High Court setting aside the appellants election and declaring respondent 1 as the successfulnew errors on which the appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail.

Bai Malimabu and Others Vs. State of Gujarat and Others

to the parties interested. There is no such requirement in the said rule. It merely pre-supposes that the Collector has issued notices to the parties interested under Section 4(1). The requirement of the section is giving of a general notice and by two methods (1) by the publication of the notification in the Official Gazette and (2) causing public notice of the substance of such notification to be given at convenient places in the locality. The appellants do not contend that there was no compliance with the requirements aforesaid. Proper inquiry was held under Section 5A of and Act and full opportunity was given to the appellants. It was not the requirement of the law to give any further opportunity after a report was made to the State Government. It is the function of the State Government to consider the report of the Collector and proceed further in the matter as they think fit and proper to do.6. The next submission for the appellants was that contribution of only Re. 1 from the Public Exchequer by the State Government for the purposes of acquiring land for the use of the Employees State Insurance Corporation was a colourable exercise of power and did not in effect and substance fulfil the requirement of law as engrafted in Section 6 of the Act. A complete answer is to be found in the majority decision of this Court in Somavantis case (supra) and in the case of Inderjit C. Parekh v. State of Gujarat (AIR 1975 SC 1182 : (1975) 1 SCC 824 ).7. The above were the main points urged for the appellants in this appeal and there are numerous decisions of this Court showing that none of them had any substance. Apart from the cases which we have mentioned above, we may mention a few more and they are : (1) Munshi Singh v. Union of India ((1973) 1 SCR 973 : (1973) 2 SCC 337 ), (2) Aflatoon v. Lt. Governor of Delhi ((1975) 1 SCR 802 : (1975) 4 SCC 285 ), and (3) Lila Ram v. Union of India ((1976) 1 SCR 341 : (1975) 2 SCC 547 ). It has been reiterated by this Court in State of Gujarat v. Ambalal Haiderbhai (1976 Supp SCR 33 : (1976) 3 SCC 495 ), that whether the inquiry under Section 5A is of an administrative nature or a judicial one, it is plain that principles of natural justice cannot be violated. In the instant case no such principle was violated.8. For the reason stated above, we affirm the decision of the High Court and dismiss the appeal with costs.Civil Appeal 1406 of 19689. Mr. Hardev Singh, learned Counsel for the appellants in this appeal finding that it was no use beating about the bush on the general and common points argued in the High Court very discreetly and rightly decided to press only two points for our consideration in this appeal. They are :(1) That the land in question in this appeal was a land belonging to a Public Trust used as a burial ground, hence it could not be and ought not to have been acquired for the purpose of constructing a dispensary for the employees of the State Insurance Scheme; and(2) That the report under Section 5A was made by the Special Lands Acquisition Officer who was not an authorised Collector and had not heard objections under Section 5A and, therefore, the declaration made by the State Government under Section 6 of the Act after considering his report was invalid.10. The High Court has considered the statements in the writ petitions and the counters filed on behalf of the Government. It has come to the conclusion that the land was not being used as a burial ground. We find no sufficient ground to induce us to take a view different from the one taken by the High Court. According to the counter, the Collector and the Special Land Acquisition Officer had visited the locality and found only two old tombs in a corner of the big area of the land which measures about three-fourths of an acre. The said tombs were in a dilapidated condition also. The rest of the land was lying open, dormant, unused and uncared for without there being any enclosure or the like. In some parts of the land only cow-dung cakes were being prepared. Mr. Hardev Singh was not right when he submitted on the basis of this statement in the counter that inquiry under Section 5A was held by the Special Land Acquisition Officer. It could not be clearly ascertained as to when he had visited the locality. His observations were merely used for the purpose of supporting the fact asserted by the respondent that the land was not being used as a burial ground.11. Indisputably the City Survey Officer was appointed a Collector under Section 3(c) of the Act. He had heard the objection under Section 5A and submitted his report to the State Government. The case was thereafter transferred by the Collector to the Special Land Acquistion Officer on September 6, 1965 from the City Survey Officer. But nothing effective or substantial appears to have been done by him. The notification under Section 6 was published on April 5, 1966. An erratum was issued by the Government on June 7, 1966, appointing the Special Land Acquisition Officer as the Collector in place of the City Survey Officer with retrospective date. The stand taken on behalf of the appellants before the High Court was just contrary to the one taken before us. We did not find any substance even in the second point urged before us. On examination of the supplementary counter-affidavit filed on behalf of the Government, it is clear that the City Survey Officer had dealt with the objections under Section 5A and made his report to the State Government. There was no infirmity in issuing the declaration under Section 6 of the Act on consideration of his report.

0[ds]10. The High Court has considered the statements in the writ petitions and the counters filed on behalf of the Government. It has come to the conclusion that the land was not being used as a burial ground. We find no sufficient ground to induce us to take a view different from the one taken by the High Court. According to the counter, the Collector and the Special Land Acquisition Officer had visited the locality and found only two old tombs in a corner of the big area of the land which measures aboutof an acre. The said tombs were in a dilapidated condition also. The rest of the land was lying open, dormant, unused and uncared for without there being any enclosure or the like. In some parts of the land onlycakes were being prepared. Mr. Hardev Singh was not right when he submitted on the basis of this statement in the counter that inquiry under Section 5A was held by the Special Land Acquisition Officer. It could not be clearly ascertained as to when he had visited the locality. His observations were merely used for the purpose of supporting the fact asserted by the respondent that the land was not being used as a burial ground.The High Court has considered the statements in the writ petitions and the counters filed on behalf of the Government. It has come to the conclusion that the land was not being used as a burial ground. We find no sufficient ground to induce us to take a view different from the one taken by the High Court. According to the counter, the Collector and the Special Land Acquisition Officer had visited the locality and found only two old tombs in a corner of the big area of the land which measures aboutof an acre. The said tombs were in a dilapidated condition also. The rest of the land was lying open, dormant, unused and uncared for without there being any enclosure or the like. In some parts of the land onlys were being prepared. Mr. Hardev Singh was not right when he submitted on the basis of this statement in the counter that inquiry under Section 5A was held by the Special Land Acquisition Officer. It could not be clearly ascertained as to when he had visited the locality. His observations were merely used for the purpose of supporting the fact asserted by the respondent that the land was not being used as a burial ground.Indisputably the City Survey Officer was appointed a Collector under Section 3(c) of the Act. He had heard the objection under Section 5A and submitted his report to the State Government. The case was thereafter transferred by the Collector to the Special Land Acquistion Officer on September 6, 1965 from the City Survey Officer. But nothing effective or substantial appears to have been done by him. The notification under Section 6 was published on April 5, 1966. An erratum was issued by the Government on June 7, 1966, appointing the Special Land Acquisition Officer as the Collector in place of the City Survey Officer with retrospective date. The stand taken on behalf of the appellants before the High Court was just contrary to the one taken before us. We did not find any substance even in the second point urged before us. On examination of the supplementaryfiled on behalf of the Government, it is clear that the City Survey Officer had dealt with the objections under Section 5A and made his report to the State Government. There was no infirmity in issuing the declaration under Section 6 of the Act on consideration of his report.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: to the parties interested. There is no such requirement in the said rule. It merely pre-supposes that the Collector has issued notices to the parties interested under Section 4(1). The requirement of the section is giving of a general notice and by two methods (1) by the publication of the notification in the Official Gazette and (2) causing public notice of the substance of such notification to be given at convenient places in the locality. The appellants do not contend that there was no compliance with the requirements aforesaid. Proper inquiry was held under Section 5A of and Act and full opportunity was given to the appellants. It was not the requirement of the law to give any further opportunity after a report was made to the State Government. It is the function of the State Government to consider the report of the Collector and proceed further in the matter as they think fit and proper to do.6. The next submission for the appellants was that contribution of only Re. 1 from the Public Exchequer by the State Government for the purposes of acquiring land for the use of the Employees State Insurance Corporation was a colourable exercise of power and did not in effect and substance fulfil the requirement of law as engrafted in Section 6 of the Act. A complete answer is to be found in the majority decision of this Court in Somavantis case (supra) and in the case of Inderjit C. Parekh v. State of Gujarat (AIR 1975 SC 1182 : (1975) 1 SCC 824 ).7. The above were the main points urged for the appellants in this appeal and there are numerous decisions of this Court showing that none of them had any substance. Apart from the cases which we have mentioned above, we may mention a few more and they are : (1) Munshi Singh v. Union of India ((1973) 1 SCR 973 : (1973) 2 SCC 337 ), (2) Aflatoon v. Lt. Governor of Delhi ((1975) 1 SCR 802 : (1975) 4 SCC 285 ), and (3) Lila Ram v. Union of India ((1976) 1 SCR 341 : (1975) 2 SCC 547 ). It has been reiterated by this Court in State of Gujarat v. Ambalal Haiderbhai (1976 Supp SCR 33 : (1976) 3 SCC 495 ), that whether the inquiry under Section 5A is of an administrative nature or a judicial one, it is plain that principles of natural justice cannot be violated. In the instant case no such principle was violated.8. For the reason stated above, we affirm the decision of the High Court and dismiss the appeal with costs.Civil Appeal 1406 of 19689. Mr. Hardev Singh, learned Counsel for the appellants in this appeal finding that it was no use beating about the bush on the general and common points argued in the High Court very discreetly and rightly decided to press only two points for our consideration in this appeal. They are :(1) That the land in question in this appeal was a land belonging to a Public Trust used as a burial ground, hence it could not be and ought not to have been acquired for the purpose of constructing a dispensary for the employees of the State Insurance Scheme; and(2) That the report under Section 5A was made by the Special Lands Acquisition Officer who was not an authorised Collector and had not heard objections under Section 5A and, therefore, the declaration made by the State Government under Section 6 of the Act after considering his report was invalid.10. The High Court has considered the statements in the writ petitions and the counters filed on behalf of the Government. It has come to the conclusion that the land was not being used as a burial ground. We find no sufficient ground to induce us to take a view different from the one taken by the High Court. According to the counter, the Collector and the Special Land Acquisition Officer had visited the locality and found only two old tombs in a corner of the big area of the land which measures about three-fourths of an acre. The said tombs were in a dilapidated condition also. The rest of the land was lying open, dormant, unused and uncared for without there being any enclosure or the like. In some parts of the land only cow-dung cakes were being prepared. Mr. Hardev Singh was not right when he submitted on the basis of this statement in the counter that inquiry under Section 5A was held by the Special Land Acquisition Officer. It could not be clearly ascertained as to when he had visited the locality. His observations were merely used for the purpose of supporting the fact asserted by the respondent that the land was not being used as a burial ground.11. Indisputably the City Survey Officer was appointed a Collector under Section 3(c) of the Act. He had heard the objection under Section 5A and submitted his report to the State Government. The case was thereafter transferred by the Collector to the Special Land Acquistion Officer on September 6, 1965 from the City Survey Officer. But nothing effective or substantial appears to have been done by him. The notification under Section 6 was published on April 5, 1966. An erratum was issued by the Government on June 7, 1966, appointing the Special Land Acquisition Officer as the Collector in place of the City Survey Officer with retrospective date. The stand taken on behalf of the appellants before the High Court was just contrary to the one taken before us. We did not find any substance even in the second point urged before us. On examination of the supplementary counter-affidavit filed on behalf of the Government, it is clear that the City Survey Officer had dealt with the objections under Section 5A and made his report to the State Government. There was no infirmity in issuing the declaration under Section 6 of the Act on consideration of his report. ### Response: 0 ### Explanation: 10. The High Court has considered the statements in the writ petitions and the counters filed on behalf of the Government. It has come to the conclusion that the land was not being used as a burial ground. We find no sufficient ground to induce us to take a view different from the one taken by the High Court. According to the counter, the Collector and the Special Land Acquisition Officer had visited the locality and found only two old tombs in a corner of the big area of the land which measures aboutof an acre. The said tombs were in a dilapidated condition also. The rest of the land was lying open, dormant, unused and uncared for without there being any enclosure or the like. In some parts of the land onlycakes were being prepared. Mr. Hardev Singh was not right when he submitted on the basis of this statement in the counter that inquiry under Section 5A was held by the Special Land Acquisition Officer. It could not be clearly ascertained as to when he had visited the locality. His observations were merely used for the purpose of supporting the fact asserted by the respondent that the land was not being used as a burial ground.The High Court has considered the statements in the writ petitions and the counters filed on behalf of the Government. It has come to the conclusion that the land was not being used as a burial ground. We find no sufficient ground to induce us to take a view different from the one taken by the High Court. According to the counter, the Collector and the Special Land Acquisition Officer had visited the locality and found only two old tombs in a corner of the big area of the land which measures aboutof an acre. The said tombs were in a dilapidated condition also. The rest of the land was lying open, dormant, unused and uncared for without there being any enclosure or the like. In some parts of the land onlys were being prepared. Mr. Hardev Singh was not right when he submitted on the basis of this statement in the counter that inquiry under Section 5A was held by the Special Land Acquisition Officer. It could not be clearly ascertained as to when he had visited the locality. His observations were merely used for the purpose of supporting the fact asserted by the respondent that the land was not being used as a burial ground.Indisputably the City Survey Officer was appointed a Collector under Section 3(c) of the Act. He had heard the objection under Section 5A and submitted his report to the State Government. The case was thereafter transferred by the Collector to the Special Land Acquistion Officer on September 6, 1965 from the City Survey Officer. But nothing effective or substantial appears to have been done by him. The notification under Section 6 was published on April 5, 1966. An erratum was issued by the Government on June 7, 1966, appointing the Special Land Acquisition Officer as the Collector in place of the City Survey Officer with retrospective date. The stand taken on behalf of the appellants before the High Court was just contrary to the one taken before us. We did not find any substance even in the second point urged before us. On examination of the supplementaryfiled on behalf of the Government, it is clear that the City Survey Officer had dealt with the objections under Section 5A and made his report to the State Government. There was no infirmity in issuing the declaration under Section 6 of the Act on consideration of his report.

MITTAL PIPES MANUFACTURING CO Vs. COMMISSIONER OF CENTRAL EXCISE, NEW DELHI

1. This order shall dispose of the aforesaid Civil Appeals as they have been filed by the company or its partners and the points involve are the same. For the sake of brevity, facts are taken from Civil Appeal No.4355 of 2002. Facts: 2. Appellant received supply order from 203 Engineer Regiment vide supply order dated 23.4.1988 for supply of 8 pre-fabricated steel helicopter hangars of the size of 18 mts. x 16.5 mts. suitable to accommodate two Cheetah Helicopters. Similarly, as per supply order dated 1.8.1987, they received order for supply of 50 pre-fabricated tubular shelters with outside cladding including roofing as per specification, detailed in that order itself. They classified these products as steel structures under Chapter Heading 73.08. 3. A show cause notice dated 05th May, 1990 by invoking the extended period of limitation u/s 11A of the Act was issued to the appellant alleging that they are evading excise duty on pre-fabricated shelters by mis-declaring their product as steel structures falling under Sub-heading 7308.90 instead of pre-fabricated buildings falling under Sub-heading 94.06 of the Central Excise Tariff Act and also by under valuation of the same. A demand of Rs. 47,78,107.71 for the period 1985- 86 to 198801989 was raised against the appellant and penalty was also proposed against all the partners. Mr. D.K. Mittal, partner of the company was asked to produce the documents relevant to the enquiry by issuing summons u/s 14 of Central Excise & Salt Act, 1944 (for short, the Act) by the Senior Intelligence Officer. It was noticed from the purchase orders received from the defence authorities that the orders were for supply of complete pre-fabricated buildings and not for steel structures. Mr. D.K. Mittal, partner of the Company in his statement, recorded during the investigation, admitted that the orders received by the company were for supply of complete pre-fabricated buildings and supply was made accordingly. 4. Collector of Central Excise, Delhi vide his order dated 31.3.1992 confirmed the demand against the appellant and penalty of Rs. 2,00,000/- was imposed upon it. Appellant filed appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (for short, the Tribunal). The main ground taken in the appeal was that Collector did not give an opportunity to the appellant to either cross-examine or to make its submissions. Tribunal vide its order dated 22.12.1992 remanded the matter to the Collector with a direction to adjudicate the show cause notice after affording the opportunity of cross-examine and the submissions made. 5. Thereafter, appellant filed its written submissions before the Collector of Central Excise, New Delhi. 6. Collector again vide his order-in-original dated 20.5.1994 confirmed the demand of Rs. 47,78,107.71 and imposed penalty of Rs. 10,00,000/- on the appellant. Penalty of Rs. 1,00,000/- was also imposed on all the partners. 7. Being aggrieved, company and its partners filed appeals before the Tribunal. Tribunal by its impugned common order has confirmed the demand duty but reduced the penalty of Rs. 10,00,000/- imposed on the company to Rs. 2,00,000/- on the ground that before remand penalty imposed was Rs. 2,00,000/-. However, penalty of Rs. 1,00,000/- imposed on all the partners was maintained. Tribunal in its impugned order has recorded a finding that the appellant received orders from the defence authorities for complete pre-fabricated buildings classifiable under Sub- heading 94.06 and the supply was made accordingly. That Mr. D.K. Mittal, partner of the company in his statement had admitted that the firm received the orders from the defence authorities for complete pre- fabricated buildings. This finding is a finding of fact which does not call for any interference. Tribunal has also recorded a finding that there was no violation of principles of natural justice and adequate opportunity had been provided to the appellant. Mistake committed by the authorities below was rectified by the Tribunal by remanding the matter to provide the opportunity to the appellant which was denied to it. The third point which had been decided against the appellant is regarding limitation. We agree with the view taken by the Tribunal that there was suppression of material facts by the appellant and the revenue was right in invoking the extended period of limitation u/s 11A of the Central Excise Act, 1944.

0[ds]That Mr. D.K. Mittal, partner of the company in his statement had admitted that the firm received the orders from the defence authorities for complete pre- fabricated buildings. This finding is a finding of fact which does not call for any interference. Tribunal has also recorded a finding that there was no violation of principles of natural justice and adequate opportunity had been provided to the appellant. Mistake committed by the authorities below was rectified by the Tribunal by remanding the matter to provide the opportunity to the appellant which was denied to it. The third point which had been decided against the appellant is regarding limitation. We agree with the view taken by the Tribunal that there was suppression of material facts by the appellant and the revenue was right in invoking the extended period of limitation u/s 11A of the Central Excise Act, 1944.

### 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: 1. This order shall dispose of the aforesaid Civil Appeals as they have been filed by the company or its partners and the points involve are the same. For the sake of brevity, facts are taken from Civil Appeal No.4355 of 2002. Facts: 2. Appellant received supply order from 203 Engineer Regiment vide supply order dated 23.4.1988 for supply of 8 pre-fabricated steel helicopter hangars of the size of 18 mts. x 16.5 mts. suitable to accommodate two Cheetah Helicopters. Similarly, as per supply order dated 1.8.1987, they received order for supply of 50 pre-fabricated tubular shelters with outside cladding including roofing as per specification, detailed in that order itself. They classified these products as steel structures under Chapter Heading 73.08. 3. A show cause notice dated 05th May, 1990 by invoking the extended period of limitation u/s 11A of the Act was issued to the appellant alleging that they are evading excise duty on pre-fabricated shelters by mis-declaring their product as steel structures falling under Sub-heading 7308.90 instead of pre-fabricated buildings falling under Sub-heading 94.06 of the Central Excise Tariff Act and also by under valuation of the same. A demand of Rs. 47,78,107.71 for the period 1985- 86 to 198801989 was raised against the appellant and penalty was also proposed against all the partners. Mr. D.K. Mittal, partner of the company was asked to produce the documents relevant to the enquiry by issuing summons u/s 14 of Central Excise & Salt Act, 1944 (for short, the Act) by the Senior Intelligence Officer. It was noticed from the purchase orders received from the defence authorities that the orders were for supply of complete pre-fabricated buildings and not for steel structures. Mr. D.K. Mittal, partner of the Company in his statement, recorded during the investigation, admitted that the orders received by the company were for supply of complete pre-fabricated buildings and supply was made accordingly. 4. Collector of Central Excise, Delhi vide his order dated 31.3.1992 confirmed the demand against the appellant and penalty of Rs. 2,00,000/- was imposed upon it. Appellant filed appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (for short, the Tribunal). The main ground taken in the appeal was that Collector did not give an opportunity to the appellant to either cross-examine or to make its submissions. Tribunal vide its order dated 22.12.1992 remanded the matter to the Collector with a direction to adjudicate the show cause notice after affording the opportunity of cross-examine and the submissions made. 5. Thereafter, appellant filed its written submissions before the Collector of Central Excise, New Delhi. 6. Collector again vide his order-in-original dated 20.5.1994 confirmed the demand of Rs. 47,78,107.71 and imposed penalty of Rs. 10,00,000/- on the appellant. Penalty of Rs. 1,00,000/- was also imposed on all the partners. 7. Being aggrieved, company and its partners filed appeals before the Tribunal. Tribunal by its impugned common order has confirmed the demand duty but reduced the penalty of Rs. 10,00,000/- imposed on the company to Rs. 2,00,000/- on the ground that before remand penalty imposed was Rs. 2,00,000/-. However, penalty of Rs. 1,00,000/- imposed on all the partners was maintained. Tribunal in its impugned order has recorded a finding that the appellant received orders from the defence authorities for complete pre-fabricated buildings classifiable under Sub- heading 94.06 and the supply was made accordingly. That Mr. D.K. Mittal, partner of the company in his statement had admitted that the firm received the orders from the defence authorities for complete pre- fabricated buildings. This finding is a finding of fact which does not call for any interference. Tribunal has also recorded a finding that there was no violation of principles of natural justice and adequate opportunity had been provided to the appellant. Mistake committed by the authorities below was rectified by the Tribunal by remanding the matter to provide the opportunity to the appellant which was denied to it. The third point which had been decided against the appellant is regarding limitation. We agree with the view taken by the Tribunal that there was suppression of material facts by the appellant and the revenue was right in invoking the extended period of limitation u/s 11A of the Central Excise Act, 1944. ### Response: 0 ### Explanation: That Mr. D.K. Mittal, partner of the company in his statement had admitted that the firm received the orders from the defence authorities for complete pre- fabricated buildings. This finding is a finding of fact which does not call for any interference. Tribunal has also recorded a finding that there was no violation of principles of natural justice and adequate opportunity had been provided to the appellant. Mistake committed by the authorities below was rectified by the Tribunal by remanding the matter to provide the opportunity to the appellant which was denied to it. The third point which had been decided against the appellant is regarding limitation. We agree with the view taken by the Tribunal that there was suppression of material facts by the appellant and the revenue was right in invoking the extended period of limitation u/s 11A of the Central Excise Act, 1944.