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PRAMOD KUMAR Vs. ZALAK SINGH

We are of the view that, that the period of limitation under Article 109 is different from the period of limitation in respect of the first sale deed, cannot operate so as to exclude the bar under Order II Rule 2. The principle underlying Order II Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit. Order II Rule 2 provides for the principle of repose. If this be the underlying object of Order II Rule 2, the fact that at the time when the first suit was filed even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II Rule 2. 36. Now, let us consider the further argument of the learned counsel for the respondent based on Order VII Rule 1 CPC. Order VII Rule 1 provides for the particulars to be contained in a plaint. It, inter alia, provides that the facts constituting the cause of action and when it arose, be pleaded. Apparently, the argument of the respondents is having regard to Article 109 of the Limitation Act, the cause of action as provided in Article 109, would commence from the date of the deed being 11.02.1959, and therefore, it has a different period of limitation as already noted. It indicates that cause of action, raised in the second suit, is not identical with a cause of action in the first suit. We are of the view that this argument proceeds on a misapprehension as to what constitutes the cause of action. Cause of action has been explained in many decisions. It is the bundle of facts, which if traversed, must be proved. However, as laid down by the Privy Council, it would be understood also to mean the media through which Courts intervention is sought by the plaintiff. 37. What is the legal basis/factual matrix premised on which the plaintiff seeks a decree? 38. In this case, we have noticed the pleadings. The case of the plaintiffs appears to be that the property is ancestral property. Their late father Tikaram was given to wasteful ways and addicted to drink and otherwise. He was given to selling properties. His well-wishers intervened and partition ensued. However, 8.22 acres falling in Kh.No.189 was kept out of the partition deed. He decided to sell 8.22 acres without there being any legal necessity and without any benefit to the joint family. The first part of the transaction, which consisted of two parts, pertained to sale deed dated 21.01.1959 and that was the subject matter of the first suit. At the time of filing of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed which constituted the remaining portion which consisted of the 8.22 acres as already noticed. The suits contained virtually identical averments in regard to both the transactions. The first suit was filed in 1963 and the second suit filed in the year 1971. 39. We are of the view that in such circumstances, this is a case where the plaintiff ought to have included relief in the form of setting aside the second sale deed also. This is not a case where the second sale deed had not been executed when the plaintiff instituted the first suit. We are not, for a moment, declaring the effect of the sale deed having been executed subsequently to the institution of the suit as we do not have to pronounce on the effect of such a sale. We are only emphasizing that it was open to the respondent/plaintiff to seek relief in respect of the second sale executed by their predecessor-in- interest and what is more important in favour of the same parties (defendants) who are the appellants before us. 40. The High Court has proceeded to reason based on Order II Rule 3. It is open to the plaintiff to combine causes of action. Order II Rule 3 reads as follows: 3. Joinder of causes of action (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit. 41. It is undoubtedly true that the law does not compel a litigant to combine one or more causes of action in a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 will not apply. It is undoubtedly also true that Order II Rule 2 manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But as already noted, there is an equally important principle that no person shall be vexed twice on the same cause of action. 42. That on the same cause of action, the plaintiffs having omitted to sue in respect of the sale deed in question, we would think that bar under Order II Rule 2 would apply.

1[ds]27. Thus, in respect of omission to include a part of the claim or relinquishing a part of the claim flowing from a cause of action, the result is that the plaintiff is totally barred from instituting a suit later in respect of the claim so omitted or relinquished. However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from the Court, then a second suit, for a different relief than one claimed in the earlier suit, can be prayed for. There are three expressions which are found in Order II Rule 2. Firstly, there is reference to the word cause of action, secondly the word claim is alluded to and finally reference is made to relief28. The defence, which is set up by the defendants, would be irrelevant to determine what cause of action means. The reliefs, which are sought by the plaintiffs, will not be determinative of what constitutes cause of action. Cause of action, as explained by the Privy Council in Mohammad Khalil Khan case (supra), means the Media through which the plaintiff seeks to persuade the Court to grant him relief. It could, therefore, be said to be the factual and legal basis or premise upon which the Court is invited by the plaintiff to decide the case in his favour. It is also clear that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter35. Let us first consider the argument of the learned counsel for the respondent that under Article 109 of the Limitation Act, the period of limitation commences from the date of possession obtained by alienee, and therefore, the cause of action for the second suit, in respect of the sale deed dated 21.02.1959, would be different from the earlier suit, as in respect of the sale deed of an earlier date, it would have a different period of limitation. We are of the view that, that the period of limitation under Article 109 is different from the period of limitation in respect of the first sale deed, cannot operate so as to exclude the bar under Order II Rule 2. The principle underlying Order II Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit. Order II Rule 2 provides for the principle of repose. If this be the underlying object of Order II Rule 2, the fact that at the time when the first suit was filed even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II Rule 236. Now, let us consider the further argument of the learned counsel for the respondent based on Order VII Rule 1 CPC. Order VII Rule 1 provides for the particulars to be contained in a plaint. It, inter alia, provides that the facts constituting the cause of action and when it arose, be pleaded. Apparently, the argument of the respondents is having regard to Article 109 of the Limitation Act, the cause of action as provided in Article 109, would commence from the date of the deed being 11.02.1959, and therefore, it has a different period of limitation as already noted. It indicates that cause of action, raised in the second suit, is not identical with a cause of action in the first suit. We are of the view that this argument proceeds on a misapprehension as to what constitutes the cause of action. Cause of action has been explained in many decisions. It is the bundle of facts, which if traversed, must be proved. However, as laid down by the Privy Council, it would be understood also to mean the media through which Courts intervention is sought by the plaintiff38. In this case, we have noticed the pleadings. The case of the plaintiffs appears to be that the property is ancestral property. Their late father Tikaram was given to wasteful ways and addicted to drink and otherwise. He was given to selling properties. His well-wishers intervened and partition ensued. However, 8.22 acres falling in Kh.No.189 was kept out of the partition deed. He decided to sell 8.22 acres without there being any legal necessity and without any benefit to the joint family. The first part of the transaction, which consisted of two parts, pertained to sale deed dated 21.01.1959 and that was the subject matter of the first suit. At the time of filing of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed which constituted the remaining portion which consisted of the 8.22 acres as already noticed. The suits contained virtually identical averments in regard to both the transactions. The first suit was filed in 1963 and the second suit filed in the year 197139. We are of the view that in such circumstances, this is a case where the plaintiff ought to have included relief in the form of setting aside the second sale deed also. This is not a case where the second sale deed had not been executed when the plaintiff instituted the first suit. We are not, for a moment, declaring the effect of the sale deed having been executed subsequently to the institution of the suit as we do not have to pronounce on the effect of such a sale. We are only emphasizing that it was open to the respondent/plaintiff to seek relief in respect of the second sale executed by their predecessor-in- interest and what is more important in favour of the same parties (defendants) who are the appellants before us41. It is undoubtedly true that the law does not compel a litigant to combine one or more causes of action in a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 will not apply. It is undoubtedly also true that Order II Rule 2 manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But as already noted, there is an equally important principle that no person shall be vexed twice on the same cause of action42. That on the same cause of action, the plaintiffs having omitted to sue in respect of the sale deed in question, we would think that bar under Order II Rule 2 would apply. In this view of the matter we do not think it necessary to pronounce on the question relating to constructive res judicata. In the light of this, we allow the appeal and set aside the judgment of the High Court. Parties to bear their respective costs.

### 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: We are of the view that, that the period of limitation under Article 109 is different from the period of limitation in respect of the first sale deed, cannot operate so as to exclude the bar under Order II Rule 2. The principle underlying Order II Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit. Order II Rule 2 provides for the principle of repose. If this be the underlying object of Order II Rule 2, the fact that at the time when the first suit was filed even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II Rule 2. 36. Now, let us consider the further argument of the learned counsel for the respondent based on Order VII Rule 1 CPC. Order VII Rule 1 provides for the particulars to be contained in a plaint. It, inter alia, provides that the facts constituting the cause of action and when it arose, be pleaded. Apparently, the argument of the respondents is having regard to Article 109 of the Limitation Act, the cause of action as provided in Article 109, would commence from the date of the deed being 11.02.1959, and therefore, it has a different period of limitation as already noted. It indicates that cause of action, raised in the second suit, is not identical with a cause of action in the first suit. We are of the view that this argument proceeds on a misapprehension as to what constitutes the cause of action. Cause of action has been explained in many decisions. It is the bundle of facts, which if traversed, must be proved. However, as laid down by the Privy Council, it would be understood also to mean the media through which Courts intervention is sought by the plaintiff. 37. What is the legal basis/factual matrix premised on which the plaintiff seeks a decree? 38. In this case, we have noticed the pleadings. The case of the plaintiffs appears to be that the property is ancestral property. Their late father Tikaram was given to wasteful ways and addicted to drink and otherwise. He was given to selling properties. His well-wishers intervened and partition ensued. However, 8.22 acres falling in Kh.No.189 was kept out of the partition deed. He decided to sell 8.22 acres without there being any legal necessity and without any benefit to the joint family. The first part of the transaction, which consisted of two parts, pertained to sale deed dated 21.01.1959 and that was the subject matter of the first suit. At the time of filing of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed which constituted the remaining portion which consisted of the 8.22 acres as already noticed. The suits contained virtually identical averments in regard to both the transactions. The first suit was filed in 1963 and the second suit filed in the year 1971. 39. We are of the view that in such circumstances, this is a case where the plaintiff ought to have included relief in the form of setting aside the second sale deed also. This is not a case where the second sale deed had not been executed when the plaintiff instituted the first suit. We are not, for a moment, declaring the effect of the sale deed having been executed subsequently to the institution of the suit as we do not have to pronounce on the effect of such a sale. We are only emphasizing that it was open to the respondent/plaintiff to seek relief in respect of the second sale executed by their predecessor-in- interest and what is more important in favour of the same parties (defendants) who are the appellants before us. 40. The High Court has proceeded to reason based on Order II Rule 3. It is open to the plaintiff to combine causes of action. Order II Rule 3 reads as follows: 3. Joinder of causes of action (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit. 41. It is undoubtedly true that the law does not compel a litigant to combine one or more causes of action in a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 will not apply. It is undoubtedly also true that Order II Rule 2 manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But as already noted, there is an equally important principle that no person shall be vexed twice on the same cause of action. 42. That on the same cause of action, the plaintiffs having omitted to sue in respect of the sale deed in question, we would think that bar under Order II Rule 2 would apply. ### Response: 1 ### Explanation: that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter35. Let us first consider the argument of the learned counsel for the respondent that under Article 109 of the Limitation Act, the period of limitation commences from the date of possession obtained by alienee, and therefore, the cause of action for the second suit, in respect of the sale deed dated 21.02.1959, would be different from the earlier suit, as in respect of the sale deed of an earlier date, it would have a different period of limitation. We are of the view that, that the period of limitation under Article 109 is different from the period of limitation in respect of the first sale deed, cannot operate so as to exclude the bar under Order II Rule 2. The principle underlying Order II Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit. Order II Rule 2 provides for the principle of repose. If this be the underlying object of Order II Rule 2, the fact that at the time when the first suit was filed even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II Rule 236. Now, let us consider the further argument of the learned counsel for the respondent based on Order VII Rule 1 CPC. Order VII Rule 1 provides for the particulars to be contained in a plaint. It, inter alia, provides that the facts constituting the cause of action and when it arose, be pleaded. Apparently, the argument of the respondents is having regard to Article 109 of the Limitation Act, the cause of action as provided in Article 109, would commence from the date of the deed being 11.02.1959, and therefore, it has a different period of limitation as already noted. It indicates that cause of action, raised in the second suit, is not identical with a cause of action in the first suit. We are of the view that this argument proceeds on a misapprehension as to what constitutes the cause of action. Cause of action has been explained in many decisions. It is the bundle of facts, which if traversed, must be proved. However, as laid down by the Privy Council, it would be understood also to mean the media through which Courts intervention is sought by the plaintiff38. In this case, we have noticed the pleadings. The case of the plaintiffs appears to be that the property is ancestral property. Their late father Tikaram was given to wasteful ways and addicted to drink and otherwise. He was given to selling properties. His well-wishers intervened and partition ensued. However, 8.22 acres falling in Kh.No.189 was kept out of the partition deed. He decided to sell 8.22 acres without there being any legal necessity and without any benefit to the joint family. The first part of the transaction, which consisted of two parts, pertained to sale deed dated 21.01.1959 and that was the subject matter of the first suit. At the time of filing of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed which constituted the remaining portion which consisted of the 8.22 acres as already noticed. The suits contained virtually identical averments in regard to both the transactions. The first suit was filed in 1963 and the second suit filed in the year 197139. We are of the view that in such circumstances, this is a case where the plaintiff ought to have included relief in the form of setting aside the second sale deed also. This is not a case where the second sale deed had not been executed when the plaintiff instituted the first suit. We are not, for a moment, declaring the effect of the sale deed having been executed subsequently to the institution of the suit as we do not have to pronounce on the effect of such a sale. We are only emphasizing that it was open to the respondent/plaintiff to seek relief in respect of the second sale executed by their predecessor-in- interest and what is more important in favour of the same parties (defendants) who are the appellants before us41. It is undoubtedly true that the law does not compel a litigant to combine one or more causes of action in a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 will not apply. It is undoubtedly also true that Order II Rule 2 manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But as already noted, there is an equally important principle that no person shall be vexed twice on the same cause of action42. That on the same cause of action, the plaintiffs having omitted to sue in respect of the sale deed in question, we would think that bar under Order II Rule 2 would apply. In this view of the matter we do not think it necessary to pronounce on the question relating to constructive res judicata. In the light of this, we allow the appeal and set aside the judgment of the High Court. Parties to bear their respective costs.

C.V.Francis Vs. Union Of India

after the Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. He also pointed that under Sub-rule (2), the notice of voluntary retirement given under sub-rule (1) would have to be accepted by the Appointing Authority. However, under the proviso thereto, it is further provided that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. 8. Drawing an analogy with the facts of his own case, the Petitioner contended that even in his case, upon expiry of the period of notice given by him to retire voluntarily in terms of the Voluntary Retirement Scheme, the retirement became ineffective on expiry of the said period of the notice. Accordingly, the subsequent letter addressed to him by the Respondent company to rejoin his duty was of little consequence and any action taken thereupon would be void. According to Petitioner, the termination of his services was in violation of the well-settled principles relating to acceptance of voluntary retirement laid down in Tek Chands case (supra). 9. Appearing for the Respondent Company, Mr. Dhruv Mehta, learned Senior Advocate, strongly opposed the Petitioners case on behalf of the Respondent Company primarily on the ground that in a scheme for voluntary retirement floated by a company, it is entirely the companys discretion to accept and allow an employees application for voluntary retirement. The concept of deemed acceptance also was not available in the instant case, since the scheme did not contain such a provision.10. Mr. Mehta highlighted the conduct of the Petitioner after applying for voluntary retirement. Mr. Mehta pointed out that without waiting for his prayer for voluntary retirement to be accepted, the Petitioner joined an American Company even before the expiry of the notice period. In fact, it was quite evident from the tenor of his letters seeking leave, that the Petitioner never intended to rejoin his duty in the Respondent company. On the question of deemed acceptance of an employees application for voluntary retirement, Mr. Mehta referred to the decision of this Court in Padubidri Damodar Shenoy Vs. Indian Airlines Limited and Another [(2009) 10 SCC 514] , wherein, although, the Petitioner upon completing of 20 years of qualifying service had applied for voluntary retirement, he was informed that such retirement would not be automatic on expiry of period of notice, but it would become effective only after the approval of the competent authority. In the said case, this Court also observed that the employee had never acted as if his services had been discontinued on the expiry of the three months notice period, inasmuch as, he continued to attend his duties. Thus, the application for voluntary retirement made by the Petitioner therein, never really came into effect.11. Mr. Mehta submitted that the facts of the present case were somewhat similar to the facts of the above case, where, although an application had been made for voluntary retirement, the same was not accepted and the services of the Petitioner therein did not stand terminated even after the expiry of the period of notice. Mr. Mehta urged that on the same reasoning, the decision in Tek Chands case (supra) would have no application to the facts of this case. 12. Having considered the submissions made on behalf of the parties, we see no reason to interfere with the judgment and Order of learned Single Judge, as upheld by the Division Bench of the High Court, rejecting the Petitioners prayer challenging the termination of his services. It may be noted that notice was issued on the Special Leave Petition on 11.11.2011 only to consider whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. We have considered the matter from that angle and do not find any justification to modify the Order of either the learned Single Judge or the Division Bench. As has been emphasised by the Division Bench of the High Court, it is obvious that the Petitioner having obtained employment in the United States of America, had no intention of rejoining his duties with the Respondent company. Instead of waiting for the notice period, the Petitioner moved to the United States, having obtained employment there and his letters praying for leave were of no consequence. Furthermore, instead of attending the disciplinary enquiry commenced against him, the Petitioner repeatedly requested the Respondent company to accept his application for voluntary retirement.13. It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme. Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end. A Voluntary Retirement Scheme introduced by a company is essentially a part of the companys desire to weed out the deadwood. 14. The Petitioners contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioners voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chands case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioners application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over. 15.

0[ds]we see no reason to interfere with the judgment and Order of learned Single Judge, as upheld by the Division Bench of the High Court, rejecting the Petitioners prayer challenging the termination of his services. It may be noted that notice was issued on the Special Leave Petition on 11.11.2011 only to consider whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. We have considered the matter from that angle and do not find any justification to modify the Order of either the learned Single Judge or the Division Bench. As has been emphasised by the Division Bench of the High Court, it is obvious that the Petitioner having obtained employment in the United States of America, had no intention of rejoining his duties with the Respondent company. Instead of waiting for the notice period, the Petitioner moved to the United States, having obtained employment there and his letters praying for leave were of no consequence. Furthermore, instead of attending the disciplinary enquiry commenced against him, the Petitioner repeatedly requested the Respondent company to accept his application for voluntary retirement.13. It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme.Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end.A Voluntary Retirement Scheme introduced by a company is essentially a part of the companys desire to weed out thePetitioners contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioners voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chands case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioners application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over.

### 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: after the Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. He also pointed that under Sub-rule (2), the notice of voluntary retirement given under sub-rule (1) would have to be accepted by the Appointing Authority. However, under the proviso thereto, it is further provided that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. 8. Drawing an analogy with the facts of his own case, the Petitioner contended that even in his case, upon expiry of the period of notice given by him to retire voluntarily in terms of the Voluntary Retirement Scheme, the retirement became ineffective on expiry of the said period of the notice. Accordingly, the subsequent letter addressed to him by the Respondent company to rejoin his duty was of little consequence and any action taken thereupon would be void. According to Petitioner, the termination of his services was in violation of the well-settled principles relating to acceptance of voluntary retirement laid down in Tek Chands case (supra). 9. Appearing for the Respondent Company, Mr. Dhruv Mehta, learned Senior Advocate, strongly opposed the Petitioners case on behalf of the Respondent Company primarily on the ground that in a scheme for voluntary retirement floated by a company, it is entirely the companys discretion to accept and allow an employees application for voluntary retirement. The concept of deemed acceptance also was not available in the instant case, since the scheme did not contain such a provision.10. Mr. Mehta highlighted the conduct of the Petitioner after applying for voluntary retirement. Mr. Mehta pointed out that without waiting for his prayer for voluntary retirement to be accepted, the Petitioner joined an American Company even before the expiry of the notice period. In fact, it was quite evident from the tenor of his letters seeking leave, that the Petitioner never intended to rejoin his duty in the Respondent company. On the question of deemed acceptance of an employees application for voluntary retirement, Mr. Mehta referred to the decision of this Court in Padubidri Damodar Shenoy Vs. Indian Airlines Limited and Another [(2009) 10 SCC 514] , wherein, although, the Petitioner upon completing of 20 years of qualifying service had applied for voluntary retirement, he was informed that such retirement would not be automatic on expiry of period of notice, but it would become effective only after the approval of the competent authority. In the said case, this Court also observed that the employee had never acted as if his services had been discontinued on the expiry of the three months notice period, inasmuch as, he continued to attend his duties. Thus, the application for voluntary retirement made by the Petitioner therein, never really came into effect.11. Mr. Mehta submitted that the facts of the present case were somewhat similar to the facts of the above case, where, although an application had been made for voluntary retirement, the same was not accepted and the services of the Petitioner therein did not stand terminated even after the expiry of the period of notice. Mr. Mehta urged that on the same reasoning, the decision in Tek Chands case (supra) would have no application to the facts of this case. 12. Having considered the submissions made on behalf of the parties, we see no reason to interfere with the judgment and Order of learned Single Judge, as upheld by the Division Bench of the High Court, rejecting the Petitioners prayer challenging the termination of his services. It may be noted that notice was issued on the Special Leave Petition on 11.11.2011 only to consider whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. We have considered the matter from that angle and do not find any justification to modify the Order of either the learned Single Judge or the Division Bench. As has been emphasised by the Division Bench of the High Court, it is obvious that the Petitioner having obtained employment in the United States of America, had no intention of rejoining his duties with the Respondent company. Instead of waiting for the notice period, the Petitioner moved to the United States, having obtained employment there and his letters praying for leave were of no consequence. Furthermore, instead of attending the disciplinary enquiry commenced against him, the Petitioner repeatedly requested the Respondent company to accept his application for voluntary retirement.13. It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme. Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end. A Voluntary Retirement Scheme introduced by a company is essentially a part of the companys desire to weed out the deadwood. 14. The Petitioners contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioners voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chands case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioners application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over. 15. ### Response: 0 ### Explanation: we see no reason to interfere with the judgment and Order of learned Single Judge, as upheld by the Division Bench of the High Court, rejecting the Petitioners prayer challenging the termination of his services. It may be noted that notice was issued on the Special Leave Petition on 11.11.2011 only to consider whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. We have considered the matter from that angle and do not find any justification to modify the Order of either the learned Single Judge or the Division Bench. As has been emphasised by the Division Bench of the High Court, it is obvious that the Petitioner having obtained employment in the United States of America, had no intention of rejoining his duties with the Respondent company. Instead of waiting for the notice period, the Petitioner moved to the United States, having obtained employment there and his letters praying for leave were of no consequence. Furthermore, instead of attending the disciplinary enquiry commenced against him, the Petitioner repeatedly requested the Respondent company to accept his application for voluntary retirement.13. It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme.Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end.A Voluntary Retirement Scheme introduced by a company is essentially a part of the companys desire to weed out thePetitioners contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioners voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chands case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioners application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over.

S.N. Mukherjee Vs. Union of India

copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of court martial before the confirmation of the said finding and sentence. Through a person aggrieved by the findings or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is excepted that the confirming authority shall give due consideration to the same while confirming the finding and sentence of court martial 54. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter-affidavit field on behalf of Union Of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before that passing of the order of confirmation would not vitiate the said order 55. Shri Ganguli next contended that the first and the second charge leveled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the first charge cannot be sustained. It is no doubt true that the allegations contained in the first and second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in court martial having found the appellant guilty of the first charge while holding him not guilty of the second charge 56. Shri Ganguli has also urged that the findings recorded by the court martial on the first and third are perverse inasmuch as there is no evidence to establish these charges. We find no substance in this contention 57. The first charge was that the appellant on or about December 25, 1975, having received 60.61 meters woollen serge from M/s. Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19 pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordinance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander PW 1 and Triloki Nath PW 2 of M/s. Ram Chandra & Brothers, Sardar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December 1975, The evidence of these witnesses is corroborated by B. D. Joshi, Chowkidar, PW 3, who has deposed that in the last week of December 1975, the appellant has told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/Sub. P. Vishwambharam PW 19 who has deposed that he was called by the appellant to his office in the last week of December 1975 or the first week of January 1976 and that on reaching there he found ordnance pattern woollen pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Shariff PW 15 to his office and had asked out 19 woollen trousers out of the lot kept there in the office. After Mohd. Shariff had selected 19 woollen trousers the appellant told Mohd. Shariff to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, on holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge leveled against the appellant and the findings recorded by the court martial in respect of the said is based on no evidence or is perverse 58. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 omitted to initiate action against Capt. Chhabra 59. In his summing up before the court martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Ex. CC) raising certain with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 and pointed out that the said letter was received in the unit officer about November 25 1975 the initials of he appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said the finding recorded by the court martial on the third charge is based on no evidence and is perverse

0[ds]35. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American courts. An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Court under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions : and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expendiency whereas an executive officer generally looks at things from the standpoint of policy and expendiencyIn our opinion, therefore, the requirement that reasons can be recorded should govern the decisions of administrative authority exercising quasi-judicial function irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellant or revisional authority agrees with the reasons contained in the order under challengeWhile considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The Committee expressed the opinion that there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise and that where further proceeding are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity. (p. 80) Prof. H. W. R. Wade has also expressed the view that natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary mans sense of justice. (see Wade, Administrative Law, 6th edn. p. 548.)39. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions the legislature, while conferring the said power, may feel that it would not be in the public interest that the reasons for the order passed by the administrative authority recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Decisions Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactments. Such an exclusion can also arise by necessary implication from nature of the subject matter, the scheme and the provisions of the enactments. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case40. For the reason aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decisionThis Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts marital and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record44. From the provision referred to above it is evident that the judge- advocate plays an important role during the course of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the judge- advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of guilty or of not guilty. It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of finding and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendations to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendations to mercy if the court martial makes such a recommendation46. The provisions mentioned above show that the confirmation of the finding and sentence of the court martial is necessary before the said finding or sentence become operative. In other words the confirmation of the findings and sentence is an integral part of the proceedings of a court martial and before the finding and sentence of a court martial are confirmed the same are examined which is intended as a check on the legality and propriety of the proceedings as well as the findings and sentence of the court martial. Moreover we find that in Section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary court martial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of the proceedings for confirmation. The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court martial are set aside or the sentence is reduced and not when the findings and sentence are confirmed. Section 162 thus negatives a requirement to give reasons on the part of the confirming authority while confirming the findings and sentence of a court martial and it must be held that the confirming authority is not required to record reasons while confirming the findings and sentence of the court martial47. With regard to post-confirmation proceedings we find that sub- section (2) of Section 164 of the Act provides that any person subject to the Act who considers himself aggrieved by a finding or sentence of any court martial which been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit. Insofar as the findings and sentence of a court martial and the proceedings for confirmation of such findings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made departure from the said scheme in respect of post-confirmation proceeding ? There is nothing in the language of sub-section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post- confirmation proceedings which may require recording of the reasons for an order passed on the post-confirmation petition even though reasons are not required to be recorded at the stage of confirmation of the findings and sentence of the court martial by the confirming authority. With regard to recording of reasons the considerations which apply at the stage of recording of findings and sentence by the court martial and at the stage of confirmation of findings and sentence of the court martial by the confirming authority are equally applicable at the stage of consideration of the post-confirmation petition. Since reasons are not required to be recorded at the first two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post confirmation petition under Section 164(2) of the Act48. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the finding and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived are the same conclusion as in Som Datt Datta case (1969 2 SCR 177 : AIR 1969 SC 414 : 1969 Cri LJ 663) the submission of shri Ganguli that the said decision needs reconsideration cannot be accepted and is therefore rejectedWe find considerable force in the aforesaid of learned Additional Solicitor GeneralRule 147 of the Rules also lends support to this view. In the said rule it is laid down that every person tried by a court martial shall be entitled on demand, at any time after the confirmation of the findings and sentence, when such confirmation is required, and before the proceedings are destroyed to obtain from the officer or person having the custody of the proceeding a copy thereof, including the proceedings upon revision, if any. This rule envisages that the copies of proceedings a court martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non-supply of the copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of court martial before the confirmation of the said finding and sentence. Through a person aggrieved by the findings or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is excepted that the confirming authority shall give due consideration to the same while confirming the finding and sentence of court martial54. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter-affidavit field on behalf of Union Of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before that passing of the order of confirmation would not vitiate the said orderIt is no doubt true that the allegations contained in the first and second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in court martial having found the appellant guilty of the first charge while holding him not guilty of the second chargeWe find no substance in this contention57. The first charge was that the appellant on or about December 25, 1975, having received 60.61 meters woollen serge from M/s. Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19 pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordinance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander PW 1 and Triloki Nath PW 2 of M/s. Ram Chandra & Brothers, Sardar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December 1975, The evidence of these witnesses is corroborated by B. D. Joshi, Chowkidar, PW 3, who has deposed that in the last week of December 1975, the appellant has told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/Sub. P. Vishwambharam PW 19 who has deposed that he was called by the appellant to his office in the last week of December 1975 or the first week of January 1976 and that on reaching there he found ordnance pattern woollen pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Shariff PW 15 to his office and had asked out 19 woollen trousers out of the lot kept there in the office. After Mohd. Shariff had selected 19 woollen trousers the appellant told Mohd. Shariff to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, on holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge leveled against the appellant and the findings recorded by the court martial in respect of the said is based on no evidence or is perverse58. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 omitted to initiate action against Capt. Chhabra59. In his summing up before the court martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Ex. CC) raising certain with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 and pointed out that the said letter was received in the unit officer about November 25 1975 the initials of he appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said the finding recorded by the court martial on the third charge is based on no evidence and is perverse48. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the finding and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived are the same conclusion as in Som Datt Datta case (1969 2 SCR 177 : AIR 1969 SC 414 : 1969 Cri LJ 663) the submission of shri Ganguli that the said decision needs reconsideration cannot be accepted and is therefore rejected49. But this is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the court martial or by the Central Government while passing its order on the post-confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings

### 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: copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of court martial before the confirmation of the said finding and sentence. Through a person aggrieved by the findings or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is excepted that the confirming authority shall give due consideration to the same while confirming the finding and sentence of court martial 54. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter-affidavit field on behalf of Union Of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before that passing of the order of confirmation would not vitiate the said order 55. Shri Ganguli next contended that the first and the second charge leveled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the first charge cannot be sustained. It is no doubt true that the allegations contained in the first and second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in court martial having found the appellant guilty of the first charge while holding him not guilty of the second charge 56. Shri Ganguli has also urged that the findings recorded by the court martial on the first and third are perverse inasmuch as there is no evidence to establish these charges. We find no substance in this contention 57. The first charge was that the appellant on or about December 25, 1975, having received 60.61 meters woollen serge from M/s. Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19 pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordinance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander PW 1 and Triloki Nath PW 2 of M/s. Ram Chandra & Brothers, Sardar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December 1975, The evidence of these witnesses is corroborated by B. D. Joshi, Chowkidar, PW 3, who has deposed that in the last week of December 1975, the appellant has told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/Sub. P. Vishwambharam PW 19 who has deposed that he was called by the appellant to his office in the last week of December 1975 or the first week of January 1976 and that on reaching there he found ordnance pattern woollen pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Shariff PW 15 to his office and had asked out 19 woollen trousers out of the lot kept there in the office. After Mohd. Shariff had selected 19 woollen trousers the appellant told Mohd. Shariff to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, on holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge leveled against the appellant and the findings recorded by the court martial in respect of the said is based on no evidence or is perverse 58. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 omitted to initiate action against Capt. Chhabra 59. In his summing up before the court martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Ex. CC) raising certain with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 and pointed out that the said letter was received in the unit officer about November 25 1975 the initials of he appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said the finding recorded by the court martial on the third charge is based on no evidence and is perverse ### Response: 0 ### Explanation: In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter-affidavit field on behalf of Union Of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before that passing of the order of confirmation would not vitiate the said orderIt is no doubt true that the allegations contained in the first and second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in court martial having found the appellant guilty of the first charge while holding him not guilty of the second chargeWe find no substance in this contention57. The first charge was that the appellant on or about December 25, 1975, having received 60.61 meters woollen serge from M/s. Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19 pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordinance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander PW 1 and Triloki Nath PW 2 of M/s. Ram Chandra & Brothers, Sardar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December 1975, The evidence of these witnesses is corroborated by B. D. Joshi, Chowkidar, PW 3, who has deposed that in the last week of December 1975, the appellant has told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/Sub. P. Vishwambharam PW 19 who has deposed that he was called by the appellant to his office in the last week of December 1975 or the first week of January 1976 and that on reaching there he found ordnance pattern woollen pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Shariff PW 15 to his office and had asked out 19 woollen trousers out of the lot kept there in the office. After Mohd. Shariff had selected 19 woollen trousers the appellant told Mohd. Shariff to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, on holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge leveled against the appellant and the findings recorded by the court martial in respect of the said is based on no evidence or is perverse58. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 omitted to initiate action against Capt. Chhabra59. In his summing up before the court martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Ex. CC) raising certain with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 and pointed out that the said letter was received in the unit officer about November 25 1975 the initials of he appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said the finding recorded by the court martial on the third charge is based on no evidence and is perverse48. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the finding and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived are the same conclusion as in Som Datt Datta case (1969 2 SCR 177 : AIR 1969 SC 414 : 1969 Cri LJ 663) the submission of shri Ganguli that the said decision needs reconsideration cannot be accepted and is therefore rejected49. But this is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the court martial or by the Central Government while passing its order on the post-confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings

Uma Charan Vs. State of Madhya Pradesh and Another

of a list of suitable officers. (1) The Committee shall prepare a list of such members of the State Police Service as satisfy the condition specified in regulation 4 and as are held by the Committee to be suitable for promotion to the Service. (2) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority.(3) The names of the officers included in the list shall be arranged in order of seniority in the State Police Service; Provided that any junior officer who in the opinion of the Committee is of exceptional merit an d suitability may be assigned a place in the list higher than that of officers senior to him. (4) The list so prepared shall be reviewed and revised every year. (5) If in the process of selection, review or revision it is proposed to supersede any members of the State Police Service, the Committee shall record its reasons for the proposed supersession." 7. Select List. (1) The Commission shall consider the list prepared by the Committee along with the other documents received from the State Government and, unless it considers any change necessary, approve the list. (2) If the Commission consider it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government, may approve the list finally with such modification, if any, as may, in its opinion, be just and proper. (3) The list as finally approved by the Commission shall form the Select List of the members of the State Police Service. (4) The Select List shall ordinarily be in force until it is reviewed or revised in accordance with sub- regulation (4) of regulation 5: Provided that in the event of a grave lapse in the conduct or performance of duties on the part of any member of the State Police Service included in the Select List, a special review of the Select List may be made at any time at the instance of the State Government and the Commission may. if it so thinks fit, remove the name of such member of the State Police Service from the Select List."It is not disputed that a Select List may be reviewed as stated in sub-regulation (4) of regulation 7 read with sub-regulation (5) of regulation 5. So all that has to be determined is whether the Selection Committee was bound to give reasons for the supersession of the appellant and whether the note recorded by it which sets out the ground for supersession does give any reason at all. 5. The matter is really covered by a decision of this Court in Union of India v. Mohan Lal Capoor and others. In that case also the ground set out by the Selection Committee for the proposed supersession was:"On an over all assessment, the records of these officers are not such as to justify their appointment to the Indian Administrative Service/Indian Police Service at this stage in preference to those selected." Except for the words "in preference to those selected" the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant. R ejecting this ground as being no statement of reasons within the meaning of sub-regulation (5) of regulation 5, Mathew, J., speaking for the Court, observed:"We next turn to the provisions of Regulation 5 (5) imposing a mandatory duty upon the Selection Committee to record "its reasons for proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession." the most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this s tage in preference to those selected". "In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections confer red upon them by articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in maki ng selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on whic h certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5 (5) were not complied with." With respect we fully agree and hold that the Select List prepared in accordance with the recommendations of the Selection Committee made in its meeting held on the 18th of September 1963 contravened the mandate in sub-regulation 5 of regulation 5. 6.

1[ds]The matter is really covered by a decision of this Court in Union of India v. Mohan Lal Capoor and others. In that case also the ground set out by the Selection Committee for the proposed supersession was:"On an over all assessment, the records of these officers are not such as to justify their appointment to the Indian Administrative Service/Indian Police Service at this stage in preference to those selected." Except for the words "in preference to those selected"the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant. R ejecting this ground as being no statement of reasons within the meaning of sub-regulation (5) of regulation 5, Mathew, J., speaking for the Court, observed:"We next turn to the provisions of Regulation 5 (5) imposing a mandatory duty upon the Selection Committee to record "its reasons for proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession." the most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this s tage in preference to thosen the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections confer red upon them by articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in maki ng selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on whic h certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5 (5) were not complied with."With respect we fully agree and hold that the Select List prepared in accordance with the recommendations of the Selection Committee made in its meeting held on the 18th of September 1963 contravened the mandate in sub-regulation 5 of regulation 5.

### 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 a list of suitable officers. (1) The Committee shall prepare a list of such members of the State Police Service as satisfy the condition specified in regulation 4 and as are held by the Committee to be suitable for promotion to the Service. (2) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority.(3) The names of the officers included in the list shall be arranged in order of seniority in the State Police Service; Provided that any junior officer who in the opinion of the Committee is of exceptional merit an d suitability may be assigned a place in the list higher than that of officers senior to him. (4) The list so prepared shall be reviewed and revised every year. (5) If in the process of selection, review or revision it is proposed to supersede any members of the State Police Service, the Committee shall record its reasons for the proposed supersession." 7. Select List. (1) The Commission shall consider the list prepared by the Committee along with the other documents received from the State Government and, unless it considers any change necessary, approve the list. (2) If the Commission consider it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government, may approve the list finally with such modification, if any, as may, in its opinion, be just and proper. (3) The list as finally approved by the Commission shall form the Select List of the members of the State Police Service. (4) The Select List shall ordinarily be in force until it is reviewed or revised in accordance with sub- regulation (4) of regulation 5: Provided that in the event of a grave lapse in the conduct or performance of duties on the part of any member of the State Police Service included in the Select List, a special review of the Select List may be made at any time at the instance of the State Government and the Commission may. if it so thinks fit, remove the name of such member of the State Police Service from the Select List."It is not disputed that a Select List may be reviewed as stated in sub-regulation (4) of regulation 7 read with sub-regulation (5) of regulation 5. So all that has to be determined is whether the Selection Committee was bound to give reasons for the supersession of the appellant and whether the note recorded by it which sets out the ground for supersession does give any reason at all. 5. The matter is really covered by a decision of this Court in Union of India v. Mohan Lal Capoor and others. In that case also the ground set out by the Selection Committee for the proposed supersession was:"On an over all assessment, the records of these officers are not such as to justify their appointment to the Indian Administrative Service/Indian Police Service at this stage in preference to those selected." Except for the words "in preference to those selected" the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant. R ejecting this ground as being no statement of reasons within the meaning of sub-regulation (5) of regulation 5, Mathew, J., speaking for the Court, observed:"We next turn to the provisions of Regulation 5 (5) imposing a mandatory duty upon the Selection Committee to record "its reasons for proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession." the most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this s tage in preference to those selected". "In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections confer red upon them by articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in maki ng selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on whic h certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5 (5) were not complied with." With respect we fully agree and hold that the Select List prepared in accordance with the recommendations of the Selection Committee made in its meeting held on the 18th of September 1963 contravened the mandate in sub-regulation 5 of regulation 5. 6. ### Response: 1 ### Explanation: The matter is really covered by a decision of this Court in Union of India v. Mohan Lal Capoor and others. In that case also the ground set out by the Selection Committee for the proposed supersession was:"On an over all assessment, the records of these officers are not such as to justify their appointment to the Indian Administrative Service/Indian Police Service at this stage in preference to those selected." Except for the words "in preference to those selected"the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant. R ejecting this ground as being no statement of reasons within the meaning of sub-regulation (5) of regulation 5, Mathew, J., speaking for the Court, observed:"We next turn to the provisions of Regulation 5 (5) imposing a mandatory duty upon the Selection Committee to record "its reasons for proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession." the most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this s tage in preference to thosen the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections confer red upon them by articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in maki ng selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on whic h certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5 (5) were not complied with."With respect we fully agree and hold that the Select List prepared in accordance with the recommendations of the Selection Committee made in its meeting held on the 18th of September 1963 contravened the mandate in sub-regulation 5 of regulation 5.

State of West Bengal & Others Vs. Associated Contractors

For all these reasons, we hold that the decisions under the 1940 Act would not obtain under the 1996 Act, and the Supreme Court cannot be “court” for the purposes of Section 42. 21. One other question that may arise is as to whether Section 42 applies after the arbitral proceedings come to an end. It has already been held by us that the expression “with respect to an arbitration agreement” are words of wide import and would take in all applications made before during or after the arbitral proceedings are over. In an earlier judgment, Kumbha Mawji v. Dominion of India, (1953) SCR 878 , the question which arose before the Supreme Court was whether the expression used in Section 31(4) of the 1940 Act “in any reference” would include matters that are after the arbitral proceedings are over and have culminated in an award. It was held that the words “in any reference” cannot be taken to mean “in the course of a reference”, but mean “in the matter of a reference” and that such phrase is wide enough and comprehensive enough to cover an application made after the arbitration is completed and the final Award is made. (See Paras 891-893). As has been noticed above, the expression used in Section 42 is wider being “with respect to an arbitration agreement” and would certainly include such applications. 22. One more question that may arise under Section 42 is whether Section 42 would apply in cases where an application made in a court is found to be without jurisdiction. Under Section 31(4) of the old Act, it has been held in FCI represented by Managing Director & Anr. v. A.M. Ahmed & Co., through MD & Anr., (2001) 10 SCC 532 at para 6 and Neycer India Ltd. v. GNB Ceramics Ltd., (2002) 9 SCC 489 at para 3 that Section 31(4) of the 1940 Act would not be applicable if it were found that an application was to be made before a court which had no jurisdiction. In Jatinder Nath v. Chopra Land Developers Pvt. Ltd., (2007) 11 SCC 453 at para 9 and Rajasthan State Electrical Board v. Universal Petrol Chemical Limited, (2009) 3 SCC 107 at paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corporation, 2013 (9) SCC 32 at para 32, it was held that where the agreement between the parties restricted jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) nor Section 42 contains a non-obstante clause wiping out a contrary agreement between the parties. It has thus been held that applications preferred to courts outside the exclusive court agreed to by parties would also be without jurisdiction. 23. Even under Section 42 itself, a Designated Judge has held in HBM Print Ltd. v. Scantrans India (Pvt.) Ltd., (2009) 17 SCC 338 , that where the Chief Justice has no jurisdiction under Section 11, Section 42 will not apply. This is quite apart from the fact that Section 42, as has been held above, will not apply to Section 11 applications at all. 24. If an application were to be preferred to a Court which is not a Principal Civil Court of original jurisdiction in a district, or a High Court exercising original jurisdiction to decide questions forming the subject matter of an arbitration if the same had been the subject matter of a suit, then obviously such application would be outside the four corners of Section 42. If, for example, an application were to be filed in a court inferior to a Principal Civil Court, or to a High Court which has no original jurisdiction, or if an application were to be made to a court which has no subject matter jurisdiction, such application would be outside Section 42 and would not debar subsequent applications from being filed in a court other than such court. 25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are as follows: (a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as “court” for the purpose of Part-I of the Arbitration Act, 1996.(b) The expression “with respect to an arbitration agreement” makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced under Part-I of the 1996 Act.(c) However, Section 42 only applies to applications made under Part-I if they are made to a court as defined. Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.(e) In no circumstances can the Supreme Court be “court” for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part-I.(g) If a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Section 42. The reference is answered accordingly.

1[ds]25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are asSection 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court asfor the purpose ofof the Arbitration Act, 1996.(b) The expressionrespect to an arbitrationmakes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced underof the 1996 Act.(c) However, Section 42 only applies to applications made underif they are made to a court as defined. Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.(e) In no circumstances can the Supreme Court befor the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made underIf a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Sectionreference is answered accordingly.If an application were to be preferred to a Court which is not a Principal Civil Court of original jurisdiction in a district, or a High Court exercising original jurisdiction to decide questions forming the subject matter of an arbitration if the same had been the subject matter of a suit, then obviously such application would be outside the four corners of Section 42. If, for example, an application were to be filed in a court inferior to a Principal Civil Court, or to a High Court which has no original jurisdiction, or if an application were to be made to a court which has no subject matter jurisdiction, such application would be outside Section 42 and would not debar subsequent applications from being filed in a court other than such court.

### 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: For all these reasons, we hold that the decisions under the 1940 Act would not obtain under the 1996 Act, and the Supreme Court cannot be “court” for the purposes of Section 42. 21. One other question that may arise is as to whether Section 42 applies after the arbitral proceedings come to an end. It has already been held by us that the expression “with respect to an arbitration agreement” are words of wide import and would take in all applications made before during or after the arbitral proceedings are over. In an earlier judgment, Kumbha Mawji v. Dominion of India, (1953) SCR 878 , the question which arose before the Supreme Court was whether the expression used in Section 31(4) of the 1940 Act “in any reference” would include matters that are after the arbitral proceedings are over and have culminated in an award. It was held that the words “in any reference” cannot be taken to mean “in the course of a reference”, but mean “in the matter of a reference” and that such phrase is wide enough and comprehensive enough to cover an application made after the arbitration is completed and the final Award is made. (See Paras 891-893). As has been noticed above, the expression used in Section 42 is wider being “with respect to an arbitration agreement” and would certainly include such applications. 22. One more question that may arise under Section 42 is whether Section 42 would apply in cases where an application made in a court is found to be without jurisdiction. Under Section 31(4) of the old Act, it has been held in FCI represented by Managing Director & Anr. v. A.M. Ahmed & Co., through MD & Anr., (2001) 10 SCC 532 at para 6 and Neycer India Ltd. v. GNB Ceramics Ltd., (2002) 9 SCC 489 at para 3 that Section 31(4) of the 1940 Act would not be applicable if it were found that an application was to be made before a court which had no jurisdiction. In Jatinder Nath v. Chopra Land Developers Pvt. Ltd., (2007) 11 SCC 453 at para 9 and Rajasthan State Electrical Board v. Universal Petrol Chemical Limited, (2009) 3 SCC 107 at paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corporation, 2013 (9) SCC 32 at para 32, it was held that where the agreement between the parties restricted jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) nor Section 42 contains a non-obstante clause wiping out a contrary agreement between the parties. It has thus been held that applications preferred to courts outside the exclusive court agreed to by parties would also be without jurisdiction. 23. Even under Section 42 itself, a Designated Judge has held in HBM Print Ltd. v. Scantrans India (Pvt.) Ltd., (2009) 17 SCC 338 , that where the Chief Justice has no jurisdiction under Section 11, Section 42 will not apply. This is quite apart from the fact that Section 42, as has been held above, will not apply to Section 11 applications at all. 24. If an application were to be preferred to a Court which is not a Principal Civil Court of original jurisdiction in a district, or a High Court exercising original jurisdiction to decide questions forming the subject matter of an arbitration if the same had been the subject matter of a suit, then obviously such application would be outside the four corners of Section 42. If, for example, an application were to be filed in a court inferior to a Principal Civil Court, or to a High Court which has no original jurisdiction, or if an application were to be made to a court which has no subject matter jurisdiction, such application would be outside Section 42 and would not debar subsequent applications from being filed in a court other than such court. 25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are as follows: (a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as “court” for the purpose of Part-I of the Arbitration Act, 1996.(b) The expression “with respect to an arbitration agreement” makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced under Part-I of the 1996 Act.(c) However, Section 42 only applies to applications made under Part-I if they are made to a court as defined. Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.(e) In no circumstances can the Supreme Court be “court” for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part-I.(g) If a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Section 42. The reference is answered accordingly. ### Response: 1 ### Explanation: 25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are asSection 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court asfor the purpose ofof the Arbitration Act, 1996.(b) The expressionrespect to an arbitrationmakes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced underof the 1996 Act.(c) However, Section 42 only applies to applications made underif they are made to a court as defined. Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.(e) In no circumstances can the Supreme Court befor the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made underIf a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Sectionreference is answered accordingly.If an application were to be preferred to a Court which is not a Principal Civil Court of original jurisdiction in a district, or a High Court exercising original jurisdiction to decide questions forming the subject matter of an arbitration if the same had been the subject matter of a suit, then obviously such application would be outside the four corners of Section 42. If, for example, an application were to be filed in a court inferior to a Principal Civil Court, or to a High Court which has no original jurisdiction, or if an application were to be made to a court which has no subject matter jurisdiction, such application would be outside Section 42 and would not debar subsequent applications from being filed in a court other than such court.

Avon Services (Production Agencies) Pvt. Ltd Vs. Industrial Tribunal, Haryana Farldabad Ors

abuses by employers, by suitable verbal devices, circumventing the armour of s. 25F and s. 2(oo). Without speculating on possibilities, we may agree that retrenchment is no longer terra incognita hut area covered by an expansive definition. It means to end, conclude, cease."13. As against this, reference was made to Management of Hindustan Steel Ltd. v. The Workmen &Ors., ([1973] 3 S.C.R. 303.) wherein the management contended that it is a case o f closure and the workmen contended that the termination was on account of retrenchment. The entire decision turns on the facts of the case. Hindustan Steel Ltd. had set up what was described as Ranchi Housing Project and this Project was complete d in 1966. After completion of the residuary work, the services of certain employees were terminated. This termination was questioned alleging that it was a case of retrenchment and as the condition precedent was not complied with, the retrenchment was invalid. The employer contended that it is a case of closure and payment of compensation was not a condition precedent and did not invalidate the termination of service. This Court held that the word undertaking as used in s. 25FFF appears to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. This question has to be decided on the facts of each case. Examining the facts of the case, this Court came to the conclusion that it was a case of closure.In the present case the appellant attempted to serve notice dated 13th July 1971 on respondents 3 and 4 and one Mr. Ramni. In this notice it was stated that the management has decided to close the painting section with effect from Tuesday, 13th July 1971 due to unavoidable circumstances and the services of the workmen mentioned in the notice would no longer be required and hence they are retrenched. The workmen we re informed that they should collect their dues under s. 25FFF from the office of the Company.14. The tenor of the notice clearly indicates that workmen were rendered surplus and they were retrenched. It is thus on the admission of appellant a case of retrenchment.15. It was, however, urged that notice refers to s. 25FFF and there fore employer intended it to be a notice of termination of service consequent upon closure of painting undertaking. Now, even if a closure of an undertaking as contemplated by s. 25FFF need not necessarily comprehend a closure of the entire undertaking and a closure of a distinct and separate unit of the Undertaking would also be covered by s. 25FFF, the question is-whether painting subsection was itself an undertaking ?16. The expression undertaking is not defined in the Act. It also finds its place in the definition of the expression industry in s. 2(j). While ascertaining the amplitude of the expression undertaking in the definition of the expression industry, noscitur a sociis cannon of construction was invoked and a restricted meaning was assigned to it in Bangalore Sewerage Board v. Rajappa. ([1978] 3 S.C.R. 207 at 227.) While, thus reading down the expression, in the context of s. 25FFF it must mean a separate and distinct business or commercial or trading or industrial activity. It cannot comprehend an infinitismally small part of a manufacturing process.The Tribunal found that the alleged retrenchment notice was not served upon workmen and that finding was not controverted by pointing out some evidence which may point to the contrary. The notice expressly states that the workmen are retrenched though it simultaneously states that the action is taken under s. 25FFF. But if the Company had a container making section which was closed way back in 1964 and yet these three workmen who used to paint the containers were retained, it cannot be said that painting section was a recognised sub-section eligible for being styled as a part of the undertaking. If such mini-classification is permitted it would enable the employed to flout s. 25 with impunity. These workmen appear not to have been employed initially as painters. They were doing some other work from which they were brought to painting section. They could have as well been absorbed in some other work from which they were capable of doing as observed by the Tribunal. If painting was no more undertaken as one of the separate jobs, the workmen would become surplus and they could be retrenched after paying compensation as required by s. 25. To style a job of a particular worker doing a specific work in the process of manufacture as in itself an undertaking is to give meaning to the expression undertaking which it hardly connotes. An employer may stop a certain work which was part of an undertaking but which could not be classified as an independent undertaking, the stoppage of work in this context would not amount to closure of the undertaking. The three workmen were doing work of painting the containers. No records were shown that there was a separate establishment, that it was a separate sub-section of that it had some separate supervisory arrangement. In fact, once the container making section was closed down, the three painters became part and parcel of the manufacturing process and if the painting work was not available for them they could have been assigned some other work and even if they had to be retrenched as surplus, the case would squarely fall in s. 25F and not be covered by s. 25FFF, on a specious plea of closure of an undertaking. The Tribunal in our opinion was right in holding that this was a case of retrenchment and as conditions precedent were not complied with, the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved.17.

0[ds]. The opinion which the appropriate Government is required to form before referring the dispute to the appropriate authority is about the existence of a dispute or even if the dispute has not arisen, it is apprehended as imminent and requires resolution in the interest of industrial peace and harmony. Section 10(1 ) confers a discretionary power and this discretionary power can be exercised on being satisfied that an industrial dispute exists or is apprehended. There must be some material before the Government on the basis of which it forms an opinion that an industrial dispute exists or is apprehended. The power conferred on the appropriate Government is an administrative power and the action of the Government in making the reference is an administrative act. The formation of an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. Thus the jurisdictional facts on which the appropriate Government may act are the formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act. The adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the Award but if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before Government on which it could have come to an affirmative conclusion on those matters (see State of Madras v. C. P. Sarathy) ([1953] S.C.R. 334, ).The contention, however, is that once the appropriate Government applies its mind to the question of referring an industrial dispute to the appropriate authority and declines to make a reference, it cannot subsequently change its mind and make the reference of the dispute unless there is some fresh or additional material before it. It was said that once an industrial dispute is raised and the Government declines to make a reference, the opposite party is entitled to act on the supposition that the dispute in question was not worth referring and such a dispute would no more be in existence between the employee 1) and the concerned employer and that the Government cannot spring a surprise by subsequently unilaterally making the reference without any fresh or additional material being brought to its notice. Section 10(l) enables the appropriate Government to make reference of all industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant. Section 12 casts a duty upon the Conciliation officer to hold conciliation proceedings in respect of the industrial dispute that exists or is apprehended. It is mandatory for the Conciliation officer to so hold the conciliation proceedings where dispute relates to a public utility service and a strike notice has been served under 6. 22. The conciliation officer must try to promote a settlement between the parties and either he succeeds in bringing the parties to a settlement or fails in his attempt, he must submit a report to the appropriate Government, but this procedure for promoting settlement cannot come in the way of the appropriate Government making a reference even before such a report isonly requirement for taking action under s. 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi- judicial function. Merely because the Government rejects a request for a reference or declines to make a reference. it cannot be said that the industrial dispute has ceased to exist, nor could it be said to be a renew of any A judicial or quasi-judicial order or determination. The industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate Government is satisfied that in the interest of industrial peace and for promoting industrial harmony it is desirable to make a reference, t he appropriate Government does not lack power to do so under s. 10(1), nor is it precluded from making the reference o l the only ground that on an earlier occasion it had declined to make the reference. The expression "at any time" is s. 10( l) will clearly negative the contention that once the Government declines to make a reference the power to make a reference under s. 10(1) in respect of the same dispute gets exhausted. Such a construction would denude a very vital power conferred on the Government in the interest of industrial peace and harmony and it need not be whittled down by interpretative process. In Western India Match Co. Ltd., v. Western India Match Co. Workers Union &Ors., ([1970] 3 S.C.R 370.) an identical contention was raised in respect of a reference made under s. 4(k) of the U.P. Industrial Disputes Act which is in pari materia with s. 10(1) of the Act. Negativing this contention this Court observed asthe light of the nature of the function of the Government and the object for which the power is conferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant consideration and decide to make the reference. But where it reconsiders its earlier decision it can make the reference only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrialfollows that the Government does not lack the power to make the reference in respect of the same industrial dispute which it once declined to refer. But it was urged that the ratio of the decision would show that the Government must have some fresh material made available to it, subsequent to its refusal to make a reference, for the formation of a fresh opinion, for making the reference. It is not absolutely necessary that there ought to be some fresh material before the Government for reconsideration of its earlier decision. The Government may reconsider its decision on account of some new facts brought to its notice or for any other relevant consideration and such other relevant consideration may include the threat to industrial peace by the continued existence of the industrial dispute without any attempt at resolving it and that a reference would at least bring the parties to the talking table. A refusal of the appropriate Government to make a reference is not indicative of an exercise of power under s. 10(1), the exercise of the power would be a positive act of making a reference. Therefore, when the Government declines to make a reference the source of power is neither dried up nor exhausted. It only indicates that the Government for the time being refused to exercise the power but that does not denude the power. The power to make the reference remains intact and can be exercised if the material and relevant considerations for exercise of power are available; they being the continued existence of the dispute and the wisdom of referring it, in the larger interest of industrial peace and harmony. Refusal to make the reference does not tantamount to saying that the dispute, if it at all existed, stands resolved. On the contrary the refusal to make a reference not compelling the parties to come to a talking table or before a quasi- judicial Tribunal would further accentuate the feelings and a threat to direct action may become imminent and the Government may as well reconsider the decision and make the reference. It is, therefore, not possible to accept the submission that if the Government had on an earlier occasion decline d to make a reference unless it be shown that there was some fresh or additional material before the Government the second reference would be incompetent. It has not been shown that the dispute had ceased to exist and the very existence of the dispute enables the Government to exercise the power under s. 10(l) and it has been rightly exercised. The view which we are taking is in accord with the decision of this Court in Binny Ltd. v. Their Workmen &Anr. ([1972] 3 S.C.R. 518.) wherein it was found that the Government had declined to make a reference of the dispute on two previous occasions on the basis of which it was contended that the reference was invalid. The contention was negatived observing that the mere fact that on two previous occasions t he Government had taken the view that no reference was called for does not entitle the Court to conclude that there could be no cause for a reference at a later date.Alternatively it was contended that even if the appropriate Government has power to make a reference after having once declined to make the reference, it can only refer that industrial dispute which it had once declined to refer and no other dispute and that in this case the Government has referred an entirely different dispute than the one raised by the Union and that in respect of the referred dispute A the demand having not been made from the employer there was no such dispute in existence and, therefore, the reference was invalid. The contention in the form in which it is now canvassed was not raised before the Industrial Tribunal and even before the High Court. However, as we find substance in the contention we would not reject it on the technical ground that it was not raised before the Industrial Tribunal or the Highagainst this, reference was made to Management of Hindustan Steel Ltd. v. The Workmen &Ors., ([1973] 3 S.C.R. 303.) wherein the management contended that it is a case o f closure and the workmen contended that the termination was on account of retrenchment. The entire decision turns on the facts of the case. Hindustan Steel Ltd. had set up what was described as Ranchi Housing Project and this Project was complete d in 1966. After completion of the residuary work, the services of certain employees were terminated. This termination was questioned alleging that it was a case of retrenchment and as the condition precedent was not complied with, the retrenchment was invalid. The employer contended that it is a case of closure and payment of compensation was not a condition precedent and did not invalidate the termination of service. This Court held that the word undertaking as used in s. 25FFF appears to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. This question has to be decided on the facts of each case. Examining the facts of the case, this Court came to the conclusion that it was a case of closure.In the present case the appellant attempted to serve notice dated 13th July 1971 on respondents 3 and 4 and one Mr. Ramni. In this notice it was stated that the management has decided to close the painting section with effect from Tuesday, 13th July 1971 due to unavoidable circumstances and the services of the workmen mentioned in the notice would no longer be required and hence they are retrenched. The workmen we re informed that they should collect their dues under s. 25FFF from the office of thetenor of the notice clearly indicates that workmen were rendered surplus and they were retrenched. It is thus on the admission of appellant a case ofwas, however, urged that notice refers to s. 25FFF and there fore employer intended it to be a notice of termination of service consequent upon closure of painting undertaking. Now, even if a closure of an undertaking as contemplated by s. 25FFF need not necessarily comprehend a closure of the entire undertaking and a closure of a distinct and separate unit of the Undertaking would also be covered by s. 25FFF, the question is-whether painting subsection was itself an undertakingexpression undertaking is not defined in the Act. It also finds its place in the definition of the expression industry in s. 2(j). While ascertaining the amplitude of the expression undertaking in the definition of the expression industry, noscitur a sociis cannon of construction was invoked and a restricted meaning was assigned to it in Bangalore Sewerage Board v. Rajappa. ([1978] 3 S.C.R. 207 at 227.) While, thus reading down the expression, in the context of s. 25FFF it must mean a separate and distinct business or commercial or trading or industrial activity. It cannot comprehend an infinitismally small part of a manufacturing process.The Tribunal found that the alleged retrenchment notice was not served upon workmen and that finding was not controverted by pointing out some evidence which may point to the contrary. The notice expressly states that the workmen are retrenched though it simultaneously states that the action is taken under s. 25FFF. But if the Company had a container making section which was closed way back in 1964 and yet these three workmen who used to paint the containers were retained, it cannot be said that painting section was a recognised sub-section eligible for being styled as a part of the undertaking. If such mini-classification is permitted it would enable the employed to flout s. 25 with impunity. These workmen appear not to have been employed initially as painters. They were doing some other work from which they were brought to painting section. They could have as well been absorbed in some other work from which they were capable of doing as observed by the Tribunal. If painting was no more undertaken as one of the separate jobs, the workmen would become surplus and they could be retrenched after paying compensation as required by s. 25. To style a job of a particular worker doing a specific work in the process of manufacture as in itself an undertaking is to give meaning to the expression undertaking which it hardly connotes. An employer may stop a certain work which was part of an undertaking but which could not be classified as an independent undertaking, the stoppage of work in this context would not amount to closure of the undertaking. The three workmen were doing work of painting the containers. No records were shown that there was a separate establishment, that it was a separate sub-section of that it had some separate supervisory arrangement. In fact, once the container making section was closed down, the three painters became part and parcel of the manufacturing process and if the painting work was not available for them they could have been assigned some other work and even if they had to be retrenched as surplus, the case would squarely fall in s. 25F and not be covered by s. 25FFF, on a specious plea of closure of anTribunal in our opinion was right in holding that this was a case of retrenchment and as conditions precedent were not complied with, the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved.

### 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: abuses by employers, by suitable verbal devices, circumventing the armour of s. 25F and s. 2(oo). Without speculating on possibilities, we may agree that retrenchment is no longer terra incognita hut area covered by an expansive definition. It means to end, conclude, cease."13. As against this, reference was made to Management of Hindustan Steel Ltd. v. The Workmen &Ors., ([1973] 3 S.C.R. 303.) wherein the management contended that it is a case o f closure and the workmen contended that the termination was on account of retrenchment. The entire decision turns on the facts of the case. Hindustan Steel Ltd. had set up what was described as Ranchi Housing Project and this Project was complete d in 1966. After completion of the residuary work, the services of certain employees were terminated. This termination was questioned alleging that it was a case of retrenchment and as the condition precedent was not complied with, the retrenchment was invalid. The employer contended that it is a case of closure and payment of compensation was not a condition precedent and did not invalidate the termination of service. This Court held that the word undertaking as used in s. 25FFF appears to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. This question has to be decided on the facts of each case. Examining the facts of the case, this Court came to the conclusion that it was a case of closure.In the present case the appellant attempted to serve notice dated 13th July 1971 on respondents 3 and 4 and one Mr. Ramni. In this notice it was stated that the management has decided to close the painting section with effect from Tuesday, 13th July 1971 due to unavoidable circumstances and the services of the workmen mentioned in the notice would no longer be required and hence they are retrenched. The workmen we re informed that they should collect their dues under s. 25FFF from the office of the Company.14. The tenor of the notice clearly indicates that workmen were rendered surplus and they were retrenched. It is thus on the admission of appellant a case of retrenchment.15. It was, however, urged that notice refers to s. 25FFF and there fore employer intended it to be a notice of termination of service consequent upon closure of painting undertaking. Now, even if a closure of an undertaking as contemplated by s. 25FFF need not necessarily comprehend a closure of the entire undertaking and a closure of a distinct and separate unit of the Undertaking would also be covered by s. 25FFF, the question is-whether painting subsection was itself an undertaking ?16. The expression undertaking is not defined in the Act. It also finds its place in the definition of the expression industry in s. 2(j). While ascertaining the amplitude of the expression undertaking in the definition of the expression industry, noscitur a sociis cannon of construction was invoked and a restricted meaning was assigned to it in Bangalore Sewerage Board v. Rajappa. ([1978] 3 S.C.R. 207 at 227.) While, thus reading down the expression, in the context of s. 25FFF it must mean a separate and distinct business or commercial or trading or industrial activity. It cannot comprehend an infinitismally small part of a manufacturing process.The Tribunal found that the alleged retrenchment notice was not served upon workmen and that finding was not controverted by pointing out some evidence which may point to the contrary. The notice expressly states that the workmen are retrenched though it simultaneously states that the action is taken under s. 25FFF. But if the Company had a container making section which was closed way back in 1964 and yet these three workmen who used to paint the containers were retained, it cannot be said that painting section was a recognised sub-section eligible for being styled as a part of the undertaking. If such mini-classification is permitted it would enable the employed to flout s. 25 with impunity. These workmen appear not to have been employed initially as painters. They were doing some other work from which they were brought to painting section. They could have as well been absorbed in some other work from which they were capable of doing as observed by the Tribunal. If painting was no more undertaken as one of the separate jobs, the workmen would become surplus and they could be retrenched after paying compensation as required by s. 25. To style a job of a particular worker doing a specific work in the process of manufacture as in itself an undertaking is to give meaning to the expression undertaking which it hardly connotes. An employer may stop a certain work which was part of an undertaking but which could not be classified as an independent undertaking, the stoppage of work in this context would not amount to closure of the undertaking. The three workmen were doing work of painting the containers. No records were shown that there was a separate establishment, that it was a separate sub-section of that it had some separate supervisory arrangement. In fact, once the container making section was closed down, the three painters became part and parcel of the manufacturing process and if the painting work was not available for them they could have been assigned some other work and even if they had to be retrenched as surplus, the case would squarely fall in s. 25F and not be covered by s. 25FFF, on a specious plea of closure of an undertaking. The Tribunal in our opinion was right in holding that this was a case of retrenchment and as conditions precedent were not complied with, the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved.17. ### Response: 0 ### Explanation: the reference was invalid. The contention in the form in which it is now canvassed was not raised before the Industrial Tribunal and even before the High Court. However, as we find substance in the contention we would not reject it on the technical ground that it was not raised before the Industrial Tribunal or the Highagainst this, reference was made to Management of Hindustan Steel Ltd. v. The Workmen &Ors., ([1973] 3 S.C.R. 303.) wherein the management contended that it is a case o f closure and the workmen contended that the termination was on account of retrenchment. The entire decision turns on the facts of the case. Hindustan Steel Ltd. had set up what was described as Ranchi Housing Project and this Project was complete d in 1966. After completion of the residuary work, the services of certain employees were terminated. This termination was questioned alleging that it was a case of retrenchment and as the condition precedent was not complied with, the retrenchment was invalid. The employer contended that it is a case of closure and payment of compensation was not a condition precedent and did not invalidate the termination of service. This Court held that the word undertaking as used in s. 25FFF appears to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. This question has to be decided on the facts of each case. Examining the facts of the case, this Court came to the conclusion that it was a case of closure.In the present case the appellant attempted to serve notice dated 13th July 1971 on respondents 3 and 4 and one Mr. Ramni. In this notice it was stated that the management has decided to close the painting section with effect from Tuesday, 13th July 1971 due to unavoidable circumstances and the services of the workmen mentioned in the notice would no longer be required and hence they are retrenched. The workmen we re informed that they should collect their dues under s. 25FFF from the office of thetenor of the notice clearly indicates that workmen were rendered surplus and they were retrenched. It is thus on the admission of appellant a case ofwas, however, urged that notice refers to s. 25FFF and there fore employer intended it to be a notice of termination of service consequent upon closure of painting undertaking. Now, even if a closure of an undertaking as contemplated by s. 25FFF need not necessarily comprehend a closure of the entire undertaking and a closure of a distinct and separate unit of the Undertaking would also be covered by s. 25FFF, the question is-whether painting subsection was itself an undertakingexpression undertaking is not defined in the Act. It also finds its place in the definition of the expression industry in s. 2(j). While ascertaining the amplitude of the expression undertaking in the definition of the expression industry, noscitur a sociis cannon of construction was invoked and a restricted meaning was assigned to it in Bangalore Sewerage Board v. Rajappa. ([1978] 3 S.C.R. 207 at 227.) While, thus reading down the expression, in the context of s. 25FFF it must mean a separate and distinct business or commercial or trading or industrial activity. It cannot comprehend an infinitismally small part of a manufacturing process.The Tribunal found that the alleged retrenchment notice was not served upon workmen and that finding was not controverted by pointing out some evidence which may point to the contrary. The notice expressly states that the workmen are retrenched though it simultaneously states that the action is taken under s. 25FFF. But if the Company had a container making section which was closed way back in 1964 and yet these three workmen who used to paint the containers were retained, it cannot be said that painting section was a recognised sub-section eligible for being styled as a part of the undertaking. If such mini-classification is permitted it would enable the employed to flout s. 25 with impunity. These workmen appear not to have been employed initially as painters. They were doing some other work from which they were brought to painting section. They could have as well been absorbed in some other work from which they were capable of doing as observed by the Tribunal. If painting was no more undertaken as one of the separate jobs, the workmen would become surplus and they could be retrenched after paying compensation as required by s. 25. To style a job of a particular worker doing a specific work in the process of manufacture as in itself an undertaking is to give meaning to the expression undertaking which it hardly connotes. An employer may stop a certain work which was part of an undertaking but which could not be classified as an independent undertaking, the stoppage of work in this context would not amount to closure of the undertaking. The three workmen were doing work of painting the containers. No records were shown that there was a separate establishment, that it was a separate sub-section of that it had some separate supervisory arrangement. In fact, once the container making section was closed down, the three painters became part and parcel of the manufacturing process and if the painting work was not available for them they could have been assigned some other work and even if they had to be retrenched as surplus, the case would squarely fall in s. 25F and not be covered by s. 25FFF, on a specious plea of closure of anTribunal in our opinion was right in holding that this was a case of retrenchment and as conditions precedent were not complied with, the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved.

Arun Kumar Kanoria Vs. United Phosphorous Limited

that all throughout the Petitioner has never moved this Court for taking the Review Petition on board and the execution proceedings are delayed probably because of pendency of this Review Petition. It is only at the request of the other side, the Review Petition is circulated and that is how the Review Petition has been placed before us.7. The learned counsel for the petitioner vehemently submitted that the Division Bench while deciding the Appeal No.423 of 2005 has not taken into consideration the important aspect that the cheques in question issued by the company were blank cheques. The learned counsel for the petitioner submitted that so far as present petitioner is concerned, he was one of the directors of the company and he had given his personal guarantee which was conditional one, to the effect that in case cheques issued by the company are bounced back, then the petitioner was to reimburse the amount to the respondent - original plaintiff on his own. The learned counsel for the petitioner submitted that subsequently it has come to the notice of the petitioner that the company had merely issued blank cheques. It is submitted that since the company had issued only blank cheques, the petitioner was not liable to make any payment on return of the cheques. It is submitted that under these circumstances under Order 37 Rule 4 of the Code of Civil Procedure, the Petitioner can be said to have made out a special case for setting aside the decree and the petitioner should be given an opportunity now to defend the Suit by granting unconditional leave to defend.8. We have heard the learned counsel for the petitioner at length. We have also gone through the original order passed by the Division Bench on 7-6-2005. It is required to be noted that initially conditional leave was granted to the defendant by asking him to deposit Rs.47,00,000/-, which order was confirmed in the appeal and SLP against the same was also dismissed by the Honble Supreme Court. In spite of the same, the present petitioner failed to deposit any amount and in these circumstances, ultimately decree was passed against the petitioner - original defendant. The aforesaid decree was passed as back as on 12-2-2001 and subsequently an application was moved under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the said decree on the ground that special circumstances exists for setting aside the decree, as the defendant subsequently came to know that the cheques issued by the company were blank cheques. At this stage, it is required to be noted that this very point was even canvassed before the Division Bench in Appeal No.423 of 2005. The Division Bench in para 2 and 5 of its order, observed as under:"2. The learned counsel for the appellant contended that the summary suitfiled by the present respondent against the appellant herein was founded on blank cheques. At the time of hearing of the summons for judgment, the case of the respondent was that the cheques were blank cheques but the learned Trial Judge did not consider the said aspect at the time of hearing of summons for judgment. But thereafter in the criminal proceedings there was an admission by the respondent that the cheques were blank and even in response to the notice of motion under Order XXXVII Rule 4 C.P.C., there is admission by the respondent that the cheques were blank. In this background, the learned counsel submitted that the case indicating special circumstances for setting aside the decree under Order XXXVII Rule 4 C.P.C. was clearly made out and the learned Single Judge ought to have set aside the decree. The learned counsel relied upon the Division Bench judgment of this court in the case of Ramchandra Dhondu Dalvi V/s. Vithaldas Gokuldas (AIR 1964 Bombay 251).5. In our considered view for non compliance of the order granting conditional leave to defend to the appellant, if the decree came to be passed, the same cannot be faulted. The facts aforenarrated do not make out special circumstances under Order XXXVII Rule 4 C.P.C. for setting aside the decree dated February 12, 2001."9. It is clear that this very point was argued by the petitioner before the Division Bench that the cheques in question were blank cheques and, therefore, the decree should be set aside under Order XXXVII Rule 4 C.P.C. The Division Bench after considering the arguments has negatived the said contention. In our view, attempt of the petitioner is nothing but to argue the said Appeal denovo before us. The powers of this Court under Order XXXVII of the C.P.C. are limited to the extent provided under the Code. This Court is not expected to verify the correctness of the order passed by the earlier Division Bench. If the present petitioner had any grievance against the aforesaid order, his remedy was to challenge the said order before the Honble Supreme Court. It is not the case of the petitioner that after the order of Division Bench dated 7-6-2005 any additional material has come to his notice. The main argument advanced in this review is only on the point that the cheques issued by the company were blank cheques. The earlier Division Bench has considered this aspect and rejected the same. In our view the petitioner is trying to delay the proceedings by not allowing the other side to execute the decree passed seven years back on the pretext that the review petition is pending.10. As noted earlier, eventhough this review petition was filed as back as on 2-9-2005, no attempt was made by the petitioner to place the same before the Court and it is only at the request of the other side that the review petition is taken up for hearing. No attempt was made to move the review petition before the bench which decided the Appeal. The learned counsel for petitioner submits that he has no explanation to offer for the delay in this behalf.

0[ds]In spite of the same, the present petitioner failed to deposit any amount and in these circumstances, ultimately decree was passed against the petitioneroriginal defendant. The aforesaid decree was passed as back as onand subsequently an application was moved under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the said decree on the ground that special circumstances exists for setting aside the decree, as the defendant subsequently came to know that the cheques issued by the company were blank cheques. At this stage, it is required to be noted that this very point was even canvassed before the Division Bench in Appeal No.423 of 2005.It is clear that this very point was argued by the petitioner before the Division Bench that the cheques in question were blank cheques and, therefore, the decree should be set aside under Order XXXVII Rule 4 C.P.C. The Division Bench after considering the arguments has negatived the said contention. In our view, attempt of the petitioner is nothing but to argue the said Appeal denovo before us. The powers of this Court under Order XXXVII of the C.P.C. are limited to the extent provided under the Code. This Court is not expected to verify the correctness of the order passed by the earlier Division Bench. If the present petitioner had any grievance against the aforesaid order, his remedy was to challenge the said order before the Honble Supreme Court. It is not the case of the petitioner that after the order of Division Bench datedany additional material has come to his notice. The main argument advanced in this review is only on the point that the cheques issued by the company were blank cheques. The earlier Division Bench has considered this aspect and rejected the same. In our view the petitioner is trying to delay the proceedings by not allowing the other side to execute the decree passed seven years back on the pretext that the review petition is pending.10. As noted earlier, eventhough this review petition was filed as back as onno attempt was made by the petitioner to place the same before the Court and it is only at the request of the other side that the review petition is taken up for hearing. No attempt was made to move the review petition before the bench which decided the Appeal. The learned counsel for petitioner submits that he has no explanation to offer for the delay in this behalf.

### 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: that all throughout the Petitioner has never moved this Court for taking the Review Petition on board and the execution proceedings are delayed probably because of pendency of this Review Petition. It is only at the request of the other side, the Review Petition is circulated and that is how the Review Petition has been placed before us.7. The learned counsel for the petitioner vehemently submitted that the Division Bench while deciding the Appeal No.423 of 2005 has not taken into consideration the important aspect that the cheques in question issued by the company were blank cheques. The learned counsel for the petitioner submitted that so far as present petitioner is concerned, he was one of the directors of the company and he had given his personal guarantee which was conditional one, to the effect that in case cheques issued by the company are bounced back, then the petitioner was to reimburse the amount to the respondent - original plaintiff on his own. The learned counsel for the petitioner submitted that subsequently it has come to the notice of the petitioner that the company had merely issued blank cheques. It is submitted that since the company had issued only blank cheques, the petitioner was not liable to make any payment on return of the cheques. It is submitted that under these circumstances under Order 37 Rule 4 of the Code of Civil Procedure, the Petitioner can be said to have made out a special case for setting aside the decree and the petitioner should be given an opportunity now to defend the Suit by granting unconditional leave to defend.8. We have heard the learned counsel for the petitioner at length. We have also gone through the original order passed by the Division Bench on 7-6-2005. It is required to be noted that initially conditional leave was granted to the defendant by asking him to deposit Rs.47,00,000/-, which order was confirmed in the appeal and SLP against the same was also dismissed by the Honble Supreme Court. In spite of the same, the present petitioner failed to deposit any amount and in these circumstances, ultimately decree was passed against the petitioner - original defendant. The aforesaid decree was passed as back as on 12-2-2001 and subsequently an application was moved under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the said decree on the ground that special circumstances exists for setting aside the decree, as the defendant subsequently came to know that the cheques issued by the company were blank cheques. At this stage, it is required to be noted that this very point was even canvassed before the Division Bench in Appeal No.423 of 2005. The Division Bench in para 2 and 5 of its order, observed as under:"2. The learned counsel for the appellant contended that the summary suitfiled by the present respondent against the appellant herein was founded on blank cheques. At the time of hearing of the summons for judgment, the case of the respondent was that the cheques were blank cheques but the learned Trial Judge did not consider the said aspect at the time of hearing of summons for judgment. But thereafter in the criminal proceedings there was an admission by the respondent that the cheques were blank and even in response to the notice of motion under Order XXXVII Rule 4 C.P.C., there is admission by the respondent that the cheques were blank. In this background, the learned counsel submitted that the case indicating special circumstances for setting aside the decree under Order XXXVII Rule 4 C.P.C. was clearly made out and the learned Single Judge ought to have set aside the decree. The learned counsel relied upon the Division Bench judgment of this court in the case of Ramchandra Dhondu Dalvi V/s. Vithaldas Gokuldas (AIR 1964 Bombay 251).5. In our considered view for non compliance of the order granting conditional leave to defend to the appellant, if the decree came to be passed, the same cannot be faulted. The facts aforenarrated do not make out special circumstances under Order XXXVII Rule 4 C.P.C. for setting aside the decree dated February 12, 2001."9. It is clear that this very point was argued by the petitioner before the Division Bench that the cheques in question were blank cheques and, therefore, the decree should be set aside under Order XXXVII Rule 4 C.P.C. The Division Bench after considering the arguments has negatived the said contention. In our view, attempt of the petitioner is nothing but to argue the said Appeal denovo before us. The powers of this Court under Order XXXVII of the C.P.C. are limited to the extent provided under the Code. This Court is not expected to verify the correctness of the order passed by the earlier Division Bench. If the present petitioner had any grievance against the aforesaid order, his remedy was to challenge the said order before the Honble Supreme Court. It is not the case of the petitioner that after the order of Division Bench dated 7-6-2005 any additional material has come to his notice. The main argument advanced in this review is only on the point that the cheques issued by the company were blank cheques. The earlier Division Bench has considered this aspect and rejected the same. In our view the petitioner is trying to delay the proceedings by not allowing the other side to execute the decree passed seven years back on the pretext that the review petition is pending.10. As noted earlier, eventhough this review petition was filed as back as on 2-9-2005, no attempt was made by the petitioner to place the same before the Court and it is only at the request of the other side that the review petition is taken up for hearing. No attempt was made to move the review petition before the bench which decided the Appeal. The learned counsel for petitioner submits that he has no explanation to offer for the delay in this behalf. ### Response: 0 ### Explanation: In spite of the same, the present petitioner failed to deposit any amount and in these circumstances, ultimately decree was passed against the petitioneroriginal defendant. The aforesaid decree was passed as back as onand subsequently an application was moved under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the said decree on the ground that special circumstances exists for setting aside the decree, as the defendant subsequently came to know that the cheques issued by the company were blank cheques. At this stage, it is required to be noted that this very point was even canvassed before the Division Bench in Appeal No.423 of 2005.It is clear that this very point was argued by the petitioner before the Division Bench that the cheques in question were blank cheques and, therefore, the decree should be set aside under Order XXXVII Rule 4 C.P.C. The Division Bench after considering the arguments has negatived the said contention. In our view, attempt of the petitioner is nothing but to argue the said Appeal denovo before us. The powers of this Court under Order XXXVII of the C.P.C. are limited to the extent provided under the Code. This Court is not expected to verify the correctness of the order passed by the earlier Division Bench. If the present petitioner had any grievance against the aforesaid order, his remedy was to challenge the said order before the Honble Supreme Court. It is not the case of the petitioner that after the order of Division Bench datedany additional material has come to his notice. The main argument advanced in this review is only on the point that the cheques issued by the company were blank cheques. The earlier Division Bench has considered this aspect and rejected the same. In our view the petitioner is trying to delay the proceedings by not allowing the other side to execute the decree passed seven years back on the pretext that the review petition is pending.10. As noted earlier, eventhough this review petition was filed as back as onno attempt was made by the petitioner to place the same before the Court and it is only at the request of the other side that the review petition is taken up for hearing. No attempt was made to move the review petition before the bench which decided the Appeal. The learned counsel for petitioner submits that he has no explanation to offer for the delay in this behalf.

Dinesh Vazirani Vs. The Principal Commissioner of Income Tax-7 and ors

Apex Court in CIT Vs. Shoorji Vallabhdas and Co. (1962) 46 ITR 144 (SC) page 148 has observed as under: Income-Tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping an entry is made about a hypothetical income which does not matrialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account. 12. In the present case, the real income (capital gain) can be computed only by taking into account the real sale consideration, i.e., sale consideration after reducing the amount withdrawn from the escrow account. Respondent no.1 has proceeded on an erroneous understanding that the arrangement between the seller and buyer which results in some contingent liability that arises subsequently to the transfer, cannot be reduced from the sale consideration as per Section 48 of the Act. We say this because the liability is contemplated in SPA itself and certainly the same should be taken into account to determine the full value of consideration. Therefore, if sale consideration specified in the agreement is along with certain liability, then the full value of consideration for the purpose of computing capital gains under Section 48 of the Act is the consideration specified in the agreement as reduced by the liability. For respondent no.1 to say that from the sale consideration only cost of acquisition, cost of improvement and cost of transfer can be reduced and the subsequent contingent liability does not come within any of the items of the reduction and the same cannot be reduced, is erroneous because full value of consideration under Section 48 would be the amount arrived at after reducing the liabilities from the purchase price mentioned in the agreement. Even if the contingent liability is to be regarded as subsequent event, then also the same ought to be taken into consideration in determining capital gain chargeable under Section 45 of the Act. 13. Further, we do not agree with respondent no.1 that the contingent liability paid out of escrow account does not affect the amount receivable as per the agreement for the purpose of computation of capital gains under Section 48 of the Act. Respondent no.1 has failed to understand or appreciate that the promoters have received only net amount of Rs.125,00,00,000/- plus Rs.20,82,95,760/- (Rs.30,00,00,000/- - Rs.9,17,04,240/-). Such reduced amount should be taken as full value of consideration for computing capital gains under Section 48 of the Act. 14. For respondent no.1 to hold that in the absence of specific provisions by which an assessee can reduce returned income filed by it voluntarily, the same cannot be permitted indirectly by resorting to provisions under Section 264 of the Act, is also erroneous. Certainly, assessee could file revised returned of income within the prescribed period, to reduce the returned income or increase the returned income. Petitioner filed an application under Section 264 because the assessment under Section 143 had been completed by the time the amount of Rs.9,17,04,240/- was deducted from the escrow account. Section 264 of the Act in our view, has been introduced to factor in such situation because if income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about hypothetical income which does not materialize. Section 264 of the Act does not restrict the scope of power of respondent no.1 to restrict a relief to an assessee only upto the returned income. Where the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income even though an entry that might, in certain circumstances, have been made in the books of account. Therefore, respondent no.1 ought to have directed the Assessing Officer to recompute income as per the provisions of the Act, irrespective of whether the computation results in income being less than returned income. It is the obligation of the revenue to tax an assessee on the income chargeable to tax under the Act and if higher income is offered to tax, then it is the duty of the revenue to compute the correct income and grant the refund of taxes erroneously paid by an assessee. 15. Reliance by respondent no.1 on the provisions of Section 240 of the Act to hold that there is no power on respondent no.1 to reduce the returned income, is fraught with error because the circumstances provided in the provisio to Section 240 indisputably do not exist in the present case. Provisio to Section 240 provides that in case of annulment of assessment, refund of tax paid by the assessee as per the return of income cannot be granted to the assessee, which is not the case at hand. There is no provision in the Act which provides, if ultimately assessed income is less than the returned income, the refund of the excess tax paid by the assessee would not be granted to such assessee. As regards the stand of respondent no.1 that the income returned by petitioner is sacrosanct and cannot be disturbed, the only thing that is sacrosanct is that an assessee can be asked to pay only such amount of tax which is legally due under the Act and nothing more. If returned income shows a higher tax liability than what is actually chargeable under the Act, then the assessee is entitled to refund of excess tax paid by it.

1[ds]8. Having heard the learned counsel and considering the petition, documents annexed thereto and affidavit in reply, we are satisfied that the impugned order passed by respondent no.1 is not correct and has to be quashed and set aside.9. Respondent no.1 had erred in holding that the proportionate amount of Rs.9,17,04,240/- withdrawn from the escrow account should not be reduced in computing capital gains of petitioner. Capital gains is computed under Section 48 of the Act by reducing from the full value of consideration received or accrued as a result of transfer of capital asset, cost of acquisition, cost of improvement and cost of transfer. Respondent no.1 has erred in stating that only the cost of acquisition, cost of improvement and cost of transfer can be deducted from full consideration and, therefore, petitioner is not entitled to the proportionate reduction. Respondent no.1 has failed to understand that the amount of Rs.9,17,04,240/- was neither received by the promoters nor accrued to the promoters, as the said amount was transferred directly to the escrow account and was withdrawn from the escrow account. When the amount has not been received or accrued to the promoters, the same cannot be taken as full value of consideration in computing capital gains from the transfer of the shares of the company.10. We observe that respondent no.1 has not understood the true intent and the content of the SPA. Respondent no.1 has not appreciated that the purchase price as defined in the agreement was not an absolute amount as the same was subject to certain liabilities which might arise to the promoters on account of certain subsequent events. The full value of consideration for computing capital gains, in our view, will be the amount which was ultimately received by the promoters after the adjustments on account of the liabilities from the escrow account as mentioned in the agreement.11. Respondent No.1 has gone wrong in not appreciating that income or gain is chargeable to tax under the Act on the basis of the real income earned by an assessee, unless specific provisions provide to the contrary. The Apex Court in CIT Vs. Shoorji Vallabhdas and Co.(1962) 46 ITR 144 (SC) page 148 has observed as under:Income-Tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping an entry is made about a hypothetical income which does not matrialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account.12. In the present case, the real income (capital gain) can be computed only by taking into account the real sale consideration, i.e., sale consideration after reducing the amount withdrawn from the escrow account. Respondent no.1 has proceeded on an erroneous understanding that the arrangement between the seller and buyer which results in some contingent liability that arises subsequently to the transfer, cannot be reduced from the sale consideration as per Section 48 of the Act. We say this because the liability is contemplated in SPA itself and certainly the same should be taken into account to determine the full value of consideration. Therefore, if sale consideration specified in the agreement is along with certain liability, then the full value of consideration for the purpose of computing capital gains under Section 48 of the Act is the consideration specified in the agreement as reduced by the liability. For respondent no.1 to say that from the sale consideration only cost of acquisition, cost of improvement and cost of transfer can be reduced and the subsequent contingent liability does not come within any of the items of the reduction and the same cannot be reduced, is erroneous because full value of consideration under Section 48 would be the amount arrived at after reducing the liabilities from the purchase price mentioned in the agreement. Even if the contingent liability is to be regarded as subsequent event, then also the same ought to be taken into consideration in determining capital gain chargeable under Section 45 of the Act.13. Further, we do not agree with respondent no.1 that the contingent liability paid out of escrow account does not affect the amount receivable as per the agreement for the purpose of computation of capital gains under Section 48 of the Act. Respondent no.1 has failed to understand or appreciate that the promoters have received only net amount of Rs.125,00,00,000/- plus Rs.20,82,95,760/- (Rs.30,00,00,000/- - Rs.9,17,04,240/-). Such reduced amount should be taken as full value of consideration for computing capital gains under Section 48 of the Act.14. For respondent no.1 to hold that in the absence of specific provisions by which an assessee can reduce returned income filed by it voluntarily, the same cannot be permitted indirectly by resorting to provisions under Section 264 of the Act, is also erroneous. Certainly, assessee could file revised returned of income within the prescribed period, to reduce the returned income or increase the returned income. Petitioner filed an application under Section 264 because the assessment under Section 143 had been completed by the time the amount of Rs.9,17,04,240/- was deducted from the escrow account. Section 264 of the Act in our view, has been introduced to factor in such situation because if income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about hypothetical income which does not materialize. Section 264 of the Act does not restrict the scope of power of respondent no.1 to restrict a relief to an assessee only upto the returned income. Where the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income even though an entry that might, in certain circumstances, have been made in the books of account. Therefore, respondent no.1 ought to have directed the Assessing Officer to recompute income as per the provisions of the Act, irrespective of whether the computation results in income being less than returned income. It is the obligation of the revenue to tax an assessee on the income chargeable to tax under the Act and if higher income is offered to tax, then it is the duty of the revenue to compute the correct income and grant the refund of taxes erroneously paid by an assessee.15. Reliance by respondent no.1 on the provisions of Section 240 of the Act to hold that there is no power on respondent no.1 to reduce the returned income, is fraught with error because the circumstances provided in the provisio to Section 240 indisputably do not exist in the present case. Provisio to Section 240 provides that in case of annulment of assessment, refund of tax paid by the assessee as per the return of income cannot be granted to the assessee, which is not the case at hand. There is no provision in the Act which provides, if ultimately assessed income is less than the returned income, the refund of the excess tax paid by the assessee would not be granted to such assessee. As regards the stand of respondent no.1 that the income returned by petitioner is sacrosanct and cannot be disturbed, the only thing that is sacrosanct is that an assessee can be asked to pay only such amount of tax which is legally due under the Act and nothing more. If returned income shows a higher tax liability than what is actually chargeable under the Act, then the assessee is entitled to refund of excess tax paid by it.

### 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: Apex Court in CIT Vs. Shoorji Vallabhdas and Co. (1962) 46 ITR 144 (SC) page 148 has observed as under: Income-Tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping an entry is made about a hypothetical income which does not matrialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account. 12. In the present case, the real income (capital gain) can be computed only by taking into account the real sale consideration, i.e., sale consideration after reducing the amount withdrawn from the escrow account. Respondent no.1 has proceeded on an erroneous understanding that the arrangement between the seller and buyer which results in some contingent liability that arises subsequently to the transfer, cannot be reduced from the sale consideration as per Section 48 of the Act. We say this because the liability is contemplated in SPA itself and certainly the same should be taken into account to determine the full value of consideration. Therefore, if sale consideration specified in the agreement is along with certain liability, then the full value of consideration for the purpose of computing capital gains under Section 48 of the Act is the consideration specified in the agreement as reduced by the liability. For respondent no.1 to say that from the sale consideration only cost of acquisition, cost of improvement and cost of transfer can be reduced and the subsequent contingent liability does not come within any of the items of the reduction and the same cannot be reduced, is erroneous because full value of consideration under Section 48 would be the amount arrived at after reducing the liabilities from the purchase price mentioned in the agreement. Even if the contingent liability is to be regarded as subsequent event, then also the same ought to be taken into consideration in determining capital gain chargeable under Section 45 of the Act. 13. Further, we do not agree with respondent no.1 that the contingent liability paid out of escrow account does not affect the amount receivable as per the agreement for the purpose of computation of capital gains under Section 48 of the Act. Respondent no.1 has failed to understand or appreciate that the promoters have received only net amount of Rs.125,00,00,000/- plus Rs.20,82,95,760/- (Rs.30,00,00,000/- - Rs.9,17,04,240/-). Such reduced amount should be taken as full value of consideration for computing capital gains under Section 48 of the Act. 14. For respondent no.1 to hold that in the absence of specific provisions by which an assessee can reduce returned income filed by it voluntarily, the same cannot be permitted indirectly by resorting to provisions under Section 264 of the Act, is also erroneous. Certainly, assessee could file revised returned of income within the prescribed period, to reduce the returned income or increase the returned income. Petitioner filed an application under Section 264 because the assessment under Section 143 had been completed by the time the amount of Rs.9,17,04,240/- was deducted from the escrow account. Section 264 of the Act in our view, has been introduced to factor in such situation because if income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about hypothetical income which does not materialize. Section 264 of the Act does not restrict the scope of power of respondent no.1 to restrict a relief to an assessee only upto the returned income. Where the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income even though an entry that might, in certain circumstances, have been made in the books of account. Therefore, respondent no.1 ought to have directed the Assessing Officer to recompute income as per the provisions of the Act, irrespective of whether the computation results in income being less than returned income. It is the obligation of the revenue to tax an assessee on the income chargeable to tax under the Act and if higher income is offered to tax, then it is the duty of the revenue to compute the correct income and grant the refund of taxes erroneously paid by an assessee. 15. Reliance by respondent no.1 on the provisions of Section 240 of the Act to hold that there is no power on respondent no.1 to reduce the returned income, is fraught with error because the circumstances provided in the provisio to Section 240 indisputably do not exist in the present case. Provisio to Section 240 provides that in case of annulment of assessment, refund of tax paid by the assessee as per the return of income cannot be granted to the assessee, which is not the case at hand. There is no provision in the Act which provides, if ultimately assessed income is less than the returned income, the refund of the excess tax paid by the assessee would not be granted to such assessee. As regards the stand of respondent no.1 that the income returned by petitioner is sacrosanct and cannot be disturbed, the only thing that is sacrosanct is that an assessee can be asked to pay only such amount of tax which is legally due under the Act and nothing more. If returned income shows a higher tax liability than what is actually chargeable under the Act, then the assessee is entitled to refund of excess tax paid by it. ### Response: 1 ### Explanation: provisions provide to the contrary. The Apex Court in CIT Vs. Shoorji Vallabhdas and Co.(1962) 46 ITR 144 (SC) page 148 has observed as under:Income-Tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping an entry is made about a hypothetical income which does not matrialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account.12. In the present case, the real income (capital gain) can be computed only by taking into account the real sale consideration, i.e., sale consideration after reducing the amount withdrawn from the escrow account. Respondent no.1 has proceeded on an erroneous understanding that the arrangement between the seller and buyer which results in some contingent liability that arises subsequently to the transfer, cannot be reduced from the sale consideration as per Section 48 of the Act. We say this because the liability is contemplated in SPA itself and certainly the same should be taken into account to determine the full value of consideration. Therefore, if sale consideration specified in the agreement is along with certain liability, then the full value of consideration for the purpose of computing capital gains under Section 48 of the Act is the consideration specified in the agreement as reduced by the liability. For respondent no.1 to say that from the sale consideration only cost of acquisition, cost of improvement and cost of transfer can be reduced and the subsequent contingent liability does not come within any of the items of the reduction and the same cannot be reduced, is erroneous because full value of consideration under Section 48 would be the amount arrived at after reducing the liabilities from the purchase price mentioned in the agreement. Even if the contingent liability is to be regarded as subsequent event, then also the same ought to be taken into consideration in determining capital gain chargeable under Section 45 of the Act.13. Further, we do not agree with respondent no.1 that the contingent liability paid out of escrow account does not affect the amount receivable as per the agreement for the purpose of computation of capital gains under Section 48 of the Act. Respondent no.1 has failed to understand or appreciate that the promoters have received only net amount of Rs.125,00,00,000/- plus Rs.20,82,95,760/- (Rs.30,00,00,000/- - Rs.9,17,04,240/-). Such reduced amount should be taken as full value of consideration for computing capital gains under Section 48 of the Act.14. For respondent no.1 to hold that in the absence of specific provisions by which an assessee can reduce returned income filed by it voluntarily, the same cannot be permitted indirectly by resorting to provisions under Section 264 of the Act, is also erroneous. Certainly, assessee could file revised returned of income within the prescribed period, to reduce the returned income or increase the returned income. Petitioner filed an application under Section 264 because the assessment under Section 143 had been completed by the time the amount of Rs.9,17,04,240/- was deducted from the escrow account. Section 264 of the Act in our view, has been introduced to factor in such situation because if income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about hypothetical income which does not materialize. Section 264 of the Act does not restrict the scope of power of respondent no.1 to restrict a relief to an assessee only upto the returned income. Where the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income even though an entry that might, in certain circumstances, have been made in the books of account. Therefore, respondent no.1 ought to have directed the Assessing Officer to recompute income as per the provisions of the Act, irrespective of whether the computation results in income being less than returned income. It is the obligation of the revenue to tax an assessee on the income chargeable to tax under the Act and if higher income is offered to tax, then it is the duty of the revenue to compute the correct income and grant the refund of taxes erroneously paid by an assessee.15. Reliance by respondent no.1 on the provisions of Section 240 of the Act to hold that there is no power on respondent no.1 to reduce the returned income, is fraught with error because the circumstances provided in the provisio to Section 240 indisputably do not exist in the present case. Provisio to Section 240 provides that in case of annulment of assessment, refund of tax paid by the assessee as per the return of income cannot be granted to the assessee, which is not the case at hand. There is no provision in the Act which provides, if ultimately assessed income is less than the returned income, the refund of the excess tax paid by the assessee would not be granted to such assessee. As regards the stand of respondent no.1 that the income returned by petitioner is sacrosanct and cannot be disturbed, the only thing that is sacrosanct is that an assessee can be asked to pay only such amount of tax which is legally due under the Act and nothing more. If returned income shows a higher tax liability than what is actually chargeable under the Act, then the assessee is entitled to refund of excess tax paid by it.

Jai Parkash Etc Etc Vs. Union Territory, Chandigarh Etc Etc

M. R. Shah, J. 1. As common question of law and facts arise in this group of appeals, they are disposed of by this common judgment and order. 2. The relevant facts which are necessary for determination of the present appeals in a nutshell are as under:- 2.1 In all these cases a notification under Section 4 of the Land Acquisition Act, 1894 was issued on 19.03.1999 by which the Chandigarh Administration sought to acquire 30.78 acres of land situated in Village Hallo Majra, Hadbast No.219 and 32.92 acres of land situated in Village Behlana, Hadbast No.231, Union Territory, Chandigarh, for use by Defence Security Forces. That a notification under Section 6 of the Land Acquisition Act, 1894 was issued on 23.03.1999. The Land Acquisition Officer declared the award dated 18.01.2000 and assessed the market value of the acquired lands of both the villages @ Rs.6,87,837/-- per acre. That on reference, the learned Reference Court determined and enhanced the market value of the acquired lands of both the villages @ Rs.9,65,000/-- per acre. The judgment and award passed by the Reference Court determining the market value of the lands @ Rs.9,65,000/-- per acre was the subject matter of appeals before the High Court. 2.2 At this stage, it is required to be noted that before the Reference Court, the original claimants – appellants herein relied upon the sale deeds produced and exhibited as P--43, P--44 and P--73 and P--74. However, the learned Reference Court rejected the said sale transactions on the ground that the said sale transactions are pertaining to small plots. Therefore, the learned Reference Court discarded the same. Before the High Court also the original claimants heavily relied upon the sale instances at exhibit P--43, P--44 and P--73 and P--74. By the impugned common impugned judgment and order, the High Court has held that the Reference Court ought to have considered the sale transactions exhibit P--73 and P--74 and ought to have determined the market value of the lands acquired, after adopting some reasonable cut. After taking the average price of both the sale deeds – exhibit P--73 and P--74, the High Court determined the average price of Rs.22,57,000/-- per acre. That thereafter after giving a cut of 50%, the High Court has determined the market value of the acquired lands at Rs.11,28,580/-- (round off to Rs.11,30,000/--) per acre. 2.3 Feeling aggrieved and dissatisfied with the common impugned judgment and order passed by the High Court in respective appeals, determining/assessing the market value of the lands acquired at Rs.11,30,000/-- per acre, the original claimants have preferred the present appeals. 3. We have heard the learned counsel appearing on behalf of the respective parties at length. 4. At the outset, it is required to be noted that the High Court has relied upon the sale instances exhibit P--73 and P--74 against which no appeals have been preferred by the Chandigarh Administration. Therefore, the findings recorded by the High Court that the sale instances i.e. exhibit P--73 and P--74 can be best exemplars and which can be considered for determining and assessing the market value of the lands acquired, has attained finality. 5. Now the next question which would arise for consideration, would be, whether in the facts and circumstances of the case, the High Court is justified in applying a deduction of 50% while determining/assessing market price? 5.1 It is to noted that as such nothing has been discussed by the High Court while applying a deduction of 50%. Therefore, in the normal course the appeals are required to be remanded to the High Court for applying the proper cut. However, learned counsel appearing on behalf of the respective parties have prayed and requested to make the appropriate percentage of deduction by this Court instead of remanding the matters to the High Court. 6. Having heard learned counsel appearing on behalf of the respective parties and considering the location of the lands acquired and that part of the acquired land abuts the National Highway No. 21 and at the same time, the sale instances exhibit P--73 & P--74 pertain to comparatively smaller plots as compared to the acquired lands (in all approximately 63.70 acres of lands) a reasonable percentage of deduction is required to be made while determining/assessing the market price.

1[ds]4. At the outset, it is required to be noted that the High Court has relied upon the sale instances exhibit P--73 and P--74 against which no appeals have been preferred by the Chandigarh Administration. Therefore, the findings recorded by the High Court that the sale instances i.e. exhibit P--73 and P--74 can be best exemplars and which can be considered for determining and assessing the market value of the lands acquired, has attained finality.5.1 It is to noted that as such nothing has been discussed by the High Court while applying a deduction of 50%. Therefore, in the normal course the appeals are required to be remanded to the High Court for applying the proper cut. However, learned counsel appearing on behalf of the respective parties have prayed and requested to make the appropriate percentage of deduction by this Court instead of remanding the matters to the High Court.6. Having heard learned counsel appearing on behalf of the respective parties and considering the location of the lands acquired and that part of the acquired land abuts the National Highway No. 21 and at the same time, the sale instances exhibit P--73 & P--74 pertain to comparatively smaller plots as compared to the acquired lands (in all approximately 63.70 acres of lands) a reasonable percentage of deduction is required to be made while determining/assessing the market price.

### 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: M. R. Shah, J. 1. As common question of law and facts arise in this group of appeals, they are disposed of by this common judgment and order. 2. The relevant facts which are necessary for determination of the present appeals in a nutshell are as under:- 2.1 In all these cases a notification under Section 4 of the Land Acquisition Act, 1894 was issued on 19.03.1999 by which the Chandigarh Administration sought to acquire 30.78 acres of land situated in Village Hallo Majra, Hadbast No.219 and 32.92 acres of land situated in Village Behlana, Hadbast No.231, Union Territory, Chandigarh, for use by Defence Security Forces. That a notification under Section 6 of the Land Acquisition Act, 1894 was issued on 23.03.1999. The Land Acquisition Officer declared the award dated 18.01.2000 and assessed the market value of the acquired lands of both the villages @ Rs.6,87,837/-- per acre. That on reference, the learned Reference Court determined and enhanced the market value of the acquired lands of both the villages @ Rs.9,65,000/-- per acre. The judgment and award passed by the Reference Court determining the market value of the lands @ Rs.9,65,000/-- per acre was the subject matter of appeals before the High Court. 2.2 At this stage, it is required to be noted that before the Reference Court, the original claimants – appellants herein relied upon the sale deeds produced and exhibited as P--43, P--44 and P--73 and P--74. However, the learned Reference Court rejected the said sale transactions on the ground that the said sale transactions are pertaining to small plots. Therefore, the learned Reference Court discarded the same. Before the High Court also the original claimants heavily relied upon the sale instances at exhibit P--43, P--44 and P--73 and P--74. By the impugned common impugned judgment and order, the High Court has held that the Reference Court ought to have considered the sale transactions exhibit P--73 and P--74 and ought to have determined the market value of the lands acquired, after adopting some reasonable cut. After taking the average price of both the sale deeds – exhibit P--73 and P--74, the High Court determined the average price of Rs.22,57,000/-- per acre. That thereafter after giving a cut of 50%, the High Court has determined the market value of the acquired lands at Rs.11,28,580/-- (round off to Rs.11,30,000/--) per acre. 2.3 Feeling aggrieved and dissatisfied with the common impugned judgment and order passed by the High Court in respective appeals, determining/assessing the market value of the lands acquired at Rs.11,30,000/-- per acre, the original claimants have preferred the present appeals. 3. We have heard the learned counsel appearing on behalf of the respective parties at length. 4. At the outset, it is required to be noted that the High Court has relied upon the sale instances exhibit P--73 and P--74 against which no appeals have been preferred by the Chandigarh Administration. Therefore, the findings recorded by the High Court that the sale instances i.e. exhibit P--73 and P--74 can be best exemplars and which can be considered for determining and assessing the market value of the lands acquired, has attained finality. 5. Now the next question which would arise for consideration, would be, whether in the facts and circumstances of the case, the High Court is justified in applying a deduction of 50% while determining/assessing market price? 5.1 It is to noted that as such nothing has been discussed by the High Court while applying a deduction of 50%. Therefore, in the normal course the appeals are required to be remanded to the High Court for applying the proper cut. However, learned counsel appearing on behalf of the respective parties have prayed and requested to make the appropriate percentage of deduction by this Court instead of remanding the matters to the High Court. 6. Having heard learned counsel appearing on behalf of the respective parties and considering the location of the lands acquired and that part of the acquired land abuts the National Highway No. 21 and at the same time, the sale instances exhibit P--73 & P--74 pertain to comparatively smaller plots as compared to the acquired lands (in all approximately 63.70 acres of lands) a reasonable percentage of deduction is required to be made while determining/assessing the market price. ### Response: 1 ### Explanation: 4. At the outset, it is required to be noted that the High Court has relied upon the sale instances exhibit P--73 and P--74 against which no appeals have been preferred by the Chandigarh Administration. Therefore, the findings recorded by the High Court that the sale instances i.e. exhibit P--73 and P--74 can be best exemplars and which can be considered for determining and assessing the market value of the lands acquired, has attained finality.5.1 It is to noted that as such nothing has been discussed by the High Court while applying a deduction of 50%. Therefore, in the normal course the appeals are required to be remanded to the High Court for applying the proper cut. However, learned counsel appearing on behalf of the respective parties have prayed and requested to make the appropriate percentage of deduction by this Court instead of remanding the matters to the High Court.6. Having heard learned counsel appearing on behalf of the respective parties and considering the location of the lands acquired and that part of the acquired land abuts the National Highway No. 21 and at the same time, the sale instances exhibit P--73 & P--74 pertain to comparatively smaller plots as compared to the acquired lands (in all approximately 63.70 acres of lands) a reasonable percentage of deduction is required to be made while determining/assessing the market price.

Ram Adhar Singh Vs. Ramroop Singh & Others

suits for possession of land, because, before a claim for possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent, is covered by the amended Section 5 of the Act. 8. The various provisions, contained in the act, also clearly indicate that disputes of the nature which exists between the parties in the present litigation, are all now within the jurisdiction of the authorities constituted under the Act, to adjudicate upon. The Act itself is one, to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture. Section 3 defines the various expressions Chak means the parcel of land allotted to a tenure-holder, on consolidation. Consolidation means rearrangement of holdings in a suit amongst several tenure-holder in such a way as to make their respective holdings more compact. tenure-holder means a bhumidhar or sirdar of the land concerned and includes an asami. Section 4 gives power to the State Government to make a declaration that a district or part thereof may be brought under consolidation operations. There is no controversy, that the notification, issued by the State Government, under this section on October 22, 1965 takes in the area where the disputed lands are situated. We have already referred to the provisions, contained in the original as well as the amended Section 5. 9. Sections 8 and 8A, deal with the preparation of records, and statements, by the Consolidation Officer, and Section 9 provides for the Assistant Consolidation Officer sending notices to tenure-holders concerned, and other persons interested, showing their interests in, and liabilities, in relation to, the land. Sub-section (2) of Section 9 provides for a person, to whom a notice under subsection (1) has been sent or any other person interested, to file objections within the time specified therein, to the Assistant Consolidation Officer, disputing the correctness of the entries made in the records. One of the entries, we have already pointed out, relates to the rights in and liabilities in relation to the land. There are provisions relating to the hearing of objections and the Assistant Consolidation Officer is deemed to be a Court of competent jurisdiction. Provisions have also been made for an aggrieved party to file an appeal, to the Settlement Officer and Section 11 provides that the order of the Settlement Officer is final and that it cannot be questioned in any Court of law. 10. Section 11A provides that no question in respect of a claim to a land, shall be raised or heard at any subsequent stage of the consolidation proceedings, if they have not been raised earlier. Section 24 provides for the tenure-holder being entitled to enter into possession of the plots allotted to him. Section 28 also gives power to the Assistant Consolidation Officer, on the application of the tenure-holder, to be put in possession of the land, allotted to him. We have already referred to the fact that the expression tenure holder under Section 3 (11), means a bhumidhar or sirdar of the land concerned and includes also an asami. Section 40 provides that proceedings before the Consolidation authorities are to be deemed to be judicial proceedings. Section 48 provides for the Director of Consolidation, exercising his powers of revision, regarding cases decided, or proceedings taken, by any subordinate authority. Section 49 excludes the jurisdiction of civil courts to entertain any suit or proceeding, with respect to rights in respect of lands, covered by the notification, under Section 4, or with respect to any other matters for which a proceeding could, or ought to have been taken under the Act. 11. We have referred only to some of the salient provisions of the Act and they will clearly show that the subject matter of the dispute, between the parties in this litigation, are all matters falling for adjudication, within the purview of the authorities, constituted under the Act. In fact, Cl. (b), of sub-section (2) of Section 5 of the Act, as it now stands, also lays down that the abatement of the proceedings, under Clause (a) shall be without prejudice to the rights of persons affected to agitate the right or interest in dispute in the said suits or proceedings, before the appropriate consolidation authorities under the Act and in accordance with the provisions of the Act and the rules made, thereunder. 12. Having due regard to the nature of this litigation, and the provisions of the Act, we are satisfied that the amended Section 5 of the Act applies to these proceedings. If that is so, an order has to be passed that the suit, out of which these proceedings arise, stands abated. 13. That takes us on to the second contention, of Mr. Gupte, viz., that the provisions of the amended Section 5 are ultra vires, inasmuch as the State Legislature has enacted a provision, which impinges upon the jurisdiction of this Court. The learned counsel has no doubt referred us, to the, various entries in the Lists in the Seventh Schedule to the Constitution, but we are not satisfied that there is any merit either, in this contention.The State Legislature has not passed any legislation affecting the jurisdiction of this Court. On the other hand, what the State Legislature has done is only to make provision in respect of matters, within its jurisdiction and to declare that a suit, instituted in a Court, within its area, has abated. The position, ultimately, is that this Court takes note of a subsequent event viz., the passing of the Amending Act, and the amendment of Section 5 thereby, by the State Legislature, and, on that basis, it holds that the suit out of which these proceedings arise, stands abated. Therefore, there is no question of the Legislature of the State having passed any legislation affecting the jurisdiction of this Court

1[ds]6. After a consideration of the contentions of both the learned counsel, we are satisfied that the stand taken on behalf of the respondent on both the points cannot be accepted7. We have already extracted the provisions of Section 5 of the Act as it originally stood, and as it now stands, after the amendment in 1966. No doubt, in Cl (b) (i) of Section 5, as it originally stood, suits for possession of land were also expressly dealt with. But, under the amended Section 5, there is no direct reference to suits for possession of landNo doubt this line of reasoning, on the face of it, may appear to be attractive; but we are not satisfied that there is any merit in that contention.Suits for possession, as such, has not been expressly referred to, in the new Section 5, but. in our opinion, the expression every suit and proceeding in respect of declaration of rights or interest in any land , are comprehensive enough to take in suits for possession of land, because, before a claim for possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent, is covered by the amended Section 5 of the Act11. We have referred only to some of the salient provisions of the Act and they will clearly show that the subject matter of the dispute, between the parties in this litigation, are all matters falling for adjudication, within the purview of the authorities, constituted under the Act. In fact, Cl. (b), of sub-section (2) of Section 5 of the Act, as it now stands, also lays down that the abatement of the proceedings, under Clause (a) shall be without prejudice to the rights of persons affected to agitate the right or interest in dispute in the said suits or proceedings, before the appropriate consolidation authorities under the Act and in accordance with the provisions of the Act and the rules made, thereunder12. Having due regard to the nature of this litigation, and the provisions of the Act, we are satisfied that the amended Section 5 of the Act applies to these proceedings. If that is so, an order has to be passed that the suit, out of which these proceedings arise, stands abated13. That takes us on to the second contention, of Mr. Gupte, viz., that the provisions of the amended Section 5 are ultra vires, inasmuch as the State Legislature has enacted a provision, which impinges upon the jurisdiction of this Court. The learned counsel has no doubt referred us, to the, various entries in the Lists in the Seventh Schedule to the Constitution, but we are not satisfied that there is any merit either, in this contention.The State Legislature has not passed any legislation affecting the jurisdiction of this Court. On the other hand, what the State Legislature has done is only to make provision in respect of matters, within its jurisdiction and to declare that a suit, instituted in a Court, within its area, has abated. The position, ultimately, is that this Court takes note of a subsequent event viz., the passing of the Amending Act, and the amendment of Section 5 thereby, by the State Legislature, and, on that basis, it holds that the suit out of which these proceedings arise, stands abated. Therefore, there is no question of the Legislature of the State having passed any legislation affecting the jurisdiction of this Court

### 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: suits for possession of land, because, before a claim for possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent, is covered by the amended Section 5 of the Act. 8. The various provisions, contained in the act, also clearly indicate that disputes of the nature which exists between the parties in the present litigation, are all now within the jurisdiction of the authorities constituted under the Act, to adjudicate upon. The Act itself is one, to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture. Section 3 defines the various expressions Chak means the parcel of land allotted to a tenure-holder, on consolidation. Consolidation means rearrangement of holdings in a suit amongst several tenure-holder in such a way as to make their respective holdings more compact. tenure-holder means a bhumidhar or sirdar of the land concerned and includes an asami. Section 4 gives power to the State Government to make a declaration that a district or part thereof may be brought under consolidation operations. There is no controversy, that the notification, issued by the State Government, under this section on October 22, 1965 takes in the area where the disputed lands are situated. We have already referred to the provisions, contained in the original as well as the amended Section 5. 9. Sections 8 and 8A, deal with the preparation of records, and statements, by the Consolidation Officer, and Section 9 provides for the Assistant Consolidation Officer sending notices to tenure-holders concerned, and other persons interested, showing their interests in, and liabilities, in relation to, the land. Sub-section (2) of Section 9 provides for a person, to whom a notice under subsection (1) has been sent or any other person interested, to file objections within the time specified therein, to the Assistant Consolidation Officer, disputing the correctness of the entries made in the records. One of the entries, we have already pointed out, relates to the rights in and liabilities in relation to the land. There are provisions relating to the hearing of objections and the Assistant Consolidation Officer is deemed to be a Court of competent jurisdiction. Provisions have also been made for an aggrieved party to file an appeal, to the Settlement Officer and Section 11 provides that the order of the Settlement Officer is final and that it cannot be questioned in any Court of law. 10. Section 11A provides that no question in respect of a claim to a land, shall be raised or heard at any subsequent stage of the consolidation proceedings, if they have not been raised earlier. Section 24 provides for the tenure-holder being entitled to enter into possession of the plots allotted to him. Section 28 also gives power to the Assistant Consolidation Officer, on the application of the tenure-holder, to be put in possession of the land, allotted to him. We have already referred to the fact that the expression tenure holder under Section 3 (11), means a bhumidhar or sirdar of the land concerned and includes also an asami. Section 40 provides that proceedings before the Consolidation authorities are to be deemed to be judicial proceedings. Section 48 provides for the Director of Consolidation, exercising his powers of revision, regarding cases decided, or proceedings taken, by any subordinate authority. Section 49 excludes the jurisdiction of civil courts to entertain any suit or proceeding, with respect to rights in respect of lands, covered by the notification, under Section 4, or with respect to any other matters for which a proceeding could, or ought to have been taken under the Act. 11. We have referred only to some of the salient provisions of the Act and they will clearly show that the subject matter of the dispute, between the parties in this litigation, are all matters falling for adjudication, within the purview of the authorities, constituted under the Act. In fact, Cl. (b), of sub-section (2) of Section 5 of the Act, as it now stands, also lays down that the abatement of the proceedings, under Clause (a) shall be without prejudice to the rights of persons affected to agitate the right or interest in dispute in the said suits or proceedings, before the appropriate consolidation authorities under the Act and in accordance with the provisions of the Act and the rules made, thereunder. 12. Having due regard to the nature of this litigation, and the provisions of the Act, we are satisfied that the amended Section 5 of the Act applies to these proceedings. If that is so, an order has to be passed that the suit, out of which these proceedings arise, stands abated. 13. That takes us on to the second contention, of Mr. Gupte, viz., that the provisions of the amended Section 5 are ultra vires, inasmuch as the State Legislature has enacted a provision, which impinges upon the jurisdiction of this Court. The learned counsel has no doubt referred us, to the, various entries in the Lists in the Seventh Schedule to the Constitution, but we are not satisfied that there is any merit either, in this contention.The State Legislature has not passed any legislation affecting the jurisdiction of this Court. On the other hand, what the State Legislature has done is only to make provision in respect of matters, within its jurisdiction and to declare that a suit, instituted in a Court, within its area, has abated. The position, ultimately, is that this Court takes note of a subsequent event viz., the passing of the Amending Act, and the amendment of Section 5 thereby, by the State Legislature, and, on that basis, it holds that the suit out of which these proceedings arise, stands abated. Therefore, there is no question of the Legislature of the State having passed any legislation affecting the jurisdiction of this Court ### Response: 1 ### Explanation: 6. After a consideration of the contentions of both the learned counsel, we are satisfied that the stand taken on behalf of the respondent on both the points cannot be accepted7. We have already extracted the provisions of Section 5 of the Act as it originally stood, and as it now stands, after the amendment in 1966. No doubt, in Cl (b) (i) of Section 5, as it originally stood, suits for possession of land were also expressly dealt with. But, under the amended Section 5, there is no direct reference to suits for possession of landNo doubt this line of reasoning, on the face of it, may appear to be attractive; but we are not satisfied that there is any merit in that contention.Suits for possession, as such, has not been expressly referred to, in the new Section 5, but. in our opinion, the expression every suit and proceeding in respect of declaration of rights or interest in any land , are comprehensive enough to take in suits for possession of land, because, before a claim for possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent, is covered by the amended Section 5 of the Act11. We have referred only to some of the salient provisions of the Act and they will clearly show that the subject matter of the dispute, between the parties in this litigation, are all matters falling for adjudication, within the purview of the authorities, constituted under the Act. In fact, Cl. (b), of sub-section (2) of Section 5 of the Act, as it now stands, also lays down that the abatement of the proceedings, under Clause (a) shall be without prejudice to the rights of persons affected to agitate the right or interest in dispute in the said suits or proceedings, before the appropriate consolidation authorities under the Act and in accordance with the provisions of the Act and the rules made, thereunder12. Having due regard to the nature of this litigation, and the provisions of the Act, we are satisfied that the amended Section 5 of the Act applies to these proceedings. If that is so, an order has to be passed that the suit, out of which these proceedings arise, stands abated13. That takes us on to the second contention, of Mr. Gupte, viz., that the provisions of the amended Section 5 are ultra vires, inasmuch as the State Legislature has enacted a provision, which impinges upon the jurisdiction of this Court. The learned counsel has no doubt referred us, to the, various entries in the Lists in the Seventh Schedule to the Constitution, but we are not satisfied that there is any merit either, in this contention.The State Legislature has not passed any legislation affecting the jurisdiction of this Court. On the other hand, what the State Legislature has done is only to make provision in respect of matters, within its jurisdiction and to declare that a suit, instituted in a Court, within its area, has abated. The position, ultimately, is that this Court takes note of a subsequent event viz., the passing of the Amending Act, and the amendment of Section 5 thereby, by the State Legislature, and, on that basis, it holds that the suit out of which these proceedings arise, stands abated. Therefore, there is no question of the Legislature of the State having passed any legislation affecting the jurisdiction of this Court

Saroj Agarwalla(Dead) Thr Lr Abhishek Agrawalla Vs. Yasheel Jain

attorney file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his attorney. (Form No.13).… … … … …28. Procedure on affidavit being filed. Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code (Forms Nos.14 and 15).… … … … …30. Trial of Preliminary issue. The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in rule 28, direct the trial of an issue as to the caveator’s interest. Where, upon the trial of such issue, it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be.”8. A careful reading of Rules 28 and 30 makes it abundantly clear that before the proceedings are numbered as a suit by orders of a Judge for being tried as a suit as per provisions of the Code of Civil Procedure (for short, ‘the Code’), the Court may take up as a preliminary issue, whether the caveator has a caveatable interest, if such an application is filed before the Court by the petitioner. Clearly the preliminary issues are triable before the proceedings are treated as a full-fledged suit under order of the Judge concerned. Whereas suit is required to be tried as per provisions of the Code, the procedure for trial of preliminary issue has been left to the discretion of the court. Rule 30 does not require the court to come out with specific findings in respect of preliminary issue because the language used in Rule 30 requires the court to discharge the caveat where, upon trial of such issue, “it appears that the caveator has no interest ........” (Emphasis supplied). The preliminary issue does not relate to the validity or legality of the Will sought to be probated but only to the issue whether the caveator has an interest for which he can maintain the caveat.9. Learned counsel for both the parties have addressed us at some length as to the meaning of the words “caveatable interest”. The matter is no longer res integra in view of a detailed discussion of this term in the case of Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300 ). Paragraphs 59 to 86 of this judgment refer to large number of authorities of this Court as well as various High Courts. The conclusions flowing from that judgment including the proposition of law in paragraph 86 clearly support the case of the respondents in both the appeals that they have a caveatable interest. The test which may be applied in the present case is : Does the claim of grant of probate prejudice the respondent’s right because it defeats some other line of succession in terms whereof the respondent as a caveator asserted his/her right? Since the answer, in the facts of the case would be in the affirmative, we are in agreement with the view taken by the Division Bench that respondents have a caveatable interest.10. A query arises as to why the Division Bench has recorded its views as “prima facie”. The answer has been provided by learned counsel for the respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case of Ishwardeo Narain Singh v. Kamta Devi (AIR 1954 SC 280 ). This Court pointed out that “the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.”11. Since we have noted the main submission on behalf of the appellant earlier, it is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In the case of caveat by respondent Malati, the Division Bench noted the citations in the Will propounded by the appellant showing Malati to be only a maid servant but on the basis of totality of facts and circumstances it rightly came to the conclusion that a person by merely making a contrary statement in the Will cannot change a real relationship if it actually existed and hence at least arguable case in favour of claim of Malati as regards her relation with the testator has been established and hence she deserves to be permitted to contest the probate proceeding. The Court, at the same time made it clear that whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not.

0[ds]The answer has been provided by learned counsel for the respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case of Ishwardeo Narain Singh v. Kamta Devi (AIR 1954 SC 280 ). This Court pointed out thatCourt of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.Since we have noted the main submission on behalf of the appellant earlier, it is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In the case of caveat by respondent Malati, the Division Bench noted the citations in the Will propounded by the appellant showing Malati to be only a maid servant but on the basis of totality of facts and circumstances it rightly came to the conclusion that a person by merely making a contrary statement in the Will cannot change a real relationship if it actually existed and hence at least arguable case in favour of claim of Malati as regards her relation with the testator has been established and hence she deserves to be permitted to contest the probate proceeding. The Court, at the same time made it clear that whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not.

### 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: attorney file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his attorney. (Form No.13).… … … … …28. Procedure on affidavit being filed. Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code (Forms Nos.14 and 15).… … … … …30. Trial of Preliminary issue. The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in rule 28, direct the trial of an issue as to the caveator’s interest. Where, upon the trial of such issue, it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be.”8. A careful reading of Rules 28 and 30 makes it abundantly clear that before the proceedings are numbered as a suit by orders of a Judge for being tried as a suit as per provisions of the Code of Civil Procedure (for short, ‘the Code’), the Court may take up as a preliminary issue, whether the caveator has a caveatable interest, if such an application is filed before the Court by the petitioner. Clearly the preliminary issues are triable before the proceedings are treated as a full-fledged suit under order of the Judge concerned. Whereas suit is required to be tried as per provisions of the Code, the procedure for trial of preliminary issue has been left to the discretion of the court. Rule 30 does not require the court to come out with specific findings in respect of preliminary issue because the language used in Rule 30 requires the court to discharge the caveat where, upon trial of such issue, “it appears that the caveator has no interest ........” (Emphasis supplied). The preliminary issue does not relate to the validity or legality of the Will sought to be probated but only to the issue whether the caveator has an interest for which he can maintain the caveat.9. Learned counsel for both the parties have addressed us at some length as to the meaning of the words “caveatable interest”. The matter is no longer res integra in view of a detailed discussion of this term in the case of Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300 ). Paragraphs 59 to 86 of this judgment refer to large number of authorities of this Court as well as various High Courts. The conclusions flowing from that judgment including the proposition of law in paragraph 86 clearly support the case of the respondents in both the appeals that they have a caveatable interest. The test which may be applied in the present case is : Does the claim of grant of probate prejudice the respondent’s right because it defeats some other line of succession in terms whereof the respondent as a caveator asserted his/her right? Since the answer, in the facts of the case would be in the affirmative, we are in agreement with the view taken by the Division Bench that respondents have a caveatable interest.10. A query arises as to why the Division Bench has recorded its views as “prima facie”. The answer has been provided by learned counsel for the respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case of Ishwardeo Narain Singh v. Kamta Devi (AIR 1954 SC 280 ). This Court pointed out that “the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.”11. Since we have noted the main submission on behalf of the appellant earlier, it is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In the case of caveat by respondent Malati, the Division Bench noted the citations in the Will propounded by the appellant showing Malati to be only a maid servant but on the basis of totality of facts and circumstances it rightly came to the conclusion that a person by merely making a contrary statement in the Will cannot change a real relationship if it actually existed and hence at least arguable case in favour of claim of Malati as regards her relation with the testator has been established and hence she deserves to be permitted to contest the probate proceeding. The Court, at the same time made it clear that whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not. ### Response: 0 ### Explanation: The answer has been provided by learned counsel for the respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case of Ishwardeo Narain Singh v. Kamta Devi (AIR 1954 SC 280 ). This Court pointed out thatCourt of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.Since we have noted the main submission on behalf of the appellant earlier, it is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In the case of caveat by respondent Malati, the Division Bench noted the citations in the Will propounded by the appellant showing Malati to be only a maid servant but on the basis of totality of facts and circumstances it rightly came to the conclusion that a person by merely making a contrary statement in the Will cannot change a real relationship if it actually existed and hence at least arguable case in favour of claim of Malati as regards her relation with the testator has been established and hence she deserves to be permitted to contest the probate proceeding. The Court, at the same time made it clear that whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not.

Babu Ram Gupta Vs. Sudhir Bhasin & Anr

the person concerned. It is not open to the Court to assume an implied undertaking when there is none on the record. It was on this ground that this Court negatived the plea of contempt of court. It is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice or brings into dispute the instinstitution of judiciary, this power has to be exercised not casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the courts.8. In the case of The Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors. (6) (1970) 3 SCR 98 this Court observed as follows:“It may also be pointed out that in order to justify action for contempt of court for breach of a prohibitive order it is not necessary that the order should have been officially served on the party against whom it is granted if it is proved that he has notice of the order aliened and he knew that it was intended to be enforced……………… Contempt proceeding against a person who has failed to comply with the Court’s order serves a dual purpose: (1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both those purposes. It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Courts order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt,"9. These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few example would show how unsustainable in law the view taken by the High Court is. Taken the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the previsions of the Code of Civil Procedure. Indeed, if we were to hold that non-compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such an undertaking. In the instant casse, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.

1[ds]3. A perusal of the order extracted above clearly shows that there was no express direction to the appellant to hand over possession to the receiver although certain directions were given by the Court to the receiver for filing quarterly reports etc. The only direction given to the appellant was that he would not interfere with the receiver appointed or with the business of running of the Laxmi Talkies. The appellant was also directed to give all cooperation that the receiver may require. There was thus no specific direction to the appellant to hand over possession of the property to the receiver although impliedly this was meant to be done because the order was passed with the consent of the parties.These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the Highthe offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such an undertaking. In the instant casse, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.

### 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 person concerned. It is not open to the Court to assume an implied undertaking when there is none on the record. It was on this ground that this Court negatived the plea of contempt of court. It is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice or brings into dispute the instinstitution of judiciary, this power has to be exercised not casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the courts.8. In the case of The Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors. (6) (1970) 3 SCR 98 this Court observed as follows:“It may also be pointed out that in order to justify action for contempt of court for breach of a prohibitive order it is not necessary that the order should have been officially served on the party against whom it is granted if it is proved that he has notice of the order aliened and he knew that it was intended to be enforced……………… Contempt proceeding against a person who has failed to comply with the Court’s order serves a dual purpose: (1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both those purposes. It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Courts order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt,"9. These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few example would show how unsustainable in law the view taken by the High Court is. Taken the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the previsions of the Code of Civil Procedure. Indeed, if we were to hold that non-compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such an undertaking. In the instant casse, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise. ### Response: 1 ### Explanation: 3. A perusal of the order extracted above clearly shows that there was no express direction to the appellant to hand over possession to the receiver although certain directions were given by the Court to the receiver for filing quarterly reports etc. The only direction given to the appellant was that he would not interfere with the receiver appointed or with the business of running of the Laxmi Talkies. The appellant was also directed to give all cooperation that the receiver may require. There was thus no specific direction to the appellant to hand over possession of the property to the receiver although impliedly this was meant to be done because the order was passed with the consent of the parties.These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the Highthe offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such an undertaking. In the instant casse, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.

Sant Saran Goswami @ Deoji Vs. State Of Bihar And Ors

1. The appellant is in possession of 15.36 acres of land of Village Baletha under Siwan Prakhand, State of Bihar. Dhanauti Math of Kabir Panth was notified under Section 10(1) of the Bihar Land Reforms (Fixation of Land Ceiling and Acquisition) Act, 1961 (for short, the Act). When the proceedings were initiated, the Deputy Collector Land Reforms by his proceedings dated 15-4-1976 held that the appellant is a separate math and that therefore, the lands held by the appellant could not be included in the lands of Dhanauti Math. The Dhanauti Math carried the matter in appeal in respect of other lands and also in further revision to the Board of Revenue. While the revision was pending, by Amendment Act Section 32-A was brought on status w.e.f. 6-4-1981. The effect of the amendment is that all pending proceedings stood abated. Thereafter power has been given to start suo motu ceiling proceedings afresh. In exercise of the power, the Deputy Collector, Land Reforms initiated the proceedings on 12-8-1981. In those proceedings it was held that Dhanauti Math is having several maths under its management like Bharatheri Math, Maujahidpur Math etc. including the appellant-Math and that therefore, all the lands are held by Dhanauti Math. Accordingly ceiling on the holding was determined. On appeals, it was confirmed and on further revision, the Board of Revenue by order dated 19-1-1984 confirmed the same. When the appellant filed the CWJC No. 1241 of 1984 in the High Court challenging the correctness of the findings recorded by the authorities, by order dated 10-7-1984 the High court dismissed the same in limine. Thus this appeal, by special leave. 2. It is firstly contended that reopening of proceedings is bad in law. The main reason on which the contention raised is that the Deputy Collector had declared by his proceedings dated 15-4-1976 that the appellant was a separate entity and that independently held the land. It was allowed to become final. Therefore, there were no proceedings pending in consequence of which the abatement had not taken place by operation of Section 32-A. Unfortunately, we cannot give acceptance to the contention for the reason that reopened proceedings were allowed to become final as they were not challenged by filing any writ petition in the High Court. In computation proceedings the authority cannot go into the validity of reopening of proceedings. Therefore, it is not open to the appellant to raise this contention. 3. It is next contended that the appellant is only a subsidiary to Dhanauti Math and it is not a family as defined under Section 2(ee) of the Act and that therefore, the lands held by the appellant cannot be included in the land by Dhanauti Math. This contention too has no force 4. Section 2(ee) reads thus "2. (ee) Family means and includes a person, his or her spouse and minor childrenExplanation I. - In this clause the word person includes any company, institution, trust, association or body of individuals whether incorporated or not;Explanation II. - The personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act." * 5. Though the main part of family has been widely defined to mean and include enumerated entities, Explanation I makes the matter amply clear that the word person includes any company, institution, trust, association or any body of individuals whether incorporated or not. The revisional authority concluded after considering the evidence thus: "On a perusal of the order of the learned DCLR Siwan dated 15-4-1976 (Annexure V to the petition for revision) shows that Mahanth Muneshwar Goswami of Dhanauti Math had stated that there were several subsidiary maths under the Dhanauti Math such as Bharatheri Math, Baletha Math, Maujahidpur Math etc. In addition to this it is also admitted that the Mahanth of Baletha Math was impleaded on a party in the title suit relating to Dhanauti Math. Both these facts clearly indicate that Baletha Math is a part of Dhanauti Math. If this was not so the petitioner could have easily produced the registration papers of Dhanauti Math to indicate that Baletha Math was not a part of the same. He should have also produced a certificate from the Bihar State Religious Trust Board to confirm that Baletha math and Dhanauti Math were separate identities and has, nothing to do with one another. Though ample time was available to the petitioner-landholder, he did not do so." * In view of the finding that Baletha Math is part of Dhanauti Math, admittedly it is a trust. Therefore it cannot be treated to be a subsidiary as contended for in the light of the finding by the final revisional authority. 6. It is next contended that the above finding is not based on evidence and the reasoning is perverse and therefore it is open to this Court to go into the question and decide the matter afresh. We are afraid we cannot accede to this contention. It is seen that the revisional authority and all the authorities on appreciation of evidence concurrently came to the conclusion that the. appellants math is a part of Dhanauti Math. It being a finding of fact on consideration of material placed before the authorities, it is not open to this Court to appreciate the finding and to come to a different conclusion.

0[ds]The main reason on which the contention raised is that the Deputy Collector had declared by his proceedings datedthat the appellant was a separate entity and that independently held the land. It was allowed to become final. Therefore, there were no proceedings pending in consequence of which the abatement had not taken place by operation of SectionUnfortunately, we cannot give acceptance to the contention for the reason that reopened proceedings were allowed to become final as they were not challenged by filing any writ petition in the High Court. In computation proceedings the authority cannot go into the validity of reopening of proceedings. Therefore, it is not open to the appellant to raise thisThough the main part of family has been widely defined to mean and include enumerated entities, Explanation I makes the matter amply clear that the word person includes any company, institution, trust, association or any body of individuals whether incorporated or not. The revisional authority concluded after considering the evidencea perusal of the order of the learned DCLR Siwan dated(Annexure V to the petition for revision) shows that Mahanth Muneshwar Goswami of Dhanauti Math had stated that there were several subsidiary maths under the Dhanauti Math such as Bharatheri Math, Baletha Math, Maujahidpur Math etc. In addition to this it is also admitted that the Mahanth of Baletha Math was impleaded on a party in the title suit relating to Dhanauti Math. Both these facts clearly indicate that Baletha Math is a part of Dhanauti Math. If this was not so the petitioner could have easily produced the registration papers of Dhanauti Math to indicate that Baletha Math was not a part of the same. He should have also produced a certificate from the Bihar State Religious Trust Board to confirm that Baletha math and Dhanauti Math were separate identities and has, nothing to do with one another. Though ample time was available to thehe did not do so."view of the finding that Baletha Math is part of Dhanauti Math, admittedly it is a trust. Therefore it cannot be treated to be a subsidiary as contended for in the light of the finding by the final revisionalare afraid we cannot accede to this contention. It is seen that the revisional authority and all the authorities on appreciation of evidence concurrently came to the conclusion thatmath is a part of Dhanauti Math. It being a finding of fact on consideration of material placed before the authorities, it is not open to this Court to appreciate the finding and to come to a different conclusion

### 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: 1. The appellant is in possession of 15.36 acres of land of Village Baletha under Siwan Prakhand, State of Bihar. Dhanauti Math of Kabir Panth was notified under Section 10(1) of the Bihar Land Reforms (Fixation of Land Ceiling and Acquisition) Act, 1961 (for short, the Act). When the proceedings were initiated, the Deputy Collector Land Reforms by his proceedings dated 15-4-1976 held that the appellant is a separate math and that therefore, the lands held by the appellant could not be included in the lands of Dhanauti Math. The Dhanauti Math carried the matter in appeal in respect of other lands and also in further revision to the Board of Revenue. While the revision was pending, by Amendment Act Section 32-A was brought on status w.e.f. 6-4-1981. The effect of the amendment is that all pending proceedings stood abated. Thereafter power has been given to start suo motu ceiling proceedings afresh. In exercise of the power, the Deputy Collector, Land Reforms initiated the proceedings on 12-8-1981. In those proceedings it was held that Dhanauti Math is having several maths under its management like Bharatheri Math, Maujahidpur Math etc. including the appellant-Math and that therefore, all the lands are held by Dhanauti Math. Accordingly ceiling on the holding was determined. On appeals, it was confirmed and on further revision, the Board of Revenue by order dated 19-1-1984 confirmed the same. When the appellant filed the CWJC No. 1241 of 1984 in the High Court challenging the correctness of the findings recorded by the authorities, by order dated 10-7-1984 the High court dismissed the same in limine. Thus this appeal, by special leave. 2. It is firstly contended that reopening of proceedings is bad in law. The main reason on which the contention raised is that the Deputy Collector had declared by his proceedings dated 15-4-1976 that the appellant was a separate entity and that independently held the land. It was allowed to become final. Therefore, there were no proceedings pending in consequence of which the abatement had not taken place by operation of Section 32-A. Unfortunately, we cannot give acceptance to the contention for the reason that reopened proceedings were allowed to become final as they were not challenged by filing any writ petition in the High Court. In computation proceedings the authority cannot go into the validity of reopening of proceedings. Therefore, it is not open to the appellant to raise this contention. 3. It is next contended that the appellant is only a subsidiary to Dhanauti Math and it is not a family as defined under Section 2(ee) of the Act and that therefore, the lands held by the appellant cannot be included in the land by Dhanauti Math. This contention too has no force 4. Section 2(ee) reads thus "2. (ee) Family means and includes a person, his or her spouse and minor childrenExplanation I. - In this clause the word person includes any company, institution, trust, association or body of individuals whether incorporated or not;Explanation II. - The personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act." * 5. Though the main part of family has been widely defined to mean and include enumerated entities, Explanation I makes the matter amply clear that the word person includes any company, institution, trust, association or any body of individuals whether incorporated or not. The revisional authority concluded after considering the evidence thus: "On a perusal of the order of the learned DCLR Siwan dated 15-4-1976 (Annexure V to the petition for revision) shows that Mahanth Muneshwar Goswami of Dhanauti Math had stated that there were several subsidiary maths under the Dhanauti Math such as Bharatheri Math, Baletha Math, Maujahidpur Math etc. In addition to this it is also admitted that the Mahanth of Baletha Math was impleaded on a party in the title suit relating to Dhanauti Math. Both these facts clearly indicate that Baletha Math is a part of Dhanauti Math. If this was not so the petitioner could have easily produced the registration papers of Dhanauti Math to indicate that Baletha Math was not a part of the same. He should have also produced a certificate from the Bihar State Religious Trust Board to confirm that Baletha math and Dhanauti Math were separate identities and has, nothing to do with one another. Though ample time was available to the petitioner-landholder, he did not do so." * In view of the finding that Baletha Math is part of Dhanauti Math, admittedly it is a trust. Therefore it cannot be treated to be a subsidiary as contended for in the light of the finding by the final revisional authority. 6. It is next contended that the above finding is not based on evidence and the reasoning is perverse and therefore it is open to this Court to go into the question and decide the matter afresh. We are afraid we cannot accede to this contention. It is seen that the revisional authority and all the authorities on appreciation of evidence concurrently came to the conclusion that the. appellants math is a part of Dhanauti Math. It being a finding of fact on consideration of material placed before the authorities, it is not open to this Court to appreciate the finding and to come to a different conclusion. ### Response: 0 ### Explanation: The main reason on which the contention raised is that the Deputy Collector had declared by his proceedings datedthat the appellant was a separate entity and that independently held the land. It was allowed to become final. Therefore, there were no proceedings pending in consequence of which the abatement had not taken place by operation of SectionUnfortunately, we cannot give acceptance to the contention for the reason that reopened proceedings were allowed to become final as they were not challenged by filing any writ petition in the High Court. In computation proceedings the authority cannot go into the validity of reopening of proceedings. Therefore, it is not open to the appellant to raise thisThough the main part of family has been widely defined to mean and include enumerated entities, Explanation I makes the matter amply clear that the word person includes any company, institution, trust, association or any body of individuals whether incorporated or not. The revisional authority concluded after considering the evidencea perusal of the order of the learned DCLR Siwan dated(Annexure V to the petition for revision) shows that Mahanth Muneshwar Goswami of Dhanauti Math had stated that there were several subsidiary maths under the Dhanauti Math such as Bharatheri Math, Baletha Math, Maujahidpur Math etc. In addition to this it is also admitted that the Mahanth of Baletha Math was impleaded on a party in the title suit relating to Dhanauti Math. Both these facts clearly indicate that Baletha Math is a part of Dhanauti Math. If this was not so the petitioner could have easily produced the registration papers of Dhanauti Math to indicate that Baletha Math was not a part of the same. He should have also produced a certificate from the Bihar State Religious Trust Board to confirm that Baletha math and Dhanauti Math were separate identities and has, nothing to do with one another. Though ample time was available to thehe did not do so."view of the finding that Baletha Math is part of Dhanauti Math, admittedly it is a trust. Therefore it cannot be treated to be a subsidiary as contended for in the light of the finding by the final revisionalare afraid we cannot accede to this contention. It is seen that the revisional authority and all the authorities on appreciation of evidence concurrently came to the conclusion thatmath is a part of Dhanauti Math. It being a finding of fact on consideration of material placed before the authorities, it is not open to this Court to appreciate the finding and to come to a different conclusion

Commercial Tax Officer Vs. State Bank Of India

was correct." 30. Thus, the Constitution Bench did not overrule the decision of the Court in Vikas Sales Corporation (supra) holding replenishment licences were goods. The Constitution Bench, however, held that the reliance placed in Vikas Sales Corporation (supra) on the observations in H. Anraj (supra), which was agreed to and stood overruled, was to this extent bad in law. To clarify, Vikas Sales Corporation (supra) specifically dealt with the transfer of replenishment licences after they had been issued. However, in Vikas Sales Corporation (supra) it was opined that the grant of a licence by the licensing authority to a registered exporter was not a sale. Sale will take place only when the registered owner further sells it to another person for consideration. The relevant paragraph of the judgment has been earlier reproduced. 31. A three-Judge Bench of the Court in Yasha Overseas v. Commissioner of Sales Tax and others, (2008) 8 SCC 681 had examined the question whether the sale or transfer of replenishment licences and duty entitlement passbooks would attract sale tax. Reliance placed on Sunrise Associates (supra) to contend that the decision in Vikas Sales Corporation (supra) impliedly overruled. The three-Judge Bench did not accept the contention by stating thus:- "40. Thus, on a detailed examination, we are unable to see how the decision in Sunrise (supra) can be said to alter the position in regard to the sale of REP licences as held by the earlier decision in Vikas (supra). It is noted above that the Constitution Bench in Sunrise (supra) firmly and expressly declined to go into the question whether REP licences (or DEPB which replaced REP licences) were "goods". It is indeed true that the Constitution Bench in Sunrise (supra) did not approve the decision in Vikas (supra) insofar as it gave their free marketability as an additional reason to hold that REP licences were not actionable claim but "goods" properly so called. The Constitution Bench held that the assumption that actionable claims were not transferable for value was quite unfounded and the conclusion drawn on that basis was quite wrong. In paras 39 and 40 of the decision, Sunrise (supra) decision gave illustrations of a number of actionable claims which are transferable.41. But to our mind that does not in any way change the position insofar as REP licences are concerned. While examining the three-Judge Bench decision in Vikas (supra) earlier in this judgment it is seen that the Court first came to hold that REP licence/Exim scrip fell within the definition of goods quite independently. The Court found and held that REP licences had their own value; they were freely bought and sold in the market for their intrinsic value and for that reason alone those were goods. (See para 29 of the decision in Vikas (supra) that is reproduced above.) It was only after coming to the conclusion that the Court proceeded to examine the matter in light of the observations made in Anraj (supra) relating to lottery tickets and that too because the Karnataka and the Madras High Courts had heavily relied upon Anraj (supra) decision for holding that the sale of REP licences was exigible to sales tax. On a careful reading of the decision in Vikas (supra) it is apparent that it was the intrinsic value of REP licence that brought it within the definition of goods." 32. After so stating, the Court specifically referred to the term "goods" as interpreted in Sunrise Associates (supra) to mean the title and ownership of a thing and not the nature of interest in the goods. The question of free-marketability, it was held, was not primarily relevant as per the decision in Sunrise Associates (supra), albeit could be relied upon as an additional reason, for replenishment licences fall within the definition of "goods" quite independently. These licences could have their own intrinsic value and could be freely brought and sold at their market value. There was also a ready market for the sale and purchase of replenishment licences. 33. Thus analysed, the replenishment licences or Exim scrips would, therefore, be "goods", and when they are transferred or assigned by the holder/owner to a third person for consideration, they would attract sale tax. However, the position would be different when replenishment licences or Exim scrips are returned to the grantor or the sovereign authority for cancellation or extinction. In this process, as and when the goods are presented, the replenishment licence or Exim scrip is cancelled and ceases to be a marketable instrument. It becomes a scrap of paper without any innate market value. The SBI, when it took the said instruments as an agent of the RBI did not hold or purchase any goods. It was merely acting as per the directions of the RBI, as its agent and as a participant in the process of cancellation, to ensure that the replenishment licences or Exim scrips were no longer transferred. The intent and purpose was not to purchase goods in the form of replenishment licences or Exim scrips, but to nullify them. The said purpose and objective is the admitted position. The object was to mop up and remove the replenishment licences or Exim scrips from the market.34. Be it noted that the initial issue or grant of scrips is not treated as transfer of title or ownership in the goods. Therefore, as a natural corollary, it must follow when the RBI acquires and seeks the return of replenishment licences or Exim scrips with the intention to cancel and destroy them, the replenishment licences or Exim scrips would not be treated as marketable commodity purchased by the grantor. Further, the SBI is an agent of the RBI, the principal. The Exim scrips or replenishment licences were not "goods" which were purchased by them. The intent and purpose was not to purchase the replenishment licences because the scheme was to extinguish the right granted by issue of replenishment licences. The "ownership" in the goods was never transferred or assigned to the SBI.

0[ds]17. The aforesaid, as is manifest, authorises the SBI to purchase the Exim scrips as an agent of RBI and after payment of the premium at 20% of the value to the holder, the scrip was to be cancelled. Certain formalities were stipulated to be complied by the holder as well as by SBI.The High Court has distinguished the aforesaid authority by stating that this Court did not have the occasion to consider the effect of purchase of Exim scrips made by SBI, for it was not a part of business regularly carried on by it but was a transaction which was to be undertaken on the direction of the RBI. Exim scrips were no longer available as "goods" for the purpose of commercial transaction and were to be reduced to mere papers having no commercial value whatsoever and such a scenario changed the entire perspective. The High Court has laid emphasis on immediate cancellation of Exim scrips and after cancellation to be sent to the original granting authority.27. The controversy involved in the case at hand, in our considered opinion, has to be analysed regard being had to the existing factual score. The observations made in Vikas Sales Corporation (supra), as the aforequoted passages would show, the initial grant of license by the Government to the registered exporters was not a sale. The said finding is significant and it has potency. It is also seen that the said authority extensively relies on the earlier judgment in H. Anraj (supra) that dealt with the question whether lottery tickets are "goods" and accordingly whether sale thereof would invite sales tax. H. Anraj (supra) draws distinction between lottery tickets and steamship tickets, railway tickets, cinema tickets, etc. Salmonds Jurisprudence, 12th Edition at pagesunder the heading "The Classes of Agreements" was quoted to draw distinction between three classes, namely, agreements which create rights, agreements which transfer or assign rights, and lastly agreements which extinguish them. Agreements which create rights were divided into two subclasses, namely, contracts and grants. A contract is an agreement, which creates an obligation or right in personam between the parties, whereas a grant creates a right of another description such as leases, assignments, patents, etc. An agreement, which transfers a right, may be termed generically as an assignment. However, when a transaction extinguishes a right, it is called a release, discharge or surrender. The distinction between creation of a right by a grant and subsequent transfer or assignment was also highlighted in H. Anraj (supra) and noted by Sabyasachi Mukherjee, J. (as His Lordship then was) in his concurrent judgment with the followingIt was urged before us on behalf of the dealers that by the issue of lottery tickets, the right to participate in the draw is created for the first time in the buyers. In other words, it was urged that by the sale of lottery ticket, the right to participate is created for the first time; if it is considered to be a "grant" and as such a sale of goods, it was contended that such right was not existing before the sale of the lottery ticket. This contention has caused me anxiety from the jurisprudential point of view.42. I agree with respect that "grant" is an agreement of some sort which creates rights in the grantee and an agreement which transfers rights may be termed as assignment. But the question, is, before the grant, was such a right, namely the right to participate in the draw, existing in the grantor? The point made is that there is no transfer of property involved in the issue of a lottery ticket and it is only after the issue of the lottery ticket that the grantee gets a right to participate. In other words, it was sought to be urged that in a lottery, the promoter sponsoring it does not have any right to participate nor to claim a prize in a draw and these come into existence for the first time by the purchase of lottery ticket when he purchases the ticket and therefore it cannot be said that any transfer of right is involved, but only creation of new right by the grantor in favour of theobservations made in the aforesaid paragraphs that there is no transfer of property involved in a grant, for the rights come into existence after purchase.We have noted earlier that all the statutory definitions of the word "goods" in the State sales tax laws have uniformly excluded, inter alia, actionable claims from the definition for the purposes of the Act. Were actionable claims, etc., not otherwise includible in the definition of "goods" there was no need for excluding them. In other words, actionable claims are "goods" but not for the purposes of the Sales Tax Acts and but for this statutory exclusion, an actionable claim would be "goods" or theof ownership. Consequently, an actionable claim is movable property and "goods" in the wider sense of the term but a sale of an actionable claim would not be subject to the sales tax laws.Thus, the Constitution Bench did not overrule the decision of the Court in Vikas Sales Corporation (supra) holding replenishment licences were goods. The Constitution Bench, however, held that the reliance placed in Vikas Sales Corporation (supra) on the observations in H. Anraj (supra), which was agreed to and stood overruled, was to this extent bad in law. To clarify, Vikas Sales Corporation (supra) specifically dealt with the transfer of replenishment licences after they had been issued. However, in Vikas Sales Corporation (supra) it was opined that the grant of a licence by the licensing authority to a registered exporter was not a sale. Sale will take place only when the registered owner further sells it to another person for consideration. The relevant paragraph of the judgment has been earlier reproduced.Thus analysed, the replenishment licences or Exim scrips would, therefore, be "goods", and when they are transferred or assigned by the holder/owner to a third person for consideration, they would attract sale tax. However, the position would be different when replenishment licences or Exim scrips are returned to the grantor or the sovereign authority for cancellation or extinction. In this process, as and when the goods are presented, the replenishment licence or Exim scrip is cancelled and ceases to be a marketable instrument. It becomes a scrap of paper without any innate market value. The SBI, when it took the said instruments as an agent of the RBI did not hold or purchase any goods. It was merely acting as per the directions of the RBI, as its agent and as a participant in the process of cancellation, to ensure that the replenishment licences or Exim scrips were no longer transferred. The intent and purpose was not to purchase goods in the form of replenishment licences or Exim scrips, but to nullify them. The said purpose and objective is the admitted position. The object was to mop up and remove the replenishment licences or Exim scrips from the market.34. Be it noted that the initial issue or grant of scrips is not treated as transfer of title or ownership in the goods. Therefore, as a natural corollary, it must follow when the RBI acquires and seeks the return of replenishment licences or Exim scrips with the intention to cancel and destroy them, the replenishment licences or Exim scrips would not be treated as marketable commodity purchased by the grantor. Further, the SBI is an agent of the RBI, the principal. The Exim scrips or replenishment licences were not "goods" which were purchased by them. The intent and purpose was not to purchase the replenishment licences because the scheme was to extinguish the right granted by issue of replenishment licences. The "ownership" in the goods was never transferred or assigned to the SBI.

### 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: was correct." 30. Thus, the Constitution Bench did not overrule the decision of the Court in Vikas Sales Corporation (supra) holding replenishment licences were goods. The Constitution Bench, however, held that the reliance placed in Vikas Sales Corporation (supra) on the observations in H. Anraj (supra), which was agreed to and stood overruled, was to this extent bad in law. To clarify, Vikas Sales Corporation (supra) specifically dealt with the transfer of replenishment licences after they had been issued. However, in Vikas Sales Corporation (supra) it was opined that the grant of a licence by the licensing authority to a registered exporter was not a sale. Sale will take place only when the registered owner further sells it to another person for consideration. The relevant paragraph of the judgment has been earlier reproduced. 31. A three-Judge Bench of the Court in Yasha Overseas v. Commissioner of Sales Tax and others, (2008) 8 SCC 681 had examined the question whether the sale or transfer of replenishment licences and duty entitlement passbooks would attract sale tax. Reliance placed on Sunrise Associates (supra) to contend that the decision in Vikas Sales Corporation (supra) impliedly overruled. The three-Judge Bench did not accept the contention by stating thus:- "40. Thus, on a detailed examination, we are unable to see how the decision in Sunrise (supra) can be said to alter the position in regard to the sale of REP licences as held by the earlier decision in Vikas (supra). It is noted above that the Constitution Bench in Sunrise (supra) firmly and expressly declined to go into the question whether REP licences (or DEPB which replaced REP licences) were "goods". It is indeed true that the Constitution Bench in Sunrise (supra) did not approve the decision in Vikas (supra) insofar as it gave their free marketability as an additional reason to hold that REP licences were not actionable claim but "goods" properly so called. The Constitution Bench held that the assumption that actionable claims were not transferable for value was quite unfounded and the conclusion drawn on that basis was quite wrong. In paras 39 and 40 of the decision, Sunrise (supra) decision gave illustrations of a number of actionable claims which are transferable.41. But to our mind that does not in any way change the position insofar as REP licences are concerned. While examining the three-Judge Bench decision in Vikas (supra) earlier in this judgment it is seen that the Court first came to hold that REP licence/Exim scrip fell within the definition of goods quite independently. The Court found and held that REP licences had their own value; they were freely bought and sold in the market for their intrinsic value and for that reason alone those were goods. (See para 29 of the decision in Vikas (supra) that is reproduced above.) It was only after coming to the conclusion that the Court proceeded to examine the matter in light of the observations made in Anraj (supra) relating to lottery tickets and that too because the Karnataka and the Madras High Courts had heavily relied upon Anraj (supra) decision for holding that the sale of REP licences was exigible to sales tax. On a careful reading of the decision in Vikas (supra) it is apparent that it was the intrinsic value of REP licence that brought it within the definition of goods." 32. After so stating, the Court specifically referred to the term "goods" as interpreted in Sunrise Associates (supra) to mean the title and ownership of a thing and not the nature of interest in the goods. The question of free-marketability, it was held, was not primarily relevant as per the decision in Sunrise Associates (supra), albeit could be relied upon as an additional reason, for replenishment licences fall within the definition of "goods" quite independently. These licences could have their own intrinsic value and could be freely brought and sold at their market value. There was also a ready market for the sale and purchase of replenishment licences. 33. Thus analysed, the replenishment licences or Exim scrips would, therefore, be "goods", and when they are transferred or assigned by the holder/owner to a third person for consideration, they would attract sale tax. However, the position would be different when replenishment licences or Exim scrips are returned to the grantor or the sovereign authority for cancellation or extinction. In this process, as and when the goods are presented, the replenishment licence or Exim scrip is cancelled and ceases to be a marketable instrument. It becomes a scrap of paper without any innate market value. The SBI, when it took the said instruments as an agent of the RBI did not hold or purchase any goods. It was merely acting as per the directions of the RBI, as its agent and as a participant in the process of cancellation, to ensure that the replenishment licences or Exim scrips were no longer transferred. The intent and purpose was not to purchase goods in the form of replenishment licences or Exim scrips, but to nullify them. The said purpose and objective is the admitted position. The object was to mop up and remove the replenishment licences or Exim scrips from the market.34. Be it noted that the initial issue or grant of scrips is not treated as transfer of title or ownership in the goods. Therefore, as a natural corollary, it must follow when the RBI acquires and seeks the return of replenishment licences or Exim scrips with the intention to cancel and destroy them, the replenishment licences or Exim scrips would not be treated as marketable commodity purchased by the grantor. Further, the SBI is an agent of the RBI, the principal. The Exim scrips or replenishment licences were not "goods" which were purchased by them. The intent and purpose was not to purchase the replenishment licences because the scheme was to extinguish the right granted by issue of replenishment licences. The "ownership" in the goods was never transferred or assigned to the SBI. ### Response: 0 ### Explanation: distinction between three classes, namely, agreements which create rights, agreements which transfer or assign rights, and lastly agreements which extinguish them. Agreements which create rights were divided into two subclasses, namely, contracts and grants. A contract is an agreement, which creates an obligation or right in personam between the parties, whereas a grant creates a right of another description such as leases, assignments, patents, etc. An agreement, which transfers a right, may be termed generically as an assignment. However, when a transaction extinguishes a right, it is called a release, discharge or surrender. The distinction between creation of a right by a grant and subsequent transfer or assignment was also highlighted in H. Anraj (supra) and noted by Sabyasachi Mukherjee, J. (as His Lordship then was) in his concurrent judgment with the followingIt was urged before us on behalf of the dealers that by the issue of lottery tickets, the right to participate in the draw is created for the first time in the buyers. In other words, it was urged that by the sale of lottery ticket, the right to participate is created for the first time; if it is considered to be a "grant" and as such a sale of goods, it was contended that such right was not existing before the sale of the lottery ticket. This contention has caused me anxiety from the jurisprudential point of view.42. I agree with respect that "grant" is an agreement of some sort which creates rights in the grantee and an agreement which transfers rights may be termed as assignment. But the question, is, before the grant, was such a right, namely the right to participate in the draw, existing in the grantor? The point made is that there is no transfer of property involved in the issue of a lottery ticket and it is only after the issue of the lottery ticket that the grantee gets a right to participate. In other words, it was sought to be urged that in a lottery, the promoter sponsoring it does not have any right to participate nor to claim a prize in a draw and these come into existence for the first time by the purchase of lottery ticket when he purchases the ticket and therefore it cannot be said that any transfer of right is involved, but only creation of new right by the grantor in favour of theobservations made in the aforesaid paragraphs that there is no transfer of property involved in a grant, for the rights come into existence after purchase.We have noted earlier that all the statutory definitions of the word "goods" in the State sales tax laws have uniformly excluded, inter alia, actionable claims from the definition for the purposes of the Act. Were actionable claims, etc., not otherwise includible in the definition of "goods" there was no need for excluding them. In other words, actionable claims are "goods" but not for the purposes of the Sales Tax Acts and but for this statutory exclusion, an actionable claim would be "goods" or theof ownership. Consequently, an actionable claim is movable property and "goods" in the wider sense of the term but a sale of an actionable claim would not be subject to the sales tax laws.Thus, the Constitution Bench did not overrule the decision of the Court in Vikas Sales Corporation (supra) holding replenishment licences were goods. The Constitution Bench, however, held that the reliance placed in Vikas Sales Corporation (supra) on the observations in H. Anraj (supra), which was agreed to and stood overruled, was to this extent bad in law. To clarify, Vikas Sales Corporation (supra) specifically dealt with the transfer of replenishment licences after they had been issued. However, in Vikas Sales Corporation (supra) it was opined that the grant of a licence by the licensing authority to a registered exporter was not a sale. Sale will take place only when the registered owner further sells it to another person for consideration. The relevant paragraph of the judgment has been earlier reproduced.Thus analysed, the replenishment licences or Exim scrips would, therefore, be "goods", and when they are transferred or assigned by the holder/owner to a third person for consideration, they would attract sale tax. However, the position would be different when replenishment licences or Exim scrips are returned to the grantor or the sovereign authority for cancellation or extinction. In this process, as and when the goods are presented, the replenishment licence or Exim scrip is cancelled and ceases to be a marketable instrument. It becomes a scrap of paper without any innate market value. The SBI, when it took the said instruments as an agent of the RBI did not hold or purchase any goods. It was merely acting as per the directions of the RBI, as its agent and as a participant in the process of cancellation, to ensure that the replenishment licences or Exim scrips were no longer transferred. The intent and purpose was not to purchase goods in the form of replenishment licences or Exim scrips, but to nullify them. The said purpose and objective is the admitted position. The object was to mop up and remove the replenishment licences or Exim scrips from the market.34. Be it noted that the initial issue or grant of scrips is not treated as transfer of title or ownership in the goods. Therefore, as a natural corollary, it must follow when the RBI acquires and seeks the return of replenishment licences or Exim scrips with the intention to cancel and destroy them, the replenishment licences or Exim scrips would not be treated as marketable commodity purchased by the grantor. Further, the SBI is an agent of the RBI, the principal. The Exim scrips or replenishment licences were not "goods" which were purchased by them. The intent and purpose was not to purchase the replenishment licences because the scheme was to extinguish the right granted by issue of replenishment licences. The "ownership" in the goods was never transferred or assigned to the SBI.

Ekta Shakti Foundation Vs. Govt. Of Nct Of Delhi

power of the High Court under Article 226 cannot be exercised for such a purpose. [See: Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35] . 18. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. v. NDMC & Ors. [1996 (2) SCC 459 ] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination." 19. In Jaipur Development Authoritys case (supra) this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: "Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents." 20. In State of Haryana & Ors. v. Ram Kumar Mann [1997 (3) SCC 321 ] this Court observed: "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly Circumstanced person claim equality under Section 14 for Reinstatement? The answer is obviously "No". 21. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right". [See: State of Bihar and others v. Kameshwar Prasad Singh and Another [(2000) 9 SCC 94] . 22. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellants. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India v. International Trading Co. [(2003) 5 SCC 437] . 23. It is not the case of the petitioners that with any oblique motive the eligibility criteria has been stipulated. On the contrary after analyzing the issues, a Committee appointed by the respondent had suggested the norms and the schemes was accordingly prepared. We do not find any irrationality much less something which is totally out of context to justify interference. 24. Clause 4 of the Scheme (Broad Description of Proposed arrangement) indicates that in order to implement this Courts order there was desirability to discourage contractors and involve SSG through non-profit organisations. As the scheme itself provides, the intention is to make the SSGs. fully equipped within a certain period after these NGOs. go out of the picture and State Government steps in. 25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interference.

0[ds]12. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation18. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits22. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellants. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case24. Clause 4 of the Scheme (Broad Description of Proposed arrangement) indicates that in order to implement this Courts order there was desirability to discourage contractors and involve SSG through non-profit organisations. As the scheme itself provides, the intention is to make the SSGs. fully equipped within a certain period after these NGOs. go out of the picture and State Government steps inThus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interferenceEven if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen itscase.It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India v. International Trading Co. [(2003) 5 SCC 437] 25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interference13. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government15. It was submitted that in some other cases, a departure has been made. No definite material has been placed in that regard. In any event, Article 14 has no application or justification to legitimize an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the similar benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously no23. It is not the case of the petitioners that with any oblique motive the eligibility criteria has been stipulated. On the contrary after analyzing the issues, a Committee appointed by the respondent had suggested the norms and the schemes was accordingly prepared. We do not find any irrationality much less something which is totally out of context to justify interference.

### 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: power of the High Court under Article 226 cannot be exercised for such a purpose. [See: Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35] . 18. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. v. NDMC & Ors. [1996 (2) SCC 459 ] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination." 19. In Jaipur Development Authoritys case (supra) this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: "Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents." 20. In State of Haryana & Ors. v. Ram Kumar Mann [1997 (3) SCC 321 ] this Court observed: "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly Circumstanced person claim equality under Section 14 for Reinstatement? The answer is obviously "No". 21. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right". [See: State of Bihar and others v. Kameshwar Prasad Singh and Another [(2000) 9 SCC 94] . 22. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellants. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India v. International Trading Co. [(2003) 5 SCC 437] . 23. It is not the case of the petitioners that with any oblique motive the eligibility criteria has been stipulated. On the contrary after analyzing the issues, a Committee appointed by the respondent had suggested the norms and the schemes was accordingly prepared. We do not find any irrationality much less something which is totally out of context to justify interference. 24. Clause 4 of the Scheme (Broad Description of Proposed arrangement) indicates that in order to implement this Courts order there was desirability to discourage contractors and involve SSG through non-profit organisations. As the scheme itself provides, the intention is to make the SSGs. fully equipped within a certain period after these NGOs. go out of the picture and State Government steps in. 25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interference. ### Response: 0 ### Explanation: 12. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation18. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits22. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellants. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case24. Clause 4 of the Scheme (Broad Description of Proposed arrangement) indicates that in order to implement this Courts order there was desirability to discourage contractors and involve SSG through non-profit organisations. As the scheme itself provides, the intention is to make the SSGs. fully equipped within a certain period after these NGOs. go out of the picture and State Government steps inThus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interferenceEven if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen itscase.It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India v. International Trading Co. [(2003) 5 SCC 437] 25. In the aforesaid background we do not find anything illicit in the impugned criteria to warrant interference13. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government15. It was submitted that in some other cases, a departure has been made. No definite material has been placed in that regard. In any event, Article 14 has no application or justification to legitimize an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the similar benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously no23. It is not the case of the petitioners that with any oblique motive the eligibility criteria has been stipulated. On the contrary after analyzing the issues, a Committee appointed by the respondent had suggested the norms and the schemes was accordingly prepared. We do not find any irrationality much less something which is totally out of context to justify interference.

Kamal Trading Company, Bombay and Others Vs. Gillette U. K. Limited, Middles Sex, England

country to another very rapidly and on extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers, periodicals, magazines and in other medias. The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires wide reputation. Take for example, the Television and Video Cassette Recorders manufactured by National, Sony or other wellknown Japanese Concerns. These Televisions and V.C. Rs. are not imported into India and sold in open market because of trade restrictions, but is it possible even to suggest that the word National or Sony has not acquired reputation in this Country In our judgment, the goodwill or reputation of goods or marks does no depend upon its availability in a particular country. It is possible that the manufacturers may suspend their business activities in a country for short duration but that fact would not destroy the reputation or goodwill acquired by the manufacturers. An identical view was taken by Division Bench of Mr. Justice S.K. Desai and Mr. Justice Bharcuha in a judgment dated July 24, 1986 in Appeal No. 368 of 1986. The question for consideration before the Division Bench was whether the goodwill in the trade mark 7 OCLOCK stood extinguished because of non-availability of blades with the mark in India after year 1958. The Division Bench turned down the claim by pointing out various reasons and we are in entire agreement with the observations made in the judgement on this aspect. In our judgment, it is not possible to follow the view taken in the case of Budweiser. 13. Finally, Mr. Desai submitted that while admitting this appeal on December 12, 1986, the Division Bench granted interim relief pending the hearing of the appeal by putting certain conditions before which the defendants could use the trade mark 7 OCLOCK. It is the claim of Mr. Desai that the defendants have carried out the conditions set out by the Division Bench and, therefore, there is no occasion now to grant interim injunction. The conditions put by the Division Bnech were that number will not be written within the circle of Letter O; that the letter O in the mark would be plain; that the device of a tower or any other mark to convey any connection to any foreign country will not be used; that letter R within a circle to represent that the mark is registered trade mark will not be used; that the appellants would put the words Made in India below the words Tooth Brush and also the words Manufactured by Kamal Trading Company on the plastic pouch and the manufacture or sale of tooth brushes will not exceed 20,000. We fail to appreciate how grant of this relief pending the appeal can create any right in the defendants to insist that the same order be passed at the hearing of the appeal. We have heard Mr. Desai very extensively and we find that not only there is no merit in the appeal but the entire conduct of the defendants is totally dishonest and fraudulent in using the mark 7 OCLOCK. To begin with, the defendants are unable to explain how the mark was invented by them. The mere perusal of the tooth brush and the plastic pouch in which it was sold clearly reveals the dishonest conduct of the defendant. The mark used on the tooth brush and the plastic pouch is also not identical. The plastic pouch mentions the word R in a circle to suggest that the mark used by the defendants is a registered mark. In addition, a picture of tower possibly Fifet Tower, is printed on the pouch to suggest that the goods are manufactured in Paris. The defendants also used the words as Hollywood-London-Paris to suggest that the goods are of the foreign made. This conduct on the part of the defendants clearly indicate that the anxiety was to trade upon the reputation of the mark 7 OCLOCK and not to leave any chance for customer to detect the mis-use of the mark, further effort was made to give an impression that the mark is a registered mark and that goods are manufactured in foreign country. It is hardly required to be stated that when the defendants are guilty of total dishonesty, then it is futile to claim that when the aggrieved party goes to the Court, the defendants should be permitted to use the mark by making some alteration. When confronted with the conduct of the defendants, the only excuse Mr. Desai can think of is that the defendants are illiterate and the commencement of the mark was without taking legal advice. In our judgment, the conduct reveals the mind of the defendants and the conduct by no stetch of imagination can be said to be either bonafide or innocent. We also cannot overlook the fact that the defendants did not bother to produce any invoice in support of the claim that the goods were sold from 1982 onwards and the sale figures annexed as Ex. 1 to the affidavit in reply were correct figures. We enquired from Mr. Desai as to how the amounts were spent on the advertisement and the answer was that the advertisement boards were put up in shops where the tooth brushes are sold. No affidavit of any trader or any distributor is filed in support of the claim, nor did the affidavit of partner sets out the names of any distributors to whom the advertisement material was handed over. In these circumstances, we are unable to accept the claim made by the defendants by setting out certain figures in Ex. 1 to the affidavit on the facts and circumstances of the case, the learned single Judge was perfectly right in granting relief to the plaintiffs and there is no infirmity whatsoever in the impugned order.

0[ds]In our judgment, none of the submissions are of any merit and the appeal is devoid of any substance8. The first contention urged by Mr. Desai is that the plaintiffs are not entitled to interim relief in view of the fact that the plaintiffs have approached the Court after a considerable delay from the date of the knowledge of the user of the mark by the defendants. It was submitted that grant of injunction pending the suit is a discretionary relief and the plaintiffs have disentitled themselves from seeking such relief in view of the delay which remained unexplained. We are not prepared to accede to the submission urged by the learned counsel. It is undoubtedly true that the Court would be reluctant to grant interim discretionary relief in case the plaintiffs have slept over their right and approached the Court after a considerable delay, but in the present case the facts clearly disclose that the plaintiffs are not, at all, guilty of any laches. As mentioned hereinabove, the plaintiffs became aware of the user of the mark in November 1985, but the plaintiffs did not know who were using that mark and that fact has become known only when the goods manufactured by the defendants were seized. The plaintiffs thereupon, immediately, served notice upon the defendants advising to cease the user of the offending mark, but the defendants declined to take any corrective measure, with the result that the suit was required to be instituted by the plaintiffs in August 1986. In these circumstances, we fail to appreciate how the defendants can suggest that the relief should be refused to the plaintiffs on the ground of delay. The first submission of Mr. Desai, therefore, must be turned downWe are unable to see any merit in this submission. In the first instance, the assumption of the learned counsel that the class of customers for purchase of safety blades and tooth brushes are different and these goods are not available in the same shop is wholly misconceived. We take judicial notice of the fact that these goods are available in every shop including a small shop and each and every person is required to purchase these goods. The safety blades and tooth brushes are items of daily requirement and are required by every person. It is impossible to accept the submission that as the goods being different and as the goods are set out in different Classes in Schedule to the Act, there is not any likelihood of customer being deceivedIt cannot be overlooked that it is not necessary for the plaintiffs to establish that in fact any customer was deceived, it is enough if it is shown that there is likelihood of deception. We have no hesitation in concluding that the user of the mark 7 OCLOCK by the defendant would clearly result in deceiving the customer with the impression that the tooth brushes come from the house of Gilletes. A faint submission was advanced by Mr. Desai that the plaintiffs cannot use trade mark 7 OCLOCK simplicitor in India and it is not necessary to add to word Ejtek while selling the razor blade. We fail to appreciate how additional word would make any difference and how it will enable the defendants to pass of their products by using the mark 7 OCLOCK simplicitor12. We must express our dissent with the view taken in this case. In our judgment, it is not possible to conclude that the goodwill or the reputation stands extinguished merely because the goods are not available in the country for some duration. It is necessary to note that the goodwill is not limited to a particular country because in the present day, the trade is spread all over the world and the goods are transported from one country to another very rapidly and on extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers, periodicals, magazines and in other medias. The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires wide reputation. Take for example, the Television and Video Cassette Recorders manufactured by National, Sony or other wellknown Japanese Concerns. These Televisions and V.C. Rs. are not imported into India and sold in open market because of trade restrictions, but is it possible even to suggest that the word National or Sony has not acquired reputation in this Country In our judgment, the goodwill or reputation of goods or marks does no depend upon its availability in a particular country. It is possible that the manufacturers may suspend their business activities in a country for short duration but that fact would not destroy the reputation or goodwill acquired by the manufacturers. An identical view was taken by Division Bench of Mr. Justice S.K. Desai and Mr. Justice Bharcuha in a judgment dated July 24, 1986 in Appeal No. 368 of 1986. The question for consideration before the Division Bench was whether the goodwill in the trade mark 7 OCLOCK stood extinguished because ofy of blades with the mark in India after year 1958. The Division Bench turned down the claim by pointing out various reasons and we are in entire agreement with the observations made in the judgement on this aspect. In our judgment, it is not possible to follow the view taken in the case of BudweiserThe conditions put by the Division Bnech were that number will not be written within the circle of Letter O; that the letter O in the mark would be plain; that the device of a tower or any other mark to convey any connection to any foreign country will not be used; that letter R within a circle to represent that the mark is registered trade mark will not be used; that the appellants would put the words Made in India below the words Tooth Brush and also the words Manufactured by Kamal Trading Company on the plastic pouch and the manufacture or sale of tooth brushes will not exceed 20,000. We fail to appreciate how grant of this relief pending the appeal can create any right in the defendants to insist that the same order be passed at the hearing of the appeal. We have heard Mr. Desai very extensively and we find that not only there is no merit in the appeal but the entire conduct of the defendants is totally dishonest and fraudulent in using the mark 7 OCLOCK. To begin with, the defendants are unable to explain how the mark was invented by them. The mere perusal of the tooth brush and the plastic pouch in which it was sold clearly reveals the dishonest conduct of the defendant. The mark used on the tooth brush and the plastic pouch is also not identical. The plastic pouch mentions the word R in a circle to suggest that the mark used by the defendants is a registered mark. In addition, a picture of tower possibly Fifet Tower, is printed on the pouch to suggest that the goods are manufactured in Paris. The defendants also used the words ass to suggest that the goods are of the foreign made. This conduct on the part of the defendants clearly indicate that the anxiety was to trade upon the reputation of the mark 7 OCLOCK and not to leave any chance for customer to detect thee of the mark, further effort was made to give an impression that the mark is a registered mark and that goods are manufactured in foreign country. It is hardly required to be stated that when the defendants are guilty of total dishonesty, then it is futile to claim that when the aggrieved party goes to the Court, the defendants should be permitted to use the mark by making some alteration. When confronted with the conduct of the defendants, the only excuse Mr. Desai can think of is that the defendants are illiterate and the commencement of the mark was without taking legal advice. In our judgment, the conduct reveals the mind of the defendants and the conduct by no stetch of imagination can be said to be either bonafide or innocent. We also cannot overlook the fact that the defendants did not bother to produce any invoice in support of the claim that the goods were sold from 1982 onwards and the sale figures annexed as Ex. 1 to the affidavit in reply were correct figures. We enquired from Mr. Desai as to how the amounts were spent on the advertisement and the answer was that the advertisement boards were put up in shops where the tooth brushes are sold. No affidavit of any trader or any distributor is filed in support of the claim, nor did the affidavit of partner sets out the names of any distributors to whom the advertisement material was handed over. In these circumstances, we are unable to accept the claim made by the defendants by setting out certain figures in Ex. 1 to the affidavit on the facts and circumstances of the case, the learned single Judge was perfectly right in granting relief to the plaintiffs and there is no infirmity whatsoever in the impugned order.

### 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: country to another very rapidly and on extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers, periodicals, magazines and in other medias. The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires wide reputation. Take for example, the Television and Video Cassette Recorders manufactured by National, Sony or other wellknown Japanese Concerns. These Televisions and V.C. Rs. are not imported into India and sold in open market because of trade restrictions, but is it possible even to suggest that the word National or Sony has not acquired reputation in this Country In our judgment, the goodwill or reputation of goods or marks does no depend upon its availability in a particular country. It is possible that the manufacturers may suspend their business activities in a country for short duration but that fact would not destroy the reputation or goodwill acquired by the manufacturers. An identical view was taken by Division Bench of Mr. Justice S.K. Desai and Mr. Justice Bharcuha in a judgment dated July 24, 1986 in Appeal No. 368 of 1986. The question for consideration before the Division Bench was whether the goodwill in the trade mark 7 OCLOCK stood extinguished because of non-availability of blades with the mark in India after year 1958. The Division Bench turned down the claim by pointing out various reasons and we are in entire agreement with the observations made in the judgement on this aspect. In our judgment, it is not possible to follow the view taken in the case of Budweiser. 13. Finally, Mr. Desai submitted that while admitting this appeal on December 12, 1986, the Division Bench granted interim relief pending the hearing of the appeal by putting certain conditions before which the defendants could use the trade mark 7 OCLOCK. It is the claim of Mr. Desai that the defendants have carried out the conditions set out by the Division Bench and, therefore, there is no occasion now to grant interim injunction. The conditions put by the Division Bnech were that number will not be written within the circle of Letter O; that the letter O in the mark would be plain; that the device of a tower or any other mark to convey any connection to any foreign country will not be used; that letter R within a circle to represent that the mark is registered trade mark will not be used; that the appellants would put the words Made in India below the words Tooth Brush and also the words Manufactured by Kamal Trading Company on the plastic pouch and the manufacture or sale of tooth brushes will not exceed 20,000. We fail to appreciate how grant of this relief pending the appeal can create any right in the defendants to insist that the same order be passed at the hearing of the appeal. We have heard Mr. Desai very extensively and we find that not only there is no merit in the appeal but the entire conduct of the defendants is totally dishonest and fraudulent in using the mark 7 OCLOCK. To begin with, the defendants are unable to explain how the mark was invented by them. The mere perusal of the tooth brush and the plastic pouch in which it was sold clearly reveals the dishonest conduct of the defendant. The mark used on the tooth brush and the plastic pouch is also not identical. The plastic pouch mentions the word R in a circle to suggest that the mark used by the defendants is a registered mark. In addition, a picture of tower possibly Fifet Tower, is printed on the pouch to suggest that the goods are manufactured in Paris. The defendants also used the words as Hollywood-London-Paris to suggest that the goods are of the foreign made. This conduct on the part of the defendants clearly indicate that the anxiety was to trade upon the reputation of the mark 7 OCLOCK and not to leave any chance for customer to detect the mis-use of the mark, further effort was made to give an impression that the mark is a registered mark and that goods are manufactured in foreign country. It is hardly required to be stated that when the defendants are guilty of total dishonesty, then it is futile to claim that when the aggrieved party goes to the Court, the defendants should be permitted to use the mark by making some alteration. When confronted with the conduct of the defendants, the only excuse Mr. Desai can think of is that the defendants are illiterate and the commencement of the mark was without taking legal advice. In our judgment, the conduct reveals the mind of the defendants and the conduct by no stetch of imagination can be said to be either bonafide or innocent. We also cannot overlook the fact that the defendants did not bother to produce any invoice in support of the claim that the goods were sold from 1982 onwards and the sale figures annexed as Ex. 1 to the affidavit in reply were correct figures. We enquired from Mr. Desai as to how the amounts were spent on the advertisement and the answer was that the advertisement boards were put up in shops where the tooth brushes are sold. No affidavit of any trader or any distributor is filed in support of the claim, nor did the affidavit of partner sets out the names of any distributors to whom the advertisement material was handed over. In these circumstances, we are unable to accept the claim made by the defendants by setting out certain figures in Ex. 1 to the affidavit on the facts and circumstances of the case, the learned single Judge was perfectly right in granting relief to the plaintiffs and there is no infirmity whatsoever in the impugned order. ### Response: 0 ### Explanation: must express our dissent with the view taken in this case. In our judgment, it is not possible to conclude that the goodwill or the reputation stands extinguished merely because the goods are not available in the country for some duration. It is necessary to note that the goodwill is not limited to a particular country because in the present day, the trade is spread all over the world and the goods are transported from one country to another very rapidly and on extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers, periodicals, magazines and in other medias. The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires wide reputation. Take for example, the Television and Video Cassette Recorders manufactured by National, Sony or other wellknown Japanese Concerns. These Televisions and V.C. Rs. are not imported into India and sold in open market because of trade restrictions, but is it possible even to suggest that the word National or Sony has not acquired reputation in this Country In our judgment, the goodwill or reputation of goods or marks does no depend upon its availability in a particular country. It is possible that the manufacturers may suspend their business activities in a country for short duration but that fact would not destroy the reputation or goodwill acquired by the manufacturers. An identical view was taken by Division Bench of Mr. Justice S.K. Desai and Mr. Justice Bharcuha in a judgment dated July 24, 1986 in Appeal No. 368 of 1986. The question for consideration before the Division Bench was whether the goodwill in the trade mark 7 OCLOCK stood extinguished because ofy of blades with the mark in India after year 1958. The Division Bench turned down the claim by pointing out various reasons and we are in entire agreement with the observations made in the judgement on this aspect. In our judgment, it is not possible to follow the view taken in the case of BudweiserThe conditions put by the Division Bnech were that number will not be written within the circle of Letter O; that the letter O in the mark would be plain; that the device of a tower or any other mark to convey any connection to any foreign country will not be used; that letter R within a circle to represent that the mark is registered trade mark will not be used; that the appellants would put the words Made in India below the words Tooth Brush and also the words Manufactured by Kamal Trading Company on the plastic pouch and the manufacture or sale of tooth brushes will not exceed 20,000. We fail to appreciate how grant of this relief pending the appeal can create any right in the defendants to insist that the same order be passed at the hearing of the appeal. We have heard Mr. Desai very extensively and we find that not only there is no merit in the appeal but the entire conduct of the defendants is totally dishonest and fraudulent in using the mark 7 OCLOCK. To begin with, the defendants are unable to explain how the mark was invented by them. The mere perusal of the tooth brush and the plastic pouch in which it was sold clearly reveals the dishonest conduct of the defendant. The mark used on the tooth brush and the plastic pouch is also not identical. The plastic pouch mentions the word R in a circle to suggest that the mark used by the defendants is a registered mark. In addition, a picture of tower possibly Fifet Tower, is printed on the pouch to suggest that the goods are manufactured in Paris. The defendants also used the words ass to suggest that the goods are of the foreign made. This conduct on the part of the defendants clearly indicate that the anxiety was to trade upon the reputation of the mark 7 OCLOCK and not to leave any chance for customer to detect thee of the mark, further effort was made to give an impression that the mark is a registered mark and that goods are manufactured in foreign country. It is hardly required to be stated that when the defendants are guilty of total dishonesty, then it is futile to claim that when the aggrieved party goes to the Court, the defendants should be permitted to use the mark by making some alteration. When confronted with the conduct of the defendants, the only excuse Mr. Desai can think of is that the defendants are illiterate and the commencement of the mark was without taking legal advice. In our judgment, the conduct reveals the mind of the defendants and the conduct by no stetch of imagination can be said to be either bonafide or innocent. We also cannot overlook the fact that the defendants did not bother to produce any invoice in support of the claim that the goods were sold from 1982 onwards and the sale figures annexed as Ex. 1 to the affidavit in reply were correct figures. We enquired from Mr. Desai as to how the amounts were spent on the advertisement and the answer was that the advertisement boards were put up in shops where the tooth brushes are sold. No affidavit of any trader or any distributor is filed in support of the claim, nor did the affidavit of partner sets out the names of any distributors to whom the advertisement material was handed over. In these circumstances, we are unable to accept the claim made by the defendants by setting out certain figures in Ex. 1 to the affidavit on the facts and circumstances of the case, the learned single Judge was perfectly right in granting relief to the plaintiffs and there is no infirmity whatsoever in the impugned order.

CENTRAL COUNCIL FOR INDIAN MEDICINE Vs. KARNATAKA AYURVEDA MEDICAL COLLEGE AND OTHERS

standard norms. 35. It is further to be noted that in paragraph (10) of the said judgment, this Court had specifically observed that the petitioner therein tried to impress upon that the deficiencies had already been removed and that is why permission was specifically given for the admission of students for the academic year 2012-13. It was therefore urged that there was no reason for withholding the permission for the academic year 2011-12. This Court specifically noticed that a large number of students had applied for admission for the academic year 2011-12 and that too with the leave of this Court. However, this Court found that the privilege granted to the candidates could not be transformed into a right to be admitted in the course for which they had applied. While dismissing the petition and refusing to interfere with the judgment of the High Court, this Court observed thus: 17. It is not for us to judge as to whether a particular institution fulfilled the necessary criteria for being eligible to conduct classes in the discipline concerned or not. That is for the experts to judge and according to the experts the institutions were not geared to conduct classes in respect of the year 2011–2012. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them up to the level of those who have completed the major part of the course for the first year. We are not, therefore, inclined to interfere with the orders of the High Court impugned in these special leave petitions and the same are, accordingly, dismissed. 36. It can be seen from the conjoint reading of various paragraphs of the said judgment that the contention that since the deficiencies stood already removed and the permission granted for the academic year 2012-13, the said permission should also be construed as having been granted for the academic year 2011-12, was not accepted by this Court. 37. We are at pains to say that though the judgment in the case of Ayurved Shastra Seva Mandal (supra) was specifically relied on by the appellant herein, the learned Single Judge and the Division Bench of the High Court of Karnataka have chosen to rely on the earlier judgments of the Division Bench of the same High Court rather than a judgment of this Court. 38. It will further be relevant to note that this Court in the case of Ayurved Shastra Seva Mandal (supra) has also referred to the amended provisions of the said Act. It will be relevant to refer to paragraphs (5) to (9) of the said judgment, which read thus: 5. As far as medical institutions are concerned, the procedure relating to the recognition of medical colleges as well as admission therein was governed by the Indian Medicine Central Council Act, 1970 (hereinafter referred to as the 1970 Act), which was amended in 2003, to incorporate Sections 13-A, 13-B and 13-C, which provided the procedure for establishing new colleges and making provision for seeking prior permission of the Central Government in respect of the same. The amendment also attempted to bring in reforms in the existing colleges by making it mandatory for them to seek permission from the Central Government within a period of three years from their establishment. 6. Having regard to the said amendments, the Central Council of Indian Medicine, with the previous sanction of the Central Government, framed Regulations, in exercise of the powers conferred on it by Section 36 of the 1970 Act. The said Regulations were named as the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2003 (hereinafter referred to as the 2003 Regulations). Regulation 6(1)(e) of the 2003 Regulations provides for applications to be made by a medical college owning and managing a hospital in Indian medicine containing not less than 100 beds with necessary facilities and infrastructure. 7. The Central Council of Indian Medicine further framed Regulations in 2006 called as the Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations, 2006 (hereinafter referred to as the 2006 Regulations). Regulation 5(1)(d) of the 2006 Regulations provides that the applicant College would have to be owning and managing a minimum of 100 beds for undergraduate courses and 150 beds for postgraduate courses, which conforms to the norms relating to minimum bed strength and bed occupancy for in-patients and the number of out- patients. 8. When the 2003 Amendment was effected to the 1970 Act, three years time was given to the existing colleges to remove the deficiencies. The 2006 Regulations provided a further period of two years to remove the deficiencies and even relaxed the minimum standards in that regard. Even after the expiry of two years, the colleges were given further opportunities to remove the shortcomings by granting them conditional permission for their students for the academic years 2008–2009, 2009– 2010 and 2010–2011. It is only obvious that the minimum standards were insisted upon by the Council to ensure that the colleges achieved the minimum standards gradually. 9. It may be noted that there was little or no response from the institutions concerned in regard to removal of the deficiencies in their respective institutions and it is only when the notices were given to shut down the institutions that they woke up from their slumber and approached the courts for relief. In many of these cases, permission was given by the courts to the institutions concerned to accept admission forms, but they were directed not to pass any orders thereupon till the decision of this Court in these special leave petitions. 39. We are, therefore, of the considered view that the learned Single Judge as well as the Division Bench have grossly erred in not taking into consideration the scheme of the said Act so also the judgment of this Court in the case of Ayurved Shastra Seva Mandal (supra).

1[ds]27. It could thus clearly be seen that Section 13A read with Sections 22 and 36(1)(j) of the said Act provides a complete scheme for establishment of medical college, opening a new or higher course of study or training, including a post-graduate course of study or training, and also increasing the admission capacity. From the perusal of the scheme of the aforesaid provisions, it is clear that no person is entitled to establish a medical college except with the previous permission of the Central Government. Similarly, no medical college can open a new or higher course of study or training, including a post- graduate course of study or training without the previous sanction of the Central Government. Likewise, no medical college can increase its admission capacity in any course of study or training, including a post-graduate course of study or training. Sub-sections (2) to (5) of Section 13A of the said Act prescribe a detailed procedure for submitting a scheme and consideration thereof by the Central Council and the Central Government. It also provides for in-built safeguards inasmuch as the principles of natural justice are provided at two stages, one before the Central Council and another before the Central Government. The second proviso to sub-section (5) of Section 13A of the said Act also enables a person or medical college whose scheme has not been approved by the Central Government, to again submit a fresh scheme, which is required to be considered as if the same is made for the first time under sub-section (2) of Section 13A of the said Act. Sub-section (6) of Section 13A of the said Act provides that when no order is communicated within a period of one year from the date of submission of the scheme, by a deeming provision, such scheme shall stand approved and it will be deemed that the permission of the Central Government as required under sub- section (1) of Section 13A of the said Act has been granted. Sub-section (7) of Section 13A of the said Act provides for exclusion of the period for the time taken by the person or medical college concerned to furnish any particulars called by the Central Council, or by the Central Government. Sub- section (8) of Section 13A of the said Act provides the factors to be taken into consideration. Sub-section (9) of Section 13A of the said Act provides for the communication of the order approving or disapproving the scheme, to the person or medical college concerned.28. The statutory scheme is thus clear that no medical college can open a new or higher course of study or training, including a post-graduate course, except with the previous permission of the Central Government. Prior to such a permission being granted, the procedure as prescribed under Section 13A has to be followed.30. It could further be seen that the legislature itself has taken care of a situation, where any person has established a medical college or any medical college has opened a new or higher course of study or training, or increased the admission capacity prior to the commencement of the Indian Medicine Central Council (Amendment) Act, 2003. It has provided that such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of Section 13A of the said Act.31. The impugned judgment of the Division Bench and the Single Judge of the High Court of Karnataka, so also the other judgments of the High Court of Karnataka, which are relied on by the Division Bench, do not take into consideration the scheme of Section 13A of the said Act.33. It could thus clearly be seen, that Regulation 3(1)(a) of the 2016 Regulations specifically provides that the Ayurveda colleges established under Section 13A and existing under Section 13C of the said Act and their attached hospitals shall fulfill the requirements of minimum standard for infrastructure and teaching and training facilities referred to in the Regulations 4 to 11 up to 31st December of every year for consideration of grant of permissions for undertaking admissions in the coming academic session. It is thus clear that in order to be eligible for grant of permission for undertaking admissions in a particular academic session, the institution must fulfill the requirements of minimum standard as on 31st December of the earlier year. For example, if the institution is seeking grant of permission for undertaking admissions for the academic session 2022-23, it must have fulfilled the requirements of minimum standard as on 31st December 2021. It could thus be seen that the finding that the permission granted for a subsequent academic year would also enure to the benefit of earlier academic year though the said institution was not fulfilling the criteria of minimum standard, is totally erroneous.34. We further find that the High Court has also erred in not correctly applying the law laid down by this Court in the case of Ayurved Shastra Seva Mandal (supra). In the said case, the petitioner Ayurved Shastra Seva Mandal had approached the Bombay High Court being aggrieved by the refusal by the Government of India to grant permission to the colleges to admit students for the academic year 2011-12. Such permission was refused on account of various deficiencies relating to infrastructure and teaching staff, which had not been rectified and brought into line with the minimum standard norms.35. It is further to be noted that in paragraph (10) of the said judgment, this Court had specifically observed that the petitioner therein tried to impress upon that the deficiencies had already been removed and that is why permission was specifically given for the admission of students for the academic year 2012-13. It was therefore urged that there was no reason for withholding the permission for the academic year 2011-12. This Court specifically noticed that a large number of students had applied for admission for the academic year 2011-12 and that too with the leave of this Court. However, this Court found that the privilege granted to the candidates could not be transformed into a right to be admitted in the course for which they had applied. While dismissing the petition and refusing to interfere with the judgment of the High Court, this Court observed thus:17. It is not for us to judge as to whether a particular institution fulfilled the necessary criteria for being eligible to conduct classes in the discipline concerned or not. That is for the experts to judge and according to the experts the institutions were not geared to conduct classes in respect of the year 2011–2012. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them up to the level of those who have completed the major part of the course for the first year. We are not, therefore, inclined to interfere with the orders of the High Court impugned in these special leave petitions and the same are, accordingly, dismissed.36. It can be seen from the conjoint reading of various paragraphs of the said judgment that the contention that since the deficiencies stood already removed and the permission granted for the academic year 2012-13, the said permission should also be construed as having been granted for the academic year 2011-12, was not accepted by this Court.37. We are at pains to say that though the judgment in the case of Ayurved Shastra Seva Mandal (supra) was specifically relied on by the appellant herein, the learned Single Judge and the Division Bench of the High Court of Karnataka have chosen to rely on the earlier judgments of the Division Bench of the same High Court rather than a judgment of this Court.38. It will further be relevant to note that this Court in the case of Ayurved Shastra Seva Mandal (supra) has also referred to the amended provisions of the said Act. It will be relevant to refer to paragraphs (5) to (9) of the said judgment, which read thus:5. As far as medical institutions are concerned, the procedure relating to the recognition of medical colleges as well as admission therein was governed by the Indian Medicine Central Council Act, 1970 (hereinafter referred to as the 1970 Act), which was amended in 2003, to incorporate Sections 13-A, 13-B and 13-C, which provided the procedure for establishing new colleges and making provision for seeking prior permission of the Central Government in respect of the same. The amendment also attempted to bring in reforms in the existing colleges by making it mandatory for them to seek permission from the Central Government within a period of three years from their establishment.6. Having regard to the said amendments, the Central Council of Indian Medicine, with the previous sanction of the Central Government, framed Regulations, in exercise of the powers conferred on it by Section 36 of the 1970 Act. The said Regulations were named as the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2003 (hereinafter referred to as the 2003 Regulations). Regulation 6(1)(e) of the 2003 Regulations provides for applications to be made by a medical college owning and managing a hospital in Indian medicine containing not less than 100 beds with necessary facilities and infrastructure.7. The Central Council of Indian Medicine further framed Regulations in 2006 called as the Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations, 2006 (hereinafter referred to as the 2006 Regulations). Regulation 5(1)(d) of the 2006 Regulations provides that the applicant College would have to be owning and managing a minimum of 100 beds for undergraduate courses and 150 beds for postgraduate courses, which conforms to the norms relating to minimum bed strength and bed occupancy for in-patients and the number of out- patients.8. When the 2003 Amendment was effected to the 1970 Act, three years time was given to the existing colleges to remove the deficiencies. The 2006 Regulations provided a further period of two years to remove the deficiencies and even relaxed the minimum standards in that regard. Even after the expiry of two years, the colleges were given further opportunities to remove the shortcomings by granting them conditional permission for their students for the academic years 2008–2009, 2009– 2010 and 2010–2011. It is only obvious that the minimum standards were insisted upon by the Council to ensure that the colleges achieved the minimum standards gradually.9. It may be noted that there was little or no response from the institutions concerned in regard to removal of the deficiencies in their respective institutions and it is only when the notices were given to shut down the institutions that they woke up from their slumber and approached the courts for relief. In many of these cases, permission was given by the courts to the institutions concerned to accept admission forms, but they were directed not to pass any orders thereupon till the decision of this Court in these special leave petitions.39. We are, therefore, of the considered view that the learned Single Judge as well as the Division Bench have grossly erred in not taking into consideration the scheme of the said Act so also the judgment of this Court in the case of Ayurved Shastra Seva Mandal (supra).

### 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: standard norms. 35. It is further to be noted that in paragraph (10) of the said judgment, this Court had specifically observed that the petitioner therein tried to impress upon that the deficiencies had already been removed and that is why permission was specifically given for the admission of students for the academic year 2012-13. It was therefore urged that there was no reason for withholding the permission for the academic year 2011-12. This Court specifically noticed that a large number of students had applied for admission for the academic year 2011-12 and that too with the leave of this Court. However, this Court found that the privilege granted to the candidates could not be transformed into a right to be admitted in the course for which they had applied. While dismissing the petition and refusing to interfere with the judgment of the High Court, this Court observed thus: 17. It is not for us to judge as to whether a particular institution fulfilled the necessary criteria for being eligible to conduct classes in the discipline concerned or not. That is for the experts to judge and according to the experts the institutions were not geared to conduct classes in respect of the year 2011–2012. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them up to the level of those who have completed the major part of the course for the first year. We are not, therefore, inclined to interfere with the orders of the High Court impugned in these special leave petitions and the same are, accordingly, dismissed. 36. It can be seen from the conjoint reading of various paragraphs of the said judgment that the contention that since the deficiencies stood already removed and the permission granted for the academic year 2012-13, the said permission should also be construed as having been granted for the academic year 2011-12, was not accepted by this Court. 37. We are at pains to say that though the judgment in the case of Ayurved Shastra Seva Mandal (supra) was specifically relied on by the appellant herein, the learned Single Judge and the Division Bench of the High Court of Karnataka have chosen to rely on the earlier judgments of the Division Bench of the same High Court rather than a judgment of this Court. 38. It will further be relevant to note that this Court in the case of Ayurved Shastra Seva Mandal (supra) has also referred to the amended provisions of the said Act. It will be relevant to refer to paragraphs (5) to (9) of the said judgment, which read thus: 5. As far as medical institutions are concerned, the procedure relating to the recognition of medical colleges as well as admission therein was governed by the Indian Medicine Central Council Act, 1970 (hereinafter referred to as the 1970 Act), which was amended in 2003, to incorporate Sections 13-A, 13-B and 13-C, which provided the procedure for establishing new colleges and making provision for seeking prior permission of the Central Government in respect of the same. The amendment also attempted to bring in reforms in the existing colleges by making it mandatory for them to seek permission from the Central Government within a period of three years from their establishment. 6. Having regard to the said amendments, the Central Council of Indian Medicine, with the previous sanction of the Central Government, framed Regulations, in exercise of the powers conferred on it by Section 36 of the 1970 Act. The said Regulations were named as the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2003 (hereinafter referred to as the 2003 Regulations). Regulation 6(1)(e) of the 2003 Regulations provides for applications to be made by a medical college owning and managing a hospital in Indian medicine containing not less than 100 beds with necessary facilities and infrastructure. 7. The Central Council of Indian Medicine further framed Regulations in 2006 called as the Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations, 2006 (hereinafter referred to as the 2006 Regulations). Regulation 5(1)(d) of the 2006 Regulations provides that the applicant College would have to be owning and managing a minimum of 100 beds for undergraduate courses and 150 beds for postgraduate courses, which conforms to the norms relating to minimum bed strength and bed occupancy for in-patients and the number of out- patients. 8. When the 2003 Amendment was effected to the 1970 Act, three years time was given to the existing colleges to remove the deficiencies. The 2006 Regulations provided a further period of two years to remove the deficiencies and even relaxed the minimum standards in that regard. Even after the expiry of two years, the colleges were given further opportunities to remove the shortcomings by granting them conditional permission for their students for the academic years 2008–2009, 2009– 2010 and 2010–2011. It is only obvious that the minimum standards were insisted upon by the Council to ensure that the colleges achieved the minimum standards gradually. 9. It may be noted that there was little or no response from the institutions concerned in regard to removal of the deficiencies in their respective institutions and it is only when the notices were given to shut down the institutions that they woke up from their slumber and approached the courts for relief. In many of these cases, permission was given by the courts to the institutions concerned to accept admission forms, but they were directed not to pass any orders thereupon till the decision of this Court in these special leave petitions. 39. We are, therefore, of the considered view that the learned Single Judge as well as the Division Bench have grossly erred in not taking into consideration the scheme of the said Act so also the judgment of this Court in the case of Ayurved Shastra Seva Mandal (supra). ### Response: 1 ### Explanation: had not been rectified and brought into line with the minimum standard norms.35. It is further to be noted that in paragraph (10) of the said judgment, this Court had specifically observed that the petitioner therein tried to impress upon that the deficiencies had already been removed and that is why permission was specifically given for the admission of students for the academic year 2012-13. It was therefore urged that there was no reason for withholding the permission for the academic year 2011-12. This Court specifically noticed that a large number of students had applied for admission for the academic year 2011-12 and that too with the leave of this Court. However, this Court found that the privilege granted to the candidates could not be transformed into a right to be admitted in the course for which they had applied. While dismissing the petition and refusing to interfere with the judgment of the High Court, this Court observed thus:17. It is not for us to judge as to whether a particular institution fulfilled the necessary criteria for being eligible to conduct classes in the discipline concerned or not. That is for the experts to judge and according to the experts the institutions were not geared to conduct classes in respect of the year 2011–2012. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them up to the level of those who have completed the major part of the course for the first year. We are not, therefore, inclined to interfere with the orders of the High Court impugned in these special leave petitions and the same are, accordingly, dismissed.36. It can be seen from the conjoint reading of various paragraphs of the said judgment that the contention that since the deficiencies stood already removed and the permission granted for the academic year 2012-13, the said permission should also be construed as having been granted for the academic year 2011-12, was not accepted by this Court.37. We are at pains to say that though the judgment in the case of Ayurved Shastra Seva Mandal (supra) was specifically relied on by the appellant herein, the learned Single Judge and the Division Bench of the High Court of Karnataka have chosen to rely on the earlier judgments of the Division Bench of the same High Court rather than a judgment of this Court.38. It will further be relevant to note that this Court in the case of Ayurved Shastra Seva Mandal (supra) has also referred to the amended provisions of the said Act. It will be relevant to refer to paragraphs (5) to (9) of the said judgment, which read thus:5. As far as medical institutions are concerned, the procedure relating to the recognition of medical colleges as well as admission therein was governed by the Indian Medicine Central Council Act, 1970 (hereinafter referred to as the 1970 Act), which was amended in 2003, to incorporate Sections 13-A, 13-B and 13-C, which provided the procedure for establishing new colleges and making provision for seeking prior permission of the Central Government in respect of the same. The amendment also attempted to bring in reforms in the existing colleges by making it mandatory for them to seek permission from the Central Government within a period of three years from their establishment.6. Having regard to the said amendments, the Central Council of Indian Medicine, with the previous sanction of the Central Government, framed Regulations, in exercise of the powers conferred on it by Section 36 of the 1970 Act. The said Regulations were named as the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2003 (hereinafter referred to as the 2003 Regulations). Regulation 6(1)(e) of the 2003 Regulations provides for applications to be made by a medical college owning and managing a hospital in Indian medicine containing not less than 100 beds with necessary facilities and infrastructure.7. The Central Council of Indian Medicine further framed Regulations in 2006 called as the Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations, 2006 (hereinafter referred to as the 2006 Regulations). Regulation 5(1)(d) of the 2006 Regulations provides that the applicant College would have to be owning and managing a minimum of 100 beds for undergraduate courses and 150 beds for postgraduate courses, which conforms to the norms relating to minimum bed strength and bed occupancy for in-patients and the number of out- patients.8. When the 2003 Amendment was effected to the 1970 Act, three years time was given to the existing colleges to remove the deficiencies. The 2006 Regulations provided a further period of two years to remove the deficiencies and even relaxed the minimum standards in that regard. Even after the expiry of two years, the colleges were given further opportunities to remove the shortcomings by granting them conditional permission for their students for the academic years 2008–2009, 2009– 2010 and 2010–2011. It is only obvious that the minimum standards were insisted upon by the Council to ensure that the colleges achieved the minimum standards gradually.9. It may be noted that there was little or no response from the institutions concerned in regard to removal of the deficiencies in their respective institutions and it is only when the notices were given to shut down the institutions that they woke up from their slumber and approached the courts for relief. In many of these cases, permission was given by the courts to the institutions concerned to accept admission forms, but they were directed not to pass any orders thereupon till the decision of this Court in these special leave petitions.39. We are, therefore, of the considered view that the learned Single Judge as well as the Division Bench have grossly erred in not taking into consideration the scheme of the said Act so also the judgment of this Court in the case of Ayurved Shastra Seva Mandal (supra).

Manohar Pandhari Deulkar Vs. Commissioner, Nagpur Division and Others

such office of profit is not "under the Government of India". He being a Clerk in Coal India Ltd. does not and cannot bring any influence or pressure on him in his independent functioning as a Member of Legislative Assembly. The finding that the respondent was neither a managing agent nor a manager nor a Secretary under Coal India Ltd. though the company has 100% share-holding of the Government, was not seriously disputed. Even otherwise, the respondent was merely a Clerk Grade I. Occasionally in the absence of his senior officer on account of leave or absence, he exercised some supervisory function over his subordinates, but this would not make him a manager of the Company. Therefore, the respondent was not holding an office of profit under the Government of India and therefore no disqualification attached to him under Article 19(1)(a) of the Constitution. The respondent did not incur a disqualification under section 10 of RPA also. As the respondents nomination was improperly rejected, the appellants election was liable to be declared void without proof of the result of the election, insofar as it concerns the returned candidate, having been materially affected."13.The Apex Court while taking the aforesaid view, relied upon its earlier judgment in Guru Gobinda Basu vs. Sankari Prasad Ghosal, AIR 1964 SC 254 . In paragraphs 7 and 8, the Apex Court has observed as under: "7. In Guru Gobinda Basu vs. Sankari Prasad Ghosal the Constitution Bench emphasised the distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government and held that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. Several factors entering into the determination of question are: (i) the appointing authority, (ii) the authority vested with power to terminate the appointment, (iii) the authority which determines the remuneration, (iv) the source from which the remuneration is paid and (v) the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf. But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the Government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on facts of each case. The source from which the remuneration is paid, is not by itself decisive or material. 8. The available case law was reviewed by this Court in Madhukar G. E. Pankakar vs. Jaswant Chobbildas Rajan. The Court described certain aspects as elementary; (i) for holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant;(ii) we have to look at the substance and not the form; and (iii) all the several factors stressed by this Court (in Guru Govinda case) as determinative of the holding of an "office" under Government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view, not pedantic basket of tests, should act as guide." THE CONSIDERATION: 13-A.The learned counsel for the respondent No. 3 tried to support impugned order but could not take submissions to the logical conclusion and in view of several legal hurdles. The survey of the aforesaid cases coupled with the other cases cited at the Bar, detailed reference of which is not necessary for deciding this matter, would make it clear that the question sought to be raised in this petition, is no longer res integra and the same stands resolved by catena of the decisions of this Court as well as Apex Court, some of them available at hand are as under: (1) Satrucharia Chandrashekhar Raju vs. Vyricheria Pradeep Kumar Dev (1992) 4 SCC 404. (2) Aklu Ram Mahto vs. Rajendra Mahto (1999) 3 SCC 541. (3) Vasudeo Genu Vartak vs. The Returning Officer, 1968 Mh.L.J. 79. (4) Manohar Nathusao Samarth vs. Marotrao and ors, AIR 1979 SC 1084 . 14.Once again turning to the facts of the present case on the canvas of the above well-settled legal scenario, it would be clear that the petitioner; who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be held to be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with the North-Eastern Coalfields Limited cannot be said to have held office of profits within the meaning of Article 19(1)(a) of the Constitution of India, one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited, which is at par with North Eastern Coalfields Limited be held to be disqualified on the ground that he is holding the office of profit with the Government. 15.While dealing with the aforesaid cases the Apex Court held that the Government had no power to make appointment of the respondent therein; it had no power to remove or dismiss him. Similar is the position in the present case. Government has no power or authority to remove the petitioner nor his appointing authority is the Government. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances, cannot stand to the scrutiny of law being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside.

1[ds]14.Once again turning to the facts of the present case on the canvas of the abovelegal scenario, it would be clear that the petitioner; who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be held to be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with theCoalfields Limited cannot be said to have held office of profits within the meaning of Article 19(1)(a) of the Constitution of India, one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited, which is at par with North Eastern Coalfields Limited be held to be disqualified on the ground that he is holding the office of profit with thedealing with the aforesaid cases the Apex Court held that the Government had no power to make appointment of the respondent therein; it had no power to remove or dismiss him. Similar is the position in the present case. Government has no power or authority to remove the petitioner nor his appointing authority is the Government. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances, cannot stand to the scrutiny of law being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside.

### 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: such office of profit is not "under the Government of India". He being a Clerk in Coal India Ltd. does not and cannot bring any influence or pressure on him in his independent functioning as a Member of Legislative Assembly. The finding that the respondent was neither a managing agent nor a manager nor a Secretary under Coal India Ltd. though the company has 100% share-holding of the Government, was not seriously disputed. Even otherwise, the respondent was merely a Clerk Grade I. Occasionally in the absence of his senior officer on account of leave or absence, he exercised some supervisory function over his subordinates, but this would not make him a manager of the Company. Therefore, the respondent was not holding an office of profit under the Government of India and therefore no disqualification attached to him under Article 19(1)(a) of the Constitution. The respondent did not incur a disqualification under section 10 of RPA also. As the respondents nomination was improperly rejected, the appellants election was liable to be declared void without proof of the result of the election, insofar as it concerns the returned candidate, having been materially affected."13.The Apex Court while taking the aforesaid view, relied upon its earlier judgment in Guru Gobinda Basu vs. Sankari Prasad Ghosal, AIR 1964 SC 254 . In paragraphs 7 and 8, the Apex Court has observed as under: "7. In Guru Gobinda Basu vs. Sankari Prasad Ghosal the Constitution Bench emphasised the distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government and held that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. Several factors entering into the determination of question are: (i) the appointing authority, (ii) the authority vested with power to terminate the appointment, (iii) the authority which determines the remuneration, (iv) the source from which the remuneration is paid and (v) the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf. But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the Government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on facts of each case. The source from which the remuneration is paid, is not by itself decisive or material. 8. The available case law was reviewed by this Court in Madhukar G. E. Pankakar vs. Jaswant Chobbildas Rajan. The Court described certain aspects as elementary; (i) for holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant;(ii) we have to look at the substance and not the form; and (iii) all the several factors stressed by this Court (in Guru Govinda case) as determinative of the holding of an "office" under Government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view, not pedantic basket of tests, should act as guide." THE CONSIDERATION: 13-A.The learned counsel for the respondent No. 3 tried to support impugned order but could not take submissions to the logical conclusion and in view of several legal hurdles. The survey of the aforesaid cases coupled with the other cases cited at the Bar, detailed reference of which is not necessary for deciding this matter, would make it clear that the question sought to be raised in this petition, is no longer res integra and the same stands resolved by catena of the decisions of this Court as well as Apex Court, some of them available at hand are as under: (1) Satrucharia Chandrashekhar Raju vs. Vyricheria Pradeep Kumar Dev (1992) 4 SCC 404. (2) Aklu Ram Mahto vs. Rajendra Mahto (1999) 3 SCC 541. (3) Vasudeo Genu Vartak vs. The Returning Officer, 1968 Mh.L.J. 79. (4) Manohar Nathusao Samarth vs. Marotrao and ors, AIR 1979 SC 1084 . 14.Once again turning to the facts of the present case on the canvas of the above well-settled legal scenario, it would be clear that the petitioner; who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be held to be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with the North-Eastern Coalfields Limited cannot be said to have held office of profits within the meaning of Article 19(1)(a) of the Constitution of India, one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited, which is at par with North Eastern Coalfields Limited be held to be disqualified on the ground that he is holding the office of profit with the Government. 15.While dealing with the aforesaid cases the Apex Court held that the Government had no power to make appointment of the respondent therein; it had no power to remove or dismiss him. Similar is the position in the present case. Government has no power or authority to remove the petitioner nor his appointing authority is the Government. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances, cannot stand to the scrutiny of law being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside. ### Response: 1 ### Explanation: 14.Once again turning to the facts of the present case on the canvas of the abovelegal scenario, it would be clear that the petitioner; who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be held to be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with theCoalfields Limited cannot be said to have held office of profits within the meaning of Article 19(1)(a) of the Constitution of India, one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited, which is at par with North Eastern Coalfields Limited be held to be disqualified on the ground that he is holding the office of profit with thedealing with the aforesaid cases the Apex Court held that the Government had no power to make appointment of the respondent therein; it had no power to remove or dismiss him. Similar is the position in the present case. Government has no power or authority to remove the petitioner nor his appointing authority is the Government. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances, cannot stand to the scrutiny of law being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside.

NARESH Vs. HEMANT

no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal. 12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered. 13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673 , this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows: 12. ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. 14. Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur and others vs. Kaki and others, (2007) 1 SCC 546 , holding as follows: 71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. xxxx 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100. xxxx 81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.

0[ds]7. We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record. The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned. The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together. Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration. Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change. It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement8. The evidence was in the nature of oath versus oath by the legal heirs of the two brothers. No documentary evidence except for the sale deed was led. The Trial Court correctly noticed the gap of 36 days between the preparation of the sale deed on 29.03.1957 and its subsequent registration on 03.05.1957 as a circumstance to accept the contention of the defendants that Ramchandrarao Ingole retracted from any contribution and his status as a vendee or beneficiary of the purchase. Since registration on 03.05.1957 till the institution of the suit by the legal heirs of Ramchandrarao Ingole, 38 years later, he did not prefer any claim since 03.05.1957 till his brothers death in 1980, including for 15 long years till his own death on 23.03.1995. Thereafter, PW-1 in his evidence admitted that the construction of the house had been made by Trimbakrao Ingole alone. There is no evidence that this construction was made from joint family funds. It is an undisputed fact that the plaintiffs at no point of time ever since purchase resided in the house or upon the suit lands or enjoyed the same in any manner let alone incurred any expenditure on the same9. The claim for a presumption under Section 45 of the Act in favour of the plaintiffs was raised for the first time before the First Appellate Court but was negated in light of the factual findings. Importantly, it was held that mere failure of the defendants to adduce satisfactory evidence that Trimbakrao Ingole had paid the entire consideration did not absolve the plaintiffs of their duty to establish their own claim in accordance with law by satisfactory evidence to substantiate the presumption sought to be relied upon. In other words, the appellate court correctly held that the weakness of the defence could not become the strength of the plaintiff, especially when the defendants were disputing their claims11. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.

### 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: no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal. 12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered. 13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673 , this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows: 12. ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. 14. Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur and others vs. Kaki and others, (2007) 1 SCC 546 , holding as follows: 71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. xxxx 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100. xxxx 81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs. ### Response: 0 ### Explanation: 7. We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record. The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned. The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together. Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration. Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change. It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement8. The evidence was in the nature of oath versus oath by the legal heirs of the two brothers. No documentary evidence except for the sale deed was led. The Trial Court correctly noticed the gap of 36 days between the preparation of the sale deed on 29.03.1957 and its subsequent registration on 03.05.1957 as a circumstance to accept the contention of the defendants that Ramchandrarao Ingole retracted from any contribution and his status as a vendee or beneficiary of the purchase. Since registration on 03.05.1957 till the institution of the suit by the legal heirs of Ramchandrarao Ingole, 38 years later, he did not prefer any claim since 03.05.1957 till his brothers death in 1980, including for 15 long years till his own death on 23.03.1995. Thereafter, PW-1 in his evidence admitted that the construction of the house had been made by Trimbakrao Ingole alone. There is no evidence that this construction was made from joint family funds. It is an undisputed fact that the plaintiffs at no point of time ever since purchase resided in the house or upon the suit lands or enjoyed the same in any manner let alone incurred any expenditure on the same9. The claim for a presumption under Section 45 of the Act in favour of the plaintiffs was raised for the first time before the First Appellate Court but was negated in light of the factual findings. Importantly, it was held that mere failure of the defendants to adduce satisfactory evidence that Trimbakrao Ingole had paid the entire consideration did not absolve the plaintiffs of their duty to establish their own claim in accordance with law by satisfactory evidence to substantiate the presumption sought to be relied upon. In other words, the appellate court correctly held that the weakness of the defence could not become the strength of the plaintiff, especially when the defendants were disputing their claims11. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.

Ram Parkash Vs. State of Himachal Pradesh

and should be reduced. In that connection an alternative argument was raised to persuade the Court to give the benefit of the probation of Offenders Act of 1958 (hereinafter called the Probation Act) to the appellant. It was observed by the High Court that the provisions of the Act were of such a nature that the matter could not be treated lightly. As regards the benefit of the Probation Act it was observed that Section 4 thereof was not meant to cover cases of the present nature. Moreover it was for the Trial Court to take action without expressing any opinion as to whether Section 4 was applicable the Court unhesitatingly expressed its view that no action should be taken in a case of this kind under the Probation Act. The Revision was dismissed. No notice for enhancement of the sentence relating to fine was issued although the minimum fine that had to be imposed under the Act the Act was Rupees 1000/-. The reason for not doing so was that the State had not moved for enhancement of the sentence of fine.5. The learned counsel for the appellant has sought to raise a number of points before us. These points are :1. The Rule 44 (k) framed under the Act as amended was not placed before the Parliament in accordance with the provisions of Section 23, sub-section (2) of the Act.2. No offence had been made out for contravention of Rule 44 (k) of the Rules.3. The charges as framed was defective and it prejudiced trial of the appellant.4. The report of the Public Analyst was not clear and ought not to have been accepted.None of these points was either raised or agitated before the Courts below and we see no reason or justification in entertaining the same for the first time here in this appeal.6. The only question which requires consideration is whether the provisions of the Probation Act could be applied to the appellant. The matter is no longer res integra and this Court has in a case (Isher Das v. The State of Punjab, Cri. A. No. 64 of 1969, D/- 31-1-1972 = (reported in AIR 1972 SC 1295 )) under the Act laid down that benefit could be given of the provisions of the Probation Act to persons who are found guilty of offences under the Act. Counsel for the appellant agrees that since the age of the appellant was over 21 years, namely, 26 years his case could fall only under Section 4 of the Probation Act. Sub-section (1) of Section 4 of that Act is in the following terms :"When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keepd the peace and be of good behaviour :Provided........ ......... ........ ........ ..."It was, however, observed in that case that adulteration of food is a menace to public health. The Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied. Our attention has been drawn to certain decisions which deal with a different point altogether, namely, the meaning of the word may under Section 11 of the Probation Act. These decisions are of a different nature altogether and involve different points. But even according to those decisions the benefit that it is to be given under Section 3 or Section 4 of the Probation Act is subject to the limitations laid down in those provisions. These decisions do not support the proposition that the word may in Section 4 of the Probation Act means must. On the contrary, it has been made clear in categorical terms in these judgments that the provisions of the Probation Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act (Rattan Lal v. State of Punjab, (1964) 7 SCR 676 = (AIR 1965 SC 444 ) and Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR 745 = (AIR 1963 SC 1088 .)

0[ds]5. The learned counsel for the appellant has sought to raise a number of points before us. These points are :1. The Rule 44 (k) framed under the Act as amended was not placed before the Parliament in accordance with the provisions of Section 23,) of the Act.2. No offence had been made out for contravention of Rule 44 (k) of the Rules.3. The charges as framed was defective and it prejudiced trial of the appellant.4. The report of the Public Analyst was not clear and ought not to have beenof these points was either raised or agitated before the Courts below and we see no reason or justification in entertaining the same for the first time here in this appeal.6.The only question which requires consideration is whether the provisions of the Probation Act could be applied to theappellant. The matter is no longer res integra and this Court has in a case (Isher Das v. The State of Punjab, Cri. A. No. 64 of 1969, D/= (reported in AIR 1972 SC 1295 )) under the Act laid down that benefit could be given of the provisions of the Probation Act to persons who are found guilty of offences under thewas, however, observed in that case that adulteration of food is a menace to public health. The Act has been enacted with the aim of eradicating thatevil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied. Ourattention has been drawn to certain decisions which deal with a different point altogether, namely, the meaning of the word may under Section 11 of the Probation Act.These decisions are of a different nature altogether and involve different points. But even according to those decisions the benefit that it is to be given under Section 3 or Section 4 of the Probation Act is subject to the limitations laid down in those provisions. These decisions do not support the proposition that the word may in Section 4 of the Probation Act means must. On the contrary, it has been made clear in categorical terms in these judgments that the provisions of the Probation Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act (Rattan Lal v. State of Punjab, (1964) 7 SCR 676 = (AIR 1965 SC 444 ) and Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR 745 = (AIR 1963 SC 1088 .)

### 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: and should be reduced. In that connection an alternative argument was raised to persuade the Court to give the benefit of the probation of Offenders Act of 1958 (hereinafter called the Probation Act) to the appellant. It was observed by the High Court that the provisions of the Act were of such a nature that the matter could not be treated lightly. As regards the benefit of the Probation Act it was observed that Section 4 thereof was not meant to cover cases of the present nature. Moreover it was for the Trial Court to take action without expressing any opinion as to whether Section 4 was applicable the Court unhesitatingly expressed its view that no action should be taken in a case of this kind under the Probation Act. The Revision was dismissed. No notice for enhancement of the sentence relating to fine was issued although the minimum fine that had to be imposed under the Act the Act was Rupees 1000/-. The reason for not doing so was that the State had not moved for enhancement of the sentence of fine.5. The learned counsel for the appellant has sought to raise a number of points before us. These points are :1. The Rule 44 (k) framed under the Act as amended was not placed before the Parliament in accordance with the provisions of Section 23, sub-section (2) of the Act.2. No offence had been made out for contravention of Rule 44 (k) of the Rules.3. The charges as framed was defective and it prejudiced trial of the appellant.4. The report of the Public Analyst was not clear and ought not to have been accepted.None of these points was either raised or agitated before the Courts below and we see no reason or justification in entertaining the same for the first time here in this appeal.6. The only question which requires consideration is whether the provisions of the Probation Act could be applied to the appellant. The matter is no longer res integra and this Court has in a case (Isher Das v. The State of Punjab, Cri. A. No. 64 of 1969, D/- 31-1-1972 = (reported in AIR 1972 SC 1295 )) under the Act laid down that benefit could be given of the provisions of the Probation Act to persons who are found guilty of offences under the Act. Counsel for the appellant agrees that since the age of the appellant was over 21 years, namely, 26 years his case could fall only under Section 4 of the Probation Act. Sub-section (1) of Section 4 of that Act is in the following terms :"When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keepd the peace and be of good behaviour :Provided........ ......... ........ ........ ..."It was, however, observed in that case that adulteration of food is a menace to public health. The Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied. Our attention has been drawn to certain decisions which deal with a different point altogether, namely, the meaning of the word may under Section 11 of the Probation Act. These decisions are of a different nature altogether and involve different points. But even according to those decisions the benefit that it is to be given under Section 3 or Section 4 of the Probation Act is subject to the limitations laid down in those provisions. These decisions do not support the proposition that the word may in Section 4 of the Probation Act means must. On the contrary, it has been made clear in categorical terms in these judgments that the provisions of the Probation Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act (Rattan Lal v. State of Punjab, (1964) 7 SCR 676 = (AIR 1965 SC 444 ) and Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR 745 = (AIR 1963 SC 1088 .) ### Response: 0 ### Explanation: 5. The learned counsel for the appellant has sought to raise a number of points before us. These points are :1. The Rule 44 (k) framed under the Act as amended was not placed before the Parliament in accordance with the provisions of Section 23,) of the Act.2. No offence had been made out for contravention of Rule 44 (k) of the Rules.3. The charges as framed was defective and it prejudiced trial of the appellant.4. The report of the Public Analyst was not clear and ought not to have beenof these points was either raised or agitated before the Courts below and we see no reason or justification in entertaining the same for the first time here in this appeal.6.The only question which requires consideration is whether the provisions of the Probation Act could be applied to theappellant. The matter is no longer res integra and this Court has in a case (Isher Das v. The State of Punjab, Cri. A. No. 64 of 1969, D/= (reported in AIR 1972 SC 1295 )) under the Act laid down that benefit could be given of the provisions of the Probation Act to persons who are found guilty of offences under thewas, however, observed in that case that adulteration of food is a menace to public health. The Act has been enacted with the aim of eradicating thatevil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied. Ourattention has been drawn to certain decisions which deal with a different point altogether, namely, the meaning of the word may under Section 11 of the Probation Act.These decisions are of a different nature altogether and involve different points. But even according to those decisions the benefit that it is to be given under Section 3 or Section 4 of the Probation Act is subject to the limitations laid down in those provisions. These decisions do not support the proposition that the word may in Section 4 of the Probation Act means must. On the contrary, it has been made clear in categorical terms in these judgments that the provisions of the Probation Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act (Rattan Lal v. State of Punjab, (1964) 7 SCR 676 = (AIR 1965 SC 444 ) and Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR 745 = (AIR 1963 SC 1088 .)

K. V. V. Chathukutty Nambiar and Ten Others Vs. Malikkandakath Assainar Haji and Others

SHAH, J.1. In a suit filed by the first respondent in the Court of he Subordinate Judge, Tellicherry, for a decree for Rs. 200/- as rent for 1133 Malayalam Era and Rs. 24, 219.83 as damages for trees felled by one C.P.V. Moideen Hajee under a sale deed executed by Defendants 1 to 4 and one Gopalan Nambiar. The Subordinate Judge, Tellicherry, passed a decree for Rs. 200/- and proportionate costs and dismissed the suit for damages. Against that decree an appeal was preferred to the High Court of Kerala. The case was referred to a Full Bench. By a majority judgment the High Court set aside the decree passed by the Trial Court and remanded the case with a direction to restore it to its Original Number and to dispose it of "in accordance with law and in the light of the observations contained in the judgment". The Court then proceeded on the application made by the defendants to issue a certificate under Article 133(1)(a) of the Constitution. In the view of the Court certain questions were finally determined by the High Court and on that account the order was a final order, and the judgment being one of reversal and the claim at all relevant stages being for an amount exceeding Rs. 20, 000/- the defendants were entitled to a certificate under Article 133(1)(a) of the Constitution.2. In our judgment the High Court was not competent to issue a certificate. It is true that one of the questions in dispute between the parties was determined, viz., the right of the plaintiff to claim damages; but the quantum of damages was not determined, and for determining damages payable by the appellants the suit was remanded to the Court of First Instance. Such an order cannot be said to be a final order. The High Court was, in our view, incompetent to issue the certificate. The certificate is vacated.3. We may make it clear that it will be open to the aggrieved party it hereafter there is occasion to file an appeal to this Court to challenge the correctness of the judgment of the High Court in such an appeal.

0[ds]2. In our judgment the High Court was not competent to issue a certificate. It is true that one of the questions in dispute between the parties was determined, viz., the right of the plaintiff to claim damages; but the quantum of damages was not determined, and for determining damages payable by the appellants the suit was remanded to the Court of First Instance. Such an order cannot be said to be a final order. The High Court was, in our view, incompetent to issue the certificate. The certificate is vacated.3. We may make it clear that it will be open to the aggrieved party it hereafter there is occasion to file an appeal to this Court to challenge the correctness of the judgment of the High Court in such an appeal.

### 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: SHAH, J.1. In a suit filed by the first respondent in the Court of he Subordinate Judge, Tellicherry, for a decree for Rs. 200/- as rent for 1133 Malayalam Era and Rs. 24, 219.83 as damages for trees felled by one C.P.V. Moideen Hajee under a sale deed executed by Defendants 1 to 4 and one Gopalan Nambiar. The Subordinate Judge, Tellicherry, passed a decree for Rs. 200/- and proportionate costs and dismissed the suit for damages. Against that decree an appeal was preferred to the High Court of Kerala. The case was referred to a Full Bench. By a majority judgment the High Court set aside the decree passed by the Trial Court and remanded the case with a direction to restore it to its Original Number and to dispose it of "in accordance with law and in the light of the observations contained in the judgment". The Court then proceeded on the application made by the defendants to issue a certificate under Article 133(1)(a) of the Constitution. In the view of the Court certain questions were finally determined by the High Court and on that account the order was a final order, and the judgment being one of reversal and the claim at all relevant stages being for an amount exceeding Rs. 20, 000/- the defendants were entitled to a certificate under Article 133(1)(a) of the Constitution.2. In our judgment the High Court was not competent to issue a certificate. It is true that one of the questions in dispute between the parties was determined, viz., the right of the plaintiff to claim damages; but the quantum of damages was not determined, and for determining damages payable by the appellants the suit was remanded to the Court of First Instance. Such an order cannot be said to be a final order. The High Court was, in our view, incompetent to issue the certificate. The certificate is vacated.3. We may make it clear that it will be open to the aggrieved party it hereafter there is occasion to file an appeal to this Court to challenge the correctness of the judgment of the High Court in such an appeal. ### Response: 0 ### Explanation: 2. In our judgment the High Court was not competent to issue a certificate. It is true that one of the questions in dispute between the parties was determined, viz., the right of the plaintiff to claim damages; but the quantum of damages was not determined, and for determining damages payable by the appellants the suit was remanded to the Court of First Instance. Such an order cannot be said to be a final order. The High Court was, in our view, incompetent to issue the certificate. The certificate is vacated.3. We may make it clear that it will be open to the aggrieved party it hereafter there is occasion to file an appeal to this Court to challenge the correctness of the judgment of the High Court in such an appeal.

Commissioner of Income Tax Gujarat Vs. Elecon Engineering Company Limited

29.11.1966 recomputed the rebate at Rs.2, 51, 222. The appeal by the assessee to the Appellate Assistant Commissioner was dismissed. The Appellate Tribunal on further appeal by the assessee came to hold:- "There is considerable force in the arguments urged by Sri Talati. In view of the phraseology used in the rules we ar e inclined to accept Sri Talatis plea that to the figure of capital as worked out under Rule 19(1) is to be added the average profit as worked out under sub-rule (5) of Rule 19. Accordingly, the average capital has to be taken at Rs.45, 39, 537 and not at Rs.41.87.034. The assessees contention must, therefore, be upheld." At the instance of the Revenue, the Tribunal referred the following question for the opinion of the High Court:- "Whether on the facts and in the circumstances of the case, the figure arrived at by computation under rule 19(5) was to be added to the figure arrived at by computation under rule 19(1) for determining the average capital employed in the assessees undertaking?" 3. The High Court noticed the feature that there was dearth of judicial decisions on the point at issue, dealt with the relevant provisions at length and came to agree with the conclusion reached by the Appellate Tribunal.Admissibility of exemption under section 84 of the Act whic h has been repealed with effect from 1.4.1968, has never been in dispute. What has been debated is the manner of its computation. Rule 19 of the Income Tax Rules, 1962 prescribes the method of computation and on a proper interpretation of the re levant provisions of this Rule would depend the ultimate conclusion to be reached. Sub-rule (1), (3) and (5) are relevant. They provide: "19. (1) For the purposes of section 84, the capital employed in an undertaking or a hotel to which the said section applies shall be taken to be:-(a) in the case of assets acquired by purchase and entitled to depreciation--(i) if they have been acquired before the computation period, their written down value on the commencing date of the said period;(ii) if they have been acquired on or after the commencing date of the computation period, their average cost during the said period;(b) in the case of assets acquired by purchase and not entitled to depreciation-(i) if they have been acquired before the computation period, their actual cost to the assessee;(ii) if they have been acquired on or after the commencing date of the computation period, their average cost during the said period;....... ....................................................(3) Any borrowed money and debt due by the person carrying on the business shall be deducted and in particular there shall be deduct ed any debts incurred in respect of the business for tax (including advance tax) due under any provision of the Act:Provided that any such debt for tax (including advance tax) shall, for the purpose of this sub-rule, be deemed to have become due-(a) in the case of any advance tax due under any provision of the Act or of any tax payable under section 140-A or under section 141, on the date on which, under the provisions of section 211 or section 2 12 or section 2 13 or section 140-A or section 220, as the case may be, the payment first became due;(b) in any other case, on the last day of the period of time within which the tax is payable under section 220.(5) For the purpose of ascertaining the average amount of capital employed in a business during any computation period, the profits or losses made in that period shall, except so far as the contrary is shown, be deemed-(a) to have accrued at an even rates throughout the said period; and(b) to have resulted, as they accrued, in a corresponding increase or decrease, as the case may be, in the capital employed in the business." 4. Average Cost, Computation Period, depreciation and Written Down Value have been defined in sub-rule (6). The High Court is right in saying that the dispute has to be resolved by referring to sub-rules (1), (3), (5) and (6) of Rule 19. The High Court found that the value of assets entitled to depreciation under Rule 19(1)(a) worked out to Rs.40, 10, 947. To this figure was added a sum of Rs. 1, 39, 764 on account of depreciation as on 1. 1. 1963 as also on account of the average value of additions. The other assets were valued under Rule 19(1)(b) at Rs.44, 38, 126 as on 1.1.1963. All put together, the aggregate valuation came to Rs.85.88, 837. From this aggregate, deduction of a sum of Rs.44, 01, 803 representing loans, other liabilities including provision for tax as authorised by Rule 19 was made leaving the valuation of the capital at Rs.41, 67, 034. To this figure, the sum of Rs.3, 52, 503 being half of the profit from the New Project was added to compute the value at Rs.45, 39, 537. Following the provision of Section 84 of the Act, entitlement to exemption was determined at Rs.2, 72, 372 representing 6% of the capital employed in the new industrial undertaking. 5. The assessment was made by deleting the addition of Rs.3, 52, 503 which represented half the profit of the year. According to the Revenue, profits earned during the year had already been taken into account in the process of computation and there was no warrant for its addition over again to the extent of a moiety. In fact, that is the only dispute that fell to be resolved. The High Court took note of the fact that profits had necessarily been reflected in the average valuation of the as sets but in its view the deeming provision in Rule 19(5) was the special procedure laid down for computation for the purpose of calculation and could not be overlooked for the reasons advanced by the Revenue. We find sufficient force in the reasoning of the High Court and accept the conclusion reached by it.

0[ds]Average Cost, Computation Period, depreciation and Written Down Value have been defined in sub-rule (6). The High Court is right in saying that the dispute has to be resolved by referring to sub-rules (1), (3), (5) and (6) of Rule 19. The High Court found that the value of assets entitled to depreciation under Rule 19(1)(a) worked out to Rs.40, 10, 947. To this figure was added a sum of Rs. 1, 39, 764 on account of depreciation as on 1. 1. 1963 as also on account of the average value of additions. The other assets were valued under Rule 19(1)(b) at Rs.44, 38, 126 as on 1.1.1963. All put together, the aggregate valuation came to Rs.85.88, 837. From this aggregate, deduction of a sum of Rs.44, 01, 803 representing loans, other liabilities including provision for tax as authorised by Rule 19 was made leaving the valuation of the capital at Rs.41, 67, 034. To this figure, the sum of Rs.3, 52, 503 being half of the profit from the New Project was added to compute the value at Rs.45, 39, 537. Following the provision of Section 84 of the Act, entitlement to exemption was determined at Rs.2, 72, 372 representing 6% of the capital employed in the new industrialassessment was made by deleting the addition of Rs.3, 52, 503 which represented half the profit of the year. According to the Revenue, profits earned during the year had already been taken into account in the process of computation and there was no warrant for its addition over again to the extent of a moiety. In fact, that is the only dispute that fell to be resolved. The High Court took note of the fact that profits had necessarily been reflected in the average valuation of the as sets but in its view the deeming provision in Rule 19(5) was the special procedure laid down for computation for the purpose of calculation and could not be overlooked for the reasons advanced by the Revenue. We find sufficient force in the reasoning of the High Court and accept the conclusion reached by it.

### 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: 29.11.1966 recomputed the rebate at Rs.2, 51, 222. The appeal by the assessee to the Appellate Assistant Commissioner was dismissed. The Appellate Tribunal on further appeal by the assessee came to hold:- "There is considerable force in the arguments urged by Sri Talati. In view of the phraseology used in the rules we ar e inclined to accept Sri Talatis plea that to the figure of capital as worked out under Rule 19(1) is to be added the average profit as worked out under sub-rule (5) of Rule 19. Accordingly, the average capital has to be taken at Rs.45, 39, 537 and not at Rs.41.87.034. The assessees contention must, therefore, be upheld." At the instance of the Revenue, the Tribunal referred the following question for the opinion of the High Court:- "Whether on the facts and in the circumstances of the case, the figure arrived at by computation under rule 19(5) was to be added to the figure arrived at by computation under rule 19(1) for determining the average capital employed in the assessees undertaking?" 3. The High Court noticed the feature that there was dearth of judicial decisions on the point at issue, dealt with the relevant provisions at length and came to agree with the conclusion reached by the Appellate Tribunal.Admissibility of exemption under section 84 of the Act whic h has been repealed with effect from 1.4.1968, has never been in dispute. What has been debated is the manner of its computation. Rule 19 of the Income Tax Rules, 1962 prescribes the method of computation and on a proper interpretation of the re levant provisions of this Rule would depend the ultimate conclusion to be reached. Sub-rule (1), (3) and (5) are relevant. They provide: "19. (1) For the purposes of section 84, the capital employed in an undertaking or a hotel to which the said section applies shall be taken to be:-(a) in the case of assets acquired by purchase and entitled to depreciation--(i) if they have been acquired before the computation period, their written down value on the commencing date of the said period;(ii) if they have been acquired on or after the commencing date of the computation period, their average cost during the said period;(b) in the case of assets acquired by purchase and not entitled to depreciation-(i) if they have been acquired before the computation period, their actual cost to the assessee;(ii) if they have been acquired on or after the commencing date of the computation period, their average cost during the said period;....... ....................................................(3) Any borrowed money and debt due by the person carrying on the business shall be deducted and in particular there shall be deduct ed any debts incurred in respect of the business for tax (including advance tax) due under any provision of the Act:Provided that any such debt for tax (including advance tax) shall, for the purpose of this sub-rule, be deemed to have become due-(a) in the case of any advance tax due under any provision of the Act or of any tax payable under section 140-A or under section 141, on the date on which, under the provisions of section 211 or section 2 12 or section 2 13 or section 140-A or section 220, as the case may be, the payment first became due;(b) in any other case, on the last day of the period of time within which the tax is payable under section 220.(5) For the purpose of ascertaining the average amount of capital employed in a business during any computation period, the profits or losses made in that period shall, except so far as the contrary is shown, be deemed-(a) to have accrued at an even rates throughout the said period; and(b) to have resulted, as they accrued, in a corresponding increase or decrease, as the case may be, in the capital employed in the business." 4. Average Cost, Computation Period, depreciation and Written Down Value have been defined in sub-rule (6). The High Court is right in saying that the dispute has to be resolved by referring to sub-rules (1), (3), (5) and (6) of Rule 19. The High Court found that the value of assets entitled to depreciation under Rule 19(1)(a) worked out to Rs.40, 10, 947. To this figure was added a sum of Rs. 1, 39, 764 on account of depreciation as on 1. 1. 1963 as also on account of the average value of additions. The other assets were valued under Rule 19(1)(b) at Rs.44, 38, 126 as on 1.1.1963. All put together, the aggregate valuation came to Rs.85.88, 837. From this aggregate, deduction of a sum of Rs.44, 01, 803 representing loans, other liabilities including provision for tax as authorised by Rule 19 was made leaving the valuation of the capital at Rs.41, 67, 034. To this figure, the sum of Rs.3, 52, 503 being half of the profit from the New Project was added to compute the value at Rs.45, 39, 537. Following the provision of Section 84 of the Act, entitlement to exemption was determined at Rs.2, 72, 372 representing 6% of the capital employed in the new industrial undertaking. 5. The assessment was made by deleting the addition of Rs.3, 52, 503 which represented half the profit of the year. According to the Revenue, profits earned during the year had already been taken into account in the process of computation and there was no warrant for its addition over again to the extent of a moiety. In fact, that is the only dispute that fell to be resolved. The High Court took note of the fact that profits had necessarily been reflected in the average valuation of the as sets but in its view the deeming provision in Rule 19(5) was the special procedure laid down for computation for the purpose of calculation and could not be overlooked for the reasons advanced by the Revenue. We find sufficient force in the reasoning of the High Court and accept the conclusion reached by it. ### Response: 0 ### Explanation: Average Cost, Computation Period, depreciation and Written Down Value have been defined in sub-rule (6). The High Court is right in saying that the dispute has to be resolved by referring to sub-rules (1), (3), (5) and (6) of Rule 19. The High Court found that the value of assets entitled to depreciation under Rule 19(1)(a) worked out to Rs.40, 10, 947. To this figure was added a sum of Rs. 1, 39, 764 on account of depreciation as on 1. 1. 1963 as also on account of the average value of additions. The other assets were valued under Rule 19(1)(b) at Rs.44, 38, 126 as on 1.1.1963. All put together, the aggregate valuation came to Rs.85.88, 837. From this aggregate, deduction of a sum of Rs.44, 01, 803 representing loans, other liabilities including provision for tax as authorised by Rule 19 was made leaving the valuation of the capital at Rs.41, 67, 034. To this figure, the sum of Rs.3, 52, 503 being half of the profit from the New Project was added to compute the value at Rs.45, 39, 537. Following the provision of Section 84 of the Act, entitlement to exemption was determined at Rs.2, 72, 372 representing 6% of the capital employed in the new industrialassessment was made by deleting the addition of Rs.3, 52, 503 which represented half the profit of the year. According to the Revenue, profits earned during the year had already been taken into account in the process of computation and there was no warrant for its addition over again to the extent of a moiety. In fact, that is the only dispute that fell to be resolved. The High Court took note of the fact that profits had necessarily been reflected in the average valuation of the as sets but in its view the deeming provision in Rule 19(5) was the special procedure laid down for computation for the purpose of calculation and could not be overlooked for the reasons advanced by the Revenue. We find sufficient force in the reasoning of the High Court and accept the conclusion reached by it.

Nasik Municipal Corp Vs. M/S R.M. Bhandari

High Court. The executing court was correct in saying that it could not extend time for depositing the cost as the same had been stipulated by the High Court. The High Court has declined to extend the time mainly on the ground that the SLP(C) No.21975 of 2010 filed by the respondents was dismissed as withdrawn and that the respondents have lost their right to challenge the order passed by the Court in Writ Petition No.1077 of 2010. The High Court while declining to enlarge the time to deposit the cost neither took into consideration the sequence of dates and events stated by the appellant-corporation nor the explanation offered by the appellant-corporation for the delay in depositing the amount. This, in our view, is not correct. 13. In Chinnamarkathian alias Muthu Gounder and Anr. v. Ayyavoo alias Periana Gounder and Ors., (1982) 1 SCC 159 , this Court called in the principle of equity and held that the court has the jurisdiction to examine alteration or modification which may necessitate extension of time. In para (15), this Court held as under:- ….It is a well accepted principle statutorily recognised in Section 148 of the Code of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, the court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitate extension of time. If the court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys…. 14. Reference may also be made to the decisions of this Court in Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26 , Johri Singh v. Sukh Pal Singh and Ors., (1989) 4 SCC 403 , Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, (1985) 3 SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546 . 15. In terms of Section 148 C.P.C. court has the discretion to extend the time. The words not exceeding thirty days in total have been inserted by the C.P.C. (Amendment) Act, 1999. Observing that if the act could not be performed within thirty days for the reasons beyond the control of the parties, the time beyond maximum thirty days can be extended under Section 151 C.P.C., in Salem Advocates Bar Association, T.N. vs. Union of India (2005) 6 SCC 344 , this Court in para (41) held as under: 41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court. 16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost. 17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court.

1[ds]16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court

### 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: High Court. The executing court was correct in saying that it could not extend time for depositing the cost as the same had been stipulated by the High Court. The High Court has declined to extend the time mainly on the ground that the SLP(C) No.21975 of 2010 filed by the respondents was dismissed as withdrawn and that the respondents have lost their right to challenge the order passed by the Court in Writ Petition No.1077 of 2010. The High Court while declining to enlarge the time to deposit the cost neither took into consideration the sequence of dates and events stated by the appellant-corporation nor the explanation offered by the appellant-corporation for the delay in depositing the amount. This, in our view, is not correct. 13. In Chinnamarkathian alias Muthu Gounder and Anr. v. Ayyavoo alias Periana Gounder and Ors., (1982) 1 SCC 159 , this Court called in the principle of equity and held that the court has the jurisdiction to examine alteration or modification which may necessitate extension of time. In para (15), this Court held as under:- ….It is a well accepted principle statutorily recognised in Section 148 of the Code of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, the court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitate extension of time. If the court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys…. 14. Reference may also be made to the decisions of this Court in Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26 , Johri Singh v. Sukh Pal Singh and Ors., (1989) 4 SCC 403 , Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, (1985) 3 SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546 . 15. In terms of Section 148 C.P.C. court has the discretion to extend the time. The words not exceeding thirty days in total have been inserted by the C.P.C. (Amendment) Act, 1999. Observing that if the act could not be performed within thirty days for the reasons beyond the control of the parties, the time beyond maximum thirty days can be extended under Section 151 C.P.C., in Salem Advocates Bar Association, T.N. vs. Union of India (2005) 6 SCC 344 , this Court in para (41) held as under: 41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court. 16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost. 17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court. ### Response: 1 ### Explanation: 16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court

Karam Chand Vs. Municipal Corporation of Delhi

Fazal Ali, J.1. This appeal by special leave is directed against the judgment of the Delhi High Court, by which the appellant had been convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a fine of Rs. 1000, in default four months rigorous imprisonment. The appellant was tried by the trial Magistrate under Section 7/16 of the Prevention of Food Adulteration Act and was convicted by him. On appeal the learned Additional Sessions Judge acquitted the appellant of the charges framed against him, but thereafter the State filed an appeal to the High Court. The appeal was accepted by the High Court and the appellant was convicted as indicated above. Hence this appeal by special leave. Mr. Soni appearing for the appellant has raised a short point before us. He has submitted that even accepting the prosecution case at its face value, no offence appears to have been committed by the appellant. According to the prosecution case the Food Inspector intercepted the appellant who was carrying three cans of milk, one of the cans was labelled as toned milk. The Food Inspector took a sample of the milk and informed the appellant that he had purchased toned milk for the purpose of analysis. Simultaneously, the appellant wrote back that he had not sold toned milk but he has sold sapreta milk or skimmed milk. If the milk which was actually sold to the Food Inspector was sapreta milk then it is conceded by the Additional Solicitor-General that it would not be punishable under the Act so as to make the appellant liable under the Prevention of Food Adulteration Act. Unfortunately, it appears that a comedy of errors had arisen in that the appellant and the Food Inspector were not conversant with language of each which has led to this prosecution. The appellant knew Urdu but did not know English whereas Food Inspector knew English but did not know Urdu. It is, therefore, manifest that when the appellant wrote in reply to the Notice that he sold sapreta milk, as the Food Inspector was not conversant with Urdu, he did not know what was actually sold to him. The document, Ex. P.B., however, shows that immediately in answer to the Notice the appellant had taken the stand that he sold sapreta milk which was written by him in his own words at that very time. Mr. Sorabjee placed great reliance on the fact that the appellant appears to have written the word cow and scored it out and then wrote sapreta milk. This appears to have been a slip of the pen because we feel that the appellant must have tried to write that it was cows sapreta milk but later having found that it may cause complications he scored out the word cow. All this confusion could have been avoided if the Food Inspector would have been conversant with Urdu or could have asked anybody to read what the appellant had written in which case this case would not have seen the light of the day. In these circumstances, the prosecution has failed to prove that what was sold to the Food Inspector was sold as toned milk. The very basis of adulteration, therefore, disappears.2.

1[ds]According to the prosecution case the Food Inspector intercepted the appellant who was carrying three cans of milk, one of the cans was labelled as toned milk. The Food Inspector took a sample of the milk and informed the appellant that he had purchased toned milk for the purpose of analysis. Simultaneously, the appellant wrote back that he had not sold toned milk but he has sold sapreta milk or skimmed milk. If the milk which was actually sold to the Food Inspector was sapreta milk then it is conceded by the Additionalthat it would not be punishable under the Act so as to make the appellant liable under the Prevention of Food Adulteration Act. Unfortunately, it appears that a comedy of errors had arisen in that the appellant and the Food Inspector were not conversant with language of each which has led to this prosecution. The appellant knew Urdu but did not know English whereas Food Inspector knew English but did not know Urdu. It is, therefore, manifest that when the appellant wrote in reply to the Notice that he sold sapreta milk, as the Food Inspector was not conversant with Urdu, he did not know what was actually sold to him. The document, Ex. P.B., however, shows that immediately in answer to the Notice the appellant had taken the stand that he sold sapreta milk which was written by him in his own words at that very time. Mr. Sorabjee placed great reliance on the fact that the appellant appears to have written the word cow and scored it out and then wrote sapreta milk. This appears to have been a slip of the pen because we feel that the appellant must have tried to write that it was cows sapreta milk but later having found that it may cause complications he scored out the word cow. All this confusion could have been avoided if the Food Inspector would have been conversant with Urdu or could have asked anybody to read what the appellant had written in which case this case would not have seen the light of the day. In these circumstances, the prosecution has failed to prove that what was sold to the Food Inspector was sold as toned milk. The very basis of adulteration, therefore, disappears.

### 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: Fazal Ali, J.1. This appeal by special leave is directed against the judgment of the Delhi High Court, by which the appellant had been convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a fine of Rs. 1000, in default four months rigorous imprisonment. The appellant was tried by the trial Magistrate under Section 7/16 of the Prevention of Food Adulteration Act and was convicted by him. On appeal the learned Additional Sessions Judge acquitted the appellant of the charges framed against him, but thereafter the State filed an appeal to the High Court. The appeal was accepted by the High Court and the appellant was convicted as indicated above. Hence this appeal by special leave. Mr. Soni appearing for the appellant has raised a short point before us. He has submitted that even accepting the prosecution case at its face value, no offence appears to have been committed by the appellant. According to the prosecution case the Food Inspector intercepted the appellant who was carrying three cans of milk, one of the cans was labelled as toned milk. The Food Inspector took a sample of the milk and informed the appellant that he had purchased toned milk for the purpose of analysis. Simultaneously, the appellant wrote back that he had not sold toned milk but he has sold sapreta milk or skimmed milk. If the milk which was actually sold to the Food Inspector was sapreta milk then it is conceded by the Additional Solicitor-General that it would not be punishable under the Act so as to make the appellant liable under the Prevention of Food Adulteration Act. Unfortunately, it appears that a comedy of errors had arisen in that the appellant and the Food Inspector were not conversant with language of each which has led to this prosecution. The appellant knew Urdu but did not know English whereas Food Inspector knew English but did not know Urdu. It is, therefore, manifest that when the appellant wrote in reply to the Notice that he sold sapreta milk, as the Food Inspector was not conversant with Urdu, he did not know what was actually sold to him. The document, Ex. P.B., however, shows that immediately in answer to the Notice the appellant had taken the stand that he sold sapreta milk which was written by him in his own words at that very time. Mr. Sorabjee placed great reliance on the fact that the appellant appears to have written the word cow and scored it out and then wrote sapreta milk. This appears to have been a slip of the pen because we feel that the appellant must have tried to write that it was cows sapreta milk but later having found that it may cause complications he scored out the word cow. All this confusion could have been avoided if the Food Inspector would have been conversant with Urdu or could have asked anybody to read what the appellant had written in which case this case would not have seen the light of the day. In these circumstances, the prosecution has failed to prove that what was sold to the Food Inspector was sold as toned milk. The very basis of adulteration, therefore, disappears.2. ### Response: 1 ### Explanation: According to the prosecution case the Food Inspector intercepted the appellant who was carrying three cans of milk, one of the cans was labelled as toned milk. The Food Inspector took a sample of the milk and informed the appellant that he had purchased toned milk for the purpose of analysis. Simultaneously, the appellant wrote back that he had not sold toned milk but he has sold sapreta milk or skimmed milk. If the milk which was actually sold to the Food Inspector was sapreta milk then it is conceded by the Additionalthat it would not be punishable under the Act so as to make the appellant liable under the Prevention of Food Adulteration Act. Unfortunately, it appears that a comedy of errors had arisen in that the appellant and the Food Inspector were not conversant with language of each which has led to this prosecution. The appellant knew Urdu but did not know English whereas Food Inspector knew English but did not know Urdu. It is, therefore, manifest that when the appellant wrote in reply to the Notice that he sold sapreta milk, as the Food Inspector was not conversant with Urdu, he did not know what was actually sold to him. The document, Ex. P.B., however, shows that immediately in answer to the Notice the appellant had taken the stand that he sold sapreta milk which was written by him in his own words at that very time. Mr. Sorabjee placed great reliance on the fact that the appellant appears to have written the word cow and scored it out and then wrote sapreta milk. This appears to have been a slip of the pen because we feel that the appellant must have tried to write that it was cows sapreta milk but later having found that it may cause complications he scored out the word cow. All this confusion could have been avoided if the Food Inspector would have been conversant with Urdu or could have asked anybody to read what the appellant had written in which case this case would not have seen the light of the day. In these circumstances, the prosecution has failed to prove that what was sold to the Food Inspector was sold as toned milk. The very basis of adulteration, therefore, disappears.

Arun Bhatiya Vs. HDFC Bank & Ors

Act, which was enacted to protect the welfare and interest of consumers. It will be helpful to look at the specific provisions of law relied upon by the appellant. The relevant provision, namely, section 2(1)(d)(ii) of the 1986, reads as under: (d) consumer means any person who, - (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes. Explanation – For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of selfemployment. 15. Section 2(1)(g) of the Consumer Protection Act, 1986 defines deficiency as: (g) deficiency means 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 service; 16. A two-judge bench of this Court consisting of Justice D K Jain and Justice H L Dattu (as the Chief Justice was then) in Maharashtra State Financial Corporation v. Sanjay Shankarsa Mamarde (2010) 7 SCC 489 observed that the scope of deficiency as defined under clause 2(1)(g) of the 1986 Act is wide and is to be determined on the basis of the facts and circumstances of a particular case. The court observed: 20. It is manifest from the language employed in the clause that its scope is also very wide but no single test as decisive in the determination of the extent of fault, imperfection, nature and manner of performance, etc. required to be maintained can be laid down. It must depend on the facts of the particular case, having regard to the nature of the service to be provided. 17. The expression service has been defined in Section 2(1)(o) of the 1986 Act as follows: (o) service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; 18. A bench of this Court in Vodafone Idea Cellular Limited v. Ajay Kumar Agarwal (2022) 6 SCC 496 (of which one of us, Dr Justice DY Chandrachud, was part) explained that service of every description will fall within the ambit of the definition of services under section 2(1)(o) of the 1986 Act. The relevant extract reads as follows: 12. The definition of the expression service is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression service of any description which is made available to potential users. The definition employs the means and includes formula. The means part of the definition incorporates service of any description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression but not limited to. The last part of the definition excludes (i) the rendering of any service free of charge; and (ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories. The initial part of the definition however makes it abundantly clear that the expression service is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision. 19. The respondent bank does not dispute that the appellant, along with his father, opened a joint FD with the bank. A person who avails of any service from a bank will fall under the purview of the definition of a consumer under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act. 20. There was a manifest error on the part of the SCDRC in declining to entertain the consumer complaint on merits. Whether the appellant is able to establish his case is a matter which has to be decided within the parameters of law as it emerges from the provisions of the 1986 Act. The essence of the complaint of the appellant is that there was a deficiency on the part of the respondent bank in proceeding to credit the proceeds of a joint FD exclusively to the account of his father. The SCDRC ought to have determined whether the complaint related to deficiency of service as defined under the 1986 Act. The SCDRC had no justification to relegate the appellant to pursue his claim before a civil court. The appellant did not, in the proceedings before the SCDRC, raise any claim against his father. Therefore, the SCDRC was wrong deducing that there was dispute between appellant and his father. Assuming that there was a dispute between the appellant and his father, that was not the subject matter of the consumer complaint. The complaint that there was a deficiency of service was against the bank.

0[ds]16. A two-judge bench of this Court consisting of Justice D K Jain and Justice H L Dattu (as the Chief Justice was then) in Maharashtra State Financial Corporation v. Sanjay Shankarsa Mamarde (2010) 7 SCC 489 observed that the scope of deficiency as defined under clause 2(1)(g) of the 1986 Act is wide and is to be determined on the basis of the facts and circumstances of a particular case. The court observed:20. It is manifest from the language employed in the clause that its scope is also very wide but no single test as decisive in the determination of the extent of fault, imperfection, nature and manner of performance, etc. required to be maintained can be laid down. It must depend on the facts of the particular case, having regard to the nature of the service to be provided.18. A bench of this Court in Vodafone Idea Cellular Limited v. Ajay Kumar Agarwal (2022) 6 SCC 496 (of which one of us, Dr Justice DY Chandrachud, was part) explained that service of every description will fall within the ambit of the definition of services under section 2(1)(o) of the 1986 Act. The relevant extract reads as follows:12. The definition of the expression service is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression service of any description which is made available to potential users. The definition employs the means and includes formula. The means part of the definition incorporates service of any description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression but not limited to. The last part of the definition excludes (i) the rendering of any service free of charge; and (ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories. The initial part of the definition however makes it abundantly clear that the expression service is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision.19. The respondent bank does not dispute that the appellant, along with his father, opened a joint FD with the bank. A person who avails of any service from a bank will fall under the purview of the definition of a consumer under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act.20. There was a manifest error on the part of the SCDRC in declining to entertain the consumer complaint on merits. Whether the appellant is able to establish his case is a matter which has to be decided within the parameters of law as it emerges from the provisions of the 1986 Act. The essence of the complaint of the appellant is that there was a deficiency on the part of the respondent bank in proceeding to credit the proceeds of a joint FD exclusively to the account of his father. The SCDRC ought to have determined whether the complaint related to deficiency of service as defined under the 1986 Act. The SCDRC had no justification to relegate the appellant to pursue his claim before a civil court. The appellant did not, in the proceedings before the SCDRC, raise any claim against his father. Therefore, the SCDRC was wrong deducing that there was dispute between appellant and his father. Assuming that there was a dispute between the appellant and his father, that was not the subject matter of the consumer complaint. The complaint that there was a deficiency of service was against the bank.

### 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: Act, which was enacted to protect the welfare and interest of consumers. It will be helpful to look at the specific provisions of law relied upon by the appellant. The relevant provision, namely, section 2(1)(d)(ii) of the 1986, reads as under: (d) consumer means any person who, - (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes. Explanation – For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of selfemployment. 15. Section 2(1)(g) of the Consumer Protection Act, 1986 defines deficiency as: (g) deficiency means 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 service; 16. A two-judge bench of this Court consisting of Justice D K Jain and Justice H L Dattu (as the Chief Justice was then) in Maharashtra State Financial Corporation v. Sanjay Shankarsa Mamarde (2010) 7 SCC 489 observed that the scope of deficiency as defined under clause 2(1)(g) of the 1986 Act is wide and is to be determined on the basis of the facts and circumstances of a particular case. The court observed: 20. It is manifest from the language employed in the clause that its scope is also very wide but no single test as decisive in the determination of the extent of fault, imperfection, nature and manner of performance, etc. required to be maintained can be laid down. It must depend on the facts of the particular case, having regard to the nature of the service to be provided. 17. The expression service has been defined in Section 2(1)(o) of the 1986 Act as follows: (o) service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; 18. A bench of this Court in Vodafone Idea Cellular Limited v. Ajay Kumar Agarwal (2022) 6 SCC 496 (of which one of us, Dr Justice DY Chandrachud, was part) explained that service of every description will fall within the ambit of the definition of services under section 2(1)(o) of the 1986 Act. The relevant extract reads as follows: 12. The definition of the expression service is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression service of any description which is made available to potential users. The definition employs the means and includes formula. The means part of the definition incorporates service of any description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression but not limited to. The last part of the definition excludes (i) the rendering of any service free of charge; and (ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories. The initial part of the definition however makes it abundantly clear that the expression service is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision. 19. The respondent bank does not dispute that the appellant, along with his father, opened a joint FD with the bank. A person who avails of any service from a bank will fall under the purview of the definition of a consumer under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act. 20. There was a manifest error on the part of the SCDRC in declining to entertain the consumer complaint on merits. Whether the appellant is able to establish his case is a matter which has to be decided within the parameters of law as it emerges from the provisions of the 1986 Act. The essence of the complaint of the appellant is that there was a deficiency on the part of the respondent bank in proceeding to credit the proceeds of a joint FD exclusively to the account of his father. The SCDRC ought to have determined whether the complaint related to deficiency of service as defined under the 1986 Act. The SCDRC had no justification to relegate the appellant to pursue his claim before a civil court. The appellant did not, in the proceedings before the SCDRC, raise any claim against his father. Therefore, the SCDRC was wrong deducing that there was dispute between appellant and his father. Assuming that there was a dispute between the appellant and his father, that was not the subject matter of the consumer complaint. The complaint that there was a deficiency of service was against the bank. ### Response: 0 ### Explanation: 16. A two-judge bench of this Court consisting of Justice D K Jain and Justice H L Dattu (as the Chief Justice was then) in Maharashtra State Financial Corporation v. Sanjay Shankarsa Mamarde (2010) 7 SCC 489 observed that the scope of deficiency as defined under clause 2(1)(g) of the 1986 Act is wide and is to be determined on the basis of the facts and circumstances of a particular case. The court observed:20. It is manifest from the language employed in the clause that its scope is also very wide but no single test as decisive in the determination of the extent of fault, imperfection, nature and manner of performance, etc. required to be maintained can be laid down. It must depend on the facts of the particular case, having regard to the nature of the service to be provided.18. A bench of this Court in Vodafone Idea Cellular Limited v. Ajay Kumar Agarwal (2022) 6 SCC 496 (of which one of us, Dr Justice DY Chandrachud, was part) explained that service of every description will fall within the ambit of the definition of services under section 2(1)(o) of the 1986 Act. The relevant extract reads as follows:12. The definition of the expression service is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression service of any description which is made available to potential users. The definition employs the means and includes formula. The means part of the definition incorporates service of any description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression but not limited to. The last part of the definition excludes (i) the rendering of any service free of charge; and (ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories. The initial part of the definition however makes it abundantly clear that the expression service is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision.19. The respondent bank does not dispute that the appellant, along with his father, opened a joint FD with the bank. A person who avails of any service from a bank will fall under the purview of the definition of a consumer under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act.20. There was a manifest error on the part of the SCDRC in declining to entertain the consumer complaint on merits. Whether the appellant is able to establish his case is a matter which has to be decided within the parameters of law as it emerges from the provisions of the 1986 Act. The essence of the complaint of the appellant is that there was a deficiency on the part of the respondent bank in proceeding to credit the proceeds of a joint FD exclusively to the account of his father. The SCDRC ought to have determined whether the complaint related to deficiency of service as defined under the 1986 Act. The SCDRC had no justification to relegate the appellant to pursue his claim before a civil court. The appellant did not, in the proceedings before the SCDRC, raise any claim against his father. Therefore, the SCDRC was wrong deducing that there was dispute between appellant and his father. Assuming that there was a dispute between the appellant and his father, that was not the subject matter of the consumer complaint. The complaint that there was a deficiency of service was against the bank.

Pricewaterhousecoopers Pvt.Ltd Vs. C.I.T-Kolkata-I

thereon.10. Unfortunately for the assessee, the Assessing Officer thereafter initiated penalty proceedings under Section 271(1)(c) of the Act.11. After obtaining a response from the assessee, the Assessing Officer saddled the assessee with penalty at 300% on the tax sought to be evaded by the assessee by furnishing inaccurate particulars. The quantum of the penalty was determined at Rs.27,37,689/-.12. Feeling aggrieved, the assessee preferred an appeal, but the Commissioner of Income Tax (Appeals) rejected the appeal and upheld the penalty imposed on the assessee. In a further appeal, the Income Tax Appellate Tribunal (for short the Tribunal) upheld the imposition. Significantly, the Tribunal mentions that the assessee had made a mistake, which could be described as a silly mistake, but since the assessee is a high-calibre and competent organization, it was not expected to make such a mistake. Accordingly, the Tribunal reduced the penalty to 100%.13. Against the order of the Tribunal, the assessee approached the Calcutta High Court which dismissed its appeal filed under Section 260-A of the Act by the impugned order. The only reason given by the High Court for dismissing the appeal reads as under:- “After analysing the facts of this case, considering the submissions made by the learned Advocates for the parties and the materials placed before us, we cannot brush aside the fact that the assessee company is a well known and reputed Chartered Accountant firm and a tax consultant. We also do not find any substance in the submissions made by Dr. Pal; on the contrary, in our considered opinion, we find that Section 271(1)(c) of the Act has specifically stated about the concealment of the particulars of income or furnishing of inaccurate particulars of such income which has to be read “either” – “or” and on the given facts of this case would automatically come within the four corners of Section 271(1)(c) of the Act and we come to the conclusion that the appellant have failed to discharge their strict liability to furnish their true and correct particulars of accounts while filing the return. We are also of the opinion that the penalty under that provision is a civil liability and wilful concealment is not an essential ingredient for attracting civil liability as in the matter of prosecution under section 276C, as has been held by the Honble Supreme Court. We also find that the mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. We, therefore, accept the contention of Mr. Shome and dismiss the appeal answering the questions in the negative.” 14. During the course of hearing this appeal against the judgment and order of the Calcutta High Court, we had required the assessee to explain to us how and why the mistake was committed.15. The assessee has filed an affidavit dated 14th September, 2012 in which it is stated that the assessee is engaged in Multidisciplinary Management Consulting Services and in the relevant year it employed around 1000 employees. It has a separate accounts department which maintains day to day accounts, pay rolls etc. It is stated in the affidavit that perhaps there was some confusion because the person preparing the return was unaware of the fact that the services of some employees had been taken over upon acquisition of a business, but they were not members of an approved gratuity fund unlike other employees of the assessee. Under these circumstances, the tax return was finalized and filled in by a named person who was not a Chartered Accountant and was a common resource.16. It is further stated in the affidavit that the return was signed by a director of the assessee who proceeded on the basis that the return was correctly drawn up and so did not notice the discrepancy between the Tax Audit Report and the return of income.17. Having heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make a “silly” mistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court. 18. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report.19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.20. We are of the opinion, given the peculiar facts of this case, that the imposition of penalty on the assessee is not justified. We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars.

1[ds]18. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report.19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.20. We are of the opinion, given the peculiar facts of this case, that the imposition of penalty on the assessee is not justified. We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars.Having heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make amistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court.The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report.19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.20. We are of the opinion, given the peculiar facts of this case, that the imposition of penalty on the assessee is not justified. We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars.

### 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: thereon.10. Unfortunately for the assessee, the Assessing Officer thereafter initiated penalty proceedings under Section 271(1)(c) of the Act.11. After obtaining a response from the assessee, the Assessing Officer saddled the assessee with penalty at 300% on the tax sought to be evaded by the assessee by furnishing inaccurate particulars. The quantum of the penalty was determined at Rs.27,37,689/-.12. Feeling aggrieved, the assessee preferred an appeal, but the Commissioner of Income Tax (Appeals) rejected the appeal and upheld the penalty imposed on the assessee. In a further appeal, the Income Tax Appellate Tribunal (for short the Tribunal) upheld the imposition. Significantly, the Tribunal mentions that the assessee had made a mistake, which could be described as a silly mistake, but since the assessee is a high-calibre and competent organization, it was not expected to make such a mistake. Accordingly, the Tribunal reduced the penalty to 100%.13. Against the order of the Tribunal, the assessee approached the Calcutta High Court which dismissed its appeal filed under Section 260-A of the Act by the impugned order. The only reason given by the High Court for dismissing the appeal reads as under:- “After analysing the facts of this case, considering the submissions made by the learned Advocates for the parties and the materials placed before us, we cannot brush aside the fact that the assessee company is a well known and reputed Chartered Accountant firm and a tax consultant. We also do not find any substance in the submissions made by Dr. Pal; on the contrary, in our considered opinion, we find that Section 271(1)(c) of the Act has specifically stated about the concealment of the particulars of income or furnishing of inaccurate particulars of such income which has to be read “either” – “or” and on the given facts of this case would automatically come within the four corners of Section 271(1)(c) of the Act and we come to the conclusion that the appellant have failed to discharge their strict liability to furnish their true and correct particulars of accounts while filing the return. We are also of the opinion that the penalty under that provision is a civil liability and wilful concealment is not an essential ingredient for attracting civil liability as in the matter of prosecution under section 276C, as has been held by the Honble Supreme Court. We also find that the mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. We, therefore, accept the contention of Mr. Shome and dismiss the appeal answering the questions in the negative.” 14. During the course of hearing this appeal against the judgment and order of the Calcutta High Court, we had required the assessee to explain to us how and why the mistake was committed.15. The assessee has filed an affidavit dated 14th September, 2012 in which it is stated that the assessee is engaged in Multidisciplinary Management Consulting Services and in the relevant year it employed around 1000 employees. It has a separate accounts department which maintains day to day accounts, pay rolls etc. It is stated in the affidavit that perhaps there was some confusion because the person preparing the return was unaware of the fact that the services of some employees had been taken over upon acquisition of a business, but they were not members of an approved gratuity fund unlike other employees of the assessee. Under these circumstances, the tax return was finalized and filled in by a named person who was not a Chartered Accountant and was a common resource.16. It is further stated in the affidavit that the return was signed by a director of the assessee who proceeded on the basis that the return was correctly drawn up and so did not notice the discrepancy between the Tax Audit Report and the return of income.17. Having heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make a “silly” mistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court. 18. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report.19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.20. We are of the opinion, given the peculiar facts of this case, that the imposition of penalty on the assessee is not justified. We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars. ### Response: 1 ### Explanation: 18. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report.19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.20. We are of the opinion, given the peculiar facts of this case, that the imposition of penalty on the assessee is not justified. We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars.Having heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make amistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court.The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report.19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.20. We are of the opinion, given the peculiar facts of this case, that the imposition of penalty on the assessee is not justified. We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars.

Motilal Chhadami Lal Jain Vs. Commissioner Of Income Tax , Delhi Etc

have held that they represent cases of diversion. That analogy cannot be extended to cases such as the present 15. We would also like, in this context, to refer to section 24(1)(iv) of the Income-tax Act, 1961. It provides for a deduction, in the computation of income from house property, in respect of the amount of an annual charge on the property. The statutory provision was initially wide enough to rope in cases of such charges irrespective of the purpose for which they were created and even where they were voluntarily created by an assessee. But the provision has been amended with effect from April 1, 1969, to exclude deduction of an annual charge voluntarily created by the assessee. The case before us is not one of income from house property computed under sections 22 to 24 and we are referring to this only as a matter of interest. This amendment also indicates that a charge voluntarily created would stand on a different footing from super-imposed chargesFor these reasons, we agree with the view taken by the High Court and hold that the assessee is liable to tax on the entire rental income of Rs. 21, 000 16. Turning now to the second question before us, it talks of the income from the properties "purported to have been transferred to the trust" and, in the words in quotation, lies the crucial issue in the case. There is no dispute that the income from the property is applied wholly for religious and charitable purposes. Section 4(3)(i) of the Indian Income-tax Act, 1922, and its successor section 11(1)(a) of the Income-tax Act, 1961 (in so far as they were applicable to the assessment years before us), exempt the income derived by an assessee from "property held in trust or other legal obligation" for such purposes. This exemption has been denied to the assessee on the short ground that the properties (with the income from which we are concerned) continue to vest in the assessee and have not been effectively transferred to the trust. This is said to be so for two reasons. The first is that the trust has been created in respect of immovable properties of the value of more than Rs. 100 and this is possible only if the properties had been duly conveyed to the trustees by a deed duly stamped and registered. The second is that the deeds of trust themselves do not speak of the corpus of the properties being held in trust. Clause (3) of the 1947 deed only stipulates that the income from the properties will be the income of the trust. A little later also the deed proceeds to set out the " properties the income from which will be used for the purposes of the trust". In other words, the deed only records the assessees desire to utilise the income for the objects mentioned in the deed and not for his personal benefit. The document of 1960 does not improve matters any further. So, it is said, no valid trust has been created by the assessee to merit the claim for exemptionWe are of the opinion that the view of the High Court proceeds on an unduly narrow construction of the deeds of 1947 and 1960. We have pointed out that, under the deed of 1947, the karta of the assessee-family is the sole trustee to execute the objects of the trust. It appears to have been overlooked that, while a registered conveyance to the trustees by the owner of immovable property is necessary where the trustees are persons other than the author, this requirement does not arise where the author of the trust is to be the sole trustee. While a trust is not complete until the trust property is vested in trustees for the benefit of the cestui que trust, this can be done by the settlor where he is himself the trustee, by a declaration of trust, using language which, taken in connection with his acts, shows clear intention on his part to divest himself of all beneficial interest in it and to exercise dominion and control over it exclusively in the character of a trustee. Section 6 of the Indian Trusts Act, 1882, makes this clear beyond all doubt. In the present case, there is a deed which makes clear the unequivocal intention to utilise the income from the properties in the manner set out in the deed of trust. It is in the context of the above legal position that one has to understand the references in the trust deed to the income from the properties belonging to the trust. Indeed, this is made clear by the conduct of the party all through and the language of the second deed. The assessees full ownership of, and unqualified right to enjoy the properties gets restricted and qualified on the execution of such a trust deed by the various conditions set out and imposed by the trust deed. The execution of the trust deed creates an overriding title in the beneficiaries thereunder (viz., the various cross-sections of the public covered by it) to require that the income from the properties which are made the subject-matter of the trust be utilised in the manner set out therein and in no other manner. Indeed, after the execution of the trust deed, the properties are no longer held by the assessee as the absolute owner thereof ; they are held by the assessee under trust and a legal obligation to apply the income exclusively for charitable purposes, thus attracting the provisions for exemption contained in the ActFor the reasons discussed above, we are inclined to take the view that the deed of 1947 should be construed as a valid trust which has the effect of diverting the income at the source and that the income thereafter has ceased to be the income of the assessee-family. We, therefore, answer the question referred to the High Court on this issue in favour of the assessee17.

1[ds]We are of the opinion that this contention cannot be accepted. As we have pointed out earlier, the right given to the college to sue the company is only the right to recover part of amount which has already accrued to the assessee. The creation of a charge in favour of the college does not make any difference. It only obliges the company to pay a part of the rent to the college on behalf of the assessee but the existence of a mere obligation is not sufficient to constitute diversion of income. The classic statement of the true principle is set out in CIT v. Sitaldas Tirathdas 1961 (41) ITR 367 , 374would also like, in this context, to refer to section 24(1)(iv) of the Income-tax Act, 1961. It provides for a deduction, in the computation of income from house property, in respect of the amount of an annual charge on the property. The statutory provision was initially wide enough to rope in cases of such charges irrespective of the purpose for which they were created and even where they were voluntarily created by an assessee. But the provision has been amended with effect from April 1, 1969, to exclude deduction of an annual charge voluntarily created by the assessee. The case before us is not one of income from house property computed under sections 22 to 24 and we are referring to this only as a matter of interest. This amendment also indicates that a charge voluntarily created would stand on a different footing from super-imposed chargesFor these reasons, we agree with the view taken by the High Court and hold that the assessee is liable to tax on the entire rental income of Rs. 21,now to the second question before us, it talks of the income from the properties "purported to have been transferred to the trust" and, in the words in quotation, lies the crucial issue in the case. There is no dispute that the income from the property is applied wholly for religious and charitable purposes. Section 4(3)(i) of the Indian Income-tax Act, 1922, and its successor section 11(1)(a) of the Income-tax Act, 1961 (in so far as they were applicable to the assessment years before us), exempt the income derived by an assessee from "property held in trust or other legal obligation" for such purposes. This exemption has been denied to the assessee on the short ground that the properties (with the income from which we are concerned) continue to vest in the assessee and have not been effectively transferred to the trust. This is said to be so for two reasons. The first is that the trust has been created in respect of immovable properties of the value of more than Rs. 100 and this is possible only if the properties had been duly conveyed to the trustees by a deed duly stamped and registered. The second is that the deeds of trust themselves do not speak of the corpus of the properties being held in trust. Clause (3) of the 1947 deed only stipulates that the income from the properties will be the income of the trust. A little later also the deed proceeds to set out the " properties the income from which will be used for the purposes of the trust". In other words, the deed only records the assessees desire to utilise the income for the objects mentioned in the deed and not for his personal benefit. The document of 1960 does not improve matters any further. So, it is said, no valid trust has been created by the assessee to merit the claim for exemptionWe are of the opinion that the view of the High Court proceeds on an unduly narrow construction of the deeds of 1947 and 1960. We have pointed out that, under the deed of 1947, the karta of the assessee-family is the sole trustee to execute the objects of the trust. It appears to have been overlooked that, while a registered conveyance to the trustees by the owner of immovable property is necessary where the trustees are persons other than the author, this requirement does not arise where the author of the trust is to be the sole trustee. While a trust is not complete until the trust property is vested in trustees for the benefit of the cestui que trust, this can be done by the settlor where he is himself the trustee, by a declaration of trust, using language which, taken in connection with his acts, shows clear intention on his part to divest himself of all beneficial interest in it and to exercise dominion and control over it exclusively in the character of a trustee. Section 6 of the Indian Trusts Act, 1882, makes this clear beyond all doubt. In the present case, there is a deed which makes clear the unequivocal intention to utilise the income from the properties in the manner set out in the deed of trust. It is in the context of the above legal position that one has to understand the references in the trust deed to the income from the properties belonging to the trust. Indeed, this is made clear by the conduct of the party all through and the language of the second deed. The assessees full ownership of, and unqualified right to enjoy the properties gets restricted and qualified on the execution of such a trust deed by the various conditions set out and imposed by the trust deed. The execution of the trust deed creates an overriding title in the beneficiaries thereunder (viz., the various cross-sections of the public covered by it) to require that the income from the properties which are made the subject-matter of the trust be utilised in the manner set out therein and in no other manner. Indeed, after the execution of the trust deed, the properties are no longer held by the assessee as the absolute owner thereof ; they are held by the assessee under trust and a legal obligation to apply the income exclusively for charitable purposes, thus attracting the provisions for exemption contained in the ActFor the reasons discussed above, we are inclined to take the view that the deed of 1947 should be construed as a valid trust which has the effect of diverting the income at the source and that the income thereafter has ceased to be the income of the assessee-family. We, therefore, answer the question referred to the High Court on this issue in favour of the assessee

### 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: have held that they represent cases of diversion. That analogy cannot be extended to cases such as the present 15. We would also like, in this context, to refer to section 24(1)(iv) of the Income-tax Act, 1961. It provides for a deduction, in the computation of income from house property, in respect of the amount of an annual charge on the property. The statutory provision was initially wide enough to rope in cases of such charges irrespective of the purpose for which they were created and even where they were voluntarily created by an assessee. But the provision has been amended with effect from April 1, 1969, to exclude deduction of an annual charge voluntarily created by the assessee. The case before us is not one of income from house property computed under sections 22 to 24 and we are referring to this only as a matter of interest. This amendment also indicates that a charge voluntarily created would stand on a different footing from super-imposed chargesFor these reasons, we agree with the view taken by the High Court and hold that the assessee is liable to tax on the entire rental income of Rs. 21, 000 16. Turning now to the second question before us, it talks of the income from the properties "purported to have been transferred to the trust" and, in the words in quotation, lies the crucial issue in the case. There is no dispute that the income from the property is applied wholly for religious and charitable purposes. Section 4(3)(i) of the Indian Income-tax Act, 1922, and its successor section 11(1)(a) of the Income-tax Act, 1961 (in so far as they were applicable to the assessment years before us), exempt the income derived by an assessee from "property held in trust or other legal obligation" for such purposes. This exemption has been denied to the assessee on the short ground that the properties (with the income from which we are concerned) continue to vest in the assessee and have not been effectively transferred to the trust. This is said to be so for two reasons. The first is that the trust has been created in respect of immovable properties of the value of more than Rs. 100 and this is possible only if the properties had been duly conveyed to the trustees by a deed duly stamped and registered. The second is that the deeds of trust themselves do not speak of the corpus of the properties being held in trust. Clause (3) of the 1947 deed only stipulates that the income from the properties will be the income of the trust. A little later also the deed proceeds to set out the " properties the income from which will be used for the purposes of the trust". In other words, the deed only records the assessees desire to utilise the income for the objects mentioned in the deed and not for his personal benefit. The document of 1960 does not improve matters any further. So, it is said, no valid trust has been created by the assessee to merit the claim for exemptionWe are of the opinion that the view of the High Court proceeds on an unduly narrow construction of the deeds of 1947 and 1960. We have pointed out that, under the deed of 1947, the karta of the assessee-family is the sole trustee to execute the objects of the trust. It appears to have been overlooked that, while a registered conveyance to the trustees by the owner of immovable property is necessary where the trustees are persons other than the author, this requirement does not arise where the author of the trust is to be the sole trustee. While a trust is not complete until the trust property is vested in trustees for the benefit of the cestui que trust, this can be done by the settlor where he is himself the trustee, by a declaration of trust, using language which, taken in connection with his acts, shows clear intention on his part to divest himself of all beneficial interest in it and to exercise dominion and control over it exclusively in the character of a trustee. Section 6 of the Indian Trusts Act, 1882, makes this clear beyond all doubt. In the present case, there is a deed which makes clear the unequivocal intention to utilise the income from the properties in the manner set out in the deed of trust. It is in the context of the above legal position that one has to understand the references in the trust deed to the income from the properties belonging to the trust. Indeed, this is made clear by the conduct of the party all through and the language of the second deed. The assessees full ownership of, and unqualified right to enjoy the properties gets restricted and qualified on the execution of such a trust deed by the various conditions set out and imposed by the trust deed. The execution of the trust deed creates an overriding title in the beneficiaries thereunder (viz., the various cross-sections of the public covered by it) to require that the income from the properties which are made the subject-matter of the trust be utilised in the manner set out therein and in no other manner. Indeed, after the execution of the trust deed, the properties are no longer held by the assessee as the absolute owner thereof ; they are held by the assessee under trust and a legal obligation to apply the income exclusively for charitable purposes, thus attracting the provisions for exemption contained in the ActFor the reasons discussed above, we are inclined to take the view that the deed of 1947 should be construed as a valid trust which has the effect of diverting the income at the source and that the income thereafter has ceased to be the income of the assessee-family. We, therefore, answer the question referred to the High Court on this issue in favour of the assessee17. ### Response: 1 ### Explanation: to constitute diversion of income. The classic statement of the true principle is set out in CIT v. Sitaldas Tirathdas 1961 (41) ITR 367 , 374would also like, in this context, to refer to section 24(1)(iv) of the Income-tax Act, 1961. It provides for a deduction, in the computation of income from house property, in respect of the amount of an annual charge on the property. The statutory provision was initially wide enough to rope in cases of such charges irrespective of the purpose for which they were created and even where they were voluntarily created by an assessee. But the provision has been amended with effect from April 1, 1969, to exclude deduction of an annual charge voluntarily created by the assessee. The case before us is not one of income from house property computed under sections 22 to 24 and we are referring to this only as a matter of interest. This amendment also indicates that a charge voluntarily created would stand on a different footing from super-imposed chargesFor these reasons, we agree with the view taken by the High Court and hold that the assessee is liable to tax on the entire rental income of Rs. 21,now to the second question before us, it talks of the income from the properties "purported to have been transferred to the trust" and, in the words in quotation, lies the crucial issue in the case. There is no dispute that the income from the property is applied wholly for religious and charitable purposes. Section 4(3)(i) of the Indian Income-tax Act, 1922, and its successor section 11(1)(a) of the Income-tax Act, 1961 (in so far as they were applicable to the assessment years before us), exempt the income derived by an assessee from "property held in trust or other legal obligation" for such purposes. This exemption has been denied to the assessee on the short ground that the properties (with the income from which we are concerned) continue to vest in the assessee and have not been effectively transferred to the trust. This is said to be so for two reasons. The first is that the trust has been created in respect of immovable properties of the value of more than Rs. 100 and this is possible only if the properties had been duly conveyed to the trustees by a deed duly stamped and registered. The second is that the deeds of trust themselves do not speak of the corpus of the properties being held in trust. Clause (3) of the 1947 deed only stipulates that the income from the properties will be the income of the trust. A little later also the deed proceeds to set out the " properties the income from which will be used for the purposes of the trust". In other words, the deed only records the assessees desire to utilise the income for the objects mentioned in the deed and not for his personal benefit. The document of 1960 does not improve matters any further. So, it is said, no valid trust has been created by the assessee to merit the claim for exemptionWe are of the opinion that the view of the High Court proceeds on an unduly narrow construction of the deeds of 1947 and 1960. We have pointed out that, under the deed of 1947, the karta of the assessee-family is the sole trustee to execute the objects of the trust. It appears to have been overlooked that, while a registered conveyance to the trustees by the owner of immovable property is necessary where the trustees are persons other than the author, this requirement does not arise where the author of the trust is to be the sole trustee. While a trust is not complete until the trust property is vested in trustees for the benefit of the cestui que trust, this can be done by the settlor where he is himself the trustee, by a declaration of trust, using language which, taken in connection with his acts, shows clear intention on his part to divest himself of all beneficial interest in it and to exercise dominion and control over it exclusively in the character of a trustee. Section 6 of the Indian Trusts Act, 1882, makes this clear beyond all doubt. In the present case, there is a deed which makes clear the unequivocal intention to utilise the income from the properties in the manner set out in the deed of trust. It is in the context of the above legal position that one has to understand the references in the trust deed to the income from the properties belonging to the trust. Indeed, this is made clear by the conduct of the party all through and the language of the second deed. The assessees full ownership of, and unqualified right to enjoy the properties gets restricted and qualified on the execution of such a trust deed by the various conditions set out and imposed by the trust deed. The execution of the trust deed creates an overriding title in the beneficiaries thereunder (viz., the various cross-sections of the public covered by it) to require that the income from the properties which are made the subject-matter of the trust be utilised in the manner set out therein and in no other manner. Indeed, after the execution of the trust deed, the properties are no longer held by the assessee as the absolute owner thereof ; they are held by the assessee under trust and a legal obligation to apply the income exclusively for charitable purposes, thus attracting the provisions for exemption contained in the ActFor the reasons discussed above, we are inclined to take the view that the deed of 1947 should be construed as a valid trust which has the effect of diverting the income at the source and that the income thereafter has ceased to be the income of the assessee-family. We, therefore, answer the question referred to the High Court on this issue in favour of the assessee

M.M.T.C. Limited and Another Vs. Medchl Chemicals and Pharma Private Limited and Another

it has been held by this Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court. It has been held that if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It is held that the court looks upon the natural person to be the complaint for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground. 11. The learned Judge has next gone into facts and arrived at a conclusion that the cheques were issued as security and not for any debt or liability existing on the date they were issued. In so doing the learned Judge has ignored the well-settled law that the power of question criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability.It is next held as follows : This is a special provision incorporated in the Negotiable Instruments Act. It is necessary to allege specifically in the complaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do not find any such allegation at all. The absence of such vital allegation, considerably impairs the maintainability. * 12. In the case of Maruti Udyog Ltd. v. Narender (1998 SC 1067) this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint. 13. A similar view has been taken by this Court in the case of K. N. Beena v. Muniyappan ( 2001 SC 19809 : (2001) 7 Scale 331 ) wherein again it has been held that under Section 139 of the Negotiable Instruments Act the court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability. 14. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability. 15. Lastly it was submitted that a complaint under Section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable.Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi ( 1998 SC 467). It has been held that even though the cheque in dishonoured by reason of stop-payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of Course this is a rebuttable presumption. The accused can thus show that the stop-payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, the, offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground. 16.

1[ds]In the case of Maruti Udyog Ltd. v. Narender (1998 SC 1067) this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaintA similar view has been taken by this Court in the case of K. N. Beena v. Muniyappan ( 2001 SC 19809 : (2001) 7 Scale 331 ) wherein again it has been held that under Section 139 of the Negotiable Instruments Act the court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liabilityThere is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liabilityLastly it was submitted that a complaint under Section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable.Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi ( 1998 SC 467). It has been held that even though the cheque in dishonoured by reason of stop-payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of Course this is a rebuttable presumption. The accused can thus show that the stop-payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, the, offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground.

### 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: it has been held by this Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court. It has been held that if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It is held that the court looks upon the natural person to be the complaint for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground. 11. The learned Judge has next gone into facts and arrived at a conclusion that the cheques were issued as security and not for any debt or liability existing on the date they were issued. In so doing the learned Judge has ignored the well-settled law that the power of question criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability.It is next held as follows : This is a special provision incorporated in the Negotiable Instruments Act. It is necessary to allege specifically in the complaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do not find any such allegation at all. The absence of such vital allegation, considerably impairs the maintainability. * 12. In the case of Maruti Udyog Ltd. v. Narender (1998 SC 1067) this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint. 13. A similar view has been taken by this Court in the case of K. N. Beena v. Muniyappan ( 2001 SC 19809 : (2001) 7 Scale 331 ) wherein again it has been held that under Section 139 of the Negotiable Instruments Act the court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability. 14. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability. 15. Lastly it was submitted that a complaint under Section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable.Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi ( 1998 SC 467). It has been held that even though the cheque in dishonoured by reason of stop-payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of Course this is a rebuttable presumption. The accused can thus show that the stop-payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, the, offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground. 16. ### Response: 1 ### Explanation: In the case of Maruti Udyog Ltd. v. Narender (1998 SC 1067) this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaintA similar view has been taken by this Court in the case of K. N. Beena v. Muniyappan ( 2001 SC 19809 : (2001) 7 Scale 331 ) wherein again it has been held that under Section 139 of the Negotiable Instruments Act the court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liabilityThere is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liabilityLastly it was submitted that a complaint under Section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable.Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi ( 1998 SC 467). It has been held that even though the cheque in dishonoured by reason of stop-payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of Course this is a rebuttable presumption. The accused can thus show that the stop-payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, the, offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground.

Commissioner of Income Tax Vs. Atlas Copco (India) Limited

This appeal is preferred against the judgment of the Bombay High Court dismissing an application filed by the Revenue under sub-section (2) of section 18 of the Companies (Profits) Surtax Act, 1964. The question raised by the Revenue reads as follows"Whether, on the facts and in the circumstances of the case, the Tribunal was right in cancelling in the order of the Commissioner passed under section 16(1) of the Surtax Act, 1964, as without jurisdiction ?" * The assessment year concerned in 1972-73, the previous year being the calendar year 1971The case of the Revenue is this : on the first day of the previous year, the assessee had a certain amount of general reserve. During the said previous year, an amount of Rs. 5, 53, 041 was utilised out of the general reserve for issuing bonus shares. The Income-tax Officer added the amount representing bonus shares to the capital base of the company and made an assessment under the Act. An appeal was preferred by the assessee against the assessment order on some other points. The appeal was disposed of. At that stage, the Commissioner invoked his power under section 16(1) of the Act and revised the order of the Income-tax Officer. He deleted the said amount representing the bonus shares from out of the capital. Against this order, the assessee filed an appeal before the Income-tax Appellate Tribunal. The Tribunal allowed the appeal holding that inasmuch as the Income-tax Officers order was the subject-matter of an appeal before the Appellate Assistant Commissioner, the Commissioner had no jurisdiction to revise that order. The Revenue sought to question the said view of the Tribunal by obtaining a reference Section 16(1) of the Act reads as follows "The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interest of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." * The Revenue says that this section corresponds to section 263 of the Income-tax Act, 1961, before it was amended by the Finance Act, 1988, and the Finance Act, 1989. Even under the unamended section 263, the Revenue says, it has been held that where an appeal is preferred by the assessee to the Appellate Assistant Commissioner from an order made by the Income-tax Officer in respect of only some of the items formed by the Income-tax Officers order and the remaining items forming part of the Income-tax Officers assessment order were not agitated before the Appellate Assistant Commissioner nor did he pronounce thereupon, the filing of the appeal does not bar the jurisdiction of the Commissioner in respect of the items not appealed against and not pronounced upon by the Appellate Assistant Commissioner. Reliance is placed upon a decision of the Andhra Pradesh High Court in CIT v. East Coast Marine Products P. Ltd. The same principle should hold good here, says counsel, for the Revenue

1[ds]The Revenue says that this section corresponds to section 263 of theAct, 1961, before it was amended by the Finance Act, 1988, and the Finance Act, 1989. Even under the unamended section 263, the Revenue says, it has been held that where an appeal is preferred by the assessee to the Appellate Assistant Commissioner from an order made by theOfficer in respect of only some of the items formed by theOfficers order and the remaining items forming part of theOfficers assessment order were not agitated before the Appellate Assistant Commissioner nor did he pronounce thereupon, the filing of the appeal does not bar the jurisdiction of the Commissioner in respect of the items not appealed against and not pronounced upon by the Appellate Assistant Commissioner. Reliance is placed upon a decision of the Andhra Pradesh High Court in CIT v. East Coast Marine Products P. Ltd. The same principle should hold good here, says counsel, for the Revenue

### 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: This appeal is preferred against the judgment of the Bombay High Court dismissing an application filed by the Revenue under sub-section (2) of section 18 of the Companies (Profits) Surtax Act, 1964. The question raised by the Revenue reads as follows"Whether, on the facts and in the circumstances of the case, the Tribunal was right in cancelling in the order of the Commissioner passed under section 16(1) of the Surtax Act, 1964, as without jurisdiction ?" * The assessment year concerned in 1972-73, the previous year being the calendar year 1971The case of the Revenue is this : on the first day of the previous year, the assessee had a certain amount of general reserve. During the said previous year, an amount of Rs. 5, 53, 041 was utilised out of the general reserve for issuing bonus shares. The Income-tax Officer added the amount representing bonus shares to the capital base of the company and made an assessment under the Act. An appeal was preferred by the assessee against the assessment order on some other points. The appeal was disposed of. At that stage, the Commissioner invoked his power under section 16(1) of the Act and revised the order of the Income-tax Officer. He deleted the said amount representing the bonus shares from out of the capital. Against this order, the assessee filed an appeal before the Income-tax Appellate Tribunal. The Tribunal allowed the appeal holding that inasmuch as the Income-tax Officers order was the subject-matter of an appeal before the Appellate Assistant Commissioner, the Commissioner had no jurisdiction to revise that order. The Revenue sought to question the said view of the Tribunal by obtaining a reference Section 16(1) of the Act reads as follows "The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interest of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." * The Revenue says that this section corresponds to section 263 of the Income-tax Act, 1961, before it was amended by the Finance Act, 1988, and the Finance Act, 1989. Even under the unamended section 263, the Revenue says, it has been held that where an appeal is preferred by the assessee to the Appellate Assistant Commissioner from an order made by the Income-tax Officer in respect of only some of the items formed by the Income-tax Officers order and the remaining items forming part of the Income-tax Officers assessment order were not agitated before the Appellate Assistant Commissioner nor did he pronounce thereupon, the filing of the appeal does not bar the jurisdiction of the Commissioner in respect of the items not appealed against and not pronounced upon by the Appellate Assistant Commissioner. Reliance is placed upon a decision of the Andhra Pradesh High Court in CIT v. East Coast Marine Products P. Ltd. The same principle should hold good here, says counsel, for the Revenue ### Response: 1 ### Explanation: The Revenue says that this section corresponds to section 263 of theAct, 1961, before it was amended by the Finance Act, 1988, and the Finance Act, 1989. Even under the unamended section 263, the Revenue says, it has been held that where an appeal is preferred by the assessee to the Appellate Assistant Commissioner from an order made by theOfficer in respect of only some of the items formed by theOfficers order and the remaining items forming part of theOfficers assessment order were not agitated before the Appellate Assistant Commissioner nor did he pronounce thereupon, the filing of the appeal does not bar the jurisdiction of the Commissioner in respect of the items not appealed against and not pronounced upon by the Appellate Assistant Commissioner. Reliance is placed upon a decision of the Andhra Pradesh High Court in CIT v. East Coast Marine Products P. Ltd. The same principle should hold good here, says counsel, for the Revenue

Rajkumar Mills Ltd Vs. Commissioner of Income Tax, Bombay

Indore offers received from the purchasers in British India. The Appellant informed the Reporters either accepting the said offers or quoting higher rates in which event the purchasers accepted the higher rates and the Reporters intimated to the Appellant that they had sold the goods at those higher rates. This communication was confirmed by the Appellant informing the Reporters that they had confirmed the sale. A formal document confirming the offer was then drawn up and was executed by the purchasers asking the Appellant to supply the goods therein mentioned. This offer was subject to a written acceptance by the Appellant in part or in full within 15 days of the date of the said document failing which it was to be considered as cancelled. 4. The High Court considered that the only ground on which the revenue could tax the sale proceeds in British India was that, the contracts for sale had taken place in British India and that therefore profits accrued or arose in British India. The High Court therefore gave the following directions in respect at these two classes of Sales : (a) The Tribunal "must first consider whether Ex. C constitutes a counter offer. Then they must consider that if it is a counter offer whether it was accepted by the assessee because then the agreement for sale would be entered into in Indore and not in British India; if they take the view that Ex. C does not constitute a counter-offer or if they find that although Ex. C constitutes a counter offer there was no, acceptance they can from that infer that the parties treated Ex. C not as a counter-offer but as the acceptance itself; then the view taken by the Tribunal will be correct that the contract for sale was entered into in British India and not in Indore." (b) The Tribunal were "to consider the evidence placed before it by the Asscssee and decide whether there was a written acceptance of the offer made by the merchant. If the Tribunal finds that there was such a written. acceptance, then undoubtedly the sale was effected in Indore and not in British India. If on the other hand they come to the conclusion that there was no written acceptance then they will adhere to their original order that the sale was effected in British India". 5.We are of the opinion that these directions were not in accordance with law. In order to arrive at the conclusion that the contract for the sale of goods to the Government of India was entered into in British India it was necessary to establish that the acceptance of the tender was made by the Government in British India or if Ex. C constitutes a counter- offer that counter-offer was accepted by the Appellant not at Indore but in British India. If such counter- offer had been accepted by the Appellant in Indore either by a letter of acceptance written by the Appellant or by conduct in supplying the goods in accordance with the terms of the counter-offer the contract for sale took place in Indore and not in. British India.In regard to the sales of goods to the various merchants in British India also it was necessary to establish that the offers made by these merchants to the Appellant were accepted by the Appellant not at Indore but in British India. The formal documents containing the offers which were drawn up and executed by the purchasers asking the Appellant to supply the goods therein mentioned stated that the offers were subject to a written acceptance by the Appellant in part or in full within 15 days of the date of the document and contained a further condition that should the offer not be accepted by the Appellant within 15 days it was to be considered as cancelled. If such written acceptances were forthcoming the contracts for sale took place in Indore and not in British India. If the offer not having been accepted within the 15 days therein mentioned was deemed to have been cancelled the circumstances attendant upon the supply of those goods would have to be scrutinised and a conclusion reached on a consideration of the relevant circumstances as to whether under those circumstances the contract for sale could be said to have been entered into in Indore or in British India. 6.The High Court was therefore in error in giving the directions it did to the Tribunal. It moreover abjured its advisory function and asked the Tribunal not to submit to it any further statement of the case but to dispose of the matter according to law and in accordance with the directions given by it. This in our opinion the High Court was not entitled to do. If the High Count on the statement of the case submitted to it by the Tribunal found it difficult to come to the conclusion that the contracts for sale had been entered into in British India it should have called upon the Tribunal to submit to it a further statement of the case. The question whether the contracts for sale were entered into in British India or at Indore was not a question of fact to be determined by the Tribunal. It was a question of law to be determined by the High Court on a true construction of the correspondence, documents and the conduct of the parties.The learned Attorney-General frankly conceded that he could not support that part of the order passed by the High Court and agreed that a further statement of the case should have been called for by the High Court in regard to the questions 1 and 2. 7. The direction which the High Court gave in regard the sum of Rs. 5,80,069 also was uncalled for. The statement of the case submitted by the Tribunal to the High Courts did not mention any such thing and the High Court was in error in giving any such direction to the Tribunal.

1[ds]5.We are of the opinion that these directions were not in accordance with law. In order to arrive at the conclusion that the contract for the sale of goods to the Government of India was entered into in British India it was necessary to establish that the acceptance of the tender was made by the Government in British India or if Ex. C constitutes a counteroffer thatr was accepted by the Appellant not at Indore but in British IndiaIf such counteroffer had been accepted by the Appellant in Indore either by a letter of acceptance written by the Appellant or by conduct in supplying the goods in accordance with the terms of ther the contract for sale took place in Indore and not in. British India.In regard to the sales of goods to the various merchants in British India also it was necessary to establish that the offers made by these merchants to the Appellant were accepted by the Appellant not at Indore but in British IndiaThe formal documents containing the offers which were drawn up and executed by the purchasers asking the Appellant to supply the goods therein mentioned stated that the offers were subject to a written acceptance by the Appellant in part or in full within 15 days of the date of the document and contained a further condition that should the offer not be accepted by the Appellant within 15 days it was to be considered as cancelledIf such written acceptances were forthcoming the contracts for sale took place in Indore and not in British India. If the offer not having been accepted within the 15 days therein mentioned was deemed to have been cancelled the circumstances attendant upon the supply of those goods would have to be scrutinised and a conclusion reached on a consideration of the relevant circumstances as to whether under those circumstances the contract for sale could be said to have been entered into in Indore or in British India6.The High Court was therefore in error in giving the directions it did to the Tribunal. It moreover abjured its advisory function and asked the Tribunal not to submit to it any further statement of the case but to dispose of the matter according to law and in accordance with the directions given by it. This in our opinion the High Court was not entitled to doIf the High Count on the statement of the case submitted to it by the Tribunal found it difficult to come to the conclusion that the contracts for sale had been entered into in British India it should have called upon the Tribunal to submit to it a further statement of the caseThe question whether the contracts for sale were entered into in British India or at Indore was not a question of fact to be determined by the Tribunal. It was a question of law to be determined by the High Court on a true construction of the correspondence, documents and the conduct of the parties7. The direction which the High Court gave in regard the sum of Rs. 5,80,069 also was uncalled for. The statement of the case submitted by the Tribunal to the High Courts did not mention any such thing and the High Court was in error in giving any such direction to the Tribunal.

### 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: Indore offers received from the purchasers in British India. The Appellant informed the Reporters either accepting the said offers or quoting higher rates in which event the purchasers accepted the higher rates and the Reporters intimated to the Appellant that they had sold the goods at those higher rates. This communication was confirmed by the Appellant informing the Reporters that they had confirmed the sale. A formal document confirming the offer was then drawn up and was executed by the purchasers asking the Appellant to supply the goods therein mentioned. This offer was subject to a written acceptance by the Appellant in part or in full within 15 days of the date of the said document failing which it was to be considered as cancelled. 4. The High Court considered that the only ground on which the revenue could tax the sale proceeds in British India was that, the contracts for sale had taken place in British India and that therefore profits accrued or arose in British India. The High Court therefore gave the following directions in respect at these two classes of Sales : (a) The Tribunal "must first consider whether Ex. C constitutes a counter offer. Then they must consider that if it is a counter offer whether it was accepted by the assessee because then the agreement for sale would be entered into in Indore and not in British India; if they take the view that Ex. C does not constitute a counter-offer or if they find that although Ex. C constitutes a counter offer there was no, acceptance they can from that infer that the parties treated Ex. C not as a counter-offer but as the acceptance itself; then the view taken by the Tribunal will be correct that the contract for sale was entered into in British India and not in Indore." (b) The Tribunal were "to consider the evidence placed before it by the Asscssee and decide whether there was a written acceptance of the offer made by the merchant. If the Tribunal finds that there was such a written. acceptance, then undoubtedly the sale was effected in Indore and not in British India. If on the other hand they come to the conclusion that there was no written acceptance then they will adhere to their original order that the sale was effected in British India". 5.We are of the opinion that these directions were not in accordance with law. In order to arrive at the conclusion that the contract for the sale of goods to the Government of India was entered into in British India it was necessary to establish that the acceptance of the tender was made by the Government in British India or if Ex. C constitutes a counter- offer that counter-offer was accepted by the Appellant not at Indore but in British India. If such counter- offer had been accepted by the Appellant in Indore either by a letter of acceptance written by the Appellant or by conduct in supplying the goods in accordance with the terms of the counter-offer the contract for sale took place in Indore and not in. British India.In regard to the sales of goods to the various merchants in British India also it was necessary to establish that the offers made by these merchants to the Appellant were accepted by the Appellant not at Indore but in British India. The formal documents containing the offers which were drawn up and executed by the purchasers asking the Appellant to supply the goods therein mentioned stated that the offers were subject to a written acceptance by the Appellant in part or in full within 15 days of the date of the document and contained a further condition that should the offer not be accepted by the Appellant within 15 days it was to be considered as cancelled. If such written acceptances were forthcoming the contracts for sale took place in Indore and not in British India. If the offer not having been accepted within the 15 days therein mentioned was deemed to have been cancelled the circumstances attendant upon the supply of those goods would have to be scrutinised and a conclusion reached on a consideration of the relevant circumstances as to whether under those circumstances the contract for sale could be said to have been entered into in Indore or in British India. 6.The High Court was therefore in error in giving the directions it did to the Tribunal. It moreover abjured its advisory function and asked the Tribunal not to submit to it any further statement of the case but to dispose of the matter according to law and in accordance with the directions given by it. This in our opinion the High Court was not entitled to do. If the High Count on the statement of the case submitted to it by the Tribunal found it difficult to come to the conclusion that the contracts for sale had been entered into in British India it should have called upon the Tribunal to submit to it a further statement of the case. The question whether the contracts for sale were entered into in British India or at Indore was not a question of fact to be determined by the Tribunal. It was a question of law to be determined by the High Court on a true construction of the correspondence, documents and the conduct of the parties.The learned Attorney-General frankly conceded that he could not support that part of the order passed by the High Court and agreed that a further statement of the case should have been called for by the High Court in regard to the questions 1 and 2. 7. The direction which the High Court gave in regard the sum of Rs. 5,80,069 also was uncalled for. The statement of the case submitted by the Tribunal to the High Courts did not mention any such thing and the High Court was in error in giving any such direction to the Tribunal. ### Response: 1 ### Explanation: 5.We are of the opinion that these directions were not in accordance with law. In order to arrive at the conclusion that the contract for the sale of goods to the Government of India was entered into in British India it was necessary to establish that the acceptance of the tender was made by the Government in British India or if Ex. C constitutes a counteroffer thatr was accepted by the Appellant not at Indore but in British IndiaIf such counteroffer had been accepted by the Appellant in Indore either by a letter of acceptance written by the Appellant or by conduct in supplying the goods in accordance with the terms of ther the contract for sale took place in Indore and not in. British India.In regard to the sales of goods to the various merchants in British India also it was necessary to establish that the offers made by these merchants to the Appellant were accepted by the Appellant not at Indore but in British IndiaThe formal documents containing the offers which were drawn up and executed by the purchasers asking the Appellant to supply the goods therein mentioned stated that the offers were subject to a written acceptance by the Appellant in part or in full within 15 days of the date of the document and contained a further condition that should the offer not be accepted by the Appellant within 15 days it was to be considered as cancelledIf such written acceptances were forthcoming the contracts for sale took place in Indore and not in British India. If the offer not having been accepted within the 15 days therein mentioned was deemed to have been cancelled the circumstances attendant upon the supply of those goods would have to be scrutinised and a conclusion reached on a consideration of the relevant circumstances as to whether under those circumstances the contract for sale could be said to have been entered into in Indore or in British India6.The High Court was therefore in error in giving the directions it did to the Tribunal. It moreover abjured its advisory function and asked the Tribunal not to submit to it any further statement of the case but to dispose of the matter according to law and in accordance with the directions given by it. This in our opinion the High Court was not entitled to doIf the High Count on the statement of the case submitted to it by the Tribunal found it difficult to come to the conclusion that the contracts for sale had been entered into in British India it should have called upon the Tribunal to submit to it a further statement of the caseThe question whether the contracts for sale were entered into in British India or at Indore was not a question of fact to be determined by the Tribunal. It was a question of law to be determined by the High Court on a true construction of the correspondence, documents and the conduct of the parties7. The direction which the High Court gave in regard the sum of Rs. 5,80,069 also was uncalled for. The statement of the case submitted by the Tribunal to the High Courts did not mention any such thing and the High Court was in error in giving any such direction to the Tribunal.

Commissioner of Income Tax Vs. Parle Plastics Limited & Another

exceed 50% of the whole. In our view, the expression "substantial part" does not connote an idea of being the "major part" or the part that constitutes majority of the whole. If the legislature really intended that more than 50% of the business of the lending company must come from the business of lending, nothing prevented the legislature from using the expression "majority of business". If the legislature at all intended that a particular minimum percentage of the business of a lending company should come from the business of lending, the legislature could have specifically provided for that percentage while drafting clause (ii) of Section 2(22) of the Act. The legislature had deliberately used the word "substantial" instead of using the word "major" and/or specifying any percentage of the business or profit to be coming from the lending business of the lending company for the purpose of clause (ii) of Section 2(22) of the Act. We would give a an illustration to ascertain the meaning of the expression "substantial business" or "substantial income" of a company. In the modern days, large number of companies do not restrict to one or two businesses. They carry on numerous activities and carry on numerous businesses and have numerous business divisions. Let us take a case of a first company which has 3 divisions of works consisting of three different types of business. Turn over as well as the profit of the first division is 40%; turn over and profit of second division is 30% and the turn over and profit of the third line of business is 30%. In the case of this company no part of the business has turn over exceeding 50% and no part of the business company generates profit of more than 50% of the total. In such a case can it be said that none of the businesses of the said company is a substantial business of the company. In our view not. The first business which constitutes 40% of the turn over and contributes 40 % to the profit would be the single largest part of the business of the company, the second and third divisions of the business, each of which contributes 30% of the turn over as well as profit of the company, though not the major and not even single largest part of the business of the company, would still be a substantial part of the business of the company, because if any part of the three divisions of the business of the company was to be closed down, that would result in loss of turn over and/or business of 30%, ordinarily no company would regard such part of the business as insignificant. As rightly observed in Strouds Judicial Dictionary, it is not possible to give any fixed definition of the word "substantial" in relation to "a substantial business of a company". Any business of a company which the company does not regard as small, trivial, or inconsequential as compared to the whole of the business is substantial business. Various factors and circumstances would be required to be looked into while considering whether a part of the business of a company is its substantial business. Sometimes a portion which contributes substantial part of the turn over, though it contributes a relatively small portion of the profit, would be substantial part of the business. Similarly, a portion which relatively a small as compared to the total turnover, but generates a large, say more than 50 % of the total profit of the company would also be substantial part of its business. Percentage of turn over in relation to the whole as also the percentage of the profit in relation to the whole and sometimes even percentage of a manpower used for a particular part of business in relation to the total man power or working force of the company would be required to be taken into consideration. Employees of a company are now called its "human resources" and, therefore, the percentage of "human resources" used by the company for carrying on a particular division of business may also be required to be taken into consideration while considering whether a particular business forms substantial part of its business Undisputedly, the capital employed by a company for carrying on a particular division of its business as compared to the total capital employed by it would also be relevant while considering whether the part of the business of the company constitutes "substantial part of the business" of the company.12. Applying these tests to the present case, we do not find that the ITAT has committed any error in coming to the conclusion that lending of money was a substantial part of the business of AMPL. The ITAT has noted that 42% of the total assets of AMPL as on 31.3.1996 and 39% of the total assets of AMPL as on 31.3.1997 were deployed by it by way of total loans and advances. By no means, the deployment of about 40% of the total assets into the business of lending could be regarded as an insignificant part of the business of AMPL. The ITAT has also held that the income AMPL had received by way of interest of Rs.1,08,18,036/- while its total profit was Rs.67,56,335/-,. Excluding the income earned by AMPL by way of interest, the other business had resulted into net loss. In our view, the ITAT has taken into consideration the relevant factors and has applied the correct tests to come to the conclusion that lending of money was substantial part of the business of the AMPL. Since lending of money was a substantial part of the business of AMPL, the money given by it by way of advance or loan to the assessee could not be regarded as a dividend, as it has to be excluded from the definition of "dividend" by virtue of clause (ii) of Section 2(22) of the Act. Hence, question no.2 is answered in favour of the assessee and against the Revenue.

1[ds]Affirming the order of the Tribunal, the Full Bench held that the special deduction under Chapterof the Act, (which includes Sectionhas to be computed on the gross total income determined after all deductions allowable under Sections 30 to 43D of the Act and any device adopted by the assessee to reduce or inflate the profits of eligible business has got to be rejected. Quantum of deduction under Sectionof the Act has to be determined by computing the gross total income from the business after taking into consideration all the deductions allowable under Sections 30 to 43D of the Act. In view of the decision of the Full Bench, question No.1 is answered in favour of the Revenue and against themaking of a provision for an interest which the assessee would ultimately be required to pay to the lender on the money lent cannot be regarded as a payment made by the company to the assessee. As such, the amount of Rs.32,13,367/which represents only the provision made for interest which the assessee was liable to pay to AMPL by way of an interest on the outstanding amount could not be regarded as the payment made by AMPL within the meaning of clause (e) of Section 2(22) of the Act. Only the amount ofwas actually received by the assessee as and by way of loan or advance from AMPL would fall within inclusive clause (e) of the definition of "dividend" appearing in Section 2(22)(e) of theare unable to agree for the reasons indicatedour view, the expression "substantial part" does not connote an idea of being the "major part" or the part that constitutes majority of the whole. If the legislature really intended that more than 50% of the business of the lending company must come from the business of lending, nothing prevented the legislature from using the expression "majority of business". If the legislature at all intended that a particular minimum percentage of the business of a lending company should come from the business of lending, the legislature could have specifically provided for that percentage while drafting clause (ii) of Section 2(22) of the Act. The legislature had deliberately used the word "substantial" instead of using the word "major" and/or specifying any percentage of the business or profit to be coming from the lending business of the lending company for the purpose of clause (ii) of Section 2(22) of theour view not. The first business which constitutes 40% of the turn over and contributes 40 % to the profit would be the single largest part of the business of the company, the second and third divisions of the business, each of which contributes 30% of the turn over as well as profit of the company, though not the major and not even single largest part of the business of the company, would still be a substantial part of the business of the company, because if any part of the three divisions of the business of the company was to be closed down, that would result in loss of turn over and/or business of 30%, ordinarily no company would regard such part of the business as insignificant. As rightly observed in Strouds Judicial Dictionary, it is not possible to give any fixed definition of the word "substantial" in relation to "a substantial business of a company". Any business of a company which the company does not regard as small, trivial, or inconsequential as compared to the whole of the business is substantial business.Applying these tests to the present case, we do not find that the ITAT has committed any error in coming to the conclusion that lending of money was a substantial part of the business of AMPL. The ITAT has noted that 42% of the total assets of AMPL as on 31.3.1996 and 39% of the total assets of AMPL as on 31.3.1997 were deployed by it by way of total loans and advances. By no means, the deployment of about 40% of the total assets into the business of lending could be regarded as an insignificant part of the business of AMPL. The ITAT has also held that the income AMPL had received by way of interest of Rs.1,08,18,036/while its total profit was Rs.Excluding the income earned by AMPL by way of interest, the other business had resulted into net loss. In our view, the ITAT has taken into consideration the relevant factors and has applied the correct tests to come to the conclusion that lending of money was substantial part of the business of the AMPL. Since lending of money was a substantial part of the business of AMPL, the money given by it by way of advance or loan to the assessee could not be regarded as a dividend, as it has to be excluded from the definition of "dividend" by virtue of clause (ii) of Section 2(22) of the Act. Hence, question no.2 is answered in favour of the assessee and against the Revenue.

### 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: exceed 50% of the whole. In our view, the expression "substantial part" does not connote an idea of being the "major part" or the part that constitutes majority of the whole. If the legislature really intended that more than 50% of the business of the lending company must come from the business of lending, nothing prevented the legislature from using the expression "majority of business". If the legislature at all intended that a particular minimum percentage of the business of a lending company should come from the business of lending, the legislature could have specifically provided for that percentage while drafting clause (ii) of Section 2(22) of the Act. The legislature had deliberately used the word "substantial" instead of using the word "major" and/or specifying any percentage of the business or profit to be coming from the lending business of the lending company for the purpose of clause (ii) of Section 2(22) of the Act. We would give a an illustration to ascertain the meaning of the expression "substantial business" or "substantial income" of a company. In the modern days, large number of companies do not restrict to one or two businesses. They carry on numerous activities and carry on numerous businesses and have numerous business divisions. Let us take a case of a first company which has 3 divisions of works consisting of three different types of business. Turn over as well as the profit of the first division is 40%; turn over and profit of second division is 30% and the turn over and profit of the third line of business is 30%. In the case of this company no part of the business has turn over exceeding 50% and no part of the business company generates profit of more than 50% of the total. In such a case can it be said that none of the businesses of the said company is a substantial business of the company. In our view not. The first business which constitutes 40% of the turn over and contributes 40 % to the profit would be the single largest part of the business of the company, the second and third divisions of the business, each of which contributes 30% of the turn over as well as profit of the company, though not the major and not even single largest part of the business of the company, would still be a substantial part of the business of the company, because if any part of the three divisions of the business of the company was to be closed down, that would result in loss of turn over and/or business of 30%, ordinarily no company would regard such part of the business as insignificant. As rightly observed in Strouds Judicial Dictionary, it is not possible to give any fixed definition of the word "substantial" in relation to "a substantial business of a company". Any business of a company which the company does not regard as small, trivial, or inconsequential as compared to the whole of the business is substantial business. Various factors and circumstances would be required to be looked into while considering whether a part of the business of a company is its substantial business. Sometimes a portion which contributes substantial part of the turn over, though it contributes a relatively small portion of the profit, would be substantial part of the business. Similarly, a portion which relatively a small as compared to the total turnover, but generates a large, say more than 50 % of the total profit of the company would also be substantial part of its business. Percentage of turn over in relation to the whole as also the percentage of the profit in relation to the whole and sometimes even percentage of a manpower used for a particular part of business in relation to the total man power or working force of the company would be required to be taken into consideration. Employees of a company are now called its "human resources" and, therefore, the percentage of "human resources" used by the company for carrying on a particular division of business may also be required to be taken into consideration while considering whether a particular business forms substantial part of its business Undisputedly, the capital employed by a company for carrying on a particular division of its business as compared to the total capital employed by it would also be relevant while considering whether the part of the business of the company constitutes "substantial part of the business" of the company.12. Applying these tests to the present case, we do not find that the ITAT has committed any error in coming to the conclusion that lending of money was a substantial part of the business of AMPL. The ITAT has noted that 42% of the total assets of AMPL as on 31.3.1996 and 39% of the total assets of AMPL as on 31.3.1997 were deployed by it by way of total loans and advances. By no means, the deployment of about 40% of the total assets into the business of lending could be regarded as an insignificant part of the business of AMPL. The ITAT has also held that the income AMPL had received by way of interest of Rs.1,08,18,036/- while its total profit was Rs.67,56,335/-,. Excluding the income earned by AMPL by way of interest, the other business had resulted into net loss. In our view, the ITAT has taken into consideration the relevant factors and has applied the correct tests to come to the conclusion that lending of money was substantial part of the business of the AMPL. Since lending of money was a substantial part of the business of AMPL, the money given by it by way of advance or loan to the assessee could not be regarded as a dividend, as it has to be excluded from the definition of "dividend" by virtue of clause (ii) of Section 2(22) of the Act. Hence, question no.2 is answered in favour of the assessee and against the Revenue. ### Response: 1 ### Explanation: Affirming the order of the Tribunal, the Full Bench held that the special deduction under Chapterof the Act, (which includes Sectionhas to be computed on the gross total income determined after all deductions allowable under Sections 30 to 43D of the Act and any device adopted by the assessee to reduce or inflate the profits of eligible business has got to be rejected. Quantum of deduction under Sectionof the Act has to be determined by computing the gross total income from the business after taking into consideration all the deductions allowable under Sections 30 to 43D of the Act. In view of the decision of the Full Bench, question No.1 is answered in favour of the Revenue and against themaking of a provision for an interest which the assessee would ultimately be required to pay to the lender on the money lent cannot be regarded as a payment made by the company to the assessee. As such, the amount of Rs.32,13,367/which represents only the provision made for interest which the assessee was liable to pay to AMPL by way of an interest on the outstanding amount could not be regarded as the payment made by AMPL within the meaning of clause (e) of Section 2(22) of the Act. Only the amount ofwas actually received by the assessee as and by way of loan or advance from AMPL would fall within inclusive clause (e) of the definition of "dividend" appearing in Section 2(22)(e) of theare unable to agree for the reasons indicatedour view, the expression "substantial part" does not connote an idea of being the "major part" or the part that constitutes majority of the whole. If the legislature really intended that more than 50% of the business of the lending company must come from the business of lending, nothing prevented the legislature from using the expression "majority of business". If the legislature at all intended that a particular minimum percentage of the business of a lending company should come from the business of lending, the legislature could have specifically provided for that percentage while drafting clause (ii) of Section 2(22) of the Act. The legislature had deliberately used the word "substantial" instead of using the word "major" and/or specifying any percentage of the business or profit to be coming from the lending business of the lending company for the purpose of clause (ii) of Section 2(22) of theour view not. The first business which constitutes 40% of the turn over and contributes 40 % to the profit would be the single largest part of the business of the company, the second and third divisions of the business, each of which contributes 30% of the turn over as well as profit of the company, though not the major and not even single largest part of the business of the company, would still be a substantial part of the business of the company, because if any part of the three divisions of the business of the company was to be closed down, that would result in loss of turn over and/or business of 30%, ordinarily no company would regard such part of the business as insignificant. As rightly observed in Strouds Judicial Dictionary, it is not possible to give any fixed definition of the word "substantial" in relation to "a substantial business of a company". Any business of a company which the company does not regard as small, trivial, or inconsequential as compared to the whole of the business is substantial business.Applying these tests to the present case, we do not find that the ITAT has committed any error in coming to the conclusion that lending of money was a substantial part of the business of AMPL. The ITAT has noted that 42% of the total assets of AMPL as on 31.3.1996 and 39% of the total assets of AMPL as on 31.3.1997 were deployed by it by way of total loans and advances. By no means, the deployment of about 40% of the total assets into the business of lending could be regarded as an insignificant part of the business of AMPL. The ITAT has also held that the income AMPL had received by way of interest of Rs.1,08,18,036/while its total profit was Rs.Excluding the income earned by AMPL by way of interest, the other business had resulted into net loss. In our view, the ITAT has taken into consideration the relevant factors and has applied the correct tests to come to the conclusion that lending of money was substantial part of the business of the AMPL. Since lending of money was a substantial part of the business of AMPL, the money given by it by way of advance or loan to the assessee could not be regarded as a dividend, as it has to be excluded from the definition of "dividend" by virtue of clause (ii) of Section 2(22) of the Act. Hence, question no.2 is answered in favour of the assessee and against the Revenue.

State of Bihar Vs. Dr. Yogendra Singh Col. (Retd.) and Others

Government. Whatever assets and properties appertained to the Magadh Medical College became vested in the State Government under sub-section (2) of section 3. Section 3 sub-section (3) provided for devolution of all the liabilities and obligations of Magadh Medical College on the State Government and therefore, if sub-section ( 3) were the only provision in the statute, it would have been possible for the first respondent to contend that by virtue of the contract contained in his letter of appointment, he was entitled to continue in service until the age of 62 years and this obligation of the Magadh Medical College devolved on the State Government. But section 6 dealt specifically with the subject of determination of terms of the teaching staff and other employees of the Magadh Medical Coll ege and if this special enactment contained any provision relating to termination of service of the first respondent, it would obviously prevail over the general provision enacted in sub-section (3) of section 3. Now sub-section (1) of section 6 p rovided in clear and explicit terms that as from the date of the notification issued under sub-section (1) of section 3 "all the staff employed in the college shall cease to be employees of the College body." The direct effect of this provision was that the first respondent ceased to be the employee of the owners of the Magadh Medical College. The proviso to sub-section (1) of section 6 proceeded to declare that the staff employed in the College "shall continue to serve the College on an ad hoc basis till a decision under sub-sections 3 and 4 is taken by the State Government." The first respondent, therefore, continued to serve the Magadh Medical College on an adhoc basis from and after the date of the notification under sub-sec. (1) of section 3. The result was that the contract of the first respondent with the owners of the Magadh Medical College under the letter of appointment given to him, did not devolve on the State Government but came to an end and the first respondent became an employee of the State Government on an ad hoc basis. The first respondent could not thereafter contend that he was entitled to continue in service until he reaches the age of 62 years. That would be directly contradictory of the position that he continued to serve the State Government on an ad hoc basis. It is elementary that when a person is appointed on an ad hoc basis, his tenure is precarious and he cannot claim to continue in service until the age of superannuation.8. Now the State Government appointed a Committee called the Screening Committee under sub-section (2) of section 6 and the Screening Committee recommended that all teachers beyond the age of 58 years may be retired subject to reappointment, if there are no qualified substitutes. The argument of the first respondent which appealed to the High Court was that the Screening Committee had no power under sub-section (2) of section 6 to make a recommendation in rega rd to the age of superannuation of the teaching staff of the Medical College taken over by the State Government. This argument is, in our opinion, fallacious, in as much as it is based on reading of sub-section (2) of section 6 as if it stood alone and does not take into account the effect of sub-section (3) upon it, Subsec.(2) of section 6 undoubtly provides that the Committee of Experts appointed under that provision will examine the bio-data of each member of the staff and ascerta in whether appointment, promotion or confirmation of such person was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and will also take into consideration all other relevant material including length of service in the college and submit its report to the State Government. But it is clear from sub-section (2) of section 6 that the Committee of Experts appointed under sub-section (2) of that section can also make recommendations in regard to "the rank, pay, allowances and other conditions of service" of the teaching staff. It was therefore, not beyond the competence of the Screening Committee to make recommendations in regard to the age of supe rannuation of the teaching staff of the Medical Colleges taken over by the State Government. But, even if we are wrong in taking this view, it is clear that under sub- section (3) of section 6 the State Government had power to redetermine "the rank, pay, allowances and other conditions of service" of the teaching staff and "other conditions of service" would include the age of superannuation. The State Government was therefore, clearly within its power under sub-section (3) of section 6 to redetermine the age of superannuation and provide that the services of all teachers in the Medical Colleges taken over by the State Government shall be terminated after giving them one month notice, if they have attained the age of 62 years or mo re than 58 years, but less than 62 years. Obviously, when a member of the teaching staff becomes an employee of the State Government, he would be governed by the same age of superannuation which is applicable to other governments servants, namely, 58 years and it was for this reason that the State Government redetermined the age of superannuation of the teaching staff of the Medical Colleges taken over by it at 58 years and directed that the services of those who have attain ed the age of 58 years should be terminated after giving one months notice. We may point out that, quite apart from the power expressly conferred under sub-section (3) of section 6, the State Government would have power to terminate the services of any person employed on an ad hoc basis. The termination of service of the first respondent was therefore, perfectly valid and the High Court was in error in granting relief to the first respondent.9.

1[ds]We are of the view that it is impossible to sustain the judgment of the High Court. It proceeds upon a complete mis- apprehension of the true meaning and effect of the relevant provisions of sections 3 and 6 of the Act. Sub-section (1) of section 3 provides for taking over of private medical colleges and by virtue of the notification issued by the State Government under that provision, the Magadh Medical College was taken over by the State Government and its management and control became exercisable by the State Government. Whatever assets and properties appertained to the Magadh Medical College became vested in the State Government under sub-section (2) of section 3. Section 3 sub-section (3) provided for devolution of all the liabilities and obligations of Magadh Medical College on the State Government and therefore, if sub-section ( 3) were the only provision in the statute, it would have been possible for the first respondent to contend that by virtue of the contract contained in his letter of appointment, he was entitled to continue in service until the age of 62 years and this obligation of the Magadh Medical College devolved on the State Government. But section 6 dealt specifically with the subject of determination of terms of the teaching staff and other employees of the Magadh Medical Coll ege and if this special enactment contained any provision relating to termination of service of the first respondent, it would obviously prevail over the general provision enacted in sub-section (3) of section 3. Now sub-section (1) of section 6 p rovided in clear and explicit terms that as from the date of the notification issued under sub-section (1) of section 3 "all the staff employed in the college shall cease to be employees of the College body." The direct effect of this provision was that the first respondent ceased to be the employee of the owners of the Magadh Medical College. The proviso to sub-section (1) of section 6 proceeded to declare that the staff employed in the College "shall continue to serve the College on an ad hoc basis till a decision under sub-sections 3 and 4 is taken by the State Government." The first respondent, therefore, continued to serve the Magadh Medical College on an adhoc basis from and after the date of the notification under sub-sec. (1) of section 3. The result was that the contract of the first respondent with the owners of the Magadh Medical College under the letter of appointment given to him, did not devolve on the State Government but came to an end and the first respondent became an employee of the State Government on an ad hoc basis. The first respondent could not thereafter contend that he was entitled to continue in service until he reaches the age of 62 years. That would be directly contradictory of the position that he continued to serve the State Government on an ad hoc basis. It is elementary that when a person is appointed on an ad hoc basis, his tenure is precarious and he cannot claim to continue in service until the age ofthe State Government appointed a Committee called the Screening Committee under sub-section (2) of section 6 and the Screening Committee recommended that all teachers beyond the age of 58 years may be retired subject to reappointment, if there are no qualified substitutes. The argument of the first respondent which appealed to the High Court was that the Screening Committee had no power under sub-section (2) of section 6 to make a recommendation in rega rd to the age of superannuation of the teaching staff of the Medical College taken over by the State Government. This argument is, in our opinion, fallacious, in as much as it is based on reading of sub-section (2) of section 6 as if it stood alone and does not take into account the effect of sub-section (3) upon it, Subsec.(2) of section 6 undoubtly provides that the Committee of Experts appointed under that provision will examine the bio-data of each member of the staff and ascerta in whether appointment, promotion or confirmation of such person was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and will also take into consideration all other relevant material including length of service in the college and submit its report to the State Government. But it is clear from sub-section (2) of section 6 that the Committee of Experts appointed under sub-section (2) of that section can also make recommendations in regard to "the rank, pay, allowances and other conditions of service" of the teaching staff. It was therefore, not beyond the competence of the Screening Committee to make recommendations in regard to the age of supe rannuation of the teaching staff of the Medical Colleges taken over by the State Government. But, even if we are wrong in taking this view, it is clear that under sub- section (3) of section 6 the State Government had power to redetermine "the rank, pay, allowances and other conditions of service" of the teaching staff and "other conditions of service" would include the age of superannuation. The State Government was therefore, clearly within its power under sub-section (3) of section 6 to redetermine the age of superannuation and provide that the services of all teachers in the Medical Colleges taken over by the State Government shall be terminated after giving them one month notice, if they have attained the age of 62 years or mo re than 58 years, but less than 62 years. Obviously, when a member of the teaching staff becomes an employee of the State Government, he would be governed by the same age of superannuation which is applicable to other governments servants, namely, 58 years and it was for this reason that the State Government redetermined the age of superannuation of the teaching staff of the Medical Colleges taken over by it at 58 years and directed that the services of those who have attain ed the age of 58 years should be terminated after giving one months notice. We may point out that, quite apart from the power expressly conferred under sub-section (3) of section 6, the State Government would have power to terminate the services of any person employed on an ad hoc basis. The termination of service of the first respondent was therefore, perfectly valid and the High Court was in error in granting relief to the first respondent.

### 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: Government. Whatever assets and properties appertained to the Magadh Medical College became vested in the State Government under sub-section (2) of section 3. Section 3 sub-section (3) provided for devolution of all the liabilities and obligations of Magadh Medical College on the State Government and therefore, if sub-section ( 3) were the only provision in the statute, it would have been possible for the first respondent to contend that by virtue of the contract contained in his letter of appointment, he was entitled to continue in service until the age of 62 years and this obligation of the Magadh Medical College devolved on the State Government. But section 6 dealt specifically with the subject of determination of terms of the teaching staff and other employees of the Magadh Medical Coll ege and if this special enactment contained any provision relating to termination of service of the first respondent, it would obviously prevail over the general provision enacted in sub-section (3) of section 3. Now sub-section (1) of section 6 p rovided in clear and explicit terms that as from the date of the notification issued under sub-section (1) of section 3 "all the staff employed in the college shall cease to be employees of the College body." The direct effect of this provision was that the first respondent ceased to be the employee of the owners of the Magadh Medical College. The proviso to sub-section (1) of section 6 proceeded to declare that the staff employed in the College "shall continue to serve the College on an ad hoc basis till a decision under sub-sections 3 and 4 is taken by the State Government." The first respondent, therefore, continued to serve the Magadh Medical College on an adhoc basis from and after the date of the notification under sub-sec. (1) of section 3. The result was that the contract of the first respondent with the owners of the Magadh Medical College under the letter of appointment given to him, did not devolve on the State Government but came to an end and the first respondent became an employee of the State Government on an ad hoc basis. The first respondent could not thereafter contend that he was entitled to continue in service until he reaches the age of 62 years. That would be directly contradictory of the position that he continued to serve the State Government on an ad hoc basis. It is elementary that when a person is appointed on an ad hoc basis, his tenure is precarious and he cannot claim to continue in service until the age of superannuation.8. Now the State Government appointed a Committee called the Screening Committee under sub-section (2) of section 6 and the Screening Committee recommended that all teachers beyond the age of 58 years may be retired subject to reappointment, if there are no qualified substitutes. The argument of the first respondent which appealed to the High Court was that the Screening Committee had no power under sub-section (2) of section 6 to make a recommendation in rega rd to the age of superannuation of the teaching staff of the Medical College taken over by the State Government. This argument is, in our opinion, fallacious, in as much as it is based on reading of sub-section (2) of section 6 as if it stood alone and does not take into account the effect of sub-section (3) upon it, Subsec.(2) of section 6 undoubtly provides that the Committee of Experts appointed under that provision will examine the bio-data of each member of the staff and ascerta in whether appointment, promotion or confirmation of such person was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and will also take into consideration all other relevant material including length of service in the college and submit its report to the State Government. But it is clear from sub-section (2) of section 6 that the Committee of Experts appointed under sub-section (2) of that section can also make recommendations in regard to "the rank, pay, allowances and other conditions of service" of the teaching staff. It was therefore, not beyond the competence of the Screening Committee to make recommendations in regard to the age of supe rannuation of the teaching staff of the Medical Colleges taken over by the State Government. But, even if we are wrong in taking this view, it is clear that under sub- section (3) of section 6 the State Government had power to redetermine "the rank, pay, allowances and other conditions of service" of the teaching staff and "other conditions of service" would include the age of superannuation. The State Government was therefore, clearly within its power under sub-section (3) of section 6 to redetermine the age of superannuation and provide that the services of all teachers in the Medical Colleges taken over by the State Government shall be terminated after giving them one month notice, if they have attained the age of 62 years or mo re than 58 years, but less than 62 years. Obviously, when a member of the teaching staff becomes an employee of the State Government, he would be governed by the same age of superannuation which is applicable to other governments servants, namely, 58 years and it was for this reason that the State Government redetermined the age of superannuation of the teaching staff of the Medical Colleges taken over by it at 58 years and directed that the services of those who have attain ed the age of 58 years should be terminated after giving one months notice. We may point out that, quite apart from the power expressly conferred under sub-section (3) of section 6, the State Government would have power to terminate the services of any person employed on an ad hoc basis. The termination of service of the first respondent was therefore, perfectly valid and the High Court was in error in granting relief to the first respondent.9. ### Response: 1 ### Explanation: by the State Government. Whatever assets and properties appertained to the Magadh Medical College became vested in the State Government under sub-section (2) of section 3. Section 3 sub-section (3) provided for devolution of all the liabilities and obligations of Magadh Medical College on the State Government and therefore, if sub-section ( 3) were the only provision in the statute, it would have been possible for the first respondent to contend that by virtue of the contract contained in his letter of appointment, he was entitled to continue in service until the age of 62 years and this obligation of the Magadh Medical College devolved on the State Government. But section 6 dealt specifically with the subject of determination of terms of the teaching staff and other employees of the Magadh Medical Coll ege and if this special enactment contained any provision relating to termination of service of the first respondent, it would obviously prevail over the general provision enacted in sub-section (3) of section 3. Now sub-section (1) of section 6 p rovided in clear and explicit terms that as from the date of the notification issued under sub-section (1) of section 3 "all the staff employed in the college shall cease to be employees of the College body." The direct effect of this provision was that the first respondent ceased to be the employee of the owners of the Magadh Medical College. The proviso to sub-section (1) of section 6 proceeded to declare that the staff employed in the College "shall continue to serve the College on an ad hoc basis till a decision under sub-sections 3 and 4 is taken by the State Government." The first respondent, therefore, continued to serve the Magadh Medical College on an adhoc basis from and after the date of the notification under sub-sec. (1) of section 3. The result was that the contract of the first respondent with the owners of the Magadh Medical College under the letter of appointment given to him, did not devolve on the State Government but came to an end and the first respondent became an employee of the State Government on an ad hoc basis. The first respondent could not thereafter contend that he was entitled to continue in service until he reaches the age of 62 years. That would be directly contradictory of the position that he continued to serve the State Government on an ad hoc basis. It is elementary that when a person is appointed on an ad hoc basis, his tenure is precarious and he cannot claim to continue in service until the age ofthe State Government appointed a Committee called the Screening Committee under sub-section (2) of section 6 and the Screening Committee recommended that all teachers beyond the age of 58 years may be retired subject to reappointment, if there are no qualified substitutes. The argument of the first respondent which appealed to the High Court was that the Screening Committee had no power under sub-section (2) of section 6 to make a recommendation in rega rd to the age of superannuation of the teaching staff of the Medical College taken over by the State Government. This argument is, in our opinion, fallacious, in as much as it is based on reading of sub-section (2) of section 6 as if it stood alone and does not take into account the effect of sub-section (3) upon it, Subsec.(2) of section 6 undoubtly provides that the Committee of Experts appointed under that provision will examine the bio-data of each member of the staff and ascerta in whether appointment, promotion or confirmation of such person was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and will also take into consideration all other relevant material including length of service in the college and submit its report to the State Government. But it is clear from sub-section (2) of section 6 that the Committee of Experts appointed under sub-section (2) of that section can also make recommendations in regard to "the rank, pay, allowances and other conditions of service" of the teaching staff. It was therefore, not beyond the competence of the Screening Committee to make recommendations in regard to the age of supe rannuation of the teaching staff of the Medical Colleges taken over by the State Government. But, even if we are wrong in taking this view, it is clear that under sub- section (3) of section 6 the State Government had power to redetermine "the rank, pay, allowances and other conditions of service" of the teaching staff and "other conditions of service" would include the age of superannuation. The State Government was therefore, clearly within its power under sub-section (3) of section 6 to redetermine the age of superannuation and provide that the services of all teachers in the Medical Colleges taken over by the State Government shall be terminated after giving them one month notice, if they have attained the age of 62 years or mo re than 58 years, but less than 62 years. Obviously, when a member of the teaching staff becomes an employee of the State Government, he would be governed by the same age of superannuation which is applicable to other governments servants, namely, 58 years and it was for this reason that the State Government redetermined the age of superannuation of the teaching staff of the Medical Colleges taken over by it at 58 years and directed that the services of those who have attain ed the age of 58 years should be terminated after giving one months notice. We may point out that, quite apart from the power expressly conferred under sub-section (3) of section 6, the State Government would have power to terminate the services of any person employed on an ad hoc basis. The termination of service of the first respondent was therefore, perfectly valid and the High Court was in error in granting relief to the first respondent.

Jagmal Singh Yadav Vs. M. Ramayya and Others

again after the UPSCs views have been received."22. It is perhaps because of this that Shri Swaran Singh the then Minister for Works &Housing also endorsed the Secretarys proposal, which was in the following terms:"The proposals are in order and may be approved. After U.P.S.C. have been consulted and given their concurrence, the case will have to be shown to the Home Ministry again who have asked to see these papers after the views of the U.P.S. C. have been obtained."The Minister, Shri Swaran Singhs endorsement appears at the foot of this proposal on 24th September, 1954.23. So far as the records go the matter rested as above and there has. been admittedly no adherence to the quota rule, but on the other hand there has been flagrant violation of the rule. As a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot. This was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under rule 4(c).24. It is not possible to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry. There is nothing to show that these minutes received the approval of the Minister-in-charge. We are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4(c).We have already held that respondents 1 to 12 were duly appointed under rule 23(1) of Part IV read with rule 3(b). They are, therefore, entitled to be considered for confirmation in the Service in Class. II. Since we have held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents (13 to 1 5) to consider the ease of the respondents (1 to 12) for confirmation and seniority in accordance with law. As the High Court has pointed out, the validity of the recruitment of the thirty eight direct recruits will, however, not be affected.25. We are not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules. After a perusal of the pleadings and having regard to the stand taken by the parties before the High Court, we find that the submission has no force. Since the factum of determination of seniority was a live issue between the parties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent. It is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for interference under Article 136 of the Constitution.26. We also do not feel justified in placing exaggerated importance on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai. We are of opinion that such a reference to "specified quota" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works &Housing in the course of long correspondence between the several authorities.Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay. We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule 4(c) had been struck down by the High Court.27. Before parting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair play to all concerned, it is a sorry sight to find that officers in the same Service fight over the year s in courts having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the Service are abolished, appointments to the Service are transitory or fortuitous or incumbents are found unsuitable for absorption. The history of this Service is that temporary posts are first created and then after some years they are converted into permanent posts. The Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims. We also cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to time for reasons not always manifest.As found above, the submissions of the appellant are devoid of force.

0[ds]It is true that rule 23( 1 ) provides for recruitment by selection after consultation with the UPSC. The particular Departmental Promotion Committee (DPC) was presided over by a member from the UPSC. There is Home Ministrys O.M. No. 33/46-Ests(R) dated 17th June, 1947, wherein it has been clearly stated in para 7 asmade by Departmental Promotion Committees on which the Commission is represented should be treated as recommendations having the approval of the Commission, and the convention regarding acceptance of the advice of the Commission willare, therefore, clearly of opinion that the appointments of the respondents are in accordance with rule 23 in Part IV read with rule 3(b) of Part 1I of the Rules. We find that the above conclusion we have reached is supported by the stand taken on behalf of the Government in the Lok Sabha on 7th April, 1969, in answering certain Unstarred question with regard to recruitment to this Service, inter alia, under Partis, therefore, clear that the determination under rule 4(c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by the Home Ministry under the Rules of Business under Article 77(3) of the Constitution the determination would be of the Government of India. There is nothing to show tha t there was any determination by the Home Ministry under rule 4(c). It is true that there was a proposal from the Ministry of Works &Housing to which concurrence had been given by the UPSC. After that there has been no further progress of the matter and Mr. Gobind Das concedes that there is nothing to show from the records at the disposal of the Government that the approval of the Home Ministry was given to any determination under rulefar as the records go the matter rested as above and there has. been admittedly no adherence to the quota rule, but on the other hand there has been flagrant violation of the rule. As a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot. This was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under ruleis not possible to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry. There is nothing to show that these minutes received the approval of the Minister-in-charge. We are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4(c).We have already held that respondents 1 to 12 were duly appointed under rule 23(1) of Part IV read with rule 3(b). They are, therefore, entitled to be considered for confirmation in the Service in Class. II. Since we have held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents (13 to 1 5) to consider the ease of the respondents (1 to 12) for confirmation and seniority in accordance with law. As the High Court has pointed out, the validity of the recruitment of the thirty eight direct recruits will, however, not beare not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules. After a perusal of the pleadings and having regard to the stand taken by the parties before the High Court, we find that the submission has no force. Since the factum of determination of seniority was a live issue between the parties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent. It is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for interference under Article 136 of thealso do not feel justified in placing exaggerated importance on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai. We are of opinion that such a reference to "specified quota" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works &Housing in the course of long correspondence between the several authorities.Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay. We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule 4(c) had been struck down by the Highparting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair play to all concerned, it is a sorry sight to find that officers in the same Service fight over the year s in courts having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the Service are abolished, appointments to the Service are transitory or fortuitous or incumbents are found unsuitable for absorption. The history of this Service is that temporary posts are first created and then after some years they are converted into permanent posts. The Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims. We also cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to time for reasons not always manifest.As found above, the submissions of the appellant are devoid of force.

### 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: again after the UPSCs views have been received."22. It is perhaps because of this that Shri Swaran Singh the then Minister for Works &Housing also endorsed the Secretarys proposal, which was in the following terms:"The proposals are in order and may be approved. After U.P.S.C. have been consulted and given their concurrence, the case will have to be shown to the Home Ministry again who have asked to see these papers after the views of the U.P.S. C. have been obtained."The Minister, Shri Swaran Singhs endorsement appears at the foot of this proposal on 24th September, 1954.23. So far as the records go the matter rested as above and there has. been admittedly no adherence to the quota rule, but on the other hand there has been flagrant violation of the rule. As a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot. This was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under rule 4(c).24. It is not possible to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry. There is nothing to show that these minutes received the approval of the Minister-in-charge. We are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4(c).We have already held that respondents 1 to 12 were duly appointed under rule 23(1) of Part IV read with rule 3(b). They are, therefore, entitled to be considered for confirmation in the Service in Class. II. Since we have held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents (13 to 1 5) to consider the ease of the respondents (1 to 12) for confirmation and seniority in accordance with law. As the High Court has pointed out, the validity of the recruitment of the thirty eight direct recruits will, however, not be affected.25. We are not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules. After a perusal of the pleadings and having regard to the stand taken by the parties before the High Court, we find that the submission has no force. Since the factum of determination of seniority was a live issue between the parties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent. It is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for interference under Article 136 of the Constitution.26. We also do not feel justified in placing exaggerated importance on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai. We are of opinion that such a reference to "specified quota" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works &Housing in the course of long correspondence between the several authorities.Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay. We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule 4(c) had been struck down by the High Court.27. Before parting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair play to all concerned, it is a sorry sight to find that officers in the same Service fight over the year s in courts having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the Service are abolished, appointments to the Service are transitory or fortuitous or incumbents are found unsuitable for absorption. The history of this Service is that temporary posts are first created and then after some years they are converted into permanent posts. The Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims. We also cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to time for reasons not always manifest.As found above, the submissions of the appellant are devoid of force. ### Response: 0 ### Explanation: taken by the Home Ministry under the Rules of Business under Article 77(3) of the Constitution the determination would be of the Government of India. There is nothing to show tha t there was any determination by the Home Ministry under rule 4(c). It is true that there was a proposal from the Ministry of Works &Housing to which concurrence had been given by the UPSC. After that there has been no further progress of the matter and Mr. Gobind Das concedes that there is nothing to show from the records at the disposal of the Government that the approval of the Home Ministry was given to any determination under rulefar as the records go the matter rested as above and there has. been admittedly no adherence to the quota rule, but on the other hand there has been flagrant violation of the rule. As a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot. This was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under ruleis not possible to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry. There is nothing to show that these minutes received the approval of the Minister-in-charge. We are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4(c).We have already held that respondents 1 to 12 were duly appointed under rule 23(1) of Part IV read with rule 3(b). They are, therefore, entitled to be considered for confirmation in the Service in Class. II. Since we have held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents (13 to 1 5) to consider the ease of the respondents (1 to 12) for confirmation and seniority in accordance with law. As the High Court has pointed out, the validity of the recruitment of the thirty eight direct recruits will, however, not beare not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules. After a perusal of the pleadings and having regard to the stand taken by the parties before the High Court, we find that the submission has no force. Since the factum of determination of seniority was a live issue between the parties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent. It is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for interference under Article 136 of thealso do not feel justified in placing exaggerated importance on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai. We are of opinion that such a reference to "specified quota" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works &Housing in the course of long correspondence between the several authorities.Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay. We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule 4(c) had been struck down by the Highparting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair play to all concerned, it is a sorry sight to find that officers in the same Service fight over the year s in courts having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the Service are abolished, appointments to the Service are transitory or fortuitous or incumbents are found unsuitable for absorption. The history of this Service is that temporary posts are first created and then after some years they are converted into permanent posts. The Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims. We also cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to time for reasons not always manifest.As found above, the submissions of the appellant are devoid of force.

Governor General In Council Vs. Musaddi Lal

the goods were delivered for carriage, and prima facie the suit would be barred for non-compliance of a statutory condition precedent. But the respondent pleaded and the plea has found favour with the High Court that the suit filed by him was for compensation not for loss, destruction or deterioration of the goods, but "for non-delivery of the goods". In the view of the High Court, a claim for compensation for non-delivery of goods is a claim distinct from a claim for compensation for loss, destruction or deterioration of goods and to the enforcement of a claim of the former variety by action in a court of law S. 77 is not a condition precedent.4. The railway administration in India is not an insurer of goods; it is merely a bailee of goods entrusted to it for carriage. Section 72 of the Railways Act prescribes the measure of the general responsibility of a railway administration as a carrier of goods. By that section, the responsibility of a railway administration for loss, destruction or deterioration of goods delivered to be carried by railway is subject to other provisions of the Act to be that of a bailee under S. 152 and S. 161 of the Indian Contract Act, 1872. Sections 151 and 152 of the Indian Contract Act deal with the duties of a baliee. If a bailee takes as much care of the goods bailed to him as a person of ordinary prudence would under similar circumstances of his own goods of the same bulk, quality and value as the goods balied to him, in the absence of a special contract, he is not responsible for loss, destruction or deterioration of the goods bailed. By Ss. 160 and 161 of the Indian Contract Act, the balilee is under an obligation to return or deliver according to the bailors direction the goods bailed as soon as the time for which the goods were bailed has expired or the purpose for which the goods were bailed has been accomplished and if on account of default of the bailee the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods. The railway administration being a bailee of the goods delivered for carriage to it is therefore a bailee during the period when the goods remain in its custody for the purpose and in the course of carriage and for the purpose of delivery after the goods are carried to the destination. But the quantum of care which the railway administration is required to take is that care which it would take having regard to the bulk, quality and value of its own similar goods.5. Section 77 of the Railways Act is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims. It imposes a restriction on the enforcement of liability declared by S. 72 is for loss, destruction or deterioration. Failure to deliver is the consequence of loss or destruction of goods; it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. By the use of the expression," loss, destruction or deterioration", what is contemplated is loss or destruction or deterioration of the goods and the consequent loss to the owner thereof. If because of negligence or inadvertence or even wrongful act on the part of the employees of the railway administration, goods entrusted for carriage are lost, destroyed or deteriorated, the railway administration is guilty of failing to take the degree of care which is prescribed by S. 72 of the Railways Act.6. There are undoubtedly two distinct articles, Arts. 30 and 31 in the first schedule of the Indian Limitation Act dealing with limitation for suits for compensation against carriers. Art 30 prescribes the period of limitation for suits against a carrier for compensation against loss or injury to goods and Art 31 prescribes the period of limitation for suits for compensation against a carrier for non-delivery or delay in delivering the goods. The period of limitation under each of these articles is one year but the points of time from which that period is to be reckoned are different. But because the Indian Limitation Act provides different points of time from which the period of limitation is to run, it is not possible to infer that the claim covered by either article is not for compensation for loss, destruction or deterioration of the goods. We are unable to project the provisions of Arts, 30 and 31 of the Limitation Act upon Ss. 72 and 77 of the Railways Act and to hold that a suit for compensation for loss because of non-delivery of good does not fall within S. 77. The view we have expressed is supported by a large volume of authority in the courts in India-for instance M. and S. M. Rly Co. Ltd v. Haridoss Banmalidoss, ILR 41 Mad 871 : (AIR 1919 Mad 140), Hill Sawyers and Co. v. Secretary of State, ILR 2 Lah 133: (AIR 1921 Lah 1) (FB) Martab Ali v. Union of India, 56 Bom LR 150: (AIR 1954 Bom 297 ) Union of India v. Minayagiri Pullappa, ILR (1958) Andh-Pra 323: (AIR 1958 Andh-Pra 475). Assam Bengal Railway Co., Ltd. v. Radhika Mohan Nath, AIR 1923 Cal 397 and B. N. Rly Co. v. Hamir Mull Chhagan Mull, ILR 5 Pat 106: (AIR 1925 Pat 727 ).7. The view expressed to the contrary in the Allahabad High Court in Governor-General in Council v. Mahabir Ram ILR (1953) 1 All 64: (AIR 1952 All 891 ) (FB) and by the Patna High Court in Jais Ram Ramrekha Das v. G. I. P. Railway. ILR 8 Pat 545: (AIR 1929 Pat 109 ), is in our judgment erroneous.

1[ds]The railway administration being a bailee of the goods delivered for carriage to it is therefore a bailee during the period when the goods remain in its custody for the purpose and in the course of carriage and for the purpose of delivery after the goods are carried to the destination. But the quantum of care which the railway administration is required to take is that care which it would take having regard to the bulk, quality and value of its own similarThe view expressed to the contrary in the Allahabad High Court in Governor-General in Council v. Mahabir Ram ILR (1953) 1 All 64: (AIR 1952 All 891 ) (FB) and by the Patna High Court in Jais Ram Ramrekha Das v. G. I. P. Railway. ILR 8 Pat 545: (AIR 1929 Pat 109 ), is in our judgment erroneous.

### 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 goods were delivered for carriage, and prima facie the suit would be barred for non-compliance of a statutory condition precedent. But the respondent pleaded and the plea has found favour with the High Court that the suit filed by him was for compensation not for loss, destruction or deterioration of the goods, but "for non-delivery of the goods". In the view of the High Court, a claim for compensation for non-delivery of goods is a claim distinct from a claim for compensation for loss, destruction or deterioration of goods and to the enforcement of a claim of the former variety by action in a court of law S. 77 is not a condition precedent.4. The railway administration in India is not an insurer of goods; it is merely a bailee of goods entrusted to it for carriage. Section 72 of the Railways Act prescribes the measure of the general responsibility of a railway administration as a carrier of goods. By that section, the responsibility of a railway administration for loss, destruction or deterioration of goods delivered to be carried by railway is subject to other provisions of the Act to be that of a bailee under S. 152 and S. 161 of the Indian Contract Act, 1872. Sections 151 and 152 of the Indian Contract Act deal with the duties of a baliee. If a bailee takes as much care of the goods bailed to him as a person of ordinary prudence would under similar circumstances of his own goods of the same bulk, quality and value as the goods balied to him, in the absence of a special contract, he is not responsible for loss, destruction or deterioration of the goods bailed. By Ss. 160 and 161 of the Indian Contract Act, the balilee is under an obligation to return or deliver according to the bailors direction the goods bailed as soon as the time for which the goods were bailed has expired or the purpose for which the goods were bailed has been accomplished and if on account of default of the bailee the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods. The railway administration being a bailee of the goods delivered for carriage to it is therefore a bailee during the period when the goods remain in its custody for the purpose and in the course of carriage and for the purpose of delivery after the goods are carried to the destination. But the quantum of care which the railway administration is required to take is that care which it would take having regard to the bulk, quality and value of its own similar goods.5. Section 77 of the Railways Act is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims. It imposes a restriction on the enforcement of liability declared by S. 72 is for loss, destruction or deterioration. Failure to deliver is the consequence of loss or destruction of goods; it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. By the use of the expression," loss, destruction or deterioration", what is contemplated is loss or destruction or deterioration of the goods and the consequent loss to the owner thereof. If because of negligence or inadvertence or even wrongful act on the part of the employees of the railway administration, goods entrusted for carriage are lost, destroyed or deteriorated, the railway administration is guilty of failing to take the degree of care which is prescribed by S. 72 of the Railways Act.6. There are undoubtedly two distinct articles, Arts. 30 and 31 in the first schedule of the Indian Limitation Act dealing with limitation for suits for compensation against carriers. Art 30 prescribes the period of limitation for suits against a carrier for compensation against loss or injury to goods and Art 31 prescribes the period of limitation for suits for compensation against a carrier for non-delivery or delay in delivering the goods. The period of limitation under each of these articles is one year but the points of time from which that period is to be reckoned are different. But because the Indian Limitation Act provides different points of time from which the period of limitation is to run, it is not possible to infer that the claim covered by either article is not for compensation for loss, destruction or deterioration of the goods. We are unable to project the provisions of Arts, 30 and 31 of the Limitation Act upon Ss. 72 and 77 of the Railways Act and to hold that a suit for compensation for loss because of non-delivery of good does not fall within S. 77. The view we have expressed is supported by a large volume of authority in the courts in India-for instance M. and S. M. Rly Co. Ltd v. Haridoss Banmalidoss, ILR 41 Mad 871 : (AIR 1919 Mad 140), Hill Sawyers and Co. v. Secretary of State, ILR 2 Lah 133: (AIR 1921 Lah 1) (FB) Martab Ali v. Union of India, 56 Bom LR 150: (AIR 1954 Bom 297 ) Union of India v. Minayagiri Pullappa, ILR (1958) Andh-Pra 323: (AIR 1958 Andh-Pra 475). Assam Bengal Railway Co., Ltd. v. Radhika Mohan Nath, AIR 1923 Cal 397 and B. N. Rly Co. v. Hamir Mull Chhagan Mull, ILR 5 Pat 106: (AIR 1925 Pat 727 ).7. The view expressed to the contrary in the Allahabad High Court in Governor-General in Council v. Mahabir Ram ILR (1953) 1 All 64: (AIR 1952 All 891 ) (FB) and by the Patna High Court in Jais Ram Ramrekha Das v. G. I. P. Railway. ILR 8 Pat 545: (AIR 1929 Pat 109 ), is in our judgment erroneous. ### Response: 1 ### Explanation: The railway administration being a bailee of the goods delivered for carriage to it is therefore a bailee during the period when the goods remain in its custody for the purpose and in the course of carriage and for the purpose of delivery after the goods are carried to the destination. But the quantum of care which the railway administration is required to take is that care which it would take having regard to the bulk, quality and value of its own similarThe view expressed to the contrary in the Allahabad High Court in Governor-General in Council v. Mahabir Ram ILR (1953) 1 All 64: (AIR 1952 All 891 ) (FB) and by the Patna High Court in Jais Ram Ramrekha Das v. G. I. P. Railway. ILR 8 Pat 545: (AIR 1929 Pat 109 ), is in our judgment erroneous.

State Of Andhra Pradesh & Anr Vs. T. Gopalakrishna Murthi & Ors

the Chief Justices view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justices Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay etc. It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or made mala fide and arbitarily.7. In Gurumoorthys case (supra) Grover, J. delivering the judgment on behalf of the Constitution Bench of this Court has stated at page 429."Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be prescribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governors approval must be sought to the extent the rules relate to salaries, leave or pension. This exception; it is abundantly clear, has to be made because the finances have to be provided by the Government and to the extent there is any involvement of expense the Government has to approve of it".8. The more apposite and direct case on the point is the decision of this Court in Bhubhan Chandra Duttas case (supra) where following the decision in Gurumoothys case, Ray, C. J. has said while delivering the judgment on behalf of the Court at page 5:"Article 229 of the Constitution confers power on the Chief Justice of the High Court to appoint officers and servants of the High Court. Article 229 (2) states that subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229(2) shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. It is not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1, 500 per month with special allowance of Rs. 250 per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500 with a special salary of Rs. 250 per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on the Government (See M. Gurumoorthy v. A. G. Assam &Nagaland)."We share the sentiment expressed by the High Court in its judgment and yet find it difficult to allow our sentiment to cross the boundary of law engrafted in the proviso to clause (2) of Article 229.9. Rule 19(1) of the 1959 Rules on which reliance was placed on behalf of the respondents to sustain the judgment of the High Court has be en quoted therein. After quoting the rules, the High Court has said:"We may observe in passing that this rule has not been happily worded. There is reference to the Rules of 1932, the Rules of 1947, the Rules of 1950 relating to gratuities, provident fund etc., and the rules of 1947 relating to scales of pay. Whatever might have been the power of the Government in the matter of fixing pay or making rules in the pre-constitution days, that position h as changed after the constitution in view of Article 229 of the Constitution."10. Mr. Gupte pointed out that the 1959 Rules framed by the Chief Justice under Article 229(1) and (2) of the Constitution were with the approval of t he Governor of Andhra Pradesh in so far as the Rules related to salaries, allowances, leave or pensions. Rule 19(1) authorised the Chief Justice to regulate the pay of the High Court staff in the manner he thought it fit and proper to do without any further reference to the Governor. We do not find any such words in Rule 19(1) to lead to the above conclusion. The reference to "the Rules regulating the pay of the Services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Andhra Pradesh" was merely a reference to the rules and not to the pay schedules. This was further made clear by the first proviso of Rule 19(1) which reads as follows:"Provided that except with regard to salaries, allowances, leave and pensions, the Chief Justice shall exercise the powers vested in the Governor under any of the aforesaid rules;"For the reasons stated above we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction.11.

1[ds]On the facts and in the circumstances of this case and in the background of the conditions which are prevalent in other States Government could have been well-advised to accord approval to the suggestion of the Chief Justice, as the suggestion was nothing more than to equate the pay scales of the High Court staff with those of the equivalent posts in the Secretariat. That merely because the Government is not right in accepting the Chief Justices view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justices Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay etc. It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or made mala fide anddo not find any such words in Rule 19(1) to lead to the above conclusion. The reference to "the Rules regulating the pay of the Services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Andhra Pradesh" was merely a reference to the rules and not to the paythe reasons stated above we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction.

### 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 Chief Justices view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justices Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay etc. It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or made mala fide and arbitarily.7. In Gurumoorthys case (supra) Grover, J. delivering the judgment on behalf of the Constitution Bench of this Court has stated at page 429."Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be prescribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governors approval must be sought to the extent the rules relate to salaries, leave or pension. This exception; it is abundantly clear, has to be made because the finances have to be provided by the Government and to the extent there is any involvement of expense the Government has to approve of it".8. The more apposite and direct case on the point is the decision of this Court in Bhubhan Chandra Duttas case (supra) where following the decision in Gurumoothys case, Ray, C. J. has said while delivering the judgment on behalf of the Court at page 5:"Article 229 of the Constitution confers power on the Chief Justice of the High Court to appoint officers and servants of the High Court. Article 229 (2) states that subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229(2) shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. It is not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1, 500 per month with special allowance of Rs. 250 per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500 with a special salary of Rs. 250 per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on the Government (See M. Gurumoorthy v. A. G. Assam &Nagaland)."We share the sentiment expressed by the High Court in its judgment and yet find it difficult to allow our sentiment to cross the boundary of law engrafted in the proviso to clause (2) of Article 229.9. Rule 19(1) of the 1959 Rules on which reliance was placed on behalf of the respondents to sustain the judgment of the High Court has be en quoted therein. After quoting the rules, the High Court has said:"We may observe in passing that this rule has not been happily worded. There is reference to the Rules of 1932, the Rules of 1947, the Rules of 1950 relating to gratuities, provident fund etc., and the rules of 1947 relating to scales of pay. Whatever might have been the power of the Government in the matter of fixing pay or making rules in the pre-constitution days, that position h as changed after the constitution in view of Article 229 of the Constitution."10. Mr. Gupte pointed out that the 1959 Rules framed by the Chief Justice under Article 229(1) and (2) of the Constitution were with the approval of t he Governor of Andhra Pradesh in so far as the Rules related to salaries, allowances, leave or pensions. Rule 19(1) authorised the Chief Justice to regulate the pay of the High Court staff in the manner he thought it fit and proper to do without any further reference to the Governor. We do not find any such words in Rule 19(1) to lead to the above conclusion. The reference to "the Rules regulating the pay of the Services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Andhra Pradesh" was merely a reference to the rules and not to the pay schedules. This was further made clear by the first proviso of Rule 19(1) which reads as follows:"Provided that except with regard to salaries, allowances, leave and pensions, the Chief Justice shall exercise the powers vested in the Governor under any of the aforesaid rules;"For the reasons stated above we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction.11. ### Response: 1 ### Explanation: On the facts and in the circumstances of this case and in the background of the conditions which are prevalent in other States Government could have been well-advised to accord approval to the suggestion of the Chief Justice, as the suggestion was nothing more than to equate the pay scales of the High Court staff with those of the equivalent posts in the Secretariat. That merely because the Government is not right in accepting the Chief Justices view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justices Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay etc. It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or made mala fide anddo not find any such words in Rule 19(1) to lead to the above conclusion. The reference to "the Rules regulating the pay of the Services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Andhra Pradesh" was merely a reference to the rules and not to the paythe reasons stated above we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction.

Reserve Bank Of India Vs. S.S. Investments

may remit the award to the arbitrators for correction." 15. While on Russell on Arbitration, we may refer with advantage to the discussion on what constitutes disagreement. It is said (p. 241) "The question what constitutes such a disagreement between arbitrators as will entitle the umpire to make an award ... is one upon which no definite rule can be laid down. It has been held that there was such a disagreement where one of the arbitrators declined to proceed further with the case, and also where one arbitrator refused to permit certain evidence to be produced which his fellow arbitrator declared to be essential, and in another case it was decided that non-agreement on important points was equivalent to disagreement." * One of the cases referred to by Russell in this context is Winteringham v. Robertson ((1858) 27 LJ Ex 301). A submission provided that the matters in difference should be referred to two arbitrators, and in case they should not agree it should be lawful for them to appoint another person to be umpire or to concur with them in considering the matters referred. The arbitrators appointed an umpire, who sat with them throughout the reference. On the arbitrators submitting their views to the umpire, it appeared that they were not agreed on important points, and the umpire formed the opinion that there was no likelihood of their agreeing. The umpire then made his award in favour of the plaintiff. The defendant objected to the award on the ground that it had been made before the arbitrators had disagreed. It was held that the non-agreement of the arbitrators was equivalent to disagreement; that on their non-agreement as to some of the matters in dispute the umpire could make an award as to all these matters, and that his award should be enforced. 16. In the present case it is not in dispute that respondents 2 and 3 were present at all the meetings in the arbitration proceedings. It is urged that there had been no joint deliberation and application of mind by them so that it cannot be said that there was any disagreement between them and respondent 4 was, therefore, not entitled to enter upon the reference. 17. Regard must be had, in our view, to the ordinary course of conduct of judicial and arbitration proceedings, especially considering the fact that one of the arbitrators was a former Judge and the other was a member of the Bar. Discussions do ordinarily take place during the course of the arguments between counsel and the Judges or arbitrators. Questions are asked by the Judges or arbitrators which would indicate their minds to counsel and to each other. Discussions also, ordinarily, take place between the Judges or arbitrators inter se during the course of the hearings and immediately before or after the same. It is not, therefore, imperative that arbitrators should meet upon the conclusion of the hearings to discuss the matter and agree to an award or agree to disagree in that behalf 18. That there had been divergent views expressed even during the course of the present arbitration hearings is clear from the letter written by the respondent 3 to respondent 2 for he says, "We could have sat together and discussed matters before writing the award even if our points of view or judgments varied or eve differed on any issues or point for determination". That the respondent 2 wrote out his own award indicates that he had no doubt in his mind that the differences between him and respondent 3 about the case before them were irreconcilable. As has been said, disagreement can take a variety of forms. Upon the facts of this case we are of the view that there was a disagreement between respondents 2 and 3; the fact of such disagreement was conveyed to the parties when respondent 2 sent them his award and respondent 4 then became entitled to enter upon the reference as umpire 19. We think that the High Court was not justified in placing reliance upon the fact that there was no plea on behalf of the appellant that there was a joint consultation between respondents 2 and 3 after the submission of the arguments by both sides and before the passing of the award by respondent 2, which, in its view, established that there was "no joint deliberation or united consideration" by respondents 2 and 3. Parties to an arbitration cannot be expected to know that such joint consultations or deliberations had taken place between the arbitrators 20. Mr. Sibal drew our attention to the written submission made by counsel on behalf of the appellant and respondent 1 to respondent 4 extending time for him to make the award. In Mr. Sibals submission, there was a categoric statement therein that respondent 1 had waived its objection to respondent 4 entering upon the reference as umpire. Mr. Bobde submitted, on the other hand, that the protest made by respondent 1 about respondent 4 entering upon the reference as umpire continued. In his submission, respondent 1 could not have acted otherwise because the authorities laid down that it is not open to a party to abstain from appearing before an arbitrator or umpire, although he objects to that arbitrator or umpire having entered upon the reference. The authorities do not say that the party so objecting is obliged to extend the time for the arbitrator or umpire to make the award. At any rate, the agreement to extend the time for respondent 4 to make the award should have been qualified by the respondent 1 and should have reserved to it the right to agitate its objection to the fourth respondents jurisdiction. The terms of the joint submission made by counsel for the appellant and respondent 1 to respondent 4 are unqualified and we think that, in the circumstances, respondent 1 must be held to have waived its objection to the entering upon the reference by respondent 4 as umpire.

1[ds]17. Regard must be had, in our view, to the ordinary course of conduct of judicial and arbitration proceedings, especially considering the fact that one of the arbitrators was a former Judge and the other was a member of the Bar. Discussions do ordinarily take place during the course of the arguments between counsel and the Judges or arbitrators. Questions are asked by the Judges or arbitrators which would indicate their minds to counsel and to each other. Discussions also, ordinarily, take place between the Judges or arbitrators inter se during the course of the hearings and immediately before or after the same. It is not, therefore, imperative that arbitrators should meet upon the conclusion of the hearings to discuss the matter and agree to an award or agree to disagree in that behalf18. That there had been divergent views expressed even during the course of the present arbitration hearings is clear from the letter written by the respondent 3 to respondent 2 for he says, "We could have sat together and discussed matters before writing the award even if our points of view or judgments varied or eve differed on any issues or point for determination". That the respondent 2 wrote out his own award indicates that he had no doubt in his mind that the differences between him and respondent 3 about the case before them were irreconcilable. As has been said, disagreement can take a variety of forms. Upon the facts of this case we are of the view that there was a disagreement between respondents 2 and 3; the fact of such disagreement was conveyed to the parties when respondent 2 sent them his award and respondent 4 then became entitled to enter upon the reference as umpire19. We think that the High Court was not justified in placing reliance upon the fact that there was no plea on behalf of the appellant that there was a joint consultation between respondents 2 and 3 after the submission of the arguments by both sides and before the passing of the award by respondent 2, which, in its view, established that there was "no joint deliberation or united consideration" by respondents 2 and 3. Parties to an arbitration cannot be expected to know that such joint consultations or deliberations had taken place between the arbitratorsThe authorities do not say that the party so objecting is obliged to extend the time for the arbitrator or umpire to make the award. At any rate, the agreement to extend the time for respondent 4 to make the award should have been qualified by the respondent 1 and should have reserved to it the right to agitate its objection to the fourth respondents jurisdiction. The terms of the joint submission made by counsel for the appellant and respondent 1 to respondent 4 are unqualified and we think that, in the circumstances, respondent 1 must be held to have waived its objection to the entering upon the reference by respondent 4 as umpire

### 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: may remit the award to the arbitrators for correction." 15. While on Russell on Arbitration, we may refer with advantage to the discussion on what constitutes disagreement. It is said (p. 241) "The question what constitutes such a disagreement between arbitrators as will entitle the umpire to make an award ... is one upon which no definite rule can be laid down. It has been held that there was such a disagreement where one of the arbitrators declined to proceed further with the case, and also where one arbitrator refused to permit certain evidence to be produced which his fellow arbitrator declared to be essential, and in another case it was decided that non-agreement on important points was equivalent to disagreement." * One of the cases referred to by Russell in this context is Winteringham v. Robertson ((1858) 27 LJ Ex 301). A submission provided that the matters in difference should be referred to two arbitrators, and in case they should not agree it should be lawful for them to appoint another person to be umpire or to concur with them in considering the matters referred. The arbitrators appointed an umpire, who sat with them throughout the reference. On the arbitrators submitting their views to the umpire, it appeared that they were not agreed on important points, and the umpire formed the opinion that there was no likelihood of their agreeing. The umpire then made his award in favour of the plaintiff. The defendant objected to the award on the ground that it had been made before the arbitrators had disagreed. It was held that the non-agreement of the arbitrators was equivalent to disagreement; that on their non-agreement as to some of the matters in dispute the umpire could make an award as to all these matters, and that his award should be enforced. 16. In the present case it is not in dispute that respondents 2 and 3 were present at all the meetings in the arbitration proceedings. It is urged that there had been no joint deliberation and application of mind by them so that it cannot be said that there was any disagreement between them and respondent 4 was, therefore, not entitled to enter upon the reference. 17. Regard must be had, in our view, to the ordinary course of conduct of judicial and arbitration proceedings, especially considering the fact that one of the arbitrators was a former Judge and the other was a member of the Bar. Discussions do ordinarily take place during the course of the arguments between counsel and the Judges or arbitrators. Questions are asked by the Judges or arbitrators which would indicate their minds to counsel and to each other. Discussions also, ordinarily, take place between the Judges or arbitrators inter se during the course of the hearings and immediately before or after the same. It is not, therefore, imperative that arbitrators should meet upon the conclusion of the hearings to discuss the matter and agree to an award or agree to disagree in that behalf 18. That there had been divergent views expressed even during the course of the present arbitration hearings is clear from the letter written by the respondent 3 to respondent 2 for he says, "We could have sat together and discussed matters before writing the award even if our points of view or judgments varied or eve differed on any issues or point for determination". That the respondent 2 wrote out his own award indicates that he had no doubt in his mind that the differences between him and respondent 3 about the case before them were irreconcilable. As has been said, disagreement can take a variety of forms. Upon the facts of this case we are of the view that there was a disagreement between respondents 2 and 3; the fact of such disagreement was conveyed to the parties when respondent 2 sent them his award and respondent 4 then became entitled to enter upon the reference as umpire 19. We think that the High Court was not justified in placing reliance upon the fact that there was no plea on behalf of the appellant that there was a joint consultation between respondents 2 and 3 after the submission of the arguments by both sides and before the passing of the award by respondent 2, which, in its view, established that there was "no joint deliberation or united consideration" by respondents 2 and 3. Parties to an arbitration cannot be expected to know that such joint consultations or deliberations had taken place between the arbitrators 20. Mr. Sibal drew our attention to the written submission made by counsel on behalf of the appellant and respondent 1 to respondent 4 extending time for him to make the award. In Mr. Sibals submission, there was a categoric statement therein that respondent 1 had waived its objection to respondent 4 entering upon the reference as umpire. Mr. Bobde submitted, on the other hand, that the protest made by respondent 1 about respondent 4 entering upon the reference as umpire continued. In his submission, respondent 1 could not have acted otherwise because the authorities laid down that it is not open to a party to abstain from appearing before an arbitrator or umpire, although he objects to that arbitrator or umpire having entered upon the reference. The authorities do not say that the party so objecting is obliged to extend the time for the arbitrator or umpire to make the award. At any rate, the agreement to extend the time for respondent 4 to make the award should have been qualified by the respondent 1 and should have reserved to it the right to agitate its objection to the fourth respondents jurisdiction. The terms of the joint submission made by counsel for the appellant and respondent 1 to respondent 4 are unqualified and we think that, in the circumstances, respondent 1 must be held to have waived its objection to the entering upon the reference by respondent 4 as umpire. ### Response: 1 ### Explanation: 17. Regard must be had, in our view, to the ordinary course of conduct of judicial and arbitration proceedings, especially considering the fact that one of the arbitrators was a former Judge and the other was a member of the Bar. Discussions do ordinarily take place during the course of the arguments between counsel and the Judges or arbitrators. Questions are asked by the Judges or arbitrators which would indicate their minds to counsel and to each other. Discussions also, ordinarily, take place between the Judges or arbitrators inter se during the course of the hearings and immediately before or after the same. It is not, therefore, imperative that arbitrators should meet upon the conclusion of the hearings to discuss the matter and agree to an award or agree to disagree in that behalf18. That there had been divergent views expressed even during the course of the present arbitration hearings is clear from the letter written by the respondent 3 to respondent 2 for he says, "We could have sat together and discussed matters before writing the award even if our points of view or judgments varied or eve differed on any issues or point for determination". That the respondent 2 wrote out his own award indicates that he had no doubt in his mind that the differences between him and respondent 3 about the case before them were irreconcilable. As has been said, disagreement can take a variety of forms. Upon the facts of this case we are of the view that there was a disagreement between respondents 2 and 3; the fact of such disagreement was conveyed to the parties when respondent 2 sent them his award and respondent 4 then became entitled to enter upon the reference as umpire19. We think that the High Court was not justified in placing reliance upon the fact that there was no plea on behalf of the appellant that there was a joint consultation between respondents 2 and 3 after the submission of the arguments by both sides and before the passing of the award by respondent 2, which, in its view, established that there was "no joint deliberation or united consideration" by respondents 2 and 3. Parties to an arbitration cannot be expected to know that such joint consultations or deliberations had taken place between the arbitratorsThe authorities do not say that the party so objecting is obliged to extend the time for the arbitrator or umpire to make the award. At any rate, the agreement to extend the time for respondent 4 to make the award should have been qualified by the respondent 1 and should have reserved to it the right to agitate its objection to the fourth respondents jurisdiction. The terms of the joint submission made by counsel for the appellant and respondent 1 to respondent 4 are unqualified and we think that, in the circumstances, respondent 1 must be held to have waived its objection to the entering upon the reference by respondent 4 as umpire

DELHI INTERNATIONAL AIRPORT LTD Vs. AIRPORT ECONOMIC REGULATORY AUTHORITY OF INDIA & ORS

and which would consequently lead to higher tariff. Thus, AERA had performed the role of merely approving the books of accounts on the basis of cost incurred. 138. Qua the CSIA, Project Cost increased from Rs. 6130 crores in July 2006 to Rs. 12,380 in 2011. It was contended by FIA that this gap was sought to be met by levying DF. Thus, DF amounted to 3.9 times of promoters equity contribution and the end users are ultimately bearing the burden. MIAL had acted contrary to Article 13.1 of OMDA, which explicitly provided that the airport operator was solely responsible for financing of the airport. Reliance was also placed on audit reports indicating that escalation in the project cost was attributable to the casual approach of MIAL towards management and monitoring of the project. 139. In the aforesaid context, arguments were also advanced on the aspect of role of AERA as a regulator in determining Project Cost. Section 14(1)(a) and (b) of the said Act provide for engaging professionals or AERAs own staff to enquire and assess the performance of service providers, which included the Airport Operators. No independent study was conducted by AERA even though the same is a statutory obligation under the said Act. Escalated Project Costs had been allowed without conducting thorough prudence checks as mandated under the aforesaid provisions. Similarly, it was urged that the TDSAT failed to appreciate that AERA had derelicted from its duty as a regulator, and private concessionaires were being rewarded at the cost of the common man. 140. On the other hand, the Airport Operators contended that Section 13(1)(a)(i) of the said Act deals with capital expenditure while Section 13(1)(a)(iii) deals with the cost of improving efficiency. The said provisions read as under: 13 Functions of Authority. — (1) The Authority shall perform the following functions in respect of major airports, namely:— (a) to determine the tariff for the aeronautical services taking into consideration— (i) the capital expenditure incurred and timely investment in improvement of airport facilities; xxxx xxxx xxxx xxxx xxxx (iii) the cost for improving efficiency; The cost for improving efficiency as used in sub-clause (iii) was submitted to be very different from efficient cost in respect of capital expenditure and, thus, elements of (iii) could be read into (i). There is no test of efficiency laid out in the said Act in terms of capital expenditure and thus AERA only had a limited role qua determining the Project Costs. 141. It was sought to be emphasized that this was a pioneering effort and the Commonwealth Games 2010 were round the corner. The initial timeline of 48 months to develop the IGIA was reduced to 37 months due to pending litigation. This in return played a critical role in cost escalation and into what has been flagged by auditors as process issues. Our Rationale: 142. On examination of rival submissions, we believe that what has to be kept in mind is that we are the third tier of scrutiny. The concerned authority and the appellate authority were also dealing with a scenario which was the introduction of public-private partnership mechanism for operation of airports for the first time. Any pioneering effort thus require multiple creases to be ironed out. There was no past experience in that sense. Everyone puts their best foot forward. It would thus not be fair to examine these aspects under the microscope. 143. Different aspects towards determination of Project Cost have been examined by AERA, and AERA has carried out its responsibility while granting a little leeway for the pioneering effort in an untested field in the country. The auditors too had not been able to quantify or identify the losses due to increased Project Cost in monetary terms. How can one expect AERA to take on such a task in light of the functions ascribed to it under the said Act. 144. There is also substance in the contention that the whole project was running against strict timelines on account of litigations relating to projects, a common phenomenon in our country. This was more so in the context of the Commonwealth Games being around the corner. Additionally, there is also some substance in what is contended by the Airport Operators that the terminology in Sections 13(1)(a)(i) and 13(1) (a)(iii) of the said Act cannot be read into each other. The manner of reading of the provision by FIA is to combine sub-para (iii) with sub-para (i) while determining tariff. 145. In our view, the provisions have been separately made because the concept of Section 13(1)(a)(i) requires AERA to determine the tariff by including capital expenditure incurred and timely investment in improvement of airport facilities. One of the other distinct factors to be considered is the cost of improving efficiency as under Section 13(1)(a) (iii). These aspects have no doubt been examined by the authority concerned, although not necessarily in the manner FIA seeks them to. Does it really lie with us to superimpose a view which has not been found feasible in the given conspectus of the large number of reports and documents before the AERA as well as the TDSAT. We thus reject the contention. 146. In the end, we do believe that the matter having traversed from the AERA to the appellate authority to this Court, the parties and the counsel may have become fully aware of the nitty-gritties of the various matters and thus sought to embark on canvassing the case almost as we are some kind of first authority on these aspects. We are unwilling to do so. We have analysed all the contentions in a broad perspective, keeping in mind that the authority has performed its task and so has the appellate authority. Despite the course of action followed by counsel, we have still analysed the matter in such depth as was required to be done by this Court in rejecting all aspects in these appeals and cross-appeals except one aspect which arose from terminology and its definition. Conclusion:

0[ds]14. One may observe at this stage that in effect this Court has been made a court of second appeal in similar matters arising out of many such tribunals. This has resulted in a number of contentious matters requiring consideration by this Court. The scenario is different from the SLP jurisdiction where no re-appreciation of evidence is really required unless extraordinary circumstances exist, while an appeal of this nature stands on a different footing and is a continuation of the original proceedings (Rajendra Diwan v. Pradeep Kumar Ranibala & Anr., (2019) 20 SCC 143 (Constitution Bench)).15. This Court in Modern Dental College and Research Centre v. State of M.P. (2016) 7 SCC 353 has eloquently summarised the onset of the modern regulatory era:87. Regulatory mechanism, or what is called regulatory economics, is the order of the day. In the last 60-70 years, economic policy of this country has travelled from laissez faire to mixed economy to the present era of liberal economy with regulatory regime. With the advent of mixed economy, there was mushrooming of public sector and some of the key industries like aviation, insurance, railways, electricity/power, telecommunication, etc. were monopolized by the State. License/permit raj prevailed during this period with strict control of the Government even in respect of those industries where private sectors were allowed to operate. However, Indian economy experienced major policy changes in early 90s on LPG Model, i.e. liberalization, privatization and globalization. With the onset of reforms to liberalize the Indian economy, in July 1991, a new chapter has dawned for India. This period of economic transition has had a tremendous impact on the overall economic development of almost all major sectors of the economy..... .... .... .... .... ....89. With the advent of globalization and liberalization, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing self-regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic wellbeing for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc.17. The liberalised era from 1990s has seen enunciation of limits of judicial intervention in such appeals from decision of regulators. A Constitution Bench of this Court in Shri Sitaram Sugar Company & Anr. v. Union of India & Ors. (1990) 3 SCC 223 made some relevant observations to emphasise that what is required to be seen by this Court is that the readings are reasonably supported by evidence as judicial review is really not concerned with matters of economic policy and the endeavour certainly cannot be to substitute its view for that of the legislature or to supplant the view of the expert body. The relevant observations are reproduced hereunder:56. The court has neither the means nor the knowledge to re- evaluate the factual basis of the impugned orders. The court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence. In the words of Justice Frankfurter of the U.S. Supreme Court in Railroad Commission of Texas v. Rowan & Nichols Oil Company [311 US 570, 575 : 85 L ed 358, 362] :Nothing in the Constitution warrants a rejection of these expert conclusions. Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen State authorities.... When we consider the limiting conditions of litigation — the adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyers — it is clear that the Due Process Clause does not require the feel of the expert to the supplanted by an independent view of judges on the conflicting testimony and prophecies and impressions of expert witnesses.This observation is of even greater significance in the absence of a Due Process Clause.57. Judicial review is not concerned with matters of economic policy. The court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The court does not supplant the feel of the expert by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J. in Gupta Sugar Works [1987 Supp SCC 476, 481] :... the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination.58. Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi Valley Barge Line Company v. United States of America [292 US 282, 286-87 : 78 L ed 1260, 1265] :The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commission by training and experience is qualified to form.... It is not the province of a court to absorb this function to itself.... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.18. We may, however, add that in the given factual scenario in the dispute before us there is something more which is required to be addressed. Before the complete legislative structure was set in place, operations were proceeded on the understanding of the agreement between the parties and the legislative intent is also apparent. This provides for due honour and consideration being given to the aforesaid intent as per the provisions of Section 13 of the said Act. The objective is that all parties who have operated in what may be called a pioneering effort in the field of civil aviation in India should not be taken by surprise affecting their commercial viability as it would discourage private participation in such economic activities which have been perceived to be essential by the Government. To that extent, we are inclined to consider that some aspects of the agreements have pre-legislative features and, thus, there is a requirement to look into them.25. The aforesaid determination, not being favourable at all to DIAL or MIAL, was assailed before the TDSAT. Insofar as the DIAL tariff order dated 22.04.2018 is concerned, submissions of both DIAL and MIAL were appreciated. MIAL submitted that revenue from aeronautical services like cargo, ground handling and FTC must always be treated as non-aeronautical revenue. It was further submitted that if the service provider is DIAL, the revenue will be a fee for services but once it outsources an aeronautical service, the fee for such outsourcing should be treated as non-aeronautical revenue because in such a case, DIAL is not rendering any service. This plea did not find favour with the TDSAT, which held that even when the airport operator engages in providing an aeronautical service through its servants or agents, the service must be deemed to be one provided by the airport operator. The colour of revenue from aeronautical service cannot get changed to that of revenue from non-aeronautical service by an act of delegation or leasing out by the concessionaire. The TDSAT also dealt with the MIAL tariff order dated 15.11.2018. One may say that there appears to be some conflict limited to the extent that while dealing with the MIAL order it was observed by the TDSAT that while they are alive to the contention made on behalf of MIAL, they had not taken a view or rendered a finding on the aspect of FTC in the DIAL order. We say this as the MIAL tariff order while observing so had recorded in para 4 that only four aspects were required to be examined. FTC was mentioned as one of the four aspects and, thus, did survive before the TDSAT despite its earlier opinion dated 12.04.2018, which had dealt with the aspect of FTC.41. We have examined this controversy carefully and find no reason to interfere with the concurrent views taken by the AERA and the appellate tribunal. The principles we have enunciated at the threshold qua the contours of judicial review towards the decision of regulatory bodies squarely come into play [Modern Dental College and Research Centre (supra); Akshay N. Patel (supra); Shri Sitaram Sugar Company & Anr (supra)].42. The mere fact that the FTC has been discontinued subsequently from 2020 would not give rise to an interpretation that it was a non- essential service and was thus also a non-aeronautical service. The AERA is right in its submissions that all that has been done is that the Airport Operators are delegating the service to provide fuel to the OMCs and are taking a concession fee and pocketing the same. The significance of supply of fuel to be provided to the aircraft on tarmac cannot be lost sight of. Obviously, the aircraft does not work without fuel. It is being provided through a common hydrant. There is no mention of FTC in Schedule 6 of OMDA and thus, there is a complete lack of connection between FTC and services mentioned therein as non-aeronautical services. Once we accept this proposition then it is easy to find connect between some of the aspects mentioned as aeronautical services with the aspect of FTC.43. We are not confronted with a situation where there is conflict between the OMDA/SSA and the said Act, requiring recourse to Section 13(1)(a)(vi). A reading of the OMDA/SSA does not give rise to any view that the FTC is a non-aeronautical service. It is clearly mentioned in Entry 17 of Schedule 5 of OMDA.44. There is also substance in the contention of AERA that the methodology of Airport Operators would amount to a manner of subterfuge to somehow pass on the FTC to the airlines with only 30 percent of it being covered in the TR. Forget the aspect of advantage to the Airport Operators, the issue is one also of a number of other stakeholders being adversely affected. The airlines are bound to pass this charge on to the passengers. It would thus have a cascading effect.. If one may say, the Australian Competition and Consumer Commission also looks into this aspect as has been noted by the AERA in the MIAL Tariff Order and, in fact, categorises it with stronger words as abuse of market power. One cannot use the ICAO documents selectively in different contexts to derive the conclusion as was sought to be done on behalf of the Airport Operators.45. We thus have no hesitation in upholding the view taken by the AERA and the TDSAT opining that the FTC was a part of the Aeronautical Service.46. The two airports were not set up de novo. Existing airports were taken over. The IGIA was a brownfield airport before it had been taken over by DIAL and, thus, assets as reflected in the books of accounts would record depreciation. This created its own difficulties in arriving at a value of the regulatory base for the first year of the first control period. Another problem faced by the AAI was that it had a common book of assets for several airports across India. Thus, SSA provided a hypothetical regulatory asset base to be derived by working backwards. The calculations to be made would have a cascading effect for successive years and, thus, base calculation for RB0 would have an impact on the calculation of RB1 and for further years.56. If we analyse the aforesaid aspect, it is an issue of plain construction of the contract as it reads. There is no reason why explicit grammatical connotation should not be applied to a contract unless it results in some absurdity. The contract was negotiated by experts and they are expected to know all the ramifications of the language they use.Thus, the three expressions have been used whereafter it is added that it pertains to aeronautical services at the airport. To our mind, it is quite clear that all the three phrases are qualified by them pertaining to aeronautical services at the airport. An alternative plea was raised (a lesser one at that) to distinguish prevailing tariff and revenue as two different terms. This was to make aeronautical services not applicable, at least, to prevailing tariffs and revenue by seeking to bifurcate these two expressions. The result sought to be achieved was that as an alternative, the aeronautical services would apply to operations and maintenance on one hand and corporate tax on the other while seeking to exclude tariff and revenue. If one may say, in order to achieve a particular result, a reverse engineering process was sought to be applied to contend that the term revenue would include both aeronautical and non-aeronautical services.58. We are unable to appreciate how the principle of interpretation of Reddendo Singula Singulis principle as discussed in Nabha Power Ltd. (NPL) (supra) case would be applicable in the present case. The principle is clear in its terms. It is when a complex sentence has more than one subject and more than one object that a construction may be required to render each to each by reading the provision distributively. Firstly, we do not find it a complex sentence. Secondly, there is no requirement to read one part with one particular aspect by excluding the other part of the sentence. The sentence reads clearly where the three concepts are qualified by aeronautical services.59. The endeavour should not be to somehow achieve an objective of increasing the financial inflow of the Airport Operators by one method or the other. It is not a contract drawn by laymen but by specialists. To somehow strain the aspect of construction to achieve a particular objective cannot be a method of constructing this clause. We do find that the argument is specious, innovative as it may be.60. We have, thus, no hesitation in agreeing with the view adopted by AERA and the TDSAT.65. We find little merit in this contention. The principle of economic efficiency incorporated in SSA only means that there should be no extra cost included which does not affect the efficiency of the system. It can hardly be said that the system could have worked in the relevant year without the AAI manpower. No doubt it was a transition phase which required both sets of manpower to work in tandem towards the efficiency levels. The relevant aspect is that as and when AAI started pulling out their manpower, DIAL supplemented the manpower. That manpower supplemented may be less or more is not relevant. In the year in question, the presence of both sets of manpower was necessary for the efficient functioning and the manpower of DIAL was in the learning process. This learning curve cannot be excluded on the ground of not being relatable to economic efficiency. It can hardly be called duplication of work even though it may in some sense add to the value of HRAB but that is a natural corollary. The parties to the contract were quite conscious of this ramification as they knew the methodology which would be adopted for the takeover of the airport. Now to contend that this should be excluded to somehow increase the profit margins of DIAL is, in our view, completely unsustainable and, thus, we reject this contention.66. A mathematical controversy has arisen with respect to the algebraic formulation arising from the methodology adopted by AERA. AERA calculated tariff by applying Consumer Price Index (for short CPI) and then determining the X factor, which would be subtracted out of CPI. This X factor has to be calculated as per the SSA. We will have to appreciate the background scenario to determine the issue. The operation of the airports is monopolistic in character. The endeavour is that this monopolistic character should not be misused and, thus, in a way revenue returns are sought to be controlled. The CPI is determined by the Government from a basket of pricing factors. From this CPI, the X factor is to be subtracted. This is how AERA seeks to apply the formula. The view of DIAL is that step one is calculation of TR and thereafter at the second stage the CPI should be subtracted. Finally, X factor in applied. On the other hand, as far as AERA is concerned they have made it a two-stage process by which target revenue is calculated first and CPI and X factor are calculated together at the second stage.67. We now come to the issue of X factor as per Schedule 1 of the SSA. The X factor is calculated by determining what equates the present value over the regulatory period of the target revenue with the present value that results from applying the forecast traffic volume with a price path based on the initial average aeronautical charge, increased by CPI minus X for each year.81. On the consideration of the plea it is obvious to us that the endeavour of DIAL was to lower the X-factor, which in turn will result in a higher tariff. The objective is, thus, how the tariff can be made higher rather than staying true to how the agreement reads. A reverse engineering process again!82. We must keep in mind that a specialised authority has gone into this aspect and also the Tribunal. The controversy revolves around a formula. This formula in turn would have been determined after due deliberations. It is an algebraic formula and has to be solved by the principles of algebra. We can only remind ourselves that the BODMAS principle would have to apply to the formula in the SSA, which is what the AERA has done. What DIAL wants to do is to re-write the formula and then apply BODMAS. This, in fact, causes complete violence to the formula itself. If the manner of calculation of DIAL was to be the basis, then the SSA would have provided that formula. Now DIAL seeks to re- write/remodel the formula based on the so-called expert opinion, which is self-serving in character.In our view, all that the sentence states is that the maximum average aeronautical charge (price cap) in a particular year i for a particular category of aeronautical revenue j is then calculated according to the formula. The fact that these have to be worked within the formula is emphasised and the earlier three aspects are factors which have to be included in the formula in the manner so provided.84. We cannot accept such a self-serving argument by DIAL to somehow enhance their revenue and that possibly is the reason that MIAL did not even consider worth its while to emphasise it before the Tribunal or come up in appeal on that aspect before us. We have, thus, no hesitation in rejecting this plea of DIAL and affirming the manner of calculation as per formula by the AERA.85. In the determination of development fee, while approving the project cost, AERA disallowed an area of 8652 sq. mtrs. of Food and Beverages area. The said area consisted of non-aeronautical assets built within IGIAs terminal area. AERA determined the same to be excessive construction and not required.86. AERA in the DIAL Tariff Order opined that the mere fact of disallowance does not impact the real asset allocation on the ground. In paras 7.8 to 7.11 of the DIAL Tariff Order, AERA observed that in its Development Fee Order, assets for which the costs were disallowed were not required to be built and were over and above the requirement in respect of the airport project. However, even though AERA had disallowed costs incurred in creation/construction of such assets from the allowable project cost, these assets had been created, were being used by the airport operator, and were also accounted for in the final asset allocation mix. AERA had neither prohibited the airport operator from utilizing such assets nor was the airport operator asked to decommission them.87. The question of whether the cost of construction of a particular area providing non-aeronautical services was to be considered as part of the total project cost in determining the development fee was not relevant to the present consideration. In para 21.4.5 of the DIAL Tariff Order, AERA observed that it had taken the decision while determining the development fee under Section 13(1)(b) of the said Act, read with Section 22A of the AAI Act. However, the present exercise pertained only to fixation of aeronautical tariff in terms of Section 13(1)(a) of the said Act, which only required determination of aeronautical RAB. It was decided that though an area of 8652 sq.mtrs. was disallowed in the Development Fee Order, the total non-aeronautical revenue would be reckoned towards the determination of aeronautical tariff without the exclusion proposed by DIAL.88. Interestingly MIAL did not think it worth its while to raise such a plea either before the AERA or the TDSAT. The TDSATs order dated 23.11.2018 relating to the appeal by DIAL had also not modified the DIAL Tariff Order in any manner. DIAL still sought to contend that the view adopted by AERA was fallacious and sought to rely on the definition of non-aeronautical assets in the OMDA.92. It would suffice for us to say that the present controversy is limited to whether the revenue from disallowed area must be considered while fixing aeronautical tariff under the said Act. The airport operators were not asked to decommission the assets in the disallowed area. The said assets had already been created and were being used by the airport operator. Hence, the revenue from the disallowed area had to be included in the tariff.93. The aspect relating to disallowance of the project cost for the disallowed area was not urged by FIA and hence, we are not commenting on the same.94. The TR is to be calculated as per formula provided in Schedule 1 of the SSA. The T (tax) element in the formula contemplates the inclusion of corporate taxes on earnings pertaining to Aeronautical Services. AERA has opined qua both Airport Operators that the calculation of corporate taxes should be done after deducting all costs, which would include the revenue share or the Annual Fee paid by them to the AAI.110. Our thought process on the aforesaid plea has given rise to a conundrum – whether we should adopt the course taken in respect of the other issues where we lay emphasis on the view adopted by AERA and the Tribunal, or whether we should follow the principle enunciated in Nabha Power to read the contract strictly in its terms (supra).111. No doubt, it is a principle of taxation that it is the actual tax which is paid and which has to be taken into account. This is what the AERA and the TDSAT have done ostensibly on the premise that there should not be any undue enrichment of the Airport Operators. However, to our mind, the more important factor is to look at what the contract says and whether some other construction would be required to be given to the contract.112. If we turn to the express language of T in Schedule 1 of the SSA the wordings are clear and unequivocal. The determination has to be made of corporate taxes on earnings pertaining to Aeronautical Services (emphasis supplied). T is part of a formula. No doubt it refers to taxation, but how it would apply to the formula has to be determined from the definition of T and not from how generally tax is understood. These are complex formulas settled by experts and various factors weigh in arriving at them.113. In the overall scenario, it is the TR which is crucial where T is only a component. No one is saying that a different methodology and not the common practice has to be followed for payment of tax. It is for the component T to be calculated in the formula for TR that T has been defined. T has to be computed based solely on regulatory accounts prepared by AERA for the TR formula. If the Annual Fee is the component which is taken out of aeronautical services, the definition of T would have to be read completely differently.114. The focus of all stakeholders has resulted in a particular formula in with various components whereby aeronautical services are controlled. Non-aeronautical services are more revenue generating aspects. In order to balance the interest of the other stakeholders with the Airport Operators, 30 per cent of the non-aeronautical revenue is subtracted from the aeronautical revenue. In this larger philosophy, it would be imprudent and contrary to the express terms of the contract to seek to re- define any component other than the manner in which it is specifically mentioned. To that limited extent, Mr. Datar was right in invoking the principle of business efficacy as that was the result intended by the parties.115. Article 3.1.1 of the SSA mandates that Annual Fee shall not be considered as a cost in relation to provision of Aeronautical Services. The question thus arises is that if it is so, then how can tax be computed any differently. In our view, the clause has to be read as a whole. It forms part of a proviso, which reads as under:3.1.1 GOIs intention is to establish an independent airport economic regulatory authority (the Economic Regulatory Authority), which will be responsible for certain aspects of regulation (including regulation of Aeronautical Charges) of certain airports in India. GOI agrees to use reasonable efforts to have the Economic Regulatory Authority established and operating within two (2) years from the Effective Date. GOI further confirms that, subject to Applicable Law, it shall make reasonable endeavours to procure that the Economic Regulatory Authority shall regulate and set/ re-set Aeronautical Charges, in accordance with the broad principles set out in Schedule 1 appended hereto. Provided however, the Upfront Fee and the Annual Fee paid / payable by the JVC to AAI under the OMDA shall not be included as part of costs for provision of Aeronautical Services and no pass-through would be available in relation to the same. (emphasis supplied).116. The first part of the proviso is clear in its terms that upfront fee and the Annual Fee paid/payable by the Airport Operators to AAI under the OMDA shall not be included as part of costs for provision of Aeronautical Services. There is no doubt a second part to it which states that no pass-through would be available in relation to the same. It is the latter part which is sought to be emphasised in the decision-making process of the AERA. This is because if the first part is implemented there will be an element of pass-through. However, if we were to accept the view of the AERA, it would be in a sense amount to nullifying the first part of the proviso. No construction should be given to a contract where the first part itself is nullified by a reading of the latter part. This clause is more general in its terms. Pass-through would not be permitted in normal circumstances as per the clause. However, insofar as the tax element is concerned, there appears to be an exception because of the manner in which the T in the formula itself has been derived. Qua the Annual Fee, the SSA does not contemplate a subtraction from the expenses. There is also no direct extraction from other stakeholders qua the annual fee and thus there is no pass-through. This would also be harmonious construction of the clauses of the contract so that one part of it does not do violence to the other.117. Thus, the aforesaid is the only aspect on which we are inclined to interfere with the impugned orders and find merit in the contention of the Airport Operators that the Annual Fee paid by them should not be deducted from expenses pertaining to aeronautical services before calculating the T element in the formula.119. The Development Fee (for short DF) concept does not form part of OMDA or SSA, neither did it form part of the Act initially. The cost of development of the airport overshot the estimated budgets. Vide its order dated 09.02.2009, the Central Government had permitted DIAL to collect DF at Rs. 200 per departing domestic passenger and Rs. 1300 per departing international passenger, inclusive of applicable taxes, in terms of Section 22A of the AAI Act. This was on an ad-hoc basis for a period of 36 months with effect from 01.03.2009. The aforesaid order mentioned two milestones upon which this approval was to be reviewed at a subsequent stage by AERA. A similar order of the Central Government was made with respect to MIAL on 27.02.2009 although with different amounts of DF.124. Mr. Buddy Ranganathan learned counsel for FIA, however, did not press this issue insofar as imposition of DF is concerned per se.125. FIA was aggrieved by the TDSATs treatment of Cargo and Ground Handling Services as non-aeronautical in nature. It was contended that the AERA in the DIAL Tariff Order had treated such revenue as aeronautical for the period from 01.04.2009 to 24.11.2009 as DIAL was performing these services by itself. For the remainder of the First Control Period, this was held to be non-aeronautical. The TDSAT vide impugned order dated 23.04.2018 had held that these revenues would be non-aeronautical in nature irrespective of whether such services were performed by DIAL itself or through its delegates. In the case of MIAL, the TDSAT vide order dated 15.11.2018 noted that the treatment of Cargo and Ground Handling Services had already been conclusively decided in its previous order dated 23.04.2018 and was not an issue that survived for determination.127. However, on the pointed query of the Court as to whether these contentions had been urged by the FIA before the TDSAT in the same manner, learned counsel for FIA candidly confessed that they were not. This particular line of argument had never been advanced before the AERA and the appellate authority and that closes this issue.128. AERA in the MIAL and DIAL Tariff Orders had allowed UDF to be charged on embarking as well as disembarking passengers. This finding was affirmed by the TDSAT in its order dated 23.04.2018. Lufthansa in the present appeal contended that such levy was not contemplated in the said Act. The AERA and the TDSAT had erroneously traced the source of this levy to Section 13(1)(b) of the said Act, which referred only to AERAs power to determine the DF. This was to be differentiated from the levy of the UDF, which was a separate fee. The plea was that the DF having been determined under the aforesaid provision, there could not be subsequent determination of another UDF.129. We may say that not a very serious argument was made in this behalf other than the aspect of two different nomenclatures. We agree with AERAs reasoning that the expression UDF is mentioned in the Aircraft Rules, 1937, and is different from Section 13(1)(b) of the said Act which contemplates DF only. Thus, the AERA had been mandated to determine the UDF. Nothing more is really required to be discussed on these aspects.131. We are unable to appreciate this contention for the reason that all stakeholders were heard. The orders of the AERA and the TDSAT are more than exhaustive on all aspects and the authorities had endeavored to perform their roles. We may say that the very aspect which we have not appreciated in favour of the Airport Operators, i.e., their attempt to somehow reduce their liability equally applies to Lufthansa which somehow wants to reduce their outflow on different aspects. AERA had recognized that their determination was in the nature of an initial pioneering flight based on the material available, and fine-tuning could always be done in the future. We do appreciate that the aviation industry is competitive in nature but that holds both for the airline and the Airport Operators. It is a delicate balancing role which has to be performed by the authorities. That role having been performed, the general grievances really do not survive.132. An aspect seriously debated before us was with respect to Project Cost, which kept on escalating from the original estimate. The Project Cost is taken as the base figure for determination of the Regulatory Asset Base. Thus, an increase in the Project Cost leads to a higher tariff determination by AERA. FIA has raised the issue of Project Cost, which is a ground for challenge in CA Nos.10902/2018 and 6658-6659/2019 i.e., appeals qua the challenge to the DIAL and MIAL Tariff Orders, as well as in CA Nos.3675/2020 and 145/2021, i.e., appeals qua the challenge on DF and fixation of Project Cost. The findings sought to be assailed by FIA are primarily as contained in the TDSAT order dated 20.03.2020 at paragraph 88 in respect of the first set of appeals and the TDSAT order dated 23.04.2018 passed in DIALs appeal.133. On analysis of the AERA order dated 08.11.2011, what emerges is that the issue of DF was dealt with on account of the increase in costs, the proposal of DIAL to levy DF was accepted to bridge the gap. The upward revision of Project Cost was accepted by AERA to be Rs.12,502.66 crores. AERA relied upon the reports of KPMG and Engineers India Limited (EIL) and expressed its inability to explore the matter further on grounds of the auditors themselves having not been able to further identify losses in monetary terms. Thus, it is this figure of Rs.12,502.66 crore, which has been used for determination of aeronautical tariff at IGIA.136. If we turn to the TDSATs order dated 20.03.2020, this aspect has been dealt with in paras 22, 23 & 24. It was held that the AERA could not have had much latitude in dealing with rising Project Costs as it had little or no scope to do so within its limited statutory role under the said Act. The TDSAT found that AERA had referred to the reports of the two experts and had consulted with all stakeholders, who had been given sufficient opportunity to make their submissions. This would meet the requirement of Section 13(4) of the said Act which requires AERA to ensure transparency in exercising its powers and discharging its functions. The only caveat put by the TDSAT was that the exclusions mandated by AERA from DIALs project cost to the tune of Rs. 354.14 crores should be allowed. The TDSATs order dated 16.07.2020 with respect to MIALs Project Cost held that no new grounds had been raised and the issue stood settled in DIALs case.The initial timeline of 48 months to develop the IGIA was reduced to 37 months due to pending litigation. This in return played a critical role in cost escalation and into what has been flagged by auditors as process issues.142. On examination of rival submissions, we believe that what has to be kept in mind is that we are the third tier of scrutiny. The concerned authority and the appellate authority were also dealing with a scenario which was the introduction of public-private partnership mechanism for operation of airports for the first time. Any pioneering effort thus require multiple creases to be ironed out. There was no past experience in that sense. Everyone puts their best foot forward. It would thus not be fair to examine these aspects under the microscope.143. Different aspects towards determination of Project Cost have been examined by AERA, and AERA has carried out its responsibility while granting a little leeway for the pioneering effort in an untested field in the country. The auditors too had not been able to quantify or identify the losses due to increased Project Cost in monetary terms. How can one expect AERA to take on such a task in light of the functions ascribed to it under the said Act.144. There is also substance in the contention that the whole project was running against strict timelines on account of litigations relating to projects, a common phenomenon in our country. This was more so in the context of the Commonwealth Games being around the corner. Additionally, there is also some substance in what is contended by the Airport Operators that the terminology in Sections 13(1)(a)(i) and 13(1) (a)(iii) of the said Act cannot be read into each other. The manner of reading of the provision by FIA is to combine sub-para (iii) with sub-para (i) while determining tariff.145. In our view, the provisions have been separately made because the concept of Section 13(1)(a)(i) requires AERA to determine the tariff by including capital expenditure incurred and timely investment in improvement of airport facilities. One of the other distinct factors to be considered is the cost of improving efficiency as under Section 13(1)(a) (iii). These aspects have no doubt been examined by the authority concerned, although not necessarily in the manner FIA seeks them to. Does it really lie with us to superimpose a view which has not been found feasible in the given conspectus of the large number of reports and documents before the AERA as well as the TDSAT. We thus reject the contention.146. In the end, we do believe that the matter having traversed from the AERA to the appellate authority to this Court, the parties and the counsel may have become fully aware of the nitty-gritties of the various matters and thus sought to embark on canvassing the case almost as we are some kind of first authority on these aspects. We are unwilling to do so. We have analysed all the contentions in a broad perspective, keeping in mind that the authority has performed its task and so has the appellate authority. Despite the course of action followed by counsel, we have still analysed the matter in such depth as was required to be done by this Court in rejecting all aspects in these appeals and cross-appeals except one aspect which arose from terminology and its definition.

### 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: and which would consequently lead to higher tariff. Thus, AERA had performed the role of merely approving the books of accounts on the basis of cost incurred. 138. Qua the CSIA, Project Cost increased from Rs. 6130 crores in July 2006 to Rs. 12,380 in 2011. It was contended by FIA that this gap was sought to be met by levying DF. Thus, DF amounted to 3.9 times of promoters equity contribution and the end users are ultimately bearing the burden. MIAL had acted contrary to Article 13.1 of OMDA, which explicitly provided that the airport operator was solely responsible for financing of the airport. Reliance was also placed on audit reports indicating that escalation in the project cost was attributable to the casual approach of MIAL towards management and monitoring of the project. 139. In the aforesaid context, arguments were also advanced on the aspect of role of AERA as a regulator in determining Project Cost. Section 14(1)(a) and (b) of the said Act provide for engaging professionals or AERAs own staff to enquire and assess the performance of service providers, which included the Airport Operators. No independent study was conducted by AERA even though the same is a statutory obligation under the said Act. Escalated Project Costs had been allowed without conducting thorough prudence checks as mandated under the aforesaid provisions. Similarly, it was urged that the TDSAT failed to appreciate that AERA had derelicted from its duty as a regulator, and private concessionaires were being rewarded at the cost of the common man. 140. On the other hand, the Airport Operators contended that Section 13(1)(a)(i) of the said Act deals with capital expenditure while Section 13(1)(a)(iii) deals with the cost of improving efficiency. The said provisions read as under: 13 Functions of Authority. — (1) The Authority shall perform the following functions in respect of major airports, namely:— (a) to determine the tariff for the aeronautical services taking into consideration— (i) the capital expenditure incurred and timely investment in improvement of airport facilities; xxxx xxxx xxxx xxxx xxxx (iii) the cost for improving efficiency; The cost for improving efficiency as used in sub-clause (iii) was submitted to be very different from efficient cost in respect of capital expenditure and, thus, elements of (iii) could be read into (i). There is no test of efficiency laid out in the said Act in terms of capital expenditure and thus AERA only had a limited role qua determining the Project Costs. 141. It was sought to be emphasized that this was a pioneering effort and the Commonwealth Games 2010 were round the corner. The initial timeline of 48 months to develop the IGIA was reduced to 37 months due to pending litigation. This in return played a critical role in cost escalation and into what has been flagged by auditors as process issues. Our Rationale: 142. On examination of rival submissions, we believe that what has to be kept in mind is that we are the third tier of scrutiny. The concerned authority and the appellate authority were also dealing with a scenario which was the introduction of public-private partnership mechanism for operation of airports for the first time. Any pioneering effort thus require multiple creases to be ironed out. There was no past experience in that sense. Everyone puts their best foot forward. It would thus not be fair to examine these aspects under the microscope. 143. Different aspects towards determination of Project Cost have been examined by AERA, and AERA has carried out its responsibility while granting a little leeway for the pioneering effort in an untested field in the country. The auditors too had not been able to quantify or identify the losses due to increased Project Cost in monetary terms. How can one expect AERA to take on such a task in light of the functions ascribed to it under the said Act. 144. There is also substance in the contention that the whole project was running against strict timelines on account of litigations relating to projects, a common phenomenon in our country. This was more so in the context of the Commonwealth Games being around the corner. Additionally, there is also some substance in what is contended by the Airport Operators that the terminology in Sections 13(1)(a)(i) and 13(1) (a)(iii) of the said Act cannot be read into each other. The manner of reading of the provision by FIA is to combine sub-para (iii) with sub-para (i) while determining tariff. 145. In our view, the provisions have been separately made because the concept of Section 13(1)(a)(i) requires AERA to determine the tariff by including capital expenditure incurred and timely investment in improvement of airport facilities. One of the other distinct factors to be considered is the cost of improving efficiency as under Section 13(1)(a) (iii). These aspects have no doubt been examined by the authority concerned, although not necessarily in the manner FIA seeks them to. Does it really lie with us to superimpose a view which has not been found feasible in the given conspectus of the large number of reports and documents before the AERA as well as the TDSAT. We thus reject the contention. 146. In the end, we do believe that the matter having traversed from the AERA to the appellate authority to this Court, the parties and the counsel may have become fully aware of the nitty-gritties of the various matters and thus sought to embark on canvassing the case almost as we are some kind of first authority on these aspects. We are unwilling to do so. We have analysed all the contentions in a broad perspective, keeping in mind that the authority has performed its task and so has the appellate authority. Despite the course of action followed by counsel, we have still analysed the matter in such depth as was required to be done by this Court in rejecting all aspects in these appeals and cross-appeals except one aspect which arose from terminology and its definition. Conclusion: ### Response: 0 ### Explanation: balancing role which has to be performed by the authorities. That role having been performed, the general grievances really do not survive.132. An aspect seriously debated before us was with respect to Project Cost, which kept on escalating from the original estimate. The Project Cost is taken as the base figure for determination of the Regulatory Asset Base. Thus, an increase in the Project Cost leads to a higher tariff determination by AERA. FIA has raised the issue of Project Cost, which is a ground for challenge in CA Nos.10902/2018 and 6658-6659/2019 i.e., appeals qua the challenge to the DIAL and MIAL Tariff Orders, as well as in CA Nos.3675/2020 and 145/2021, i.e., appeals qua the challenge on DF and fixation of Project Cost. The findings sought to be assailed by FIA are primarily as contained in the TDSAT order dated 20.03.2020 at paragraph 88 in respect of the first set of appeals and the TDSAT order dated 23.04.2018 passed in DIALs appeal.133. On analysis of the AERA order dated 08.11.2011, what emerges is that the issue of DF was dealt with on account of the increase in costs, the proposal of DIAL to levy DF was accepted to bridge the gap. The upward revision of Project Cost was accepted by AERA to be Rs.12,502.66 crores. AERA relied upon the reports of KPMG and Engineers India Limited (EIL) and expressed its inability to explore the matter further on grounds of the auditors themselves having not been able to further identify losses in monetary terms. Thus, it is this figure of Rs.12,502.66 crore, which has been used for determination of aeronautical tariff at IGIA.136. If we turn to the TDSATs order dated 20.03.2020, this aspect has been dealt with in paras 22, 23 & 24. It was held that the AERA could not have had much latitude in dealing with rising Project Costs as it had little or no scope to do so within its limited statutory role under the said Act. The TDSAT found that AERA had referred to the reports of the two experts and had consulted with all stakeholders, who had been given sufficient opportunity to make their submissions. This would meet the requirement of Section 13(4) of the said Act which requires AERA to ensure transparency in exercising its powers and discharging its functions. The only caveat put by the TDSAT was that the exclusions mandated by AERA from DIALs project cost to the tune of Rs. 354.14 crores should be allowed. The TDSATs order dated 16.07.2020 with respect to MIALs Project Cost held that no new grounds had been raised and the issue stood settled in DIALs case.The initial timeline of 48 months to develop the IGIA was reduced to 37 months due to pending litigation. This in return played a critical role in cost escalation and into what has been flagged by auditors as process issues.142. On examination of rival submissions, we believe that what has to be kept in mind is that we are the third tier of scrutiny. The concerned authority and the appellate authority were also dealing with a scenario which was the introduction of public-private partnership mechanism for operation of airports for the first time. Any pioneering effort thus require multiple creases to be ironed out. There was no past experience in that sense. Everyone puts their best foot forward. It would thus not be fair to examine these aspects under the microscope.143. Different aspects towards determination of Project Cost have been examined by AERA, and AERA has carried out its responsibility while granting a little leeway for the pioneering effort in an untested field in the country. The auditors too had not been able to quantify or identify the losses due to increased Project Cost in monetary terms. How can one expect AERA to take on such a task in light of the functions ascribed to it under the said Act.144. There is also substance in the contention that the whole project was running against strict timelines on account of litigations relating to projects, a common phenomenon in our country. This was more so in the context of the Commonwealth Games being around the corner. Additionally, there is also some substance in what is contended by the Airport Operators that the terminology in Sections 13(1)(a)(i) and 13(1) (a)(iii) of the said Act cannot be read into each other. The manner of reading of the provision by FIA is to combine sub-para (iii) with sub-para (i) while determining tariff.145. In our view, the provisions have been separately made because the concept of Section 13(1)(a)(i) requires AERA to determine the tariff by including capital expenditure incurred and timely investment in improvement of airport facilities. One of the other distinct factors to be considered is the cost of improving efficiency as under Section 13(1)(a) (iii). These aspects have no doubt been examined by the authority concerned, although not necessarily in the manner FIA seeks them to. Does it really lie with us to superimpose a view which has not been found feasible in the given conspectus of the large number of reports and documents before the AERA as well as the TDSAT. We thus reject the contention.146. In the end, we do believe that the matter having traversed from the AERA to the appellate authority to this Court, the parties and the counsel may have become fully aware of the nitty-gritties of the various matters and thus sought to embark on canvassing the case almost as we are some kind of first authority on these aspects. We are unwilling to do so. We have analysed all the contentions in a broad perspective, keeping in mind that the authority has performed its task and so has the appellate authority. Despite the course of action followed by counsel, we have still analysed the matter in such depth as was required to be done by this Court in rejecting all aspects in these appeals and cross-appeals except one aspect which arose from terminology and its definition.

Nahalchand Laloochand P.Ltd Vs. Panchali Co-Op.Hng.Sty.Ltd

areas and facilities in the advertisement as well as the `agreement with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the `common areas and facilities. If a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects--namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of `common areas but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of `common areas and, accordingly, we answer question no. (iii) in the affirmative.Re: question no. (iv) - what are the rights of a promoter vis-à-vis society in respect of stilt parking spaces? 39. We have now come to the last question namely-- what are the rights of a promoter vis-à-vis society (of flat purchasers) in respect of stilt parking space/s. It was argued that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoters contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas. But we have already held that `stilt parking space is not covered by the term `garage much less a `flat and that it is part of `common areas. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat under Section 2(a-1) nor `garage within the meaning of that provision is not sellable at all. 40. MOFA was enacted by the Maharashtra Legislature as it was found that builders/developers/promoters were indulging in malpractices in the sale and transfer of flats and the flat purchasers were being exploited. The effect of MOFA may be summarized as follows. First, every promoter who constructs or intends to construct block or building of flats in the area to which MOFA applies has to strictly adhere to the provisions contained therein, i.e., inter alia, he has to make full and true disclosure of the nature of his title to the land on which the flats are constructed and also make disclosure in respect of the extent of the carpet area of the flat and the nature, extent and description of the common areas and facilities when the flats are advertised for sale. Secondly, the particulars which are set out in Section 4(1A) (a) (i) to (x) have to be incorporated in the agreement with the flat purchaser. Thirdly, the promoter has to apply to the Registrar for registration of the organization (co-operative society or company or condominium) as soon as minimum number of persons required to form such organization have taken flats. As regards unsold flats, the promoter has to join such organization although his right to dispose of unsold flats remains unaffected. Fourthly, and more importantly, the promoter has to take all necessary steps to complete his title and convey to the organization his right, title and interest in the land and building and execute all relevant documents accordingly. It was argued by Mr. Tanmaya Mehta, learned counsel for the promoter that in view of the provisions of MOFA, Section 6 of T.P. Act and Article 300A of the Constitution, the right of the promoter to transfer parking spaces is not at all restricted. Relying upon the decisions of this Court in ICICI Bank Ltd. v. SIDCO Leathers Ltd. & Ors.. ((2006) 10 SCC 452 ), Karnataka State Financial Corporation v. N. Narasimahaiah & Ors. ((2008) 5 SCC 176 ) and Bhikhubhai Vithlabhai Patel & Ors., v. State of Gujarat & Anr. ((2008) 4 SCC 144 ), he submitted that the provisions contained in MOFA must be construed strictly and there is no provision either express or by necessary implication in MOFA restricting the sale of stilt or open parking spaces. Mr. Sunil Gupta also argued that promoter continues to have contractual, legal and fundamental right to dispose of the stilt/open parking space in the manner in which he proposes and his consumers accept. We think this argument does not bear detailed examination. Suffice it to say that if the argument of learned senior counsel and counsel for promoter is accepted, the mischief with which MOFA is obviously intended to deal with would remain unabated and flat purchasers would continue to be exploited indirectly by the promoters. In our opinion, MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not `flat within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces as these are neither `flat nor appurtenant or attachment to a `flat.

0[ds]Re: question nos. (i) and (ii):(A) What isReverting back to the definition of the term `flat under Section 2(a-1), for a `flat within the meaning of this definition clause, the set of premises has to be a separate and self-contained that forms part of the building which is used or intended to be used for residence or office, showroom or shop or godown or for carrying on industry or business. Separateness of one premises from another premises physically and also in use or intended use for one of the uses specified in the definition clause containing the necessary facilities for self-contained accommodation is sine qua non for a unit being covered by the definition of `flat occurring in Section 2(a-1) which includes an `apartment. In other words, it must be a separate unit conforming to the description capable of being used for one of these purposes--namely, residence, office, showroom, shop, godown or for industrial or business purposes. Alternative uses in Section 2(a-1) do expand the ordinary meaning of the term `flat but nevertheless such premises that form part of building must be separate and self-contained. A set of premises is called self-contained if it has the following basic amenities available: (a) sanitary; (b) washing, bathing and (c) other conveniences (cooking etc.) for the use of its occupant/s although as provided in the explanation appended to Section 2(a-1) such provision may be common to two or more sets of premises. The nature of construction and user are important features of this definition clause. A unit or accommodation to fit in the definition of `flat must meet twin-test namely: (i) self contained test and (ii) user test. The other predominant characteristic is that it must form part of a building. Crucially, for the relevant premises to be `flat:7 It must be a separate and self contained premises;7 It must form part of building;7 It must be used or intended to be used for any of the uses namely--residence, office, showroom, shop, godown or for carrying on any industry or business.What is the meaning and significance of this bracketedtechnical linguistic basis, the bracketed phrase can only attach to the word preceding it. That may not be happy construction nor such construction by reading bracketed portion `(and includes a garage) with the preceding word `business appropriately reflects the meaning of the phrase. The scope of the bracketed phrase has to be seen in the context of the definition given to the word `flat which is true indication of intent of the legislature. It was suggested by learned senior counsel and counsel for the promoters that the phrase `and includes a garage must be read with the `set of premises and not with the user. This does not appear to be a correct reading of the expression. We are not persuaded to accept such construction. We think that statutory definition of `flat must be construed keeping in view the intent of the legislature and the context of the statute and, seen thus, the phrase, `and includes a garage in the bracket does not bring in `garage by itself within the meaning of word `flat. If stand alone `garage (or a garage by itself) were intended by the legislature to be a `flat within the meaning of Section 2(a-1), that could have been conveniently conveyed by use of the expression `or garage after the word `business in the same breath as preceding uses. The bracketed phrase is rather indicative of the legislative intention to include a `garage as appurtenant or attachment to a flat which satisfies the ingredients of Section 2(a-1). To this extent Mr. Pravin K. Samdani is right in his submission. It is clear to us that stand alone `garage or in other words `garage as an independent unit by itself is not a `flat within the meaning of Section 2(a-1) and we answer question (i) in the negative. The judgment of Bombay High Court in Dr. K.R. Agarwal Vs. Balkrishna (AIR 1972 Bombay 343) to the extent the expression `or garage has been read after the word `godown in para 5 (clause 2) of the report does not state the correct legal position in what we have already said above.(B)Whether stilt parkingspace is aWe do not perceive any force in the argument that open parking space tantamounts to a `garage within the meaning of Section 2(a-1) read with condition No. 2 Form V of 1964 Rules. Can a person buying a flat for residence or one of the uses mentioned in Section 2(a-1) really think that open to the sky or open space for parking motor vehicles is a garage? We do not think so. The word `garage may not have uniform connotation but definitely every space for parking motor vehicles is not a garage. A roofless erection could not be described a garage. What is contemplated by a `garage in Section 2(a-1) is a place having a roof and walls on three sides. It does not include an unenclosed or uncovered parking space. It is true that in condition No. 2, Form V the words `covered/open garage have been used but, in our view, the word `open used in the Model Form V cannot override the true meaning of term `garage in Section 2(a-1). As a matter of fact, none of the provisions of MOFA regards `open garage connoting `flat or an appurtenant/attachment to a flat. We do not think undue importance should be given to word `open which has loosely been used in condition No. 2, Form V. The true meaning of the term `garage in Section 2(a-1), we think, is not affected by a Model Form V appended to the 1964 Rules.36. The question then is as to whether the stilted portion or stilt area of a building is a garage under MOFA. A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building. It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage. It was argued that the test accepted by Atkinson, J. in Barnett & Block1-that a garage is a place where one can get reasonable protection and shelter for a car--is satisfied by stilt car parking space and suchspace is agarage. We are unable to agree. The test accepted by Atkinson, J. in Barnett and Block1 also does not support this argument. Even as per that test a place having roof but offering no shelter or protection on two sides cannot be a garage. It is worth repeating what Atkinson,J. said, `....I am inclined to think that the ordinary man in the street does regard a garage as connoting some sort of building; how far he would go I do not know. I do not know whether he would think that there should be a wall all round it, or whether it would be sufficient if there were three sides walled in and a roof. I have one in mind where there is row of sheds without any protection in front, which are commonly spoken of as "garages". Atkinson,J. applied the test of `reasonable protection and shelter for car as was suggested by the counsel for the insurer while construing the term `garage in a policy of insurance. For the purposes of MOFA, and particularly Section 2(a-1), the term `garage must be considered as would be understood by a flat purchaser and such person would contemplate garage which has a roof and wall on three sides. Our answer to question No. (ii) is, therefore, no.Re: question no. (iii) -Whether stilt parkingspaces are part of `common areas andaforesaid list as suggested by the learned senior counsel, in our opinion, is notis true that interpretation clause or legislative definition in a particular statute is meant for the purposes of that statute only and such legislative definition should not control other statutes but the parts of the property stated in clauses (2), (3) and (6) of Section 3(f) as part of `common areas and facilities for the purposes of MAOA are what is generally understood by the expression `common areas and facilities. This is fortified by the fact that the areas which according to the learned senior counsel could be termed as `common areas in a building regulated by MOFA are substantially included in aforenoticed clauses of Section 3(f) of MAOA. Looking to the scheme and object of MOFA, and there being no indication to the contrary, we find no justifiable reason to exclude parking areas (open to the sky or stilted portion) from the purview of `common areas and facilities underare quite unable to accept this submission. Can a promoter take common passage/lobbies or say stair case or RG area out of purview of `common areas and facilities by not prescribing or defining the same in the `common areas? If the answer to this question is in negative, which it has to be, this argument mustdo not think such consideration is relevant for the consideration of term `common areas and facilities in MOFA. It is not necessary that all flat purchasers must actually use `common areas and facilities in its entirety. The relevant test is whether such part of the building is normally in commonsubmission is founded on assumption that parking space (open/covered) is a `garage and sellable along with the flat. We have, however, held in our discussion above that open to the sky parking area or stilted portion usable as parking space is not `garage within the meaning of Section 2(a-1) and, therefore, not sellable independently as a flat or along with a flat. As a matter of fact, insofar as the promoter is concerned, he is not put to any prejudice financially by treating open parking space/stilt parking space as part of `common areas since he is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat. MOFA mandates the promoter to describe `common areas and facilities in the advertisement as well as the `agreement with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the `common areas and facilities. If a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects--namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of `common areas but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of `common areas and, accordingly, we answer question no. (iii) in the affirmative.Re: question no. (iv) - what are the rights of a promoter vis-à-vis society in respect of stilt parkingargument is founded on the premise, firstly, that stilt parkingspace is a`flat by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas. But we have already held that `stilt parking space is not covered by the term `garage much less a `flat and that it is part of `common areas. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat under Section 2(a-1) nor `garage within the meaning of that provision is not sellable atour opinion, MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not `flat within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces as these are neither `flat nor appurtenant or attachment to a `flat.41. In view of the above, it is not at all necessary to deal with the factual submissions advanced by Mr. Tanmaya Mehta. Having regard to the answer to question no. (iv), the finding of the High Court that undertakings are neither binding on the flat purchasers nor the society also warrants no interference.

### 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: areas and facilities in the advertisement as well as the `agreement with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the `common areas and facilities. If a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects--namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of `common areas but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of `common areas and, accordingly, we answer question no. (iii) in the affirmative.Re: question no. (iv) - what are the rights of a promoter vis-à-vis society in respect of stilt parking spaces? 39. We have now come to the last question namely-- what are the rights of a promoter vis-à-vis society (of flat purchasers) in respect of stilt parking space/s. It was argued that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoters contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas. But we have already held that `stilt parking space is not covered by the term `garage much less a `flat and that it is part of `common areas. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat under Section 2(a-1) nor `garage within the meaning of that provision is not sellable at all. 40. MOFA was enacted by the Maharashtra Legislature as it was found that builders/developers/promoters were indulging in malpractices in the sale and transfer of flats and the flat purchasers were being exploited. The effect of MOFA may be summarized as follows. First, every promoter who constructs or intends to construct block or building of flats in the area to which MOFA applies has to strictly adhere to the provisions contained therein, i.e., inter alia, he has to make full and true disclosure of the nature of his title to the land on which the flats are constructed and also make disclosure in respect of the extent of the carpet area of the flat and the nature, extent and description of the common areas and facilities when the flats are advertised for sale. Secondly, the particulars which are set out in Section 4(1A) (a) (i) to (x) have to be incorporated in the agreement with the flat purchaser. Thirdly, the promoter has to apply to the Registrar for registration of the organization (co-operative society or company or condominium) as soon as minimum number of persons required to form such organization have taken flats. As regards unsold flats, the promoter has to join such organization although his right to dispose of unsold flats remains unaffected. Fourthly, and more importantly, the promoter has to take all necessary steps to complete his title and convey to the organization his right, title and interest in the land and building and execute all relevant documents accordingly. It was argued by Mr. Tanmaya Mehta, learned counsel for the promoter that in view of the provisions of MOFA, Section 6 of T.P. Act and Article 300A of the Constitution, the right of the promoter to transfer parking spaces is not at all restricted. Relying upon the decisions of this Court in ICICI Bank Ltd. v. SIDCO Leathers Ltd. & Ors.. ((2006) 10 SCC 452 ), Karnataka State Financial Corporation v. N. Narasimahaiah & Ors. ((2008) 5 SCC 176 ) and Bhikhubhai Vithlabhai Patel & Ors., v. State of Gujarat & Anr. ((2008) 4 SCC 144 ), he submitted that the provisions contained in MOFA must be construed strictly and there is no provision either express or by necessary implication in MOFA restricting the sale of stilt or open parking spaces. Mr. Sunil Gupta also argued that promoter continues to have contractual, legal and fundamental right to dispose of the stilt/open parking space in the manner in which he proposes and his consumers accept. We think this argument does not bear detailed examination. Suffice it to say that if the argument of learned senior counsel and counsel for promoter is accepted, the mischief with which MOFA is obviously intended to deal with would remain unabated and flat purchasers would continue to be exploited indirectly by the promoters. In our opinion, MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not `flat within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces as these are neither `flat nor appurtenant or attachment to a `flat. ### Response: 0 ### Explanation: front, which are commonly spoken of as "garages". Atkinson,J. applied the test of `reasonable protection and shelter for car as was suggested by the counsel for the insurer while construing the term `garage in a policy of insurance. For the purposes of MOFA, and particularly Section 2(a-1), the term `garage must be considered as would be understood by a flat purchaser and such person would contemplate garage which has a roof and wall on three sides. Our answer to question No. (ii) is, therefore, no.Re: question no. (iii) -Whether stilt parkingspaces are part of `common areas andaforesaid list as suggested by the learned senior counsel, in our opinion, is notis true that interpretation clause or legislative definition in a particular statute is meant for the purposes of that statute only and such legislative definition should not control other statutes but the parts of the property stated in clauses (2), (3) and (6) of Section 3(f) as part of `common areas and facilities for the purposes of MAOA are what is generally understood by the expression `common areas and facilities. This is fortified by the fact that the areas which according to the learned senior counsel could be termed as `common areas in a building regulated by MOFA are substantially included in aforenoticed clauses of Section 3(f) of MAOA. Looking to the scheme and object of MOFA, and there being no indication to the contrary, we find no justifiable reason to exclude parking areas (open to the sky or stilted portion) from the purview of `common areas and facilities underare quite unable to accept this submission. Can a promoter take common passage/lobbies or say stair case or RG area out of purview of `common areas and facilities by not prescribing or defining the same in the `common areas? If the answer to this question is in negative, which it has to be, this argument mustdo not think such consideration is relevant for the consideration of term `common areas and facilities in MOFA. It is not necessary that all flat purchasers must actually use `common areas and facilities in its entirety. The relevant test is whether such part of the building is normally in commonsubmission is founded on assumption that parking space (open/covered) is a `garage and sellable along with the flat. We have, however, held in our discussion above that open to the sky parking area or stilted portion usable as parking space is not `garage within the meaning of Section 2(a-1) and, therefore, not sellable independently as a flat or along with a flat. As a matter of fact, insofar as the promoter is concerned, he is not put to any prejudice financially by treating open parking space/stilt parking space as part of `common areas since he is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat. MOFA mandates the promoter to describe `common areas and facilities in the advertisement as well as the `agreement with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the `common areas and facilities. If a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects--namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of `common areas but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of `common areas and, accordingly, we answer question no. (iii) in the affirmative.Re: question no. (iv) - what are the rights of a promoter vis-à-vis society in respect of stilt parkingargument is founded on the premise, firstly, that stilt parkingspace is a`flat by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas. But we have already held that `stilt parking space is not covered by the term `garage much less a `flat and that it is part of `common areas. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat under Section 2(a-1) nor `garage within the meaning of that provision is not sellable atour opinion, MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not `flat within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces as these are neither `flat nor appurtenant or attachment to a `flat.41. In view of the above, it is not at all necessary to deal with the factual submissions advanced by Mr. Tanmaya Mehta. Having regard to the answer to question no. (iv), the finding of the High Court that undertakings are neither binding on the flat purchasers nor the society also warrants no interference.

C. V. K. Rao Vs. Dentu Bhaskara Rao

the quantities, at the times in the manner and at the place specified in the notice exercising the said right.(b) Should the right to pri-emption conferred by this present provision be exercised and a vessel chartered to carry the minerals or products thereof procured on behalf of the State Government or the Central Government be detained on demurrage at the port of loading the lessee shall pay the amount due for demurrage according to the terms of the charter party of such vessel unless the State Government shall be satisfied that the delay is due to causes beyond the control of the lessee.(c) The price to be paid for all minerals or products of minerals taken in pre-emption by the State Government in exercise of the right hereby conferred shall be the fair market price prevailing at the time of pre-emption provided that in order to assist in arriving at the said fair market price the lessee shall, if so required, furnish to the State Government for the confidential information of the Government particulars of quantities, descriptions and prices of the said minerals or products for carriage of the same and shall produce to such officer or officers as may be directed by the State Government original or authenticated copies of contracts and charter parties entered into for the sale of freightage of such minerals or products.(d) x x x x"4. Mr. K. R. Chaudhury contended that under this clause there was a standing contract for the supply of goods and all that Government had to do was to send a notice to the respondent and he was compelled to supply the goods to Government. He pointed out that from the time the lease was granted Government was asking the respondent to commence operations to raise the minerals but the respondent avoided working the mine probably to save himself from the disqualification. According to Mr. Chaudhury, it mattered not whether the mine was worked or not, but what mattered was that there was a subsisting contract for the supply of minerals to the appropriate Government. Mr. A. Vishwanatha Sastri in reply,, contended that the mining lease could not be regarded as a contract and further that it was not in the course of the trade or business of the respondent, and finally that, in any event, it was not a contract for the supply of goods. That it was in the course of business of the respondent almost goes without saying. It is not necessary, as Mr. Sastri suggested, that a course of business based upon other transactions must first exist before the offending contract can be said to be in the course of business. The contract may itself be the start of the business and the words in the course of the business would still be apt. As the mining lease was subsisting, the contract, if any there be, was also subsisting, and there is no doubt on that aspect of the matter. The question is whether the provisions of Cl. 21 bring about a contract for the supply of goods. This question can be broken into two which are: (a) whether Cl. 21 can he regarded as a contract and (b) whether it can be regarded as a contract for supply of goods. Clause 21 is invariably inserted in every mining lease. It reserves to the Government the right to the minerals which vest in Government but which are allowed to be raised by the lessee holding the lease. The lease is, in one sense, a contract between the Government and the lessee because there is consideration on both sides and an offer and acceptance. There are obligations created by it, some of which are contractual even though some may be regarded as arising from the conditions of the grant. The mining lease without Cl. 21 cannot possibly be described as a contract for the supply of goods. Without that clause there would neither be a mention of goods nor of their supply. If the lease is to be read as satisfying the disqualification in S. 7(d), Cl. 21 alone can satisfy it. Clause 21 speaks of a right of the Government to pre-empt the minerals and all products thereof lying in or around the land demised or elsewhere under the control of the lessee. There is, however, no concluded contract in respect of any goods because it hardly needs to be said that relying upon this clause the lessee cannot begin delivery of the ore to the Government. He can do so only if the Government serves a notice on him stating the quantity pre-empted and the time within which the supply is to be made. The clause, however, does not make it obligatory on Government to pre-empt any quantity of mineral or at all. There is no obligation to buy nor is there any compulsion on the part of the lessee to sell unless asked. In there circumstances, the clause does no more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others. Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word subsists is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.5. Taking the most liberal view of the matter it is clear that Cl. 21 did not bring into being a contract for the supply of goods. All that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent. The reservation of such right does not amount to a contract for the supply of goods which can be said to subsist between the parties. The High Court was, therefore, right in reversing the decision of the Election Tribunal.

0[ds]This question can be broken into two which are: (a) whether Cl. 21 can he regarded as a contract and (b) whether it can be regarded as a contract for supply of goods. Clause 21 is invariably inserted in every mining lease. It reserves to the Government the right to the minerals which vest in Government but which are allowed to be raised by the lessee holding the lease. The lease is, in one sense, a contract between the Government and the lessee because there is consideration on both sides and an offer and acceptance. There are obligations created by it, some of which are contractual even though some may be regarded as arising from the conditions of the grant. The mining lease without Cl. 21 cannot possibly be described as a contract for the supply of goods. Without that clause there would neither be a mention of goods nor of their supply. If the lease is to be read as satisfying the disqualification in S. 7(d), Cl. 21 alone can satisfy it. Clause 21 speaks of a right of the Government to pre-empt the minerals and all products thereof lying in or around the land demised or elsewhere under the control of the lessee. There is, however, no concluded contract in respect of any goods because it hardly needs to be said that relying upon this clause the lessee cannot begin delivery of the ore to the Government. He can do so only if the Government serves a notice on him stating the quantity pre-empted and the time within which the supply is to be made. The clause, however, does not make it obligatory on Government to pre-empt any quantity of mineral or at all. There is no obligation to buy nor is there any compulsion on the part of the lessee to sell unless asked. In there circumstances, the clause does no more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others. Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word subsists is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.5. Taking the most liberal view of the matter it is clear that Cl. 21 did not bring into being a contract for the supply of goods. All that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent. The reservation of such right does not amount to a contract for the supply of goods which can be said to subsist between the parties. The High Court was, therefore, right in reversing the decision of the Election Tribunal.

### 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 quantities, at the times in the manner and at the place specified in the notice exercising the said right.(b) Should the right to pri-emption conferred by this present provision be exercised and a vessel chartered to carry the minerals or products thereof procured on behalf of the State Government or the Central Government be detained on demurrage at the port of loading the lessee shall pay the amount due for demurrage according to the terms of the charter party of such vessel unless the State Government shall be satisfied that the delay is due to causes beyond the control of the lessee.(c) The price to be paid for all minerals or products of minerals taken in pre-emption by the State Government in exercise of the right hereby conferred shall be the fair market price prevailing at the time of pre-emption provided that in order to assist in arriving at the said fair market price the lessee shall, if so required, furnish to the State Government for the confidential information of the Government particulars of quantities, descriptions and prices of the said minerals or products for carriage of the same and shall produce to such officer or officers as may be directed by the State Government original or authenticated copies of contracts and charter parties entered into for the sale of freightage of such minerals or products.(d) x x x x"4. Mr. K. R. Chaudhury contended that under this clause there was a standing contract for the supply of goods and all that Government had to do was to send a notice to the respondent and he was compelled to supply the goods to Government. He pointed out that from the time the lease was granted Government was asking the respondent to commence operations to raise the minerals but the respondent avoided working the mine probably to save himself from the disqualification. According to Mr. Chaudhury, it mattered not whether the mine was worked or not, but what mattered was that there was a subsisting contract for the supply of minerals to the appropriate Government. Mr. A. Vishwanatha Sastri in reply,, contended that the mining lease could not be regarded as a contract and further that it was not in the course of the trade or business of the respondent, and finally that, in any event, it was not a contract for the supply of goods. That it was in the course of business of the respondent almost goes without saying. It is not necessary, as Mr. Sastri suggested, that a course of business based upon other transactions must first exist before the offending contract can be said to be in the course of business. The contract may itself be the start of the business and the words in the course of the business would still be apt. As the mining lease was subsisting, the contract, if any there be, was also subsisting, and there is no doubt on that aspect of the matter. The question is whether the provisions of Cl. 21 bring about a contract for the supply of goods. This question can be broken into two which are: (a) whether Cl. 21 can he regarded as a contract and (b) whether it can be regarded as a contract for supply of goods. Clause 21 is invariably inserted in every mining lease. It reserves to the Government the right to the minerals which vest in Government but which are allowed to be raised by the lessee holding the lease. The lease is, in one sense, a contract between the Government and the lessee because there is consideration on both sides and an offer and acceptance. There are obligations created by it, some of which are contractual even though some may be regarded as arising from the conditions of the grant. The mining lease without Cl. 21 cannot possibly be described as a contract for the supply of goods. Without that clause there would neither be a mention of goods nor of their supply. If the lease is to be read as satisfying the disqualification in S. 7(d), Cl. 21 alone can satisfy it. Clause 21 speaks of a right of the Government to pre-empt the minerals and all products thereof lying in or around the land demised or elsewhere under the control of the lessee. There is, however, no concluded contract in respect of any goods because it hardly needs to be said that relying upon this clause the lessee cannot begin delivery of the ore to the Government. He can do so only if the Government serves a notice on him stating the quantity pre-empted and the time within which the supply is to be made. The clause, however, does not make it obligatory on Government to pre-empt any quantity of mineral or at all. There is no obligation to buy nor is there any compulsion on the part of the lessee to sell unless asked. In there circumstances, the clause does no more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others. Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word subsists is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.5. Taking the most liberal view of the matter it is clear that Cl. 21 did not bring into being a contract for the supply of goods. All that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent. The reservation of such right does not amount to a contract for the supply of goods which can be said to subsist between the parties. The High Court was, therefore, right in reversing the decision of the Election Tribunal. ### Response: 0 ### Explanation: This question can be broken into two which are: (a) whether Cl. 21 can he regarded as a contract and (b) whether it can be regarded as a contract for supply of goods. Clause 21 is invariably inserted in every mining lease. It reserves to the Government the right to the minerals which vest in Government but which are allowed to be raised by the lessee holding the lease. The lease is, in one sense, a contract between the Government and the lessee because there is consideration on both sides and an offer and acceptance. There are obligations created by it, some of which are contractual even though some may be regarded as arising from the conditions of the grant. The mining lease without Cl. 21 cannot possibly be described as a contract for the supply of goods. Without that clause there would neither be a mention of goods nor of their supply. If the lease is to be read as satisfying the disqualification in S. 7(d), Cl. 21 alone can satisfy it. Clause 21 speaks of a right of the Government to pre-empt the minerals and all products thereof lying in or around the land demised or elsewhere under the control of the lessee. There is, however, no concluded contract in respect of any goods because it hardly needs to be said that relying upon this clause the lessee cannot begin delivery of the ore to the Government. He can do so only if the Government serves a notice on him stating the quantity pre-empted and the time within which the supply is to be made. The clause, however, does not make it obligatory on Government to pre-empt any quantity of mineral or at all. There is no obligation to buy nor is there any compulsion on the part of the lessee to sell unless asked. In there circumstances, the clause does no more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others. Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word subsists is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.5. Taking the most liberal view of the matter it is clear that Cl. 21 did not bring into being a contract for the supply of goods. All that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent. The reservation of such right does not amount to a contract for the supply of goods which can be said to subsist between the parties. The High Court was, therefore, right in reversing the decision of the Election Tribunal.

Ramchandra Vs. Regional Manager United India Insurance Company Ltd

claimant is not entitled to any compensation beyond the extent of liability under the Workmens Compensation Act and the respondent/insurance company had not taken the alternative plea either before the tribunal or the High Court that in case the claimant is held entitled to compensation beyond the extent of liability under the Workmens Compensation Act, the same was not payable as no extra premium was paid by the insured/owner under the policy of insurance. The insurance company had failed to raise any plea before the courts below i.e. either the Motor Accident Claims Tribunal or the High Court and it did not even contend that in case the claimant is entitled to any compensation beyond what was payable under the Workmens Compensation Act, it is the insured owner who was liable to pay as it had no contractual liability since the insured/owner of the vehicle had not paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accident Claims Tribunal since the insurance company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the insurance company straight away at the appellate stage. 24. Consequently, the High Courts view impliedly holding that the claimant/appellant was not entitled to any compensation under the Motor Vehicles Act beyond the entitlement under the Workmens Compensation Act so as to leave it open to the Respondent/Insurance Company to realise it from the owner of the vehicle at the belated stage of appeal before the High Court when the respondent/insurance company had failed even to urge the alternative plea regarding non-payment of extra premium by the owner of the vehicle and had even reconciled to the fact that the owner of the vehicle had failed to appear in spite of service of notice, is not fit to be sustained. 25. At this stage, we deem it appropriate to take note of an important step which the insurance company generally fail to take and that is related to non appearance of the owner of the vehicle in spite of service of notice. The insurance companies although contend before the Motor Accident Claims Tribunal and even at the appeal stage that it is the owner of the vehicle which is liable to bear a part or the entire liability of making the payment of compensation to the claimant in view of the nature of policy, or even due to invalid licence by the driver of the owner of the vehicle, the insurance company fails to lead any evidence to establish as to how the owner and not the insurance company is liable to pay the compensation and even submits to non appearance of the owner of the vehicle whose appearance is vital in view of inter se contest between the owner of the vehicle and the insurance company. In absence of the owner of the vehicle, when the Motor Accident Claims Tribunal or the High Court leaves it open to the insurance company subsequently to realise the amount from the owner of the vehicle by instituting a fresh proceeding in view of the ratio of the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Sussama Thomas, (1994) 2 SCC 176 , it gives rise to a fresh proceeding between the owner and the insurance company putting unnecessary burden on the Motor Accident Claims Tribunal to try the issue all over again. In fact, if the insurance company were to succeed in establishing by leading cogent evidence at the initial stage itself before the Tribunal that it is the owner of the vehicle which is liable to pay even if the evidence is ex parte in nature, it would at least facilitate the issue in the subsequent proceeding when the insurer initiates proceeding for realising the amount from the owner/insured. But in absence of such evidence, the insurer/companies are a loser and enures advantage to the owner who happens to gain by choosing not to appear. The Insurance Companies would fair better if they were to address this issue before the Tribunal itself instead of becoming wiser at the stage of appeal. What is wished to be emphasized is that if the owner chooses not to appear before the Tribunal although his appearance is necessary in a given case, the insurance company would do well instead of acquiescing with their absence to their detriment giving an upper edge to the owner at their own peril. 26. In the instant matter, we have noted that the High Court although had granted liberty to the insurance company to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent/insurance company to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent/insurance company shall pay the balance amount also beyond Rs.32,091/- along with interest to the Claimant expeditiously but not later than a period of six weeks from the date of receipt of this order. 27. We are , thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Workmens Compensation Act and not under the Motor Vehicles Act stands set aside and the liberty granted to the Respondent/Insurance Company to realise the amount from the owner without a corresponding direction to the Respondent/Insurance company to pay the amount to the Claimant/Appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated hereinbefore.

1[ds]A perusal of the aforesaid judgment and order of this Court thus indicate that this Court has clearly held that the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that under the Workmens Compensation Act but should be more or unlimited. However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also contains a clause to that effect18. Thus in so far as the view of the High Court is concerned to the extent that the compensation would be restricted to be paid only to the extent which is payable under the Workmens Compensation Act by making a sweeping generalisation, the same is clearly contrary to the view taken by this Court even in the judgment and order on which reliance has been placed by the counsel for the respondent-insurance company as it is sufficiently clear and unambiguously laid down which is recorded hereinbefore that the compensation payable to the employee cannot be restricted merely under the Workmens Compensation Act and it can be expanded provided the contractual document which is the policy of insurance incorporates such clause regarding the premium to be paid taking into account the nature of the policy19. In the light of the aforesaid legal position, it is clear that the High Court was not correct in holding that the claimant/appellant was not entitled to any compensation over and above the liability under the Workmens Compensation Act and hence the direction issued by the High Court that the appellant/insurance company, respondent herein, will be liable to pay only Rs. 32091/- and the balance will have to be shouldered by the insured/owner of the vehicle is fit to be struck down as invalid as the High Court had failed to examine the nature and clauses of the policy which was not produced even before the TribunalIn the instant matter, we have noted that the High Court although had granted liberty to the insurance company to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent/insurance company to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent/insurance company shall pay the balance amount also beyond Rs.32,091/- along with interest to the Claimant expeditiously but not later than a period of six weeks from the date of receipt of this order27. We are , thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Workmens Compensation Act and not under the Motor Vehicles Act stands set aside and the liberty granted to the Respondent/Insurance Company to realise the amount from the owner without a corresponding direction to the Respondent/Insurance company to pay the amount to the Claimant/Appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated hereinbefore.

### 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: claimant is not entitled to any compensation beyond the extent of liability under the Workmens Compensation Act and the respondent/insurance company had not taken the alternative plea either before the tribunal or the High Court that in case the claimant is held entitled to compensation beyond the extent of liability under the Workmens Compensation Act, the same was not payable as no extra premium was paid by the insured/owner under the policy of insurance. The insurance company had failed to raise any plea before the courts below i.e. either the Motor Accident Claims Tribunal or the High Court and it did not even contend that in case the claimant is entitled to any compensation beyond what was payable under the Workmens Compensation Act, it is the insured owner who was liable to pay as it had no contractual liability since the insured/owner of the vehicle had not paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accident Claims Tribunal since the insurance company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the insurance company straight away at the appellate stage. 24. Consequently, the High Courts view impliedly holding that the claimant/appellant was not entitled to any compensation under the Motor Vehicles Act beyond the entitlement under the Workmens Compensation Act so as to leave it open to the Respondent/Insurance Company to realise it from the owner of the vehicle at the belated stage of appeal before the High Court when the respondent/insurance company had failed even to urge the alternative plea regarding non-payment of extra premium by the owner of the vehicle and had even reconciled to the fact that the owner of the vehicle had failed to appear in spite of service of notice, is not fit to be sustained. 25. At this stage, we deem it appropriate to take note of an important step which the insurance company generally fail to take and that is related to non appearance of the owner of the vehicle in spite of service of notice. The insurance companies although contend before the Motor Accident Claims Tribunal and even at the appeal stage that it is the owner of the vehicle which is liable to bear a part or the entire liability of making the payment of compensation to the claimant in view of the nature of policy, or even due to invalid licence by the driver of the owner of the vehicle, the insurance company fails to lead any evidence to establish as to how the owner and not the insurance company is liable to pay the compensation and even submits to non appearance of the owner of the vehicle whose appearance is vital in view of inter se contest between the owner of the vehicle and the insurance company. In absence of the owner of the vehicle, when the Motor Accident Claims Tribunal or the High Court leaves it open to the insurance company subsequently to realise the amount from the owner of the vehicle by instituting a fresh proceeding in view of the ratio of the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Sussama Thomas, (1994) 2 SCC 176 , it gives rise to a fresh proceeding between the owner and the insurance company putting unnecessary burden on the Motor Accident Claims Tribunal to try the issue all over again. In fact, if the insurance company were to succeed in establishing by leading cogent evidence at the initial stage itself before the Tribunal that it is the owner of the vehicle which is liable to pay even if the evidence is ex parte in nature, it would at least facilitate the issue in the subsequent proceeding when the insurer initiates proceeding for realising the amount from the owner/insured. But in absence of such evidence, the insurer/companies are a loser and enures advantage to the owner who happens to gain by choosing not to appear. The Insurance Companies would fair better if they were to address this issue before the Tribunal itself instead of becoming wiser at the stage of appeal. What is wished to be emphasized is that if the owner chooses not to appear before the Tribunal although his appearance is necessary in a given case, the insurance company would do well instead of acquiescing with their absence to their detriment giving an upper edge to the owner at their own peril. 26. In the instant matter, we have noted that the High Court although had granted liberty to the insurance company to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent/insurance company to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent/insurance company shall pay the balance amount also beyond Rs.32,091/- along with interest to the Claimant expeditiously but not later than a period of six weeks from the date of receipt of this order. 27. We are , thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Workmens Compensation Act and not under the Motor Vehicles Act stands set aside and the liberty granted to the Respondent/Insurance Company to realise the amount from the owner without a corresponding direction to the Respondent/Insurance company to pay the amount to the Claimant/Appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated hereinbefore. ### Response: 1 ### Explanation: A perusal of the aforesaid judgment and order of this Court thus indicate that this Court has clearly held that the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that under the Workmens Compensation Act but should be more or unlimited. However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also contains a clause to that effect18. Thus in so far as the view of the High Court is concerned to the extent that the compensation would be restricted to be paid only to the extent which is payable under the Workmens Compensation Act by making a sweeping generalisation, the same is clearly contrary to the view taken by this Court even in the judgment and order on which reliance has been placed by the counsel for the respondent-insurance company as it is sufficiently clear and unambiguously laid down which is recorded hereinbefore that the compensation payable to the employee cannot be restricted merely under the Workmens Compensation Act and it can be expanded provided the contractual document which is the policy of insurance incorporates such clause regarding the premium to be paid taking into account the nature of the policy19. In the light of the aforesaid legal position, it is clear that the High Court was not correct in holding that the claimant/appellant was not entitled to any compensation over and above the liability under the Workmens Compensation Act and hence the direction issued by the High Court that the appellant/insurance company, respondent herein, will be liable to pay only Rs. 32091/- and the balance will have to be shouldered by the insured/owner of the vehicle is fit to be struck down as invalid as the High Court had failed to examine the nature and clauses of the policy which was not produced even before the TribunalIn the instant matter, we have noted that the High Court although had granted liberty to the insurance company to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent/insurance company to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent/insurance company shall pay the balance amount also beyond Rs.32,091/- along with interest to the Claimant expeditiously but not later than a period of six weeks from the date of receipt of this order27. We are , thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Workmens Compensation Act and not under the Motor Vehicles Act stands set aside and the liberty granted to the Respondent/Insurance Company to realise the amount from the owner without a corresponding direction to the Respondent/Insurance company to pay the amount to the Claimant/Appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated hereinbefore.

Ganga Bai Vs. State Of Rajasthan

rightly discarded the same holding that the Police had already identified the place where the dead bodies were dumped. The other circumstantial evidence against the appellant is on the recovery of weapon of offence. It has come in evidence that the recovery was effected only on the basis of the disclosure made by the appellant as per Exhibit-P67. It has come in evidence that Exhibit-P53-dharia contained human blood. The third piece of circumstantial evidence found against the appellant is the recovery of blood-stained clothes belonging to her as per Exhibit-P66-disclosure. The appellant could not give any explanation of the presence of human blood on her clothes recovered as per Exhibit-P52. Though the anklet, said to be belonging to the deceased-Sunanda, was also recovered pursuant to her disclosure, the High Court has discarded the same on the ground that there was no proper identification. 11. Having gone through the records, we find it difficult to be persuaded to take a different view on the evidence against the appellant which according to both the trial court and the High Court formed an unbroken chain which led only to one hypothesis, viz., the involvement of the appellant in the offences under Section 302 and Section 201 IPC. It has to be specially noted that even under Section 313 IPC statement, the appellant did not have any explanation on the presence of human blood stains on her clothes which were duly recovered on her disclosure. 12. In Nana Keshav Lagad v. State of Maharashtra [(2013) 12 SCC 721] , this Court had an occasion to consider a similar situation. Since the factual background, as such, is also explained therein, we shall extract the relevant paragraph as such: 27. The other submission made on behalf of the appellants was with reference to the human blood found on the clothes worn by A-1 and A-4. It was contended that the prosecution failed to satisfactorily establish through any independent evidence about the bloodstains found on the clothes of A-1, as well as the appellant in Crl. A. No. 1010 of 2008. In that respect instead of reiterating the details, it will be sufficient to refer to the conclusion reached by the trial court, while dealing with the said contention, which is found in para 63. The relevant part of it reads as under: 63. In the present case, the evidence of API Padwal in this respect is not seriously challenged or shattered. After all the accused were arrested under panchnama and at the time of arrest panchnama of accused Nana bloodstained clothes were seized. It is not in any way contended or for that matter even whispered that IO API Padwal was having any rancour against the accused or he was motivated or interested in one-sided investigation with the sole object of implicating the accused. As a matter of fact, the investigation in this case appears to be totally impartial. When it transpired that two accused by name Sandeep and Ganesh, the juvenile delinquent have not taken part in the assault, their names were deleted from the prosecution case by filing report under Section 169 CrPC. Therefore, here the investigation has proceeded impartially and it is also not even for the sake of it, is suggested to API Padwal that, no such bloodstained clothes were recovered from the accused Nana, moreover, as per the settled position of law, there is no presumption in law that a police officer acts dishonestly and his evidence cannot be acted upon. Therefore, here the evidence of API Padwal is sufficient to prove the recovery of the bloodstained clothes of the accused. His evidence also goes to prove that all these articles, bloodstained clothes, etc. were sent to CA and as per the CA report, Ext. 61 the blood was detected on the clothes of the accused and the deceased and this blood was human blood…. In the present case, though the CA report, Ext. 61 shows that, the said human blood was of Group B, CA report, Ext. 62 about the blood sample of the accused states that the blood group could not be ascertained as the results were inconclusive, moreover, there is no CA of the blood sample of the deceased to prove that he was having Blood Group B. However, the fact remains that, the stains of human blood were found on the clothes of accused Nana and he has not explained how these bloodstains were on his clothes and therefore, as observed in this authority, it becomes one more highly incriminating circumstance against the accused. In fact, as rightly noted by the trial court, it was for the appellants to have explained as to how the clothes worn by them contained human blood. In Section 313 questioning, no explanation was forthcoming from the appellants. In these circumstances, the said contention also does not merit any consideration. 13. The last contention is on parity. It is submitted that Udai Lal, whose clothes were duly recovered, also contained stains of human blood, for which also, there was no explanation and he had also given disclosure on the recovery of weapon of offence. Though we find that the acquittal made by the High Court could require a revisit, in view of the fact that there is no appeal by the State against the acquittal of Udai Lal and that the incident is of the year 1999, we do not propose to pursue the matter as against Udai Lal. However, we may state that only because Udai Lal was acquitted, in view of the clinching evidence on the involvement of the appellant in the offences of murder and destruction of evidence charged against her, she is not entitled for a similar treatment as that of Udai Lal. Merely because one or more of those charged with the substantial offences and also charged under Section 34 IPC have been acquitted, the one in the group who shared the common intention, in whose case there is conclusive evidence of direct involvement, cannot claim parity.

0[ds]8. It has come out in the evidence ofi Devi, who is the wife ofh Kumar, the landlord of thel (son of the appellant), thata Bai used to visit thea in her room. The said witness stated that she had seen Sunanda with appellant before her disappearance. It has also come out in her evidence that the appellant, after the incident, came back to her, paid the rent and took away the belongings of the deceased.Naresh Kumar has supported the version ofis Sultana who has also stated that the deceased along with her children was seen with the appellant in the market and the deceased had told her that the appellant was taking them to Morvan.d of Sultana has supported her version. Thus, on the basis of the evidence of5 to 8, both the courts below have come to the conclusion that all the deceased were last seen with the appellant9. It has also come out from the evidence of5 that the appellant was not happy with the deceased for two reasons, viz., (i) she had already been married to another person and he had left her with her two children born to him and (ii) she belonged to a different caste. Therefore, if the appellant had accepted them in their family, they would have been cast out from the village. It is because of that only the deceased along with her family had left the appellants house and stayed in the rented accommodation provided by. It has also come out from her evidence that the deceased had given the phone number of paternal house and family photo of the deceased along with her husband and children to her to be handed over to her father in case she did not return. Yet another incriminating circumstance is the conduct of the appellant, after the incident, of settling the rent with5 and removing belongings of the deceased10. On the second circumstance on verification of the place of incident by the appellant, the High Court rightly discarded the same holding that the Police had already identified the place where the dead bodies were dumped. The other circumstantial evidence against the appellant is on the recovery of weapon of offence. It has come in evidence that the recovery was effected only on the basis of the disclosure made by the appellant as per. It has come in evidence thata contained human blood. The third piece of circumstantial evidence found against the appellant is the recovery ofbelonging to her as per. The appellant could not give any explanation of the presence of human blood on her clothes recovered as per. Though the anklet, said to be belonging to the, was also recovered pursuant to her disclosure, the High Court has discarded the same on the ground that there was no proper identification11. Having gone through the records, we find it difficult to be persuaded to take a different view on the evidence against the appellant which according to both the trial court and the High Court formed an unbroken chain which led only to one hypothesis, viz., the involvement of the appellant in the offences under Section 302 and Section 201 IPC. It has to be specially noted that even under Section 313 IPC statement, the appellant did not have any explanation on the presence of human blood stains on her clothes which were duly recovered on her disclosureThough we find that the acquittal made by the High Court could require a revisit, in view of the fact that there is no appeal by the State against the acquittal of Udai Lal and that the incident is of the year 1999, we do not propose to pursue the matter as against Udai Lal. However, we may state that only because Udai Lal was acquitted, in view of the clinching evidence on the involvement of the appellant in the offences of murder and destruction of evidence charged against her, she is not entitled for a similar treatment as that of Udai Lal. Merely because one or more of those charged with the substantial offences and also charged under Section 34 IPC have been acquitted, the one in the group who shared the common intention, in whose case there is conclusive evidence of direct involvement, cannot claim parity.

### 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: rightly discarded the same holding that the Police had already identified the place where the dead bodies were dumped. The other circumstantial evidence against the appellant is on the recovery of weapon of offence. It has come in evidence that the recovery was effected only on the basis of the disclosure made by the appellant as per Exhibit-P67. It has come in evidence that Exhibit-P53-dharia contained human blood. The third piece of circumstantial evidence found against the appellant is the recovery of blood-stained clothes belonging to her as per Exhibit-P66-disclosure. The appellant could not give any explanation of the presence of human blood on her clothes recovered as per Exhibit-P52. Though the anklet, said to be belonging to the deceased-Sunanda, was also recovered pursuant to her disclosure, the High Court has discarded the same on the ground that there was no proper identification. 11. Having gone through the records, we find it difficult to be persuaded to take a different view on the evidence against the appellant which according to both the trial court and the High Court formed an unbroken chain which led only to one hypothesis, viz., the involvement of the appellant in the offences under Section 302 and Section 201 IPC. It has to be specially noted that even under Section 313 IPC statement, the appellant did not have any explanation on the presence of human blood stains on her clothes which were duly recovered on her disclosure. 12. In Nana Keshav Lagad v. State of Maharashtra [(2013) 12 SCC 721] , this Court had an occasion to consider a similar situation. Since the factual background, as such, is also explained therein, we shall extract the relevant paragraph as such: 27. The other submission made on behalf of the appellants was with reference to the human blood found on the clothes worn by A-1 and A-4. It was contended that the prosecution failed to satisfactorily establish through any independent evidence about the bloodstains found on the clothes of A-1, as well as the appellant in Crl. A. No. 1010 of 2008. In that respect instead of reiterating the details, it will be sufficient to refer to the conclusion reached by the trial court, while dealing with the said contention, which is found in para 63. The relevant part of it reads as under: 63. In the present case, the evidence of API Padwal in this respect is not seriously challenged or shattered. After all the accused were arrested under panchnama and at the time of arrest panchnama of accused Nana bloodstained clothes were seized. It is not in any way contended or for that matter even whispered that IO API Padwal was having any rancour against the accused or he was motivated or interested in one-sided investigation with the sole object of implicating the accused. As a matter of fact, the investigation in this case appears to be totally impartial. When it transpired that two accused by name Sandeep and Ganesh, the juvenile delinquent have not taken part in the assault, their names were deleted from the prosecution case by filing report under Section 169 CrPC. Therefore, here the investigation has proceeded impartially and it is also not even for the sake of it, is suggested to API Padwal that, no such bloodstained clothes were recovered from the accused Nana, moreover, as per the settled position of law, there is no presumption in law that a police officer acts dishonestly and his evidence cannot be acted upon. Therefore, here the evidence of API Padwal is sufficient to prove the recovery of the bloodstained clothes of the accused. His evidence also goes to prove that all these articles, bloodstained clothes, etc. were sent to CA and as per the CA report, Ext. 61 the blood was detected on the clothes of the accused and the deceased and this blood was human blood…. In the present case, though the CA report, Ext. 61 shows that, the said human blood was of Group B, CA report, Ext. 62 about the blood sample of the accused states that the blood group could not be ascertained as the results were inconclusive, moreover, there is no CA of the blood sample of the deceased to prove that he was having Blood Group B. However, the fact remains that, the stains of human blood were found on the clothes of accused Nana and he has not explained how these bloodstains were on his clothes and therefore, as observed in this authority, it becomes one more highly incriminating circumstance against the accused. In fact, as rightly noted by the trial court, it was for the appellants to have explained as to how the clothes worn by them contained human blood. In Section 313 questioning, no explanation was forthcoming from the appellants. In these circumstances, the said contention also does not merit any consideration. 13. The last contention is on parity. It is submitted that Udai Lal, whose clothes were duly recovered, also contained stains of human blood, for which also, there was no explanation and he had also given disclosure on the recovery of weapon of offence. Though we find that the acquittal made by the High Court could require a revisit, in view of the fact that there is no appeal by the State against the acquittal of Udai Lal and that the incident is of the year 1999, we do not propose to pursue the matter as against Udai Lal. However, we may state that only because Udai Lal was acquitted, in view of the clinching evidence on the involvement of the appellant in the offences of murder and destruction of evidence charged against her, she is not entitled for a similar treatment as that of Udai Lal. Merely because one or more of those charged with the substantial offences and also charged under Section 34 IPC have been acquitted, the one in the group who shared the common intention, in whose case there is conclusive evidence of direct involvement, cannot claim parity. ### Response: 0 ### Explanation: 8. It has come out in the evidence ofi Devi, who is the wife ofh Kumar, the landlord of thel (son of the appellant), thata Bai used to visit thea in her room. The said witness stated that she had seen Sunanda with appellant before her disappearance. It has also come out in her evidence that the appellant, after the incident, came back to her, paid the rent and took away the belongings of the deceased.Naresh Kumar has supported the version ofis Sultana who has also stated that the deceased along with her children was seen with the appellant in the market and the deceased had told her that the appellant was taking them to Morvan.d of Sultana has supported her version. Thus, on the basis of the evidence of5 to 8, both the courts below have come to the conclusion that all the deceased were last seen with the appellant9. It has also come out from the evidence of5 that the appellant was not happy with the deceased for two reasons, viz., (i) she had already been married to another person and he had left her with her two children born to him and (ii) she belonged to a different caste. Therefore, if the appellant had accepted them in their family, they would have been cast out from the village. It is because of that only the deceased along with her family had left the appellants house and stayed in the rented accommodation provided by. It has also come out from her evidence that the deceased had given the phone number of paternal house and family photo of the deceased along with her husband and children to her to be handed over to her father in case she did not return. Yet another incriminating circumstance is the conduct of the appellant, after the incident, of settling the rent with5 and removing belongings of the deceased10. On the second circumstance on verification of the place of incident by the appellant, the High Court rightly discarded the same holding that the Police had already identified the place where the dead bodies were dumped. The other circumstantial evidence against the appellant is on the recovery of weapon of offence. It has come in evidence that the recovery was effected only on the basis of the disclosure made by the appellant as per. It has come in evidence thata contained human blood. The third piece of circumstantial evidence found against the appellant is the recovery ofbelonging to her as per. The appellant could not give any explanation of the presence of human blood on her clothes recovered as per. Though the anklet, said to be belonging to the, was also recovered pursuant to her disclosure, the High Court has discarded the same on the ground that there was no proper identification11. Having gone through the records, we find it difficult to be persuaded to take a different view on the evidence against the appellant which according to both the trial court and the High Court formed an unbroken chain which led only to one hypothesis, viz., the involvement of the appellant in the offences under Section 302 and Section 201 IPC. It has to be specially noted that even under Section 313 IPC statement, the appellant did not have any explanation on the presence of human blood stains on her clothes which were duly recovered on her disclosureThough we find that the acquittal made by the High Court could require a revisit, in view of the fact that there is no appeal by the State against the acquittal of Udai Lal and that the incident is of the year 1999, we do not propose to pursue the matter as against Udai Lal. However, we may state that only because Udai Lal was acquitted, in view of the clinching evidence on the involvement of the appellant in the offences of murder and destruction of evidence charged against her, she is not entitled for a similar treatment as that of Udai Lal. Merely because one or more of those charged with the substantial offences and also charged under Section 34 IPC have been acquitted, the one in the group who shared the common intention, in whose case there is conclusive evidence of direct involvement, cannot claim parity.

TAPAN SARKAR and Others Vs. STATE OF WEST BENGAL

1. The three accused-appellants who have been convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life are in appeal against the order of confirmation of the said conviction and sentence made by the High Court in appeal.2. The prosecution case, in short, is that PW-11 (Dipu Sarkar) was married to one Swarup Sarkar and was living in a common house-hold consisting, inter alia, of accused Arup Sarkar and Tapan Sarkar (brothers-in-law) and sister-in-law Binapani Sarkar (wife of Arup Sarkar).3. According to prosecution on 05.08.1990, PW-11 left the house to go the village pond leaving her 2½ months baby in the custody of accused-Binapani Sarkar, wife of accused-Arup Sarkar.4. She came back home after about 45 minutes and found the baby not in the cot where she had kept her. Her brothers-in-law and sister-in-law, the accused, Arup Sarkar, Tapan Sarkar and Binapani Sarkar, on being asked, gave evasive replies and in the course of a search it is the accused Tapan Sarkar who found the baby floating in the well. It is in these circumstances that a F.I.R. was lodged and on completion of the investigation made on the basis thereof the accused-appellants were charge-sheeted, tried and convicted for the offence of murder.5. We have heard the learned counsels for the parties.6. There is no eye-witness to the occurrence and the entirety of the evidence is circumstantial. The prosecution, undoubtedly, has succeeded in proving that the relationship within the family was not a happy one and PW-11 was continuously abused and shunned for giving birth to a female child. The prosecution witnesses 1, 2, 3, 4, 7 and 8, who were the neighbours have testified to the aforesaid effect. The prosecution has also succeeded in proving that it is the accused-appellants who alone were in the house at that relevant point of time when PW-11 had gone out leaving the baby behind. It has been further proved by the prosecution that the replies given by the accused-appellants to PW-11 regarding the whereabouts of baby were vague and evasive. Finally, the prosecution has also proved that the baby had died an unnatural death and the dead body was recovered from the well.7. True, all the above are highly incriminating circumstances. The accused have also not offered any explanation with regard to the disappearance of the baby and recovery of the dead body from the well. However, in the present case the conviction of the accused-appellants is with the aid of Section 34 IPC. There is no specific or positive evidence showing any overt act on the part of any particular accused. It is in the aforesaid circumstances that the liability of the accused-appellants will have to be judged.8. The circumstances proved and established against the accused and the evasive replies given by them, even if construed in the light of Section 106 of the Evidence Act, in our considered view, may not unerringly point to the guilt of the accused, particularly, in a situation where mother-in-law and father-in-law of PW-11, though available, have not been examined by the prosecution. Neither any convincing reasons have been brought on record by the prosecution for such non-examination. It is in the above circumstances that we have considered it necessary to examine as to whether the charge brought against the accused-appellants with the aid of Section 34 IPC can be held to be proved in the facts of the present case.9. Apart from the evidence relating to the strained relations within the family; the handing over the baby to the custody of accused-Binapani Sarkar and the evasive replies given, there is no other evidence on record to enable the Court to infer the existence of a common intention of the accused-appellants to commit the crime.10. The strained relations in the family and giving of evasive replies, by itself, cannot be considered to be a safe and sound basis to arrive at the required inference so as to attract the principle laid down in Section 34 IPC. The inference of common intention must be based on more tangible material so as to hold all the accused-appellants to be jointly and vicariously liable for the crime committed. It is possible that one of the accused had committed the crime but in the absence of evidence to draw an inference of common intention, none of the accused can be held liable.11. In the present case, the evidence adduced by the prosecution, in our considered view, cannot be a safe basis for us to invoke the principle laid down under Section 34 IPC. The prosecution has also not brought any material whatsoever to show the involvement of any one of the three accused in the crime. In such circumstances, without the aid of Section 34 IPC none of the accused can be held liable for the offence under Section 302 IPC.

1[ds]6. There is no eye-witness to the occurrence and the entirety of the evidence is circumstantial. The prosecution, undoubtedly, has succeeded in proving that the relationship within the family was not a happy one and PW-11 was continuously abused and shunned for giving birth to a female child. The prosecution witnesses 1, 2, 3, 4, 7 and 8, who were the neighbours have testified to the aforesaid effect. The prosecution has also succeeded in proving that it is the accused-appellants who alone were in the house at that relevant point of time when PW-11 had gone out leaving the baby behind. It has been further proved by the prosecution that the replies given by the accused-appellants to PW-11 regarding the whereabouts of baby were vague and evasive. Finally, the prosecution has also proved that the baby had died an unnatural death and the dead body was recovered from the well7. True, all the above are highly incriminating circumstances. The accused have also not offered any explanation with regard to the disappearance of the baby and recovery of the dead body from the well. However, in the present case the conviction of the accused-appellants is with the aid of Section 34 IPC. There is no specific or positive evidence showing any overt act on the part of any particular accused. It is in the aforesaid circumstances that the liability of the accused-appellants will have to be judged8. The circumstances proved and established against the accused and the evasive replies given by them, even if construed in the light of Section 106 of the Evidence Act, in our considered view, may not unerringly point to the guilt of the accused, particularly, in a situation where mother-in-law and father-in-law of PW-11, though available, have not been examined by the prosecution. Neither any convincing reasons have been brought on record by the prosecution for such non-examination. It is in the above circumstances that we have considered it necessary to examine as to whether the charge brought against the accused-appellants with the aid of Section 34 IPC can be held to be proved in the facts of the present case9. Apart from the evidence relating to the strained relations within the family; the handing over the baby to the custody of accused-Binapani Sarkar and the evasive replies given, there is no other evidence on record to enable the Court to infer the existence of a common intention of the accused-appellants to commit the crime10. The strained relations in the family and giving of evasive replies, by itself, cannot be considered to be a safe and sound basis to arrive at the required inference so as to attract the principle laid down in Section 34 IPC. The inference of common intention must be based on more tangible material so as to hold all the accused-appellants to be jointly and vicariously liable for the crime committed. It is possible that one of the accused had committed the crime but in the absence of evidence to draw an inference of common intention, none of the accused can be held liable11. In the present case, the evidence adduced by the prosecution, in our considered view, cannot be a safe basis for us to invoke the principle laid down under Section 34 IPC. The prosecution has also not brought any material whatsoever to show the involvement of any one of the three accused in the crime. In such circumstances, without the aid of Section 34 IPC none of the accused can be held liable for the offence under Section 302 IPC.

### 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: 1. The three accused-appellants who have been convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life are in appeal against the order of confirmation of the said conviction and sentence made by the High Court in appeal.2. The prosecution case, in short, is that PW-11 (Dipu Sarkar) was married to one Swarup Sarkar and was living in a common house-hold consisting, inter alia, of accused Arup Sarkar and Tapan Sarkar (brothers-in-law) and sister-in-law Binapani Sarkar (wife of Arup Sarkar).3. According to prosecution on 05.08.1990, PW-11 left the house to go the village pond leaving her 2½ months baby in the custody of accused-Binapani Sarkar, wife of accused-Arup Sarkar.4. She came back home after about 45 minutes and found the baby not in the cot where she had kept her. Her brothers-in-law and sister-in-law, the accused, Arup Sarkar, Tapan Sarkar and Binapani Sarkar, on being asked, gave evasive replies and in the course of a search it is the accused Tapan Sarkar who found the baby floating in the well. It is in these circumstances that a F.I.R. was lodged and on completion of the investigation made on the basis thereof the accused-appellants were charge-sheeted, tried and convicted for the offence of murder.5. We have heard the learned counsels for the parties.6. There is no eye-witness to the occurrence and the entirety of the evidence is circumstantial. The prosecution, undoubtedly, has succeeded in proving that the relationship within the family was not a happy one and PW-11 was continuously abused and shunned for giving birth to a female child. The prosecution witnesses 1, 2, 3, 4, 7 and 8, who were the neighbours have testified to the aforesaid effect. The prosecution has also succeeded in proving that it is the accused-appellants who alone were in the house at that relevant point of time when PW-11 had gone out leaving the baby behind. It has been further proved by the prosecution that the replies given by the accused-appellants to PW-11 regarding the whereabouts of baby were vague and evasive. Finally, the prosecution has also proved that the baby had died an unnatural death and the dead body was recovered from the well.7. True, all the above are highly incriminating circumstances. The accused have also not offered any explanation with regard to the disappearance of the baby and recovery of the dead body from the well. However, in the present case the conviction of the accused-appellants is with the aid of Section 34 IPC. There is no specific or positive evidence showing any overt act on the part of any particular accused. It is in the aforesaid circumstances that the liability of the accused-appellants will have to be judged.8. The circumstances proved and established against the accused and the evasive replies given by them, even if construed in the light of Section 106 of the Evidence Act, in our considered view, may not unerringly point to the guilt of the accused, particularly, in a situation where mother-in-law and father-in-law of PW-11, though available, have not been examined by the prosecution. Neither any convincing reasons have been brought on record by the prosecution for such non-examination. It is in the above circumstances that we have considered it necessary to examine as to whether the charge brought against the accused-appellants with the aid of Section 34 IPC can be held to be proved in the facts of the present case.9. Apart from the evidence relating to the strained relations within the family; the handing over the baby to the custody of accused-Binapani Sarkar and the evasive replies given, there is no other evidence on record to enable the Court to infer the existence of a common intention of the accused-appellants to commit the crime.10. The strained relations in the family and giving of evasive replies, by itself, cannot be considered to be a safe and sound basis to arrive at the required inference so as to attract the principle laid down in Section 34 IPC. The inference of common intention must be based on more tangible material so as to hold all the accused-appellants to be jointly and vicariously liable for the crime committed. It is possible that one of the accused had committed the crime but in the absence of evidence to draw an inference of common intention, none of the accused can be held liable.11. In the present case, the evidence adduced by the prosecution, in our considered view, cannot be a safe basis for us to invoke the principle laid down under Section 34 IPC. The prosecution has also not brought any material whatsoever to show the involvement of any one of the three accused in the crime. In such circumstances, without the aid of Section 34 IPC none of the accused can be held liable for the offence under Section 302 IPC. ### Response: 1 ### Explanation: 6. There is no eye-witness to the occurrence and the entirety of the evidence is circumstantial. The prosecution, undoubtedly, has succeeded in proving that the relationship within the family was not a happy one and PW-11 was continuously abused and shunned for giving birth to a female child. The prosecution witnesses 1, 2, 3, 4, 7 and 8, who were the neighbours have testified to the aforesaid effect. The prosecution has also succeeded in proving that it is the accused-appellants who alone were in the house at that relevant point of time when PW-11 had gone out leaving the baby behind. It has been further proved by the prosecution that the replies given by the accused-appellants to PW-11 regarding the whereabouts of baby were vague and evasive. Finally, the prosecution has also proved that the baby had died an unnatural death and the dead body was recovered from the well7. True, all the above are highly incriminating circumstances. The accused have also not offered any explanation with regard to the disappearance of the baby and recovery of the dead body from the well. However, in the present case the conviction of the accused-appellants is with the aid of Section 34 IPC. There is no specific or positive evidence showing any overt act on the part of any particular accused. It is in the aforesaid circumstances that the liability of the accused-appellants will have to be judged8. The circumstances proved and established against the accused and the evasive replies given by them, even if construed in the light of Section 106 of the Evidence Act, in our considered view, may not unerringly point to the guilt of the accused, particularly, in a situation where mother-in-law and father-in-law of PW-11, though available, have not been examined by the prosecution. Neither any convincing reasons have been brought on record by the prosecution for such non-examination. It is in the above circumstances that we have considered it necessary to examine as to whether the charge brought against the accused-appellants with the aid of Section 34 IPC can be held to be proved in the facts of the present case9. Apart from the evidence relating to the strained relations within the family; the handing over the baby to the custody of accused-Binapani Sarkar and the evasive replies given, there is no other evidence on record to enable the Court to infer the existence of a common intention of the accused-appellants to commit the crime10. The strained relations in the family and giving of evasive replies, by itself, cannot be considered to be a safe and sound basis to arrive at the required inference so as to attract the principle laid down in Section 34 IPC. The inference of common intention must be based on more tangible material so as to hold all the accused-appellants to be jointly and vicariously liable for the crime committed. It is possible that one of the accused had committed the crime but in the absence of evidence to draw an inference of common intention, none of the accused can be held liable11. In the present case, the evidence adduced by the prosecution, in our considered view, cannot be a safe basis for us to invoke the principle laid down under Section 34 IPC. The prosecution has also not brought any material whatsoever to show the involvement of any one of the three accused in the crime. In such circumstances, without the aid of Section 34 IPC none of the accused can be held liable for the offence under Section 302 IPC.

U.P. Electric Supply Co. Ltd Vs. R. K. Shukla Anr. Etc

relied upon Sections 6 and 7 of the Indian Electricity Act, 1910, in support of his plea that the liability to pay retrenchment compensation rests upon the undertaking which takes over the undertaking. Section 6 of the Indian Electricity Act, 1910, provides :"(1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall,-(a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and(b) * * * * * * *have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the undertaking to it at the expiry of the relevant period referred to in this sub-section.* * * * * *"In the present case notice was given of termination of the license after the expiry of the period of the original license and the Board took over the undertaking of the Company. Section 7 of the Indian Electricity Act provides :"Where an undertaking is sold under Section ** 6, then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under **** sub-section (6) of Section 6, *****(i) the undertaking shall vest in the purchaser * * * free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking:"Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking;(ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee:Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation."It is clear that when the undertaking vests in the purchaser, any debt, mortgage or similar obligation attaches to the purchase money in substitution of the undertaking. The liability to pay retrenchment compensation is a debt: if it arises on transfer it will attach to the purchase money payable to the Company "in substitution for the undertaking". Sections 6 and 7 of the Indian Electricity Act do not support the case of the Company that the liability is enforceable against the Board after it takes over the undertakings.21. The provisions of Sections 57 and 57-A of the Indian Electricity (Supply) Act, 1948, also do not assist the case of the Company.Sections 57 and 57-A of the Electricity (Supply) Act, 1948, deal with the licensees charges to consumers and the Rating Committees. By the Sixth Schedule dealing with financial principles and their application, it is provided by Clause IV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account. By Clause V of the Sixth Schedule it is provided:"(1) The Contingencies Reserve shall not be drawn upon during the currency of the license except to meet such charges as the State Government may approve as being-(a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented;(b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal;(c) compensation payable under any law for the time being in force and for which no other provision is made.(2) On the purchase of the undertaking the Contingencies Reserve, after deduction of the amounts drawn under sub-paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve:Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be."Clause V only provides for the appropriation of the Contingencies Reserve: it requires an undertaking to hand over the Contingencies Reserve to the purchaser. If any amount of compensation is payable to the employees of the outgoing licensee under any law for the time being in force, it is chargeable to the Contingencies Reserve.If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of Clause V, sub-clause (2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.22. It was urged that the Contingencies Reserve has been paid over to the purchaser. There is, however, no finding by the Labour Court in that behalf.If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount. On that matter we need express no opinion at this stage.23. Finally it was contended-and that contention relates only to the cases of 56 workmen in the Lucknow undertaking-that the workmen who had not availed themselves of earned leave were entitled to compensation equal to thirty days wages. But we do not think that any such compensation is statutorily payable. So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave. In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure or transfer of an undertaking, we do not think that any such compensation is payable.

1[ds]By virtue of S.6-R (2) the provisions of the U. P. Industrial Disputes Act, prima facie, apply in the matters of lay-off and retrenchment, because under the Seventh Schedule to the Constitution legislation in respect of "Trade Unions, Industrial and Labour Disputes" falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation. Whereas by adding Section 25-J (2) it was enacted that under the Industrial Disputes Act, 1947, the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of Ch. V-A of that Act, by the U. P. Act as amended by Act 1 of 1957, S. 6-R (2) enacts that the rights and liabilities of employers and workmen relating to lay-off and retrenchment shall be determined in accordance with the provisions of Sections 6-J to 6-Q.9. Competence of the State Legislature to enact Section 6-R (2) is not denied. Act 1 of 1957 received the assent of the President and by virtue of Article 254 (2) of the Constitution Section 6-R (2) of the U. P. Act prevails, notwithstanding any prior law made by the Parliament. The provisions of the U. P. Act including Section 6-R (2) therefore apply in determining the rights and obligations of the parties in respect of retrenchment compensation.The observations to the contrary made by this Court in Rohtak and Hissar Districts Electric Supply Co. Ltd. v. State of U. P., 1962-2 Lab LJ 330 = (AIR 1966 SC 1471 ) which primarily raised a dispute relating to the validity of certain model standing orders proceeded upon a concession made at the Bar, and cannot be regarded as decision. Since the relevant provisions of the two Acts on the matter in controversy in these groups of appeals are not materially different, we do not think it necessary in this case to refer the question to a larger Bench.10. We, accordingly, propose to refer only to the provisions of the U. P. Industrial Disputes Act, 1947. Section 4-A of the U. P. Act authorises the State Government to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the First Schedule and for performing such other functions as may be assigned to them under they raises the question whether there was retrenchment of workmen, which gave rise to liability to pay retrenchmentSection 6-H (2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money, and the denial of liability by the Company did not affect the jurisdiction of the LabourSection 6-H (2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money, and the denial of liability by the Company did not affect the jurisdiction of the Labour. In the present groups of appeals it is common ground that there was no interruption resulting from the undertaking being taken over by the Board. The agreements between the Board and the workmen to admit the workmen into employment of the Board were reached before the undertakings of the Company were takenworkmen asserted the existence of thethis contention was raised in the reply filed by the Company, and the judgement of the Labour Court does indicate that its authority to decide that question was disputed. We are unable to hold that the objection though raised was not urged before the Labour Court, and on that account to confirm the decision of the Labour Court which until the matter in controversy was decided could not be rendered. Even if, therefore, the Labour Court was competent to entertain the dispute relating to award of retrenchment compensation, the order made by the Labour Court must be set aside.It was urged that the Contingencies Reserve has been paid over to the purchaser. There is, however, no finding by the Labour Court in that behalf.If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount. On that matter we need express no opinion at thiswe do not think that any such compensation is statutorily payable. So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave. In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure or transfer of an undertaking, we do not think that any such compensation islanguage of Sectionin the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company. Referring to the contention that the Labour Court was not competent to determine the liability to pay retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. v. Rameswar,SCR 140 = (AIR 1968 SC 218 ); State Bank of Bikaner and Jaipur v. B. L. Khandelwal,Lab LJ 589 (SC); Punjab National Bank Ltd. v. K. L. Kharbanda, (1962) Supp 2 SCR 977 = (AIR 1963 SC 487 );SCR 140 = (AIR 1964 SC 743 ); andSCR 709 = (AIR 1964 SC 752 ), and proceeded to observe that the right which has been claimed by the workmen in their applications under S.(2) of the Act was a right which accrued to them under Sectionof the Act and was an existing right at the time when those applications were made, and the Labour Court had jurisdiction to decide, in dealing with the applications under that provision, whether such a right did or did not exist. The mere denial of that right by the Company, it was said, could not take away its jurisdiction and that the order of the Labour Court was competently made.

### 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: relied upon Sections 6 and 7 of the Indian Electricity Act, 1910, in support of his plea that the liability to pay retrenchment compensation rests upon the undertaking which takes over the undertaking. Section 6 of the Indian Electricity Act, 1910, provides :"(1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall,-(a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and(b) * * * * * * *have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the undertaking to it at the expiry of the relevant period referred to in this sub-section.* * * * * *"In the present case notice was given of termination of the license after the expiry of the period of the original license and the Board took over the undertaking of the Company. Section 7 of the Indian Electricity Act provides :"Where an undertaking is sold under Section ** 6, then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under **** sub-section (6) of Section 6, *****(i) the undertaking shall vest in the purchaser * * * free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking:"Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking;(ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee:Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation."It is clear that when the undertaking vests in the purchaser, any debt, mortgage or similar obligation attaches to the purchase money in substitution of the undertaking. The liability to pay retrenchment compensation is a debt: if it arises on transfer it will attach to the purchase money payable to the Company "in substitution for the undertaking". Sections 6 and 7 of the Indian Electricity Act do not support the case of the Company that the liability is enforceable against the Board after it takes over the undertakings.21. The provisions of Sections 57 and 57-A of the Indian Electricity (Supply) Act, 1948, also do not assist the case of the Company.Sections 57 and 57-A of the Electricity (Supply) Act, 1948, deal with the licensees charges to consumers and the Rating Committees. By the Sixth Schedule dealing with financial principles and their application, it is provided by Clause IV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account. By Clause V of the Sixth Schedule it is provided:"(1) The Contingencies Reserve shall not be drawn upon during the currency of the license except to meet such charges as the State Government may approve as being-(a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented;(b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal;(c) compensation payable under any law for the time being in force and for which no other provision is made.(2) On the purchase of the undertaking the Contingencies Reserve, after deduction of the amounts drawn under sub-paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve:Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be."Clause V only provides for the appropriation of the Contingencies Reserve: it requires an undertaking to hand over the Contingencies Reserve to the purchaser. If any amount of compensation is payable to the employees of the outgoing licensee under any law for the time being in force, it is chargeable to the Contingencies Reserve.If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of Clause V, sub-clause (2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.22. It was urged that the Contingencies Reserve has been paid over to the purchaser. There is, however, no finding by the Labour Court in that behalf.If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount. On that matter we need express no opinion at this stage.23. Finally it was contended-and that contention relates only to the cases of 56 workmen in the Lucknow undertaking-that the workmen who had not availed themselves of earned leave were entitled to compensation equal to thirty days wages. But we do not think that any such compensation is statutorily payable. So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave. In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure or transfer of an undertaking, we do not think that any such compensation is payable. ### Response: 1 ### Explanation: workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of Ch. V-A of that Act, by the U. P. Act as amended by Act 1 of 1957, S. 6-R (2) enacts that the rights and liabilities of employers and workmen relating to lay-off and retrenchment shall be determined in accordance with the provisions of Sections 6-J to 6-Q.9. Competence of the State Legislature to enact Section 6-R (2) is not denied. Act 1 of 1957 received the assent of the President and by virtue of Article 254 (2) of the Constitution Section 6-R (2) of the U. P. Act prevails, notwithstanding any prior law made by the Parliament. The provisions of the U. P. Act including Section 6-R (2) therefore apply in determining the rights and obligations of the parties in respect of retrenchment compensation.The observations to the contrary made by this Court in Rohtak and Hissar Districts Electric Supply Co. Ltd. v. State of U. P., 1962-2 Lab LJ 330 = (AIR 1966 SC 1471 ) which primarily raised a dispute relating to the validity of certain model standing orders proceeded upon a concession made at the Bar, and cannot be regarded as decision. Since the relevant provisions of the two Acts on the matter in controversy in these groups of appeals are not materially different, we do not think it necessary in this case to refer the question to a larger Bench.10. We, accordingly, propose to refer only to the provisions of the U. P. Industrial Disputes Act, 1947. Section 4-A of the U. P. Act authorises the State Government to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the First Schedule and for performing such other functions as may be assigned to them under they raises the question whether there was retrenchment of workmen, which gave rise to liability to pay retrenchmentSection 6-H (2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money, and the denial of liability by the Company did not affect the jurisdiction of the LabourSection 6-H (2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money, and the denial of liability by the Company did not affect the jurisdiction of the Labour. In the present groups of appeals it is common ground that there was no interruption resulting from the undertaking being taken over by the Board. The agreements between the Board and the workmen to admit the workmen into employment of the Board were reached before the undertakings of the Company were takenworkmen asserted the existence of thethis contention was raised in the reply filed by the Company, and the judgement of the Labour Court does indicate that its authority to decide that question was disputed. We are unable to hold that the objection though raised was not urged before the Labour Court, and on that account to confirm the decision of the Labour Court which until the matter in controversy was decided could not be rendered. Even if, therefore, the Labour Court was competent to entertain the dispute relating to award of retrenchment compensation, the order made by the Labour Court must be set aside.It was urged that the Contingencies Reserve has been paid over to the purchaser. There is, however, no finding by the Labour Court in that behalf.If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount. On that matter we need express no opinion at thiswe do not think that any such compensation is statutorily payable. So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave. In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure or transfer of an undertaking, we do not think that any such compensation islanguage of Sectionin the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company. Referring to the contention that the Labour Court was not competent to determine the liability to pay retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. v. Rameswar,SCR 140 = (AIR 1968 SC 218 ); State Bank of Bikaner and Jaipur v. B. L. Khandelwal,Lab LJ 589 (SC); Punjab National Bank Ltd. v. K. L. Kharbanda, (1962) Supp 2 SCR 977 = (AIR 1963 SC 487 );SCR 140 = (AIR 1964 SC 743 ); andSCR 709 = (AIR 1964 SC 752 ), and proceeded to observe that the right which has been claimed by the workmen in their applications under S.(2) of the Act was a right which accrued to them under Sectionof the Act and was an existing right at the time when those applications were made, and the Labour Court had jurisdiction to decide, in dealing with the applications under that provision, whether such a right did or did not exist. The mere denial of that right by the Company, it was said, could not take away its jurisdiction and that the order of the Labour Court was competently made.

Paramjit Singh Sandhu and Others Etc Vs. Ram Rakha and Others Etc

every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source. This system would breakdown the moment recruitment from either source in excess of the quota is made. In fact a strict adherence to the quota rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment. The difficulty arises when recruitment in excess of the quota is made and it is further accentuated when recruits from one source, to wit, in this case direct recruits get automatic confirmation on completion of the probationary period while the promotees hang out for years together before being confirmed. In Mervyn Coutindos case (supra) this Court in terms said that rotational system of fixing seniority meaning thereby confirmation followed by seniority does not offend equality of opportunity in Government service and recruitment not following the fixed quota rule need not be a ground for doing away with rotational system. 10. It was, however, contended that in A. K. Subraman &Ors. etc. v. Union of India &Ors. (1) this Court in terms h as held that when recruitment is from two sources and the quota rule is enforced, the same will have to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation. It was, therefore, said that it would be contrary to settled law to hold that quota rule will also operate at the time of confirmation. Now, the observation of the Court is in the context of Central Engineering Service (Class I) Recruitment Rules, 1954, which came up for interpretati on before the Court in that case. The recruitment was from three different sources, viz., by competitive examination, by promotion and by transfer. Rule 4 provided that 75% of the vacancies in the grade of Executive Engineer Class I shall be filled by promotion of Assistant Executive Engineers Class I, the rest of the vacancies being filled by promotion and/or by transfer in accordance with Parts IV and V of the Rules respectively. The general seniority rule which was held applicable in that case was that seniority should be determined on the basis of length of service in that grade or a service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan. It is in the context of these rules the question whether the quota rule should be applied at the stage of initial recruitment or confirmation came up for consideration. Unlike the rule in the present case seniority was not dependent on confirmation but seniority was dependent upon continuous officiation in the cadre. In this background this Court held that the quota has to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation. The situation in the case under discussion is materially different. Therefore, it cannot be said that ignoring the rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation. Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable. This Court while saying in Subramans case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindos case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subramans case was in terms affirmed in Patwardhans case (supra) but the scheme of rules in Patwardhans case (supra) was more or less similar to the one that was examined by this Court in Subramans case.Mr. Sanghi also urged that the language of Rule 8(a) would unmistakably show that members of Service recruited from either source would be on probation for a period of two years and this would imply that promotees would also be on probation for a period of two years. Approaching the matter from this angle he further urged that proviso to rule 8(b) which permits extension of probation only by one year without expressly referring to direct recruits would govern both promotees and direct recruits and in that view of the matter promotees would also be deemed to be confirmed on the expiry of period of probation. This contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period o f probation. It appears that both promotees and direct recruits to Service would be on probation. But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3. In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation. In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service. In that event his case would not be covered by the proviso to rule 8(a). Therefore, the contention cannot be accepted. 11.

0[ds]This Court in State of Punjab v. Dharam Singh(4); after taking into consideration rule 6(3) of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, which provided for either dispensing with the services of the person appointed t o the post on probation if his work was found to be unsatisfactory or to extend the period of probation for such period as may be deemed fit or revert him to his former post if he was promoted from some lower post, provided that the tot al period of probation including the extensions if any, shall not exceed three years, held that the Service Rules fixed a certain period of time beyond which the probationary period cannot be extended and if an employee appointed or promoted to a pos t is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation he cannot be deemed to continue in that post as a probationer by implication. In such a case the Court held it is permissible to draw an inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. Rule 8 of the Service Rules prescribes the period of probation of two years and the proviso confers power to extend the period of probation by not beyond one year meaning thereby that in any case the Government would not have the power to extend the period of probation beyond a period of three years. I n this situation the ratio in Dharam Singhs case (supra) would mutatis mutandis apply and it will have to be held that the direct recruit who completed the period of probation of two years and in the absence of an extension of probationary perio d, would be deemed to be confirmed by necessary implication. Respondent 5 to 8 direct recruits have accordingly been confirmed on expiry of the period of probation of two years. Now if seniority is to be reckoned from the date of confirmation and if promotees are not confirmed for years together in some cases, to wit, respondents 1 and 2 who were promotees of February and January, 1961 respectively, were not confirmed till they filed the writ petition in 1972 while direct recruits who came much later got confirmed and ipso facto became senior to the promotees, if quota rule is only applied, as is contended on behalf of the appellants and the State of Punjab, at the time of initial recruitment, this undesirable result is wholly unavoidableAdopting the construction as canvassed for and on behalf of direct recruits that the proviso to rule 8(b) permitting a maximum period of probation of three years at the end of which the direct recruit automatically be confirmed unless his services are dispensed with simultaneously enjoying seniority from the date of such automatic confirmation without applying quota rule at the time of confirmation, would put the promotee to an unintended disadvantage who may be continued in an officiating capacity without confirming him and consequently denying or relegating him down in seniority for years as has happened i n the case of respondents 1 and 2. Appellants who were recruited to the Service after respondents 1 and 2, came to be confirmed at the end of two years period of probation while respondents 1 and 2 were not confirmed after more than 11 years o f officiating service and there it not the slightest suggestion that the services of respondents 1 and 2 were not satisfactory and that the confirmation was denied on any such ground thereby directly affecting their place in the seniority list. Such an approach would be wholly unreasonableIt may be pointed out that where recruitment is from two sources and the seniority in the cadre is determined according to the date of confirmation, to accord utmost fair treatment a rotational system has to be followed while giving confirmation. The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. If the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation. A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source. This system would breakdown the moment recruitment from either source in excess of the quota is made. In fact a strict adherence to the quota rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment. The difficulty arises when recruitment in excess of the quota is made and it is further accentuated when recruits from one source, to wit, in this case direct recruits get automatic confirmation on completion of the probationary period while the promotees hang out for years together before being confirmedTherefore, it cannot be said that ignoring the rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation. Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable. This Court while saying in Subramans case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindos case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subramans case was in terms affirmed in Patwardhans case (supra) but the scheme of rules in Patwardhans case (supra) was more or less similar to the one that was examined by this Court in Subramans caseThis contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period o f probation. It appears that both promotees and direct recruits to Service would be on probation. But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3. In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation. In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service. In that event his case would not be covered by the proviso to rule 8(a). Therefore, the contention cannot be accepted.

### 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: every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source. This system would breakdown the moment recruitment from either source in excess of the quota is made. In fact a strict adherence to the quota rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment. The difficulty arises when recruitment in excess of the quota is made and it is further accentuated when recruits from one source, to wit, in this case direct recruits get automatic confirmation on completion of the probationary period while the promotees hang out for years together before being confirmed. In Mervyn Coutindos case (supra) this Court in terms said that rotational system of fixing seniority meaning thereby confirmation followed by seniority does not offend equality of opportunity in Government service and recruitment not following the fixed quota rule need not be a ground for doing away with rotational system. 10. It was, however, contended that in A. K. Subraman &Ors. etc. v. Union of India &Ors. (1) this Court in terms h as held that when recruitment is from two sources and the quota rule is enforced, the same will have to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation. It was, therefore, said that it would be contrary to settled law to hold that quota rule will also operate at the time of confirmation. Now, the observation of the Court is in the context of Central Engineering Service (Class I) Recruitment Rules, 1954, which came up for interpretati on before the Court in that case. The recruitment was from three different sources, viz., by competitive examination, by promotion and by transfer. Rule 4 provided that 75% of the vacancies in the grade of Executive Engineer Class I shall be filled by promotion of Assistant Executive Engineers Class I, the rest of the vacancies being filled by promotion and/or by transfer in accordance with Parts IV and V of the Rules respectively. The general seniority rule which was held applicable in that case was that seniority should be determined on the basis of length of service in that grade or a service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan. It is in the context of these rules the question whether the quota rule should be applied at the stage of initial recruitment or confirmation came up for consideration. Unlike the rule in the present case seniority was not dependent on confirmation but seniority was dependent upon continuous officiation in the cadre. In this background this Court held that the quota has to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation. The situation in the case under discussion is materially different. Therefore, it cannot be said that ignoring the rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation. Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable. This Court while saying in Subramans case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindos case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subramans case was in terms affirmed in Patwardhans case (supra) but the scheme of rules in Patwardhans case (supra) was more or less similar to the one that was examined by this Court in Subramans case.Mr. Sanghi also urged that the language of Rule 8(a) would unmistakably show that members of Service recruited from either source would be on probation for a period of two years and this would imply that promotees would also be on probation for a period of two years. Approaching the matter from this angle he further urged that proviso to rule 8(b) which permits extension of probation only by one year without expressly referring to direct recruits would govern both promotees and direct recruits and in that view of the matter promotees would also be deemed to be confirmed on the expiry of period of probation. This contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period o f probation. It appears that both promotees and direct recruits to Service would be on probation. But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3. In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation. In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service. In that event his case would not be covered by the proviso to rule 8(a). Therefore, the contention cannot be accepted. 11. ### Response: 0 ### Explanation: have the power to extend the period of probation beyond a period of three years. I n this situation the ratio in Dharam Singhs case (supra) would mutatis mutandis apply and it will have to be held that the direct recruit who completed the period of probation of two years and in the absence of an extension of probationary perio d, would be deemed to be confirmed by necessary implication. Respondent 5 to 8 direct recruits have accordingly been confirmed on expiry of the period of probation of two years. Now if seniority is to be reckoned from the date of confirmation and if promotees are not confirmed for years together in some cases, to wit, respondents 1 and 2 who were promotees of February and January, 1961 respectively, were not confirmed till they filed the writ petition in 1972 while direct recruits who came much later got confirmed and ipso facto became senior to the promotees, if quota rule is only applied, as is contended on behalf of the appellants and the State of Punjab, at the time of initial recruitment, this undesirable result is wholly unavoidableAdopting the construction as canvassed for and on behalf of direct recruits that the proviso to rule 8(b) permitting a maximum period of probation of three years at the end of which the direct recruit automatically be confirmed unless his services are dispensed with simultaneously enjoying seniority from the date of such automatic confirmation without applying quota rule at the time of confirmation, would put the promotee to an unintended disadvantage who may be continued in an officiating capacity without confirming him and consequently denying or relegating him down in seniority for years as has happened i n the case of respondents 1 and 2. Appellants who were recruited to the Service after respondents 1 and 2, came to be confirmed at the end of two years period of probation while respondents 1 and 2 were not confirmed after more than 11 years o f officiating service and there it not the slightest suggestion that the services of respondents 1 and 2 were not satisfactory and that the confirmation was denied on any such ground thereby directly affecting their place in the seniority list. Such an approach would be wholly unreasonableIt may be pointed out that where recruitment is from two sources and the seniority in the cadre is determined according to the date of confirmation, to accord utmost fair treatment a rotational system has to be followed while giving confirmation. The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. If the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation. A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source. This system would breakdown the moment recruitment from either source in excess of the quota is made. In fact a strict adherence to the quota rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment. The difficulty arises when recruitment in excess of the quota is made and it is further accentuated when recruits from one source, to wit, in this case direct recruits get automatic confirmation on completion of the probationary period while the promotees hang out for years together before being confirmedTherefore, it cannot be said that ignoring the rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation. Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable. This Court while saying in Subramans case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindos case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subramans case was in terms affirmed in Patwardhans case (supra) but the scheme of rules in Patwardhans case (supra) was more or less similar to the one that was examined by this Court in Subramans caseThis contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period o f probation. It appears that both promotees and direct recruits to Service would be on probation. But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3. In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation. In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service. In that event his case would not be covered by the proviso to rule 8(a). Therefore, the contention cannot be accepted.

Amar Singh Vs. Union of India & Others

and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement." 58. It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by principles of `uberrima fide. 59. The aforesaid requirement of coming to Court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri Das - AIR 1963 SC 1558 , Welcome Hotel and others v. State of A.P. and others - (1983) 4 SCC 575 , G. Narayanaswamy Reddy (Dead) by LRs. and another v. Government of Karnatka and another - JT 1991(3) SC 12 : (1991) 3 SCC 261 , S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others - JT 1993 (6) SC 331 : (1994) 1 SCC 1 , A.V. Papayya Sastry and others v. Government of A.P. and others - JT 2007 (4) SC 186 : (2007) 4 SCC 221 , Prestige Lights Limited v. SBI - JT 2007(10) SC 218 : (2007) 8 SCC 449 , Sunil Poddar and others v. Union Bank of India - JT 2008(1) SC 308 : (2008) 2 SCC 326 , K.D.Sharma v. SAIL and others - JT 2008 (8) SC 57 : (2008) 12 SCC 481 , G. Jayashree and others v. Bhagwandas S. Patel and others - JT 2009(2) SC 71 : (2009) 3 SCC 141 , Dalip Singh v. State of U.P. and others - JT 2009 (15) SC 201 : (2010) 2 SCC 114. 60. In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far reaching effect. We, therefore, repeat those principles here again: "For many centuries Indian society cherished two basic values of life i.e. "satya"(truth) and "ahimsa (non-violence), Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." 61. However, this Court is constrained to observe that those principles are honoured more in breach than in their observance. 62. Following these principles, this Court has no hesitation in holding that the instant writ petition is an attempt by the petitioner to mislead the Court on the basis of frivolous allegations and by suppression of material facts as pointed out and discussed above. 63. In view of such incorrect presentation of facts, this court had issued notice and also subsequently passed the injunction order which is still continuing. 64. This Court, therefore, dismisses the writ petition and vacates the interim order and is not called upon to decide the merits, if any, of the petitioners case. No case of tapping of telephone has been made out against the statutory authorities in view of the criminal case which is going on and especially in view of the petitioners stand that he is satisfied with the investigation in that case. The petitioner has withdrawn its case against the respondent No.7. In that view of the matter this Court makes it clear that the petitioner, if so advised, may proceed against the service provider, respondent No.8, before the appropriate forum, in accordance with law. This Court, however, makes it clear that it does not make any observation on the merits of the case in the event the petitioner initiates any proceeding against respondent No.8.65. This court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court.66. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik (supra), Barium Chemicals Ltd. (supra) and A.K.K. Nambiar (supra) and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said rules.67. These rules, reiterated by this Court time and again, are aimed at protecting the Court against frivolous litigation must not be diluted or ignored. However, in practice they are frequently flouted by the litigants and often ignored by the Registry of this Court. The instant petition is an illustration of the same. If the rules for affirming affidavit according to Supreme Court were followed, it would have been difficult for the petitioner to file this petition and so much of judicial time would have been saved. This case is not isolated instance. There are innumerable cases which have been filed with affidavits affirmed in a slipshod manner.

0[ds]24. In the instant case, the petitioner invoked the extraordinary writ jurisdiction of this Court under Article 32, without filing a proper affidavit as required in terms of Order XIX Rule 3 of the Code. Apart from the fact that the petitioner invoked Article 32, the nature of the challenge in his petition is very serious in the sense that he is alleging an attempt by the government of intercepting his phone and he is further alleging that in making this attempt the government is acting on extraneous considerations, and is virtually acting in furtherance of the design of the ruling party. It is, therefore, imperative that before making such an allegation the petitioner should be careful, circumspect and file a proper affidavit in support of his averment in the petition.In view of such disclosures in the affidavit of the Police authorities as also in the affidavit filed by Mr. Chopra on behalf of Delhi Administration, it appeared strange to this court how the service provider, respondent no. 8 could act on the basis of communications dated 22.10.2005 and 9.11.2005. To this Court, it appeared that any reasonable person or a reasonable body of persons or an institution which is discharging public duty as a service provider, before acting on an order like the one dated 9.11.2005, would at least carefully read its contents. Even from a casual reading of the purported communication dated 9.11.2005, containing so many gross mistakes, one would reasonably be suspicious of the authenticity of its text.Considering the materials on record, this Court is of the opinion that it is no doubt true that the service provider has to act on an urgent basis and has to act in public interest. But in a given case, like the present one, where the impugned communication dated 9.11.2005 is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. This Court is of the opinion that the service provider has to act as a responsible agency and cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court.39. Therefore, while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the respondent No.8 is equally duty bound to immediately verify the authenticity of such communication if on a reasonable reading of the same, it appears to any person, acting bona fide, that such communication, with innumerable mistakes, falls clearly short of the tenor of a genuine official communication. Therefore, the explanation of the service provider is not acceptable to this Court. If the service provider could have shown, which it has not done in the present case, that it had tried to ascertain from the author of the communication, its genuineness, but had not received any response or that the authority had accepted the communication as genuine, the service providers duty would have been over. But the mere stand that there is no provision under the rule to do so is a lame excuse, especially having regard to the public element involved in the working of the service provider and the consequential effect it has on the fundamental right of the person concerned.Even though in the order of this Court dated 27th February, 2006, there is an observation that respondent No. 7 has been impleaded unnecessarily, the said respondent has not been deleted and in the amended cause title also, respondent No. 7 remains impleaded. The averments against the said respondent were not withdrawn by the petitioner.It therefore appears that the petitioner has been shifting his stand to suit his convenience. In 2006, the gravamen of the petitioners grievances was against the respondent no. 7, and the basis of his petition was the information that he derived from the said Anurag Singh. On the basis of such a petition, he invoked the jurisdiction of this Court and an interim order was issued in his favour, which is still continuing.Apart from the aforesaid, in the writ petition which was filed on 21st January, 2006, there is no mention of the fact that the petitioner gave a statement under section 161, Code of Criminal Procedure in connection with the investigation arising out of FIR lodged on 30th December, 2005. From the records of the case it appears the petitioner gave 161 statement on 13th January, 2006. In the writ petition there is a complete suppression of the aforesaid fact. A statement under Section 161 is certainly a material fact in a police investigation in connection with an FIR. The investigation is to find out the genuineness of those very documents on the basis of which the writ petition was moved. In that factual context, total suppression in the writ petition of the fact that the petitioner gave a 161 statement in that investigation is, in our judgment, suppression of a very material fact.52. It is, therefore, clear that writ petition is frivolous and is speculative in character. This Court is of the opinion that the so called legal questions on tapping of telephone cannot be gone into on the basis of a petition which is so weak in its foundation.This Court, therefore, dismisses the writ petition and vacates the interim order and is not called upon to decide the merits, if any, of the petitioners case. No case of tapping of telephone has been made out against the statutory authorities in view of the criminal case which is going on and especially in view of the petitioners stand that he is satisfied with the investigation in that case. The petitioner has withdrawn its case against the respondent No.7. In that view of the matter this Court makes it clear that the petitioner, if so advised, may proceed against the service provider, respondent No.8, before the appropriate forum, in accordance with law. This Court, however, makes it clear that it does not make any observation on the merits of the case in the event the petitioner initiates any proceeding against respondent No.8.65. This court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court.66. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik (supra), Barium Chemicals Ltd. (supra) and A.K.K. Nambiar (supra) and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said rules.67. These rules, reiterated by this Court time and again, are aimed at protecting the Court against frivolous litigation must not be diluted or ignored. However, in practice they are frequently flouted by the litigants and often ignored by the Registry of this Court. The instant petition is an illustration of the same. If the rules for affirming affidavit according to Supreme Court were followed, it would have been difficult for the petitioner to file this petition and so much of judicial time would have been saved. This case is not isolated instance. There are innumerable cases which have been filed with affidavits affirmed in a slipshod manner.

### 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 fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement." 58. It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by principles of `uberrima fide. 59. The aforesaid requirement of coming to Court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri Das - AIR 1963 SC 1558 , Welcome Hotel and others v. State of A.P. and others - (1983) 4 SCC 575 , G. Narayanaswamy Reddy (Dead) by LRs. and another v. Government of Karnatka and another - JT 1991(3) SC 12 : (1991) 3 SCC 261 , S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others - JT 1993 (6) SC 331 : (1994) 1 SCC 1 , A.V. Papayya Sastry and others v. Government of A.P. and others - JT 2007 (4) SC 186 : (2007) 4 SCC 221 , Prestige Lights Limited v. SBI - JT 2007(10) SC 218 : (2007) 8 SCC 449 , Sunil Poddar and others v. Union Bank of India - JT 2008(1) SC 308 : (2008) 2 SCC 326 , K.D.Sharma v. SAIL and others - JT 2008 (8) SC 57 : (2008) 12 SCC 481 , G. Jayashree and others v. Bhagwandas S. Patel and others - JT 2009(2) SC 71 : (2009) 3 SCC 141 , Dalip Singh v. State of U.P. and others - JT 2009 (15) SC 201 : (2010) 2 SCC 114. 60. In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far reaching effect. We, therefore, repeat those principles here again: "For many centuries Indian society cherished two basic values of life i.e. "satya"(truth) and "ahimsa (non-violence), Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." 61. However, this Court is constrained to observe that those principles are honoured more in breach than in their observance. 62. Following these principles, this Court has no hesitation in holding that the instant writ petition is an attempt by the petitioner to mislead the Court on the basis of frivolous allegations and by suppression of material facts as pointed out and discussed above. 63. In view of such incorrect presentation of facts, this court had issued notice and also subsequently passed the injunction order which is still continuing. 64. This Court, therefore, dismisses the writ petition and vacates the interim order and is not called upon to decide the merits, if any, of the petitioners case. No case of tapping of telephone has been made out against the statutory authorities in view of the criminal case which is going on and especially in view of the petitioners stand that he is satisfied with the investigation in that case. The petitioner has withdrawn its case against the respondent No.7. In that view of the matter this Court makes it clear that the petitioner, if so advised, may proceed against the service provider, respondent No.8, before the appropriate forum, in accordance with law. This Court, however, makes it clear that it does not make any observation on the merits of the case in the event the petitioner initiates any proceeding against respondent No.8.65. This court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court.66. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik (supra), Barium Chemicals Ltd. (supra) and A.K.K. Nambiar (supra) and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said rules.67. These rules, reiterated by this Court time and again, are aimed at protecting the Court against frivolous litigation must not be diluted or ignored. However, in practice they are frequently flouted by the litigants and often ignored by the Registry of this Court. The instant petition is an illustration of the same. If the rules for affirming affidavit according to Supreme Court were followed, it would have been difficult for the petitioner to file this petition and so much of judicial time would have been saved. This case is not isolated instance. There are innumerable cases which have been filed with affidavits affirmed in a slipshod manner. ### Response: 0 ### Explanation: it is no doubt true that the service provider has to act on an urgent basis and has to act in public interest. But in a given case, like the present one, where the impugned communication dated 9.11.2005 is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. This Court is of the opinion that the service provider has to act as a responsible agency and cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court.39. Therefore, while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the respondent No.8 is equally duty bound to immediately verify the authenticity of such communication if on a reasonable reading of the same, it appears to any person, acting bona fide, that such communication, with innumerable mistakes, falls clearly short of the tenor of a genuine official communication. Therefore, the explanation of the service provider is not acceptable to this Court. If the service provider could have shown, which it has not done in the present case, that it had tried to ascertain from the author of the communication, its genuineness, but had not received any response or that the authority had accepted the communication as genuine, the service providers duty would have been over. But the mere stand that there is no provision under the rule to do so is a lame excuse, especially having regard to the public element involved in the working of the service provider and the consequential effect it has on the fundamental right of the person concerned.Even though in the order of this Court dated 27th February, 2006, there is an observation that respondent No. 7 has been impleaded unnecessarily, the said respondent has not been deleted and in the amended cause title also, respondent No. 7 remains impleaded. The averments against the said respondent were not withdrawn by the petitioner.It therefore appears that the petitioner has been shifting his stand to suit his convenience. In 2006, the gravamen of the petitioners grievances was against the respondent no. 7, and the basis of his petition was the information that he derived from the said Anurag Singh. On the basis of such a petition, he invoked the jurisdiction of this Court and an interim order was issued in his favour, which is still continuing.Apart from the aforesaid, in the writ petition which was filed on 21st January, 2006, there is no mention of the fact that the petitioner gave a statement under section 161, Code of Criminal Procedure in connection with the investigation arising out of FIR lodged on 30th December, 2005. From the records of the case it appears the petitioner gave 161 statement on 13th January, 2006. In the writ petition there is a complete suppression of the aforesaid fact. A statement under Section 161 is certainly a material fact in a police investigation in connection with an FIR. The investigation is to find out the genuineness of those very documents on the basis of which the writ petition was moved. In that factual context, total suppression in the writ petition of the fact that the petitioner gave a 161 statement in that investigation is, in our judgment, suppression of a very material fact.52. It is, therefore, clear that writ petition is frivolous and is speculative in character. This Court is of the opinion that the so called legal questions on tapping of telephone cannot be gone into on the basis of a petition which is so weak in its foundation.This Court, therefore, dismisses the writ petition and vacates the interim order and is not called upon to decide the merits, if any, of the petitioners case. No case of tapping of telephone has been made out against the statutory authorities in view of the criminal case which is going on and especially in view of the petitioners stand that he is satisfied with the investigation in that case. The petitioner has withdrawn its case against the respondent No.7. In that view of the matter this Court makes it clear that the petitioner, if so advised, may proceed against the service provider, respondent No.8, before the appropriate forum, in accordance with law. This Court, however, makes it clear that it does not make any observation on the merits of the case in the event the petitioner initiates any proceeding against respondent No.8.65. This court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court.66. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik (supra), Barium Chemicals Ltd. (supra) and A.K.K. Nambiar (supra) and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said rules.67. These rules, reiterated by this Court time and again, are aimed at protecting the Court against frivolous litigation must not be diluted or ignored. However, in practice they are frequently flouted by the litigants and often ignored by the Registry of this Court. The instant petition is an illustration of the same. If the rules for affirming affidavit according to Supreme Court were followed, it would have been difficult for the petitioner to file this petition and so much of judicial time would have been saved. This case is not isolated instance. There are innumerable cases which have been filed with affidavits affirmed in a slipshod manner.

Indian Banks Association Vs. Workmen Of Syndicate Bank

and, therefore, the Tribunal had given the direction, as set out hereinabove, as and by way of a package. He submitted that earlier commission was being paid at a rate of 3.5 per cent by most of the Banks. He pointed out that now, over and above the sum of Rs. 7,500/-, the commission had been reduced to 2 per cent. He submitted that to that extent Deposit Collectors were losing, but as this was part of the package as given by the Tribunal it was being accepted by the Deposit Collectors. He submitted that the directions given by the Tribunal were fair and just and absolutely right. He submitted that the Order of the High Court was correct and this Court should not interfere. 23. Mr. Nageshwar Rao, who appeared for the appellants in C.A. No. 3356 of 1998, supported Mr. Sharma in all his submissions. He, however, submitted that the High Court was wrong in setting aside the directions regarding regularisation of service. He submitted that the concession which had been made before the High Court had not been made on behalf of his clients and his clients could not be held to be bound by such concession. He submitted that in any case the Deposit Collectors should get the pay scales, allowance and other service conditions of the other employees of the banks. He submitted that even though the Deposit Collectors may not have been absorbed as regular employees of the Banks, yet they should have been granted the pay scales, allowance and other service conditions of the employees of the Banks. He submitted that most of these Deposit Collectors had been working for 20 to 25 years and that there was nothing wrong if they were either absorbed in the Banks or given the pay scales, allowances and other service conditions of the other employees of the Banks. 24. We have considered the rival submissions. In our view, Mr. Sharma was right when he submitted that on the basis of evidence before it the Tribunal has given findings of fact that the Deposit Collectors were workmen within the meaning of Section 2 (develop) of the Industrial Disputes Act. On the evidence on record it could not be said that this finding was unsustainable. Having been shown the relevant evidence we are also of the opinion that the Tribunal correctly arrived at a conclusion that these Deposit Collectors were workmen.25. Further, as seen from Section 2(rr) of the Industrial Disputes Act, the commission received by Deposit Collectors is nothing else but wage, which is dependent on the productivity. This commission is paid for promoting the business of the various banks.26. We also cannot accept the submission that the Banks have no control over the Deposit Collectors. Undoubtedly, the Deposit Collectors are free to regulate their own hours of work but that is because of the nature for the work itself. It would be impossible to fix working hours for such Deposit Collectors because they have to go to various depositors. This would have to be done at the convenience of the deposits and at such times as required by the depositors. If this is so, then no time can be fixed for such work. However, there is control inasmuch as the Deposit Collectors have to bring the collections and deposit the same in the banks by the very next day. They have to then fill in various forms, accounts, registers and pass books. They also have to do such other clerical work as the bank may direct. They are, therefore, accountable to the Bank and under the control of the Bank.27. We also see no force in the contention that Section 10 of the Banking Regulations Act prevents employment of persons on commission basis. The proviso to Section 10 makes it clear that commission can be paid to persons who are not in regular employment. Undoubtedly the Deposit Collectors are not regular employees of the Bank. But they nevertheless are workers within the meaning of the term as defined in the Industrial Disputes Act. There is clearly a relationship of master and servant between the Deposit Collectors and the concerned Bank.28. Mr. Nageshwar Rao is right in his submission that the concession was not binding on his clients. However, what has been conceded has been correctly conceded. No question arose of directing absorption of the Deposit Collectors as regular workmen. No such demand had been made and, therefore, there could have been no such direction. Such directions were beyond the reference. Even otherwise, the question of absorption would be fully covered by an authority of this Court in the case of Union of India and other v. K.V. Baby and another, reported in 1999(1) LLJ 1290 : 1999(1) SCT 115 (SC). In this case it has been held that persons who are engaged on the basis of individual contracts to work on commission basis cannot be equated with regular employees doing similar work. It has been held that the mode of selection and qualifications are not comparable with those of the employees, even though the employees may be doing similar works. In the present case, not only are the modes of selection and qualifications not comparable, but even the work is not comparable. The work which the Deposit Collectors do is completely different from the work which the regular employees do. There was thus no question of absorption and there was also no question of the Deposit Collectors being paid the same pay scales, allowances and other services conditions of the regular employees of the Banks.29. We also see no substance in the contention that these Schemes are un-remunerative. The Banks have introduced these Schemes because they want to encourage the common man to make small and regular deposits. As a result of such Schemes, the number of depositors have become much larger. We have no doubt that such Schemes are continued because the Banks find them remunerative. The Banks have large collections through such Schemes. 30.

0[ds]In our view, Mr. Sharma was right when he submitted that on the basis of evidence before it the Tribunal has given findings of fact that the Deposit Collectors were workmen within the meaning of Section 2 (develop) of the Industrial Disputes Act. On the evidence on record it could not be said that this finding was unsustainable. Having been shown the relevant evidence we are also of the opinion that the Tribunal correctly arrived at a conclusion that these Deposit Collectors were workmen.25. Further, as seen from Section 2(rr) of the Industrial Disputes Act, the commission received by Deposit Collectors is nothing else but wage, which is dependent on the productivity. This commission is paid for promoting the business of the various banks.26. We also cannot accept the submission that the Banks have no control over the Deposit Collectors. Undoubtedly, the Deposit Collectors are free to regulate their own hours of work but that is because of the nature for the work itself. It would be impossible to fix working hours for such Deposit Collectors because they have to go to various depositors. This would have to be done at the convenience of the deposits and at such times as required by the depositors. If this is so, then no time can be fixed for such work. However, there is control inasmuch as the Deposit Collectors have to bring the collections and deposit the same in the banks by the very next day. They have to then fill in various forms, accounts, registers and pass books. They also have to do such other clerical work as the bank may direct. They are, therefore, accountable to the Bank and under the control of the Bank.27. We also see no force in the contention that Section 10 of the Banking Regulations Act prevents employment of persons on commission basis. The proviso to Section 10 makes it clear that commission can be paid to persons who are not in regular employment. Undoubtedly the Deposit Collectors are not regular employees of the Bank. But they nevertheless are workers within the meaning of the term as defined in the Industrial Disputes Act. There is clearly a relationship of master and servant between the Deposit Collectors and the concerned Bank.28. Mr. Nageshwar Rao is right in his submission that the concession was not binding on his clients. However, what has been conceded has been correctly conceded. No question arose of directing absorption of the Deposit Collectors as regular workmen. No such demand had been made and, therefore, there could have been no such direction. Such directions were beyond the reference. Even otherwise, the question of absorption would be fully covered by an authority of this Court in the case of Union of India and other v. K.V. Baby and another, reported in 1999(1) LLJ 1290 : 1999(1) SCT 115 (SC). In this case it has been held that persons who are engaged on the basis of individual contracts to work on commission basis cannot be equated with regular employees doing similar work. It has been held that the mode of selection and qualifications are not comparable with those of the employees, even though the employees may be doing similar works. In the present case, not only are the modes of selection and qualifications not comparable, but even the work is not comparable. The work which the Deposit Collectors do is completely different from the work which the regular employees do. There was thus no question of absorption and there was also no question of the Deposit Collectors being paid the same pay scales, allowances and other services conditions of the regular employees of the Banks.29. We also see no substance in the contention that these Schemes areThe Banks have introduced these Schemes because they want to encourage the common man to make small and regular deposits. As a result of such Schemes, the number of depositors have become much larger. We have no doubt that such Schemes are continued because the Banks find them remunerative. The Banks have large collections through such Schemes.

### 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: and, therefore, the Tribunal had given the direction, as set out hereinabove, as and by way of a package. He submitted that earlier commission was being paid at a rate of 3.5 per cent by most of the Banks. He pointed out that now, over and above the sum of Rs. 7,500/-, the commission had been reduced to 2 per cent. He submitted that to that extent Deposit Collectors were losing, but as this was part of the package as given by the Tribunal it was being accepted by the Deposit Collectors. He submitted that the directions given by the Tribunal were fair and just and absolutely right. He submitted that the Order of the High Court was correct and this Court should not interfere. 23. Mr. Nageshwar Rao, who appeared for the appellants in C.A. No. 3356 of 1998, supported Mr. Sharma in all his submissions. He, however, submitted that the High Court was wrong in setting aside the directions regarding regularisation of service. He submitted that the concession which had been made before the High Court had not been made on behalf of his clients and his clients could not be held to be bound by such concession. He submitted that in any case the Deposit Collectors should get the pay scales, allowance and other service conditions of the other employees of the banks. He submitted that even though the Deposit Collectors may not have been absorbed as regular employees of the Banks, yet they should have been granted the pay scales, allowance and other service conditions of the employees of the Banks. He submitted that most of these Deposit Collectors had been working for 20 to 25 years and that there was nothing wrong if they were either absorbed in the Banks or given the pay scales, allowances and other service conditions of the other employees of the Banks. 24. We have considered the rival submissions. In our view, Mr. Sharma was right when he submitted that on the basis of evidence before it the Tribunal has given findings of fact that the Deposit Collectors were workmen within the meaning of Section 2 (develop) of the Industrial Disputes Act. On the evidence on record it could not be said that this finding was unsustainable. Having been shown the relevant evidence we are also of the opinion that the Tribunal correctly arrived at a conclusion that these Deposit Collectors were workmen.25. Further, as seen from Section 2(rr) of the Industrial Disputes Act, the commission received by Deposit Collectors is nothing else but wage, which is dependent on the productivity. This commission is paid for promoting the business of the various banks.26. We also cannot accept the submission that the Banks have no control over the Deposit Collectors. Undoubtedly, the Deposit Collectors are free to regulate their own hours of work but that is because of the nature for the work itself. It would be impossible to fix working hours for such Deposit Collectors because they have to go to various depositors. This would have to be done at the convenience of the deposits and at such times as required by the depositors. If this is so, then no time can be fixed for such work. However, there is control inasmuch as the Deposit Collectors have to bring the collections and deposit the same in the banks by the very next day. They have to then fill in various forms, accounts, registers and pass books. They also have to do such other clerical work as the bank may direct. They are, therefore, accountable to the Bank and under the control of the Bank.27. We also see no force in the contention that Section 10 of the Banking Regulations Act prevents employment of persons on commission basis. The proviso to Section 10 makes it clear that commission can be paid to persons who are not in regular employment. Undoubtedly the Deposit Collectors are not regular employees of the Bank. But they nevertheless are workers within the meaning of the term as defined in the Industrial Disputes Act. There is clearly a relationship of master and servant between the Deposit Collectors and the concerned Bank.28. Mr. Nageshwar Rao is right in his submission that the concession was not binding on his clients. However, what has been conceded has been correctly conceded. No question arose of directing absorption of the Deposit Collectors as regular workmen. No such demand had been made and, therefore, there could have been no such direction. Such directions were beyond the reference. Even otherwise, the question of absorption would be fully covered by an authority of this Court in the case of Union of India and other v. K.V. Baby and another, reported in 1999(1) LLJ 1290 : 1999(1) SCT 115 (SC). In this case it has been held that persons who are engaged on the basis of individual contracts to work on commission basis cannot be equated with regular employees doing similar work. It has been held that the mode of selection and qualifications are not comparable with those of the employees, even though the employees may be doing similar works. In the present case, not only are the modes of selection and qualifications not comparable, but even the work is not comparable. The work which the Deposit Collectors do is completely different from the work which the regular employees do. There was thus no question of absorption and there was also no question of the Deposit Collectors being paid the same pay scales, allowances and other services conditions of the regular employees of the Banks.29. We also see no substance in the contention that these Schemes are un-remunerative. The Banks have introduced these Schemes because they want to encourage the common man to make small and regular deposits. As a result of such Schemes, the number of depositors have become much larger. We have no doubt that such Schemes are continued because the Banks find them remunerative. The Banks have large collections through such Schemes. 30. ### Response: 0 ### Explanation: In our view, Mr. Sharma was right when he submitted that on the basis of evidence before it the Tribunal has given findings of fact that the Deposit Collectors were workmen within the meaning of Section 2 (develop) of the Industrial Disputes Act. On the evidence on record it could not be said that this finding was unsustainable. Having been shown the relevant evidence we are also of the opinion that the Tribunal correctly arrived at a conclusion that these Deposit Collectors were workmen.25. Further, as seen from Section 2(rr) of the Industrial Disputes Act, the commission received by Deposit Collectors is nothing else but wage, which is dependent on the productivity. This commission is paid for promoting the business of the various banks.26. We also cannot accept the submission that the Banks have no control over the Deposit Collectors. Undoubtedly, the Deposit Collectors are free to regulate their own hours of work but that is because of the nature for the work itself. It would be impossible to fix working hours for such Deposit Collectors because they have to go to various depositors. This would have to be done at the convenience of the deposits and at such times as required by the depositors. If this is so, then no time can be fixed for such work. However, there is control inasmuch as the Deposit Collectors have to bring the collections and deposit the same in the banks by the very next day. They have to then fill in various forms, accounts, registers and pass books. They also have to do such other clerical work as the bank may direct. They are, therefore, accountable to the Bank and under the control of the Bank.27. We also see no force in the contention that Section 10 of the Banking Regulations Act prevents employment of persons on commission basis. The proviso to Section 10 makes it clear that commission can be paid to persons who are not in regular employment. Undoubtedly the Deposit Collectors are not regular employees of the Bank. But they nevertheless are workers within the meaning of the term as defined in the Industrial Disputes Act. There is clearly a relationship of master and servant between the Deposit Collectors and the concerned Bank.28. Mr. Nageshwar Rao is right in his submission that the concession was not binding on his clients. However, what has been conceded has been correctly conceded. No question arose of directing absorption of the Deposit Collectors as regular workmen. No such demand had been made and, therefore, there could have been no such direction. Such directions were beyond the reference. Even otherwise, the question of absorption would be fully covered by an authority of this Court in the case of Union of India and other v. K.V. Baby and another, reported in 1999(1) LLJ 1290 : 1999(1) SCT 115 (SC). In this case it has been held that persons who are engaged on the basis of individual contracts to work on commission basis cannot be equated with regular employees doing similar work. It has been held that the mode of selection and qualifications are not comparable with those of the employees, even though the employees may be doing similar works. In the present case, not only are the modes of selection and qualifications not comparable, but even the work is not comparable. The work which the Deposit Collectors do is completely different from the work which the regular employees do. There was thus no question of absorption and there was also no question of the Deposit Collectors being paid the same pay scales, allowances and other services conditions of the regular employees of the Banks.29. We also see no substance in the contention that these Schemes areThe Banks have introduced these Schemes because they want to encourage the common man to make small and regular deposits. As a result of such Schemes, the number of depositors have become much larger. We have no doubt that such Schemes are continued because the Banks find them remunerative. The Banks have large collections through such Schemes.

Bhavesh Jayanti Lakhani Vs. State Of Maharashtra

SCC 57] , this Court protected the Right to Privacy of a prostitute. It was held that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he likes. In this case, except giving information in regard to whereabouts of the Appellant and his daughter, no other action was taken. It is in the aforementioned context, we may notice a decision of this Court in Malak Singh v. State of P&H, [(1981) 1 SCC 420] . This case dealt with an application filed by applicants seeking to remove their names from the surveillance register maintained by the Police Station of their jurisdiction under the Punjab Police Rules. This Court while upholding the jurisdiction of the Punjab Police made observations on the mode of surveillance. The case directly or indirectly laid great emphasis on certain grey areas with regard to carrying out of the activities of surveillance on the part of the CBI and the police authorities. In Malak Singh (supra) this Court clearly contemplated surveillance by the police in pursuance to the rules under which they are being done. No such guideline, however, has been laid down in respect of surveillance conducted pursuant to a Red Corner or Yellow Corner Notice. The Central Government and in particular the Ministry of External Affairs, in our opinion, should frame appropriate guidelines in this behalf. Indisputably, further action in terms of the Red Corner Notice has not been and could not be taken against the Appellant, in the instant case. It is conceded at the Bar that the proceedings for extradition of a citizen could be initiated provided the conditions precedent laid down in terms of the provisions of the Act. The Act prescribes a request made by a foreign country whether with it a treaty has been entered into or not. In the absence of any such request, no proceeding could be initiated. In the aforementioned context, it is not necessary for us to enter into the question as to whether the Appellant could be arrested or not. We have noticed hereinbefore, the affidavit affirmed on behalf of CBI while dealing with the question of the limitation of its power. In addition thereto CBI has also stated that: (i) In the instant case, the averments of the appellant that prima facie the case arises out of a matrimonial dispute are all questions that are required to be gone into either by the Extradition Court appointed by the Central Government as per section 5 of the Act or subsequent to the Extradition of the Petitioner to the country in question. (ii) In any event, there has been no arrest of the Petitioner as the CBI is awaiting the necessary papers from the American Government. (iii) Also, the fact that India is not a party or signatory to the Hague Convention on the Civil Aspects of International Child Abduction does not make any difference in the instant case. (iv) Furthermore, it is incorrect to say that the Petitioner is being treated like a commodity. A warrant of arrest by a competent court in United States has been issued against the Petitioner. Under International obligations, the CBI is required, when so requested to act on the red corner notice issued pursuant to the warrant of arrest. If fugitives are not apprehended pursuant to the warrant of arrest/red corner notice, it would be very easy for such persons to escape punishment. The petitioner has rights under the Act as well as the judicial process in United States (if he is ultimately extradited). (v) Lastly, that till date the CBI has not received any request from the US authorities for the arrest and Extradition of the Petitioner. The Ministry of External Affairs, too, through its Joint Secretary (Counsular), Mr. P.M. Meena, by means of an affidavit dated 15th April 2009 admitted that: (i) It is the Ministry of External Affairs, Government of India, New Delhi which is the nodal agency for Extradition as per the Act and the Extradition Treaty between the Government of India and the United States of America. (ii) On receipt of a Red Corner Notice, it is not the invariable practice to arrest the person but efforts are made to trace him though the local police. The consideration of the question of arrest and Extradition would be within the framework of domestic law including Indian Extradition Act and the Extradition Treaty with the Requesting Country. Extradition of a person would only arise after request for extradition is formally received from the country. In the present case, no formal request has been received from the United States authorities. (iii) Moreover, as per the prevalent practice, in cases pertaining to matrimonial affairs, the view taken is that such matters may not generally be held to satisfy the test of dual criminality. (iv) In any case, since the instant case, is a case of domestic law, the view of the Ministry of Law would be called for and taken into consideration. It is, therefore, clear that intervention by the Ministry of External Affairs is crucial when a request is received by it from a foreign country. The learned Attorney General states before us that the Ministry of External Affairs invariably refers such matter to the Ministry of Law and Justice for his opinion as to whether in a given situation an extraditable offence has been made out or not. We have been informed that kidnapping in case of matrimonial dispute per se is not considered to be an extraditable offence. It was furthermore contended that even violation of an order passed by a court of competent jurisdiction in U.S.A. being punishable for imprisonment for six months only, the Appellant cannot be extradited for commission of the said offence also. We may, however, place on record that United States has enacted the International Parental Kidnapping Crime Act of 1993. However, the law in India shall be governed by the provisions of the Indian Penal Code, 1860.

0[ds]The CBI has also filed its counter affidavit before this Court stating that the Indian Interpol Wing works as an interface between the Interpol Secretariat General, France, Interpol member countries and various law enforcement agencies of India. One of its functions is to circulate the Red Corner Notice as also Yellow Corner Notices issued by the Interpol Secretariat General at the behest of any member country within India. The Red Corner Notice is issued to the border control authorities and others so as to enable them to effect an arrest along with details and papers including a warrant from the originating country. An arrest may also be made under the said Act. The Ministry of External Affairs works for the administrative watching of the Act.A Red Corner Notice has large number of consequences, some of which are:(i) The requesting country may make a deportation request.(ii) The law enforcement agency in India is required to "take follow up action with regard to the arrest of a fugitive criminal".(iii) The information emanating from the red corner notice is required to be distributed all over the Interpol website.(iv) The requesting Embassy would instruct the CBI to carry out its instructions for surveillance, arrest and detention.(v) The requesting Embassy can even contact the Indian police directly.(vi) Thereafter extradition proceedings may follow.Indisputably, therefore, when a proceeding under the Act is initiated, the civil liberty of a person would be directly affected. The provisions of the Act, therefore, should be strictly construed. Any request for extradition therefore must undergo the strict scrutiny test. Extradition offence keeping in view its definition in Section 2(c) of the Act in relation to a treaty State must be one provided for the extradition treaty therewith.Application of the provisions of the Act, thus, in a case of this nature must be held to be imperative in character. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence and other offences including political offences subject of course to the condition that offences relating to illegal tax are not to be treated to be a political offence. Sectionsprovides for the mode and manner in which a request for extradition of a person is required to be made by the concerned country. The requirements are specific in nature and are required to be accompanied by a large number of documents.It is accepted at the Bar that no request has yet been made to the Executive Government of the Government of India for extradition of the Appellant upon compliance of the provisions of Sectionor otherwise.It is but imperative to note the provisions of the Treaty herevis the implementation of a Red/ Yellow Corner Notice.Article 1 of the Treaty provides that the Contracting States agree to extradite to each other, persons who are accused of, charged with or convicted of an extraditable offence.Article 2 provides for the extraditable office. Article 4 provides for political offences which are outside the purview of the Treaty. Article 9 provides for the extradition procedures and required documents.It is beyond any doubt or dispute that no request for extradition has been received by the Government of India. It could act only when a request is received. It is accepted at the Bar that Red Corner Notice by itself cannot be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction. There is furthermore no dispute that the Act cannot be bypassed in red corner cases concerning Indian citizens. Hence the Extradition Treaty is subject to the provisions of the Act. It also stands admitted that the Appellant being an Indian citizen is entitled to enforcement of his fundamental rights.The legal position that a person cannot be arrested without any authority of law again is not denied or disputed. Thus, the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions:(i) That the offence should be counted as one by Indian Law as well, and(ii) The person must be liable to be arrested in Indiaeither under any law relating to extradition, or otherwise.Such an arrest can be effected only pursuant to a warrant issued by the Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it is only the Magistrate who issues the warrant for arrest subject of course to the condition that the Central Government had ordered a Magisterial Inquiry in terms of Section 5 of the Act. Such an order of arrest, emanating from a Treaty

### 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: SCC 57] , this Court protected the Right to Privacy of a prostitute. It was held that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he likes. In this case, except giving information in regard to whereabouts of the Appellant and his daughter, no other action was taken. It is in the aforementioned context, we may notice a decision of this Court in Malak Singh v. State of P&H, [(1981) 1 SCC 420] . This case dealt with an application filed by applicants seeking to remove their names from the surveillance register maintained by the Police Station of their jurisdiction under the Punjab Police Rules. This Court while upholding the jurisdiction of the Punjab Police made observations on the mode of surveillance. The case directly or indirectly laid great emphasis on certain grey areas with regard to carrying out of the activities of surveillance on the part of the CBI and the police authorities. In Malak Singh (supra) this Court clearly contemplated surveillance by the police in pursuance to the rules under which they are being done. No such guideline, however, has been laid down in respect of surveillance conducted pursuant to a Red Corner or Yellow Corner Notice. The Central Government and in particular the Ministry of External Affairs, in our opinion, should frame appropriate guidelines in this behalf. Indisputably, further action in terms of the Red Corner Notice has not been and could not be taken against the Appellant, in the instant case. It is conceded at the Bar that the proceedings for extradition of a citizen could be initiated provided the conditions precedent laid down in terms of the provisions of the Act. The Act prescribes a request made by a foreign country whether with it a treaty has been entered into or not. In the absence of any such request, no proceeding could be initiated. In the aforementioned context, it is not necessary for us to enter into the question as to whether the Appellant could be arrested or not. We have noticed hereinbefore, the affidavit affirmed on behalf of CBI while dealing with the question of the limitation of its power. In addition thereto CBI has also stated that: (i) In the instant case, the averments of the appellant that prima facie the case arises out of a matrimonial dispute are all questions that are required to be gone into either by the Extradition Court appointed by the Central Government as per section 5 of the Act or subsequent to the Extradition of the Petitioner to the country in question. (ii) In any event, there has been no arrest of the Petitioner as the CBI is awaiting the necessary papers from the American Government. (iii) Also, the fact that India is not a party or signatory to the Hague Convention on the Civil Aspects of International Child Abduction does not make any difference in the instant case. (iv) Furthermore, it is incorrect to say that the Petitioner is being treated like a commodity. A warrant of arrest by a competent court in United States has been issued against the Petitioner. Under International obligations, the CBI is required, when so requested to act on the red corner notice issued pursuant to the warrant of arrest. If fugitives are not apprehended pursuant to the warrant of arrest/red corner notice, it would be very easy for such persons to escape punishment. The petitioner has rights under the Act as well as the judicial process in United States (if he is ultimately extradited). (v) Lastly, that till date the CBI has not received any request from the US authorities for the arrest and Extradition of the Petitioner. The Ministry of External Affairs, too, through its Joint Secretary (Counsular), Mr. P.M. Meena, by means of an affidavit dated 15th April 2009 admitted that: (i) It is the Ministry of External Affairs, Government of India, New Delhi which is the nodal agency for Extradition as per the Act and the Extradition Treaty between the Government of India and the United States of America. (ii) On receipt of a Red Corner Notice, it is not the invariable practice to arrest the person but efforts are made to trace him though the local police. The consideration of the question of arrest and Extradition would be within the framework of domestic law including Indian Extradition Act and the Extradition Treaty with the Requesting Country. Extradition of a person would only arise after request for extradition is formally received from the country. In the present case, no formal request has been received from the United States authorities. (iii) Moreover, as per the prevalent practice, in cases pertaining to matrimonial affairs, the view taken is that such matters may not generally be held to satisfy the test of dual criminality. (iv) In any case, since the instant case, is a case of domestic law, the view of the Ministry of Law would be called for and taken into consideration. It is, therefore, clear that intervention by the Ministry of External Affairs is crucial when a request is received by it from a foreign country. The learned Attorney General states before us that the Ministry of External Affairs invariably refers such matter to the Ministry of Law and Justice for his opinion as to whether in a given situation an extraditable offence has been made out or not. We have been informed that kidnapping in case of matrimonial dispute per se is not considered to be an extraditable offence. It was furthermore contended that even violation of an order passed by a court of competent jurisdiction in U.S.A. being punishable for imprisonment for six months only, the Appellant cannot be extradited for commission of the said offence also. We may, however, place on record that United States has enacted the International Parental Kidnapping Crime Act of 1993. However, the law in India shall be governed by the provisions of the Indian Penal Code, 1860. ### Response: 0 ### Explanation: The CBI has also filed its counter affidavit before this Court stating that the Indian Interpol Wing works as an interface between the Interpol Secretariat General, France, Interpol member countries and various law enforcement agencies of India. One of its functions is to circulate the Red Corner Notice as also Yellow Corner Notices issued by the Interpol Secretariat General at the behest of any member country within India. The Red Corner Notice is issued to the border control authorities and others so as to enable them to effect an arrest along with details and papers including a warrant from the originating country. An arrest may also be made under the said Act. The Ministry of External Affairs works for the administrative watching of the Act.A Red Corner Notice has large number of consequences, some of which are:(i) The requesting country may make a deportation request.(ii) The law enforcement agency in India is required to "take follow up action with regard to the arrest of a fugitive criminal".(iii) The information emanating from the red corner notice is required to be distributed all over the Interpol website.(iv) The requesting Embassy would instruct the CBI to carry out its instructions for surveillance, arrest and detention.(v) The requesting Embassy can even contact the Indian police directly.(vi) Thereafter extradition proceedings may follow.Indisputably, therefore, when a proceeding under the Act is initiated, the civil liberty of a person would be directly affected. The provisions of the Act, therefore, should be strictly construed. Any request for extradition therefore must undergo the strict scrutiny test. Extradition offence keeping in view its definition in Section 2(c) of the Act in relation to a treaty State must be one provided for the extradition treaty therewith.Application of the provisions of the Act, thus, in a case of this nature must be held to be imperative in character. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence and other offences including political offences subject of course to the condition that offences relating to illegal tax are not to be treated to be a political offence. Sectionsprovides for the mode and manner in which a request for extradition of a person is required to be made by the concerned country. The requirements are specific in nature and are required to be accompanied by a large number of documents.It is accepted at the Bar that no request has yet been made to the Executive Government of the Government of India for extradition of the Appellant upon compliance of the provisions of Sectionor otherwise.It is but imperative to note the provisions of the Treaty herevis the implementation of a Red/ Yellow Corner Notice.Article 1 of the Treaty provides that the Contracting States agree to extradite to each other, persons who are accused of, charged with or convicted of an extraditable offence.Article 2 provides for the extraditable office. Article 4 provides for political offences which are outside the purview of the Treaty. Article 9 provides for the extradition procedures and required documents.It is beyond any doubt or dispute that no request for extradition has been received by the Government of India. It could act only when a request is received. It is accepted at the Bar that Red Corner Notice by itself cannot be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction. There is furthermore no dispute that the Act cannot be bypassed in red corner cases concerning Indian citizens. Hence the Extradition Treaty is subject to the provisions of the Act. It also stands admitted that the Appellant being an Indian citizen is entitled to enforcement of his fundamental rights.The legal position that a person cannot be arrested without any authority of law again is not denied or disputed. Thus, the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions:(i) That the offence should be counted as one by Indian Law as well, and(ii) The person must be liable to be arrested in Indiaeither under any law relating to extradition, or otherwise.Such an arrest can be effected only pursuant to a warrant issued by the Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it is only the Magistrate who issues the warrant for arrest subject of course to the condition that the Central Government had ordered a Magisterial Inquiry in terms of Section 5 of the Act. Such an order of arrest, emanating from a Treaty

Om Prakash Singh Vs. The State of Bihar and Ors

parts of the machine have been replaced by duplicate parts, causing inaccurate results. Hence, the technical expert changed some of the duplicate parts with original parts as they were readily available with him at that time. He promised that he would inform the top officials of the manufacturer about the fiddle play of the Logotech. The said engineer/technical service expert, issued a report (i.e. Service Report) dated 17.04.2012 under his signature evidencing fitting of duplicate parts of the machine in place of the original ones. The copy of the report is also furnished along with the appeal. Having come to know about such service report against Respondent Nos. 2 and 3, they started threatening the purchaser to return back the copy of the service report to them, for which the Appellant and his wife refused. They even threatened with dire consequences of taking away their life. According to the Appellant, Respondent Nos. 2 and 3 even tried to shoot them and allegedly tried to take back the service report dated 17.04.2012 from their possession. Having no other go, the Appellant lodged an FIR before Siwan Police Station, which came to be registered as Siwan (M) P.S. Case No. 288/2012 for the offences Under Sections 420/406/374/448/307/427 and 506 read with 34 of the Indian Penal Code. In the said matter, the charge sheet came to be filed by the police station after due investigation before the Chief Judicial Magistrate, Siwan, Bihar. The Chief Judicial Magistrate, Siwan, took cognizance of the offences. The said order of cognizance was questioned by Respondent Nos. 2 and 3 before the High Court of Judicature at Patna by filing petition Under Section 482 of the Code of Criminal Procedure. The said petition was allowed by the impugned judgment. Hence, this appeal. 6. Having heard the learned Advocates from both the sides, we find that the High Court is at fault in allowing the petition filed Under Section 482 of the Code of Criminal Procedure without duly appreciating the facts and circumstances of the case and without effectively considering the allegations made in the complaint and materials found in the charge sheet. The High Court is mainly influenced by the factum that the earlier order of taking cognizance was quashed while deciding the present matter. In our considered opinion, it is an error to conceive that the present proceedings based on the subsequent complaint are liable to be quashed merely because the earlier criminal proceedings were quashed. The High Court rather advanced erroneously on the basis of presumptions and conjectures, without considering the merits of the matter. 7. It is pertinent to note that the subsequent FIR dated 05.08.2012 from which the present proceedings emerge is thrust upon discovery of a new fact of replacing the original parts with the duplicate ones. The subject matter of the complaint is in relation to the superior model Miura-200, upgraded on the advice of the Respondent-company. Though, the Appellant and his wife agreed and got their machine upgraded to Miura-200 by paying Rs. 4 lakhs extra, it is found by the technical expert appointed by the manufacturer that the Miura-200 supplied by Respondent Nos. 2 and 3 was containing duplicate parts. In other words, the original parts were replaced by the duplicate parts at the time of supply of machine to the Appellant, and subsequently the machine was not working properly resulting in inaccurate results. Thus, it is clear that the subsequent complaint dated 05.08.2012 is based on new set of facts and new set of allegations and not based on old set of allegations as have been made in the FIR dated 24.03.2008. It is needless to repeat that the FIR dated 24.03.2008 was based on the allegations of non-functioning of the machine in addition to delay and carelessness of Respondent Nos. 2 and 3 in getting the machine repaired. At that time, the Appellant and his wife were not aware about replacement of the original parts with the duplicate ones. The Service report of Key Pharma Limited was not in existence at that time. Therefore, the Chief Judicial Magistrate, Siwan was justified in taking the cognizance, since prima facie case is found against Respondent Nos. 2 and 3. 8. This Court in the case of Udai Shankar Awasthy v. The State of U.P. [(2013) 2 SCC 435, para 30] has observed that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court, or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed on full consideration of the case of the complainant on merit. In the matter on hand, the Complainant/Appellant came to know certain facts relating to the replacement of parts of the machine after the disposal of the first complaint, that too after getting a service report from Key Pharma Limited, Delhi, and, therefore, there is no bar for the Appellant to lodge second complaint. 9. Looking to the complaint and the charge-sheet, it is clear that the complainant has made host of allegations. The police after due investigation filed the charge-sheet. On going through the available material, we find a prima facie case against Respondent Nos. 2 and 3. Since the case has to be tried, we desist ourselves to comment any further on the merits of the matter. We make it clear that the observations made by us are only for disposal of this appeal. That these observations of ours will not influence the trial court while deciding the case. Since, we find prima facie material against Respondent Nos. 2 and 3, the High Court is not justified in quashing the proceedings.

1[ds]6. Having heard the learned Advocates from both the sides, we find that the High Court is at fault in allowing the petition filed Under Section 482 of the Code of Criminal Procedure without duly appreciating the facts and circumstances of the case and without effectively considering the allegations made in the complaint and materials found in the charge sheet. The High Court is mainly influenced by the factum that the earlier order of taking cognizance was quashed while deciding the present matter. In our considered opinion, it is an error to conceive that the present proceedings based on the subsequent complaint are liable to be quashed merely because the earlier criminal proceedings were quashed. The High Court rather advanced erroneously on the basis of presumptions and conjectures, without considering the merits of the matter7. It is pertinent to note that the subsequent FIR dated 05.08.2012 from which the present proceedings emerge is thrust upon discovery of a new fact of replacing the original parts with the duplicate ones. The subject matter of the complaint is in relation to the superior model Miura-200, upgraded on the advice of the Respondent-company. Though, the Appellant and his wife agreed and got their machine upgraded to Miura-200 by paying Rs. 4 lakhs extra, it is found by the technical expert appointed by the manufacturer that the Miura-200 supplied by Respondent Nos. 2 and 3 was containing duplicate parts. In other words, the original parts were replaced by the duplicate parts at the time of supply of machine to the Appellant, and subsequently the machine was not working properly resulting in inaccurate results. Thus, it is clear that the subsequent complaint dated 05.08.2012 is based on new set of facts and new set of allegations and not based on old set of allegations as have been made in the FIR dated 24.03.2008. It is needless to repeat that the FIR dated 24.03.2008 was based on the allegations of non-functioning of the machine in addition to delay and carelessness of Respondent Nos. 2 and 3 in getting the machine repaired. At that time, the Appellant and his wife were not aware about replacement of the original parts with the duplicate ones. The Service report of Key Pharma Limited was not in existence at that time. Therefore, the Chief Judicial Magistrate, Siwan was justified in taking the cognizance, since prima facie case is found against Respondent Nos. 2 and 3In the matter on hand, the Complainant/Appellant came to know certain facts relating to the replacement of parts of the machine after the disposal of the first complaint, that too after getting a service report from Key Pharma Limited, Delhi, and, therefore, there is no bar for the Appellant to lodge second complaint9. Looking to the complaint and the charge-sheet, it is clear that the complainant has made host of allegations. The police after due investigation filed the charge-sheet. On going through the available material, we find a prima facie case against Respondent Nos. 2 and 3. Since the case has to be tried, we desist ourselves to comment any further on the merits of the matter. We make it clear that the observations made by us are only for disposal of this appeal. That these observations of ours will not influence the trial court while deciding the case. Since, we find prima facie material against Respondent Nos. 2 and 3, the High Court is not justified in quashing the proceedings.

### 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: parts of the machine have been replaced by duplicate parts, causing inaccurate results. Hence, the technical expert changed some of the duplicate parts with original parts as they were readily available with him at that time. He promised that he would inform the top officials of the manufacturer about the fiddle play of the Logotech. The said engineer/technical service expert, issued a report (i.e. Service Report) dated 17.04.2012 under his signature evidencing fitting of duplicate parts of the machine in place of the original ones. The copy of the report is also furnished along with the appeal. Having come to know about such service report against Respondent Nos. 2 and 3, they started threatening the purchaser to return back the copy of the service report to them, for which the Appellant and his wife refused. They even threatened with dire consequences of taking away their life. According to the Appellant, Respondent Nos. 2 and 3 even tried to shoot them and allegedly tried to take back the service report dated 17.04.2012 from their possession. Having no other go, the Appellant lodged an FIR before Siwan Police Station, which came to be registered as Siwan (M) P.S. Case No. 288/2012 for the offences Under Sections 420/406/374/448/307/427 and 506 read with 34 of the Indian Penal Code. In the said matter, the charge sheet came to be filed by the police station after due investigation before the Chief Judicial Magistrate, Siwan, Bihar. The Chief Judicial Magistrate, Siwan, took cognizance of the offences. The said order of cognizance was questioned by Respondent Nos. 2 and 3 before the High Court of Judicature at Patna by filing petition Under Section 482 of the Code of Criminal Procedure. The said petition was allowed by the impugned judgment. Hence, this appeal. 6. Having heard the learned Advocates from both the sides, we find that the High Court is at fault in allowing the petition filed Under Section 482 of the Code of Criminal Procedure without duly appreciating the facts and circumstances of the case and without effectively considering the allegations made in the complaint and materials found in the charge sheet. The High Court is mainly influenced by the factum that the earlier order of taking cognizance was quashed while deciding the present matter. In our considered opinion, it is an error to conceive that the present proceedings based on the subsequent complaint are liable to be quashed merely because the earlier criminal proceedings were quashed. The High Court rather advanced erroneously on the basis of presumptions and conjectures, without considering the merits of the matter. 7. It is pertinent to note that the subsequent FIR dated 05.08.2012 from which the present proceedings emerge is thrust upon discovery of a new fact of replacing the original parts with the duplicate ones. The subject matter of the complaint is in relation to the superior model Miura-200, upgraded on the advice of the Respondent-company. Though, the Appellant and his wife agreed and got their machine upgraded to Miura-200 by paying Rs. 4 lakhs extra, it is found by the technical expert appointed by the manufacturer that the Miura-200 supplied by Respondent Nos. 2 and 3 was containing duplicate parts. In other words, the original parts were replaced by the duplicate parts at the time of supply of machine to the Appellant, and subsequently the machine was not working properly resulting in inaccurate results. Thus, it is clear that the subsequent complaint dated 05.08.2012 is based on new set of facts and new set of allegations and not based on old set of allegations as have been made in the FIR dated 24.03.2008. It is needless to repeat that the FIR dated 24.03.2008 was based on the allegations of non-functioning of the machine in addition to delay and carelessness of Respondent Nos. 2 and 3 in getting the machine repaired. At that time, the Appellant and his wife were not aware about replacement of the original parts with the duplicate ones. The Service report of Key Pharma Limited was not in existence at that time. Therefore, the Chief Judicial Magistrate, Siwan was justified in taking the cognizance, since prima facie case is found against Respondent Nos. 2 and 3. 8. This Court in the case of Udai Shankar Awasthy v. The State of U.P. [(2013) 2 SCC 435, para 30] has observed that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court, or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed on full consideration of the case of the complainant on merit. In the matter on hand, the Complainant/Appellant came to know certain facts relating to the replacement of parts of the machine after the disposal of the first complaint, that too after getting a service report from Key Pharma Limited, Delhi, and, therefore, there is no bar for the Appellant to lodge second complaint. 9. Looking to the complaint and the charge-sheet, it is clear that the complainant has made host of allegations. The police after due investigation filed the charge-sheet. On going through the available material, we find a prima facie case against Respondent Nos. 2 and 3. Since the case has to be tried, we desist ourselves to comment any further on the merits of the matter. We make it clear that the observations made by us are only for disposal of this appeal. That these observations of ours will not influence the trial court while deciding the case. Since, we find prima facie material against Respondent Nos. 2 and 3, the High Court is not justified in quashing the proceedings. ### Response: 1 ### Explanation: 6. Having heard the learned Advocates from both the sides, we find that the High Court is at fault in allowing the petition filed Under Section 482 of the Code of Criminal Procedure without duly appreciating the facts and circumstances of the case and without effectively considering the allegations made in the complaint and materials found in the charge sheet. The High Court is mainly influenced by the factum that the earlier order of taking cognizance was quashed while deciding the present matter. In our considered opinion, it is an error to conceive that the present proceedings based on the subsequent complaint are liable to be quashed merely because the earlier criminal proceedings were quashed. The High Court rather advanced erroneously on the basis of presumptions and conjectures, without considering the merits of the matter7. It is pertinent to note that the subsequent FIR dated 05.08.2012 from which the present proceedings emerge is thrust upon discovery of a new fact of replacing the original parts with the duplicate ones. The subject matter of the complaint is in relation to the superior model Miura-200, upgraded on the advice of the Respondent-company. Though, the Appellant and his wife agreed and got their machine upgraded to Miura-200 by paying Rs. 4 lakhs extra, it is found by the technical expert appointed by the manufacturer that the Miura-200 supplied by Respondent Nos. 2 and 3 was containing duplicate parts. In other words, the original parts were replaced by the duplicate parts at the time of supply of machine to the Appellant, and subsequently the machine was not working properly resulting in inaccurate results. Thus, it is clear that the subsequent complaint dated 05.08.2012 is based on new set of facts and new set of allegations and not based on old set of allegations as have been made in the FIR dated 24.03.2008. It is needless to repeat that the FIR dated 24.03.2008 was based on the allegations of non-functioning of the machine in addition to delay and carelessness of Respondent Nos. 2 and 3 in getting the machine repaired. At that time, the Appellant and his wife were not aware about replacement of the original parts with the duplicate ones. The Service report of Key Pharma Limited was not in existence at that time. Therefore, the Chief Judicial Magistrate, Siwan was justified in taking the cognizance, since prima facie case is found against Respondent Nos. 2 and 3In the matter on hand, the Complainant/Appellant came to know certain facts relating to the replacement of parts of the machine after the disposal of the first complaint, that too after getting a service report from Key Pharma Limited, Delhi, and, therefore, there is no bar for the Appellant to lodge second complaint9. Looking to the complaint and the charge-sheet, it is clear that the complainant has made host of allegations. The police after due investigation filed the charge-sheet. On going through the available material, we find a prima facie case against Respondent Nos. 2 and 3. Since the case has to be tried, we desist ourselves to comment any further on the merits of the matter. We make it clear that the observations made by us are only for disposal of this appeal. That these observations of ours will not influence the trial court while deciding the case. Since, we find prima facie material against Respondent Nos. 2 and 3, the High Court is not justified in quashing the proceedings.

State Of Andhra Pradesh Vs. Duvvuru Balarami Reddy

have been a serious controversy in the High Court and it does not appear that the respondents contended that under the terms of the grant to the shrotriemdars the latter were entitled to sub-soil rights. We have already referred to that part of the judgment of the appeal Court which suggests that even the appeal Court was of the view that the sub-soil rights were in the Government in this case and the surface rights were in the shrotriemdars. The original grant is not available and all that we have is the inam fair register of 1861 and all that is stated in that register is that the grant is for the personal advantage of the holder. There is nothing therefore in the inam fair register to show that the grant included the grant of sub-soil rights.11. It is however urged on behalf of the respondents that the grant included Poramboke, and from the fact that Poramboke was also included it should be inferred that mere surface rights were not the subject matter of the grant. Reliance in this connection, has been placed on the decision of the Judicial Committee in Secretary of State v Krishna Rao, 72 Ind App 211 : (AIR 1945 PC 165). The dispute in that case related to levy of water cess under the Madras Irrigation Cess Act. (No. 7 of 1865). The Judicial Committee pointed out that the inam grant in that case included not only dry, wet and garden land but also Poramboke, i.e. unculturable land. This was held to indicate that full proprietary rights were granted and therefore the Government could not charge any water cess. It is urged for the respondents that this case shows that where Poramboke is also granted, the grantee gets all the rights including the sub-soil rights in full proprietorship. It should however be remembered that the dispute in that case was whether the inamdar was entitled to free irrigation from water sources lying in the shrotriem village by virtue of the grant of whether the grantor could levy a cess under the Madras Irrigation Cess Act. There was no dispute as to sub-soil rights in that case, the dispute being confined to surface rights relating to water. The Government contended in that case that the grant to the inamdar was only of the melvaram or the right of the revenue from the lands, while the respondents contention was that the grant carried not only the melvaram but also the proprietary interest in the land itself and therefore the Government had no right to levy the irrigation cess. It was in that connection that the Judicial Committee held that the grant of Poramboke i.e. uncluturable land, was one of the factors that indicated that it was not a mere grant of melvaram but full proprietary right. It is remarkable however that though the Judicial Committee came to the conclusion in that case that full proprietary right had been granted, it referred to the earlier decision in Srinivasa Chariars case during the course of the judgment. This later decision therefore in our opinion cannot be read in such a way as to lay down that wherever Poramboke is included in the inam grant, a presumption must be drawn that the inam grant included sub-soil rights also; all that may be possible to infer by the inclusion of Poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as was contended in that case. The fact therefore that in the inam fair register in this case the grant includes Poramboke would not by itself establish that sub-soil rights were also included in the grant. So far as sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein. We have already remarked that the original grant in this case is not available and we have only the inam fair register to go by. There can be no doubt therefore on the facts of this case that the learned Single Judge was right in holding that the grant of sub-soil rights to shrotriemadars is not established. The appeal Court also does not appear to differ from this view of the learned Single Judge.12. Once the conclusion is reached that sub-soil rights were not granted to the shrotriemdars it seems to us that the inference is plain that it was not open to the shrotriemdaras to grant any lease of minerals lying under the soil to any one. Therefore the leases granted by the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the minerals under the soil. In the circumstances the respondents cannot put forward the leases in their favour to claim a mining lease under the Rules. With respect, we have not been able to understand how the difficulty which may arise in practice, on account of the sub-soil rights being in the Government and the surface rights being in the shrotriemdars, in the working of the mines would make the shrotriemdars shares in the sub-soil rights and therefore entitled to grant a lease of the sub-soil right. Whatever may have been the practice in the past and however the Government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdars so as to enable him to grant a mining lease to any one. It follows therefore that the mining leases granted in this case were granted by persons who had no right to the minerals and therefore confer no rights on the respondents to claim as of right from the Governement that they should be granted a mining lease under the Rules.13. In view of the above decision Appeal No. 252 must be allowed and Appeal No. 253 must fail.

1[ds]There was no dispute as to sub-soil rights in that case, the dispute being confined to surface rights relating to water. The Government contended in that case that the grant to the inamdar was only of the melvaram or the right of the revenue from the lands, while the respondents contention was that the grant carried not only the melvaram but also the proprietary interest in the land itself and therefore the Government had no right to levy the irrigation cess. It was in that connection that the Judicial Committee held that the grant of Poramboke i.e. uncluturable land, was one of the factors that indicated that it was not a mere grant of melvaram but full proprietary right. It is remarkable however that though the Judicial Committee came to the conclusion in that case that full proprietary right had been granted, it referred to the earlier decision in Srinivasa Chariars case during the course of the judgment. This later decision therefore in our opinion cannot be read in such a way as to lay down that wherever Poramboke is included in the inam grant, a presumption must be drawn that the inam grant included sub-soil rights also; all that may be possible to infer by the inclusion of Poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as was contended in that case. The fact therefore that in the inam fair register in this case the grant includes Poramboke would not by itself establish that sub-soil rights were also included in the grant. So far as sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein. We have already remarked that the original grant in this case is not available and we have only the inam fair register to go by. There can be no doubt therefore on the facts of this case that the learned Single Judge was right in holding that the grant of sub-soil rights to shrotriemadars is not established. The appeal Court also does not appear to differ from this view of the learned Single Judge.12. Once the conclusion is reached that sub-soil rights were not granted to the shrotriemdars it seems to us that the inference is plain that it was not open to the shrotriemdaras to grant any lease of minerals lying under the soil to any one. Therefore the leases granted by the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the minerals under the soil. In the circumstances the respondents cannot put forward the leases in their favour to claim a mining lease under the Rules. With respect, we have not been able to understand how the difficulty which may arise in practice, on account of the sub-soil rights being in the Government and the surface rights being in the shrotriemdars, in the working of the mines would make the shrotriemdars shares in the sub-soil rights and therefore entitled to grant a lease of the sub-soil right. Whatever may have been the practice in the past and however the Government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdars so as to enable him to grant a mining lease to any one. It follows therefore that the mining leases granted in this case were granted by persons who had no right to the minerals and therefore confer no rights on the respondents to claim as of right from the Governement that they should be granted a mining lease under the Rules.

### 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: have been a serious controversy in the High Court and it does not appear that the respondents contended that under the terms of the grant to the shrotriemdars the latter were entitled to sub-soil rights. We have already referred to that part of the judgment of the appeal Court which suggests that even the appeal Court was of the view that the sub-soil rights were in the Government in this case and the surface rights were in the shrotriemdars. The original grant is not available and all that we have is the inam fair register of 1861 and all that is stated in that register is that the grant is for the personal advantage of the holder. There is nothing therefore in the inam fair register to show that the grant included the grant of sub-soil rights.11. It is however urged on behalf of the respondents that the grant included Poramboke, and from the fact that Poramboke was also included it should be inferred that mere surface rights were not the subject matter of the grant. Reliance in this connection, has been placed on the decision of the Judicial Committee in Secretary of State v Krishna Rao, 72 Ind App 211 : (AIR 1945 PC 165). The dispute in that case related to levy of water cess under the Madras Irrigation Cess Act. (No. 7 of 1865). The Judicial Committee pointed out that the inam grant in that case included not only dry, wet and garden land but also Poramboke, i.e. unculturable land. This was held to indicate that full proprietary rights were granted and therefore the Government could not charge any water cess. It is urged for the respondents that this case shows that where Poramboke is also granted, the grantee gets all the rights including the sub-soil rights in full proprietorship. It should however be remembered that the dispute in that case was whether the inamdar was entitled to free irrigation from water sources lying in the shrotriem village by virtue of the grant of whether the grantor could levy a cess under the Madras Irrigation Cess Act. There was no dispute as to sub-soil rights in that case, the dispute being confined to surface rights relating to water. The Government contended in that case that the grant to the inamdar was only of the melvaram or the right of the revenue from the lands, while the respondents contention was that the grant carried not only the melvaram but also the proprietary interest in the land itself and therefore the Government had no right to levy the irrigation cess. It was in that connection that the Judicial Committee held that the grant of Poramboke i.e. uncluturable land, was one of the factors that indicated that it was not a mere grant of melvaram but full proprietary right. It is remarkable however that though the Judicial Committee came to the conclusion in that case that full proprietary right had been granted, it referred to the earlier decision in Srinivasa Chariars case during the course of the judgment. This later decision therefore in our opinion cannot be read in such a way as to lay down that wherever Poramboke is included in the inam grant, a presumption must be drawn that the inam grant included sub-soil rights also; all that may be possible to infer by the inclusion of Poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as was contended in that case. The fact therefore that in the inam fair register in this case the grant includes Poramboke would not by itself establish that sub-soil rights were also included in the grant. So far as sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein. We have already remarked that the original grant in this case is not available and we have only the inam fair register to go by. There can be no doubt therefore on the facts of this case that the learned Single Judge was right in holding that the grant of sub-soil rights to shrotriemadars is not established. The appeal Court also does not appear to differ from this view of the learned Single Judge.12. Once the conclusion is reached that sub-soil rights were not granted to the shrotriemdars it seems to us that the inference is plain that it was not open to the shrotriemdaras to grant any lease of minerals lying under the soil to any one. Therefore the leases granted by the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the minerals under the soil. In the circumstances the respondents cannot put forward the leases in their favour to claim a mining lease under the Rules. With respect, we have not been able to understand how the difficulty which may arise in practice, on account of the sub-soil rights being in the Government and the surface rights being in the shrotriemdars, in the working of the mines would make the shrotriemdars shares in the sub-soil rights and therefore entitled to grant a lease of the sub-soil right. Whatever may have been the practice in the past and however the Government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdars so as to enable him to grant a mining lease to any one. It follows therefore that the mining leases granted in this case were granted by persons who had no right to the minerals and therefore confer no rights on the respondents to claim as of right from the Governement that they should be granted a mining lease under the Rules.13. In view of the above decision Appeal No. 252 must be allowed and Appeal No. 253 must fail. ### Response: 1 ### Explanation: There was no dispute as to sub-soil rights in that case, the dispute being confined to surface rights relating to water. The Government contended in that case that the grant to the inamdar was only of the melvaram or the right of the revenue from the lands, while the respondents contention was that the grant carried not only the melvaram but also the proprietary interest in the land itself and therefore the Government had no right to levy the irrigation cess. It was in that connection that the Judicial Committee held that the grant of Poramboke i.e. uncluturable land, was one of the factors that indicated that it was not a mere grant of melvaram but full proprietary right. It is remarkable however that though the Judicial Committee came to the conclusion in that case that full proprietary right had been granted, it referred to the earlier decision in Srinivasa Chariars case during the course of the judgment. This later decision therefore in our opinion cannot be read in such a way as to lay down that wherever Poramboke is included in the inam grant, a presumption must be drawn that the inam grant included sub-soil rights also; all that may be possible to infer by the inclusion of Poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as was contended in that case. The fact therefore that in the inam fair register in this case the grant includes Poramboke would not by itself establish that sub-soil rights were also included in the grant. So far as sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein. We have already remarked that the original grant in this case is not available and we have only the inam fair register to go by. There can be no doubt therefore on the facts of this case that the learned Single Judge was right in holding that the grant of sub-soil rights to shrotriemadars is not established. The appeal Court also does not appear to differ from this view of the learned Single Judge.12. Once the conclusion is reached that sub-soil rights were not granted to the shrotriemdars it seems to us that the inference is plain that it was not open to the shrotriemdaras to grant any lease of minerals lying under the soil to any one. Therefore the leases granted by the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the minerals under the soil. In the circumstances the respondents cannot put forward the leases in their favour to claim a mining lease under the Rules. With respect, we have not been able to understand how the difficulty which may arise in practice, on account of the sub-soil rights being in the Government and the surface rights being in the shrotriemdars, in the working of the mines would make the shrotriemdars shares in the sub-soil rights and therefore entitled to grant a lease of the sub-soil right. Whatever may have been the practice in the past and however the Government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdars so as to enable him to grant a mining lease to any one. It follows therefore that the mining leases granted in this case were granted by persons who had no right to the minerals and therefore confer no rights on the respondents to claim as of right from the Governement that they should be granted a mining lease under the Rules.

G.P. Ceramics Pvt. Ltd Vs. Commissioner, Trade Tax, UP

clear from the fact that in the notification wherever the words "expansion, modernisation or diversification" are used, there are no qualifying words to the effect "in any one unit". In none of the clauses is there any requirement of the investment being in one unit of the industrial undertaking. Words to the effect "in a particular unit" or "in one unit" are missing. To accept Mr Sunil Guptas submission would require adding words to a notification which the Government purposely omitted to add.26. Even otherwise, the purpose of notification being to encourage increased production and to give benefit to industries which have invested rupees fifty crores or more in the State and whose production has thus increased, an interpretation must be given which would extend benefit to such industries. There would be no purpose in denying an industry which has invested rupees fifty crores or more and whose production in the State has as a result increased, the benefit of the exemption granted by this notification merely because the whole of the investment is not in any particular unit. Thus even where the investment is made by the Company in more than one unit, so long as the total investment is rupees fifty crores or more, the benefit of the notification would be available. Such benefit would then be distributed in the manner set out in the schedule depending on where a unit in which expansion, diversification or modernisation has taken place, is situated. Thus, for example, in respect of the units situated in Barabanki and Moradabad, the benefit would be to the extent of 200% of the fixed capital investment in those units, whereas in respect of units in Bijnore the benefit would be to the extent of 150% of the fixed capital investment in that unit. Similarly, the base production and the starting date of production could be in respect of those units.However, it is the Company which has made the investment. It is the Company which is paying the tax. It is the Company which would be getting the benefit of the exemption. The manner in which the Company gets the benefit would be as set out hereinabove." 34. We do not see any conflict in the ratio laid down in the aforementioned two decisions. The question of applying the principle of strict or liberal interpretation would arise only when the plain meaning attached thereto is found to be absurd or anomalous. If a plain meaning given to the provision for the purpose of considering as to whether the applicant had fulfilled the eligibility criteria as laid down in the notification or not is found to be clear, purpose and object the notification seeks to achieve must be given effect to. 35. The State by enacting Section 4-A of the Act and Rule 25 of the Rules intended to encourage setting up of new industries. Such industrial units, however, were required to be set up either on the land owned by the applicant or taken on lease for a period of not less than five years or on the land allotted. However, so far as the land allotted in favour of the applicant by the State or State owned Corporation or statutory Corporation is concerned, no period is required to be fixed under the law. What is required is an allotment of land by issuance of a letter of allotment. Execution of a deed of lease may be a condition for grant of allotment but the grant is not subject to the date of lease or the period specified therein. The statutory rule as also the notification point out a clear distinction between a deed of lease which may be obtained from a private person and the letter of allotment granted by the State or statutory Corporation . The reason for making such a distinction is not far to seek. Whereas in the case of the former, a registered deed of lease is required to be executed if it is for a period of more than one year, in the latter it is not. 36. An exception has been made as regards allotment of land by the State or a statutory corporation. The exemption is being granted by the State. Eligibility certificate is also to be granted by the Industries Department. Each department is supposed to be in touch with the other department of the State or the statutory corporation. The authorities would be in a position to verify the particulars of the letter of allotment furnished by the applicant from the concerned department or statutory corporation. It was not necessary for the authorities of the Industries Department of the Government of Uttar Pradesh to obtain any additional information. When an additional information is required to be sought for, it must be done when the information furnished by the applicant is not complete or otherwise required. It is not in dispute that the attested copies of the letters of allotment had been furnished. If the same subserved the statutory requirements, we do not see any reason as to why the appellant should not be held to be entitled to grant of exemption for the entire period of ten years beginning from 24.10.1992 to 23.10.2002. 37. It is not a case where the application was incomplete by itself. It was also not a case where having regard to the provisions of the Act, Rules, Notifications as also the information required to be furnished in terms of paragraph 10 of Form 46, any other or further information was necessary to be obtained or furnished. If the appellant, thus, had fulfilled the eligibility criteria for grant of exemption, it had acquired a right in respect thereof and we see no reason why it should have been deprived therefrom. It is in that sense the exemption notification was required to be construed liberally in favour of the appellant. {See State of Orissa & Ors. V. TATA Sponge Iron Ltd. [(2007) (8) SCC 189 para 21]. 38. For the reasons aforementioned, the

1[ds]We do not see any conflict in the ratio laid down in the aforementioned two decisions. The question of applying the principle of strict or liberal interpretation would arise only when the plain meaning attached thereto is found to be absurd or anomalous. If a plain meaning given to the provision for the purpose of considering as to whether the applicant had fulfilled the eligibility criteria as laid down in the notification or not is found to be clear, purpose and object the notification seeks to achieve must be given effectState by enacting Section 4-A of the Act and Rule 25 of the Rules intended to encourage setting up of new industries. Such industrial units, however, were required to be set up either on the land owned by the applicant or taken on lease for a period of not less than five years or on the land allotted. However, so far as the land allotted in favour of the applicant by the State or State owned Corporation or statutory Corporation is concerned, no period is required to be fixed under the law. What is required is an allotment of land by issuance of a letter of allotment. Execution of a deed of lease may be a condition for grant of allotment but the grant is not subject to the date of lease or the period specified therein. The statutory rule as also the notification point out a clear distinction between a deed of lease which may be obtained from a private person and the letter of allotment granted by the State or statutory Corporation . The reason for making such a distinction is not far to seek. Whereas in the case of the former, a registered deed of lease is required to be executed if it is for a period of more than one year, in the latter it isexception has been made as regards allotment of land by the State or a statutory corporation. The exemption is being granted by the State. Eligibility certificate is also to be granted by the Industries Department. Each department is supposed to be in touch with the other department of the State or the statutory corporation. The authorities would be in a position to verify the particulars of the letter of allotment furnished by the applicant from the concerned department or statutory corporation. It was not necessary for the authorities of the Industries Department of the Government of Uttar Pradesh to obtain any additional information. When an additional information is required to be sought for, it must be done when the information furnished by the applicant is not complete or otherwise required. It is not in dispute that the attested copies of the letters of allotment had been furnished. If the same subserved the statutory requirements, we do not see any reason as to why the appellant should not be held to be entitled to grant of exemption for the entire period of ten years beginning from 24.10.1992 to

### 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: clear from the fact that in the notification wherever the words "expansion, modernisation or diversification" are used, there are no qualifying words to the effect "in any one unit". In none of the clauses is there any requirement of the investment being in one unit of the industrial undertaking. Words to the effect "in a particular unit" or "in one unit" are missing. To accept Mr Sunil Guptas submission would require adding words to a notification which the Government purposely omitted to add.26. Even otherwise, the purpose of notification being to encourage increased production and to give benefit to industries which have invested rupees fifty crores or more in the State and whose production has thus increased, an interpretation must be given which would extend benefit to such industries. There would be no purpose in denying an industry which has invested rupees fifty crores or more and whose production in the State has as a result increased, the benefit of the exemption granted by this notification merely because the whole of the investment is not in any particular unit. Thus even where the investment is made by the Company in more than one unit, so long as the total investment is rupees fifty crores or more, the benefit of the notification would be available. Such benefit would then be distributed in the manner set out in the schedule depending on where a unit in which expansion, diversification or modernisation has taken place, is situated. Thus, for example, in respect of the units situated in Barabanki and Moradabad, the benefit would be to the extent of 200% of the fixed capital investment in those units, whereas in respect of units in Bijnore the benefit would be to the extent of 150% of the fixed capital investment in that unit. Similarly, the base production and the starting date of production could be in respect of those units.However, it is the Company which has made the investment. It is the Company which is paying the tax. It is the Company which would be getting the benefit of the exemption. The manner in which the Company gets the benefit would be as set out hereinabove." 34. We do not see any conflict in the ratio laid down in the aforementioned two decisions. The question of applying the principle of strict or liberal interpretation would arise only when the plain meaning attached thereto is found to be absurd or anomalous. If a plain meaning given to the provision for the purpose of considering as to whether the applicant had fulfilled the eligibility criteria as laid down in the notification or not is found to be clear, purpose and object the notification seeks to achieve must be given effect to. 35. The State by enacting Section 4-A of the Act and Rule 25 of the Rules intended to encourage setting up of new industries. Such industrial units, however, were required to be set up either on the land owned by the applicant or taken on lease for a period of not less than five years or on the land allotted. However, so far as the land allotted in favour of the applicant by the State or State owned Corporation or statutory Corporation is concerned, no period is required to be fixed under the law. What is required is an allotment of land by issuance of a letter of allotment. Execution of a deed of lease may be a condition for grant of allotment but the grant is not subject to the date of lease or the period specified therein. The statutory rule as also the notification point out a clear distinction between a deed of lease which may be obtained from a private person and the letter of allotment granted by the State or statutory Corporation . The reason for making such a distinction is not far to seek. Whereas in the case of the former, a registered deed of lease is required to be executed if it is for a period of more than one year, in the latter it is not. 36. An exception has been made as regards allotment of land by the State or a statutory corporation. The exemption is being granted by the State. Eligibility certificate is also to be granted by the Industries Department. Each department is supposed to be in touch with the other department of the State or the statutory corporation. The authorities would be in a position to verify the particulars of the letter of allotment furnished by the applicant from the concerned department or statutory corporation. It was not necessary for the authorities of the Industries Department of the Government of Uttar Pradesh to obtain any additional information. When an additional information is required to be sought for, it must be done when the information furnished by the applicant is not complete or otherwise required. It is not in dispute that the attested copies of the letters of allotment had been furnished. If the same subserved the statutory requirements, we do not see any reason as to why the appellant should not be held to be entitled to grant of exemption for the entire period of ten years beginning from 24.10.1992 to 23.10.2002. 37. It is not a case where the application was incomplete by itself. It was also not a case where having regard to the provisions of the Act, Rules, Notifications as also the information required to be furnished in terms of paragraph 10 of Form 46, any other or further information was necessary to be obtained or furnished. If the appellant, thus, had fulfilled the eligibility criteria for grant of exemption, it had acquired a right in respect thereof and we see no reason why it should have been deprived therefrom. It is in that sense the exemption notification was required to be construed liberally in favour of the appellant. {See State of Orissa & Ors. V. TATA Sponge Iron Ltd. [(2007) (8) SCC 189 para 21]. 38. For the reasons aforementioned, the ### Response: 1 ### Explanation: We do not see any conflict in the ratio laid down in the aforementioned two decisions. The question of applying the principle of strict or liberal interpretation would arise only when the plain meaning attached thereto is found to be absurd or anomalous. If a plain meaning given to the provision for the purpose of considering as to whether the applicant had fulfilled the eligibility criteria as laid down in the notification or not is found to be clear, purpose and object the notification seeks to achieve must be given effectState by enacting Section 4-A of the Act and Rule 25 of the Rules intended to encourage setting up of new industries. Such industrial units, however, were required to be set up either on the land owned by the applicant or taken on lease for a period of not less than five years or on the land allotted. However, so far as the land allotted in favour of the applicant by the State or State owned Corporation or statutory Corporation is concerned, no period is required to be fixed under the law. What is required is an allotment of land by issuance of a letter of allotment. Execution of a deed of lease may be a condition for grant of allotment but the grant is not subject to the date of lease or the period specified therein. The statutory rule as also the notification point out a clear distinction between a deed of lease which may be obtained from a private person and the letter of allotment granted by the State or statutory Corporation . The reason for making such a distinction is not far to seek. Whereas in the case of the former, a registered deed of lease is required to be executed if it is for a period of more than one year, in the latter it isexception has been made as regards allotment of land by the State or a statutory corporation. The exemption is being granted by the State. Eligibility certificate is also to be granted by the Industries Department. Each department is supposed to be in touch with the other department of the State or the statutory corporation. The authorities would be in a position to verify the particulars of the letter of allotment furnished by the applicant from the concerned department or statutory corporation. It was not necessary for the authorities of the Industries Department of the Government of Uttar Pradesh to obtain any additional information. When an additional information is required to be sought for, it must be done when the information furnished by the applicant is not complete or otherwise required. It is not in dispute that the attested copies of the letters of allotment had been furnished. If the same subserved the statutory requirements, we do not see any reason as to why the appellant should not be held to be entitled to grant of exemption for the entire period of ten years beginning from 24.10.1992 to

M/S. Chhotabhai Jethabhai Patel & Co Vs. State Of Uttar Pradesh

dismissed.6. The appeal which the petitioner firm had filed before the Judge (Appeals) was dismissed and a revision taken against that order was also dismissed but these orders have not been challenged in any proceedings so far.7. The appellant firms contention in the appeal was that the order of the Sales Tax Officer limiting the exemption of Sales tax to biris on which excess Central Excise Duty had been paid was erroneous. It will be apposite at this state to truce the history of the exemption which is claimed by the appellant firm. Because of the difficulty experienced in regard to inter-State sales on a large scale of certain articles the Central Government with the concurrence of the State Governments imposed an enhanced Central Excise Duty on the sale of those articles which was to be equivalent to and substitute for the sales tax levied upon them, and the sum so collected by the imposition of the enhanced Central Excise Duty on those articles was to be distributed by the Central Government to the State Governments concerned and they (the State Governments) agreed to exempt those articles from sales tax. As a result of this arrangement The Additional Duties of Excise (Goods of Special Importance) Act (Act 58 of 1957) was passed by Parliament. In this judgment it will be called Central Act 58 of 1957. By this Act additional Central Excise duty was levied on tobacco but no such duty was levied on biris. Even under the Central Excise and Salt Act (Act 1 of 1944), hereinafter called Central Act 1 of 1944, no Central Excise Duty was imposed on handmade biris although excise duty was levied on machine made biris but the object of imposing that duty was to protect the Handmade Biris industry. In pursuance of the above mentioned arrangement for the exemption from sales tax of certain articles the U. P. Government issued notification No. ST 4485/X dated December 14, 1957 under S. 4 (i)(b) of the Act which will be quoted at another place in this judgment. Liability to sales tax arises under S. 3 (1) of the Act which provides:-S. 3(1) "Subject to the provisions of this Act, every dealer shall, for each assessment year, pay a tax at the rate of (two naye paise per rupee) on his turnover of such year, which shall be determined in such manner as may be prescribed".and provision for exemption for sales tax is made in S. 4(1)(a) and (b) which provides:-S. 4(1) "No tax shall be payable on-(a) the sale of water, milk, salt, newspapers and motor spirit as defined in the U. P. Sales of Motor Spirit (Taxation). Act, 1939, and of any other goods which the State Government may by notification in the official gazette exempt:(b) the sale of any goods by the All India Spinners Association or Gandhi Ashram Meerut, and their branches or such other persons, or class of persons as the State Government may from time to time exempt on such conditions and on payment of such fees, if any not exceeding (eight thousand rupees) annually as may specified by notification in the Official Gazette". The U. P. Government on December 14, 1957, issued the following notification under S. 4(1)(b) of the Act :-"No-ST-4485/X dated Lucknow December 14, 1957 (Published in U. P. Gazette Extraordinary, dated December 14, 1957).In partial modification of notifications No. ST-905/X dated March 31, 1956 and ST-418/X 902(9)-52 dated January 31, 1957 and in exercise of the powers conferred by clause (b) of sub-section (1) of sec. 4 of the U. P. Sales Tax Act, 1948 (U. P. Act No. XV of 1948) as amended upto date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957 by the dealers in respect of the following classes of goods provided that the Additional Central Excise Duties leviable thereon from the closing of business on December 13, 1957 have been paid on such goods and that the dealers thereof furnish proof to the satisfaction of the assessing authority that such duties have been paid.(1) ..... .... ..... ...... ..... .... .... .... .... :.........(2) ...... .... ...... ...... ....... .... .... .... ..., ......(3) Cigars, cigarettes, biris and tobacco, that is to say any form of tobacco, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and stems of the tubacco plant but does not include any part of a tobacco plant while still attached to the earth".This is the notification, which, it is submitted, by the petitioner, has been misconstrued and misapplied and has resulted in the infringement of the petitioners right under Art. 19(1) (g) of the Constitution.8. It was contended that under the Central Act 58 of 1957 additional Central Duty of Excise had been paid on tobacco as defined in the Central Act 1 of 1944. In the 4th item in the 1 st Schedule of Central Act 1 of 1944 tobacco is defined as follows:-"Tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth".The notification expressly states that it is made under S. 4(1)(b) of the Act and therefore the exemption was conditional and properly read it applies only to those goods on which additional Central Excise Duty was leviable and had been paid. No such duty was leviable on handmade biris and it was not paid. The condition of the exemption therefore cannot be said to have been fulfilled and the sales of the petitioners did not fall within the exemption covered and given by the notification. In our opinion therefore the Sales Tax Officer correctly interpreted the notification and it has not been shown that his determination was in any way erroneous. On this ground also the petition must fail.

0[ds]6. The appeal which the petitioner firm had filed before the Judge (Appeals) was dismissed and a revision taken against that order was also dismissed but these orders have not been challenged in any proceedings sowill be apposite at this state to truce the history of the exemption which is claimed by the appellant firm. Because of the difficulty experienced in regard tosales on a large scale of certain articles the Central Government with the concurrence of the State Governments imposed an enhanced Central Excise Duty on the sale of those articles which was to be equivalent to and substitute for the sales tax levied upon them, and the sum so collected by the imposition of the enhanced Central Excise Duty on those articles was to be distributed by the Central Government to the State Governments concerned and they (the State Governments) agreed to exempt those articles from sales tax. As a result of this arrangement The Additional Duties of Excise (Goods of Special Importance) Act (Act 58 of 1957) was passed by Parliament. In this judgment it will be called Central Act 58 of 1957. By this Act additional Central Excise duty was levied on tobacco but no such duty was levied on biris. Even under the Central Excise and Salt Act (Act 1 of 1944), hereinafter called Central Act 1 of 1944, no Central Excise Duty was imposed on handmade biris although excise duty was levied on machine made biris but the object of imposing that duty was to protect the Handmade Biris industry. In pursuance of the above mentioned arrangement for the exemption from sales tax of certain articles the U. P. Government issued notification No. ST 4485/X dated December 14, 1957 under S. 4 (i)(b) of the Act which will be quoted at another place in thisnotification expressly states that it is made under S. 4(1)(b) of the Act and therefore the exemption was conditional and properly read it applies only to those goods on which additional Central Excise Duty was leviable and had been paid. No such duty was leviable on handmade biris and it was not paid. The condition of the exemption therefore cannot be said to have been fulfilled and the sales of the petitioners did not fall within the exemption covered and given by the notification. In our opinion therefore the Sales Tax Officer correctly interpreted the notification and it has not been shown that his determination was in any way erroneous. On this ground also the petition must fail.

### 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: dismissed.6. The appeal which the petitioner firm had filed before the Judge (Appeals) was dismissed and a revision taken against that order was also dismissed but these orders have not been challenged in any proceedings so far.7. The appellant firms contention in the appeal was that the order of the Sales Tax Officer limiting the exemption of Sales tax to biris on which excess Central Excise Duty had been paid was erroneous. It will be apposite at this state to truce the history of the exemption which is claimed by the appellant firm. Because of the difficulty experienced in regard to inter-State sales on a large scale of certain articles the Central Government with the concurrence of the State Governments imposed an enhanced Central Excise Duty on the sale of those articles which was to be equivalent to and substitute for the sales tax levied upon them, and the sum so collected by the imposition of the enhanced Central Excise Duty on those articles was to be distributed by the Central Government to the State Governments concerned and they (the State Governments) agreed to exempt those articles from sales tax. As a result of this arrangement The Additional Duties of Excise (Goods of Special Importance) Act (Act 58 of 1957) was passed by Parliament. In this judgment it will be called Central Act 58 of 1957. By this Act additional Central Excise duty was levied on tobacco but no such duty was levied on biris. Even under the Central Excise and Salt Act (Act 1 of 1944), hereinafter called Central Act 1 of 1944, no Central Excise Duty was imposed on handmade biris although excise duty was levied on machine made biris but the object of imposing that duty was to protect the Handmade Biris industry. In pursuance of the above mentioned arrangement for the exemption from sales tax of certain articles the U. P. Government issued notification No. ST 4485/X dated December 14, 1957 under S. 4 (i)(b) of the Act which will be quoted at another place in this judgment. Liability to sales tax arises under S. 3 (1) of the Act which provides:-S. 3(1) "Subject to the provisions of this Act, every dealer shall, for each assessment year, pay a tax at the rate of (two naye paise per rupee) on his turnover of such year, which shall be determined in such manner as may be prescribed".and provision for exemption for sales tax is made in S. 4(1)(a) and (b) which provides:-S. 4(1) "No tax shall be payable on-(a) the sale of water, milk, salt, newspapers and motor spirit as defined in the U. P. Sales of Motor Spirit (Taxation). Act, 1939, and of any other goods which the State Government may by notification in the official gazette exempt:(b) the sale of any goods by the All India Spinners Association or Gandhi Ashram Meerut, and their branches or such other persons, or class of persons as the State Government may from time to time exempt on such conditions and on payment of such fees, if any not exceeding (eight thousand rupees) annually as may specified by notification in the Official Gazette". The U. P. Government on December 14, 1957, issued the following notification under S. 4(1)(b) of the Act :-"No-ST-4485/X dated Lucknow December 14, 1957 (Published in U. P. Gazette Extraordinary, dated December 14, 1957).In partial modification of notifications No. ST-905/X dated March 31, 1956 and ST-418/X 902(9)-52 dated January 31, 1957 and in exercise of the powers conferred by clause (b) of sub-section (1) of sec. 4 of the U. P. Sales Tax Act, 1948 (U. P. Act No. XV of 1948) as amended upto date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957 by the dealers in respect of the following classes of goods provided that the Additional Central Excise Duties leviable thereon from the closing of business on December 13, 1957 have been paid on such goods and that the dealers thereof furnish proof to the satisfaction of the assessing authority that such duties have been paid.(1) ..... .... ..... ...... ..... .... .... .... .... :.........(2) ...... .... ...... ...... ....... .... .... .... ..., ......(3) Cigars, cigarettes, biris and tobacco, that is to say any form of tobacco, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and stems of the tubacco plant but does not include any part of a tobacco plant while still attached to the earth".This is the notification, which, it is submitted, by the petitioner, has been misconstrued and misapplied and has resulted in the infringement of the petitioners right under Art. 19(1) (g) of the Constitution.8. It was contended that under the Central Act 58 of 1957 additional Central Duty of Excise had been paid on tobacco as defined in the Central Act 1 of 1944. In the 4th item in the 1 st Schedule of Central Act 1 of 1944 tobacco is defined as follows:-"Tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth".The notification expressly states that it is made under S. 4(1)(b) of the Act and therefore the exemption was conditional and properly read it applies only to those goods on which additional Central Excise Duty was leviable and had been paid. No such duty was leviable on handmade biris and it was not paid. The condition of the exemption therefore cannot be said to have been fulfilled and the sales of the petitioners did not fall within the exemption covered and given by the notification. In our opinion therefore the Sales Tax Officer correctly interpreted the notification and it has not been shown that his determination was in any way erroneous. On this ground also the petition must fail. ### Response: 0 ### Explanation: 6. The appeal which the petitioner firm had filed before the Judge (Appeals) was dismissed and a revision taken against that order was also dismissed but these orders have not been challenged in any proceedings sowill be apposite at this state to truce the history of the exemption which is claimed by the appellant firm. Because of the difficulty experienced in regard tosales on a large scale of certain articles the Central Government with the concurrence of the State Governments imposed an enhanced Central Excise Duty on the sale of those articles which was to be equivalent to and substitute for the sales tax levied upon them, and the sum so collected by the imposition of the enhanced Central Excise Duty on those articles was to be distributed by the Central Government to the State Governments concerned and they (the State Governments) agreed to exempt those articles from sales tax. As a result of this arrangement The Additional Duties of Excise (Goods of Special Importance) Act (Act 58 of 1957) was passed by Parliament. In this judgment it will be called Central Act 58 of 1957. By this Act additional Central Excise duty was levied on tobacco but no such duty was levied on biris. Even under the Central Excise and Salt Act (Act 1 of 1944), hereinafter called Central Act 1 of 1944, no Central Excise Duty was imposed on handmade biris although excise duty was levied on machine made biris but the object of imposing that duty was to protect the Handmade Biris industry. In pursuance of the above mentioned arrangement for the exemption from sales tax of certain articles the U. P. Government issued notification No. ST 4485/X dated December 14, 1957 under S. 4 (i)(b) of the Act which will be quoted at another place in thisnotification expressly states that it is made under S. 4(1)(b) of the Act and therefore the exemption was conditional and properly read it applies only to those goods on which additional Central Excise Duty was leviable and had been paid. No such duty was leviable on handmade biris and it was not paid. The condition of the exemption therefore cannot be said to have been fulfilled and the sales of the petitioners did not fall within the exemption covered and given by the notification. In our opinion therefore the Sales Tax Officer correctly interpreted the notification and it has not been shown that his determination was in any way erroneous. On this ground also the petition must fail.

C. Rajagopalachari Vs. Corporation Of Madras

done under the Government of India Act, 1935, a point already discussed. The learned Judges of the High Court have rejected the argument addressed to them under this head by reference to S. 18 of the Madras General Clauses Act corresponding to S. 24 of the General Clauses Act (Central Act X of 1897).With great respect to the learned Judges we do not see how this provision affords any assistance in the matter. The Schedule and the rules continued without repeal or amendment when the new S. 111(1) was substituted in 1936, and when this section made a reference to the rules, in Schedule IV it could only be a reference to the rules in the Schedule IV which stood unaltered. If the phraseology employed in the Schedule was inappropriate to a class which fell within S. 111(1), the only effect would be that the tax could not be levied because of the defect in the law imposing the tax but such a situation is not remedied by reference to the provision in the General Clauses Act on which the learned Judges have relied.14. If, therefore, the tax was one not lawfully levied just prior to April 1, 1937 and was one brought after the Government of India Act, 1935 came into force and really only from April 1, 1942 assuming this to be lawful it is obvious that the validity of tax could not be sustained as a continuation of a lawful pre-existing levy under S. 143(2):15. In this view it is not necessary to consider the last of the points urged by learned Counsel and examine whether in case of an increase of rate, the entire tax would become a new tax and so unconstitutional or whether it is only the increase in the rate that would become unenforceable.16. Learned Counsel for the respondent-Corporation submitted that the tax could not be deemed to be a tax on income, as was suggested by the appellant, but was really a tax on employment because it was in consideration of part services during employment that pension was payable. This argument was admittedly not urged before the learned Judges of the High Court and is obviously untenable.The taxes specified in item 60 are taxes on the carrying on of a profession, trade etc. and would therefore apply only to a case of present employment. The mere fact that a person has previously been in a profession or carried on a trade etc., cannot justify a tax under this Entry. The tax on the receipt of pension or on the income from investments which is referred to in the last part of S. 111 (1) is in truth and substance a tax on income and in fact the argument before the High Court proceeded on this basis, so have the learned Judges. At the time the tax is levied the pensioner is in no employment but is only in receipt of income though it might be for past services, in an employment.17. He next submitted that Act X of 1936 which had been enacted prior to the Government of India Act, 1935 was continued as an existing law by S. 292 of the Government of India Act and as there was nothing in the Government of India Act against its continuance it would have effect even if the terms of S. 143(2) were not satisfied by the present levy.The learned Judges of the High Court accepted this submission. In our opinion, they were in error. The question of the correlation between Art. 372 corresponding to S. 292 of the Government of India Act and Art. 277 corresponding to S. 143 (2) of the Government of India Act was considered by this Court in South India Corporation (P) Ltd. v. Secy., Board of Revenue Trivendrum, Civil Appeals Nos. 295 to 298 (Not yet reported) D/- 13-8-1963 : (Since reported in AIR 1964 SC 207) and this Court said :"It is settled law that a special provision should be given effect to the extend of its scope leaving the general provision to control cases where the special provision does not apply. The earlier discussion of makes it abundantly clear that the Constitution gives a separate treatment to the subject finances, and Art. 277 saves the existing taxes etc. levied by States, if the conditions mentioned therein are complied with. While Art. 372 saves all pre-Constitution valid laws, Art. 277 is confined only to taxes duties, cesses or fees lawfully levied immediately before the Constitution. Therefore, Art. 372 cannot be construed in such a way as to enlarge the scope of the saving of taxes, duties, cesses or fees. To state it differently, Art. 372 must be read subject to Art. 277".18. Learned Counsel next drew our attention to S. 142-A(1) of the Government of India Act, 1935 and faintly suggested that it might afford him some assistance. This provision, again, was not adverted to before the learned Judges of the High Court and for a proper reason. S. 142-A(1) which corresponds to Art. 276(1) of the Constitution enacted:"Notwithstanding anything in section one hundred of this Act no Provincial law relating to taxes for the benefit of Province or of a municipality, district board, local board or other local authority therein in respect of professions trades, callings or employments shall be invalid on the ground that it relates to a tax on income".19. This section would assist the respondent only if tax imposed were one on a profession, trade, calling, or employment and in that event the section provides that such a tax shall not be deemed to be a tax on income, but where the tax imposed is one not on a profession etc. at all, it does not mean that the State might levy a tax on income and call it profession tax. This is sufficient to dispose of a similar argument as regards the scope of the amended Entry 46 in the Provincial Legislative List (List II) to which we have adverted earlier.20.

1[ds]Being a "pensioner" cannot be a "profession, trade, business or calling" nor could a tax on a person because he is in receipt of a pension be said to be a tax on "employments". The tax therefore under the last portion of S. 111 (1) (b) reading- Profession tax on persons in receipt of any pension or income from investments"-is nothing but a tax on income falling within Entry 82 of the Union list. If, therefore, the Corporation could not justify the tax as being within the State legislative power the only manner in which it could be done would be by reference to Art. 277 of the Constitution by which taxes, duties, etc. which "were being lawfully levied" prior to the commencement of the Constitution were permitted to be levied "notwithstanding that the tax was in the Union List" and "to be applied to the same purposes" as before. Unless therefore the Corporation could make out that the tax now impugned was being lawfully levied from before the Constitution the levy would be illegal and besides there was the complication introduced by the enhancement of the rates of tax which, as stated earlier, were effected in April 1950, April 1958 and in 1961. Leaving aside for the moment the question of the effect of the enhancement of the rate, we have to see whetherThe first point need not detain us long. Prima facie it would seem that there being no rigid distribution of legislative power between the Central and Local Governments under the Government of India Act, 1919 any infraction of the rules made under the Devolution Rules framed under S. 45-A would be validated by S. 80-A(3) and S. 84(2) of the Government of India Act, 1919. The learned Judge of the High Court before whom this contention was urged rejected it, and the learned counsel submitted that the decision on this point was not correct. But in the view that we took of other submissions made to us, we did not hear learned counsel fully on this point and therefore do not propose to express any final opinion on the tenability of the argument on thisconsider this submission well founded. If the statutory charge to profession tax imposed on pensioners by the Act of 1919, was lifted by the Act of 1936, and the tax again came into operation only on 1st April, 1937, it would follow that there was no "levy of the tax" "immediately before" the commencement of Part III ofthe Government of India Act, 1935, so as to bring it within the saving in S. 143(2) of that Act. Besides, the two circumstances viz.: that residence within the city for a specified period was made a condition of the liability to the tax, as well as the increase in the rates would both serve to emphasise that the levy was a new one, with a different texture and not a continuance of the tax which was levied just prior to April 1,are unable to agree. The mere fact that prior to 1-4-1937 the Corporation had under Act X of 1936 the power to bring the tax into force by a resolution does not on a proper construction of S. 143(2) bring it within the range of those taxes or duties which "were being lawfully levied" prior to the commencement of Part III of the Government of India Act which alone are permitted to be continued to be levied notwithstanding that these duties were in the Federal Legislative List. This question has been considered by us in great detail in The Town Municipal Committee v. Ramchandra Vasudeo Chimote, Civil Appeals Nos. 598 695 and 700 of 1962, D/- 3-3-1964: (AIR 1964 SC 1166 ) in which judgment has been pronounced today and it is unnecessary to reexamine the same. The mere existence of a power to bring a power tax into operation, cannot as pointed out, be equated with "a tax which was being lawfully levied" before Part III of Government of India Act 1935.13. The third submission of learned Counsel for the appellant is also well-founded. The conclusion we have reached as to the effect of the amendment to S. 111 by Act X of 1936 and of tax being imposed by resolution of the Council from 1-4-1937 not a tax which was being lawfully levied immediately prior to 1-4-1942, is reinforced by reference to the rules in Schedule IV remained unamended till 1942. Under S. 111 (1) as amended, the tax could be levied only in accordance with the rules in Schedule IV and as those rules did not make a provision for the levy of a tax on pensioners, it would follow that the tax "was not being lawfully levied" on them. As already pointed out the relevant rules in that Schedule were framed at a time when explanation 2 formed part of S. 111 and "pensioners" were deemed to "hold appointments." With the deletion of the Explanation, the fiction created by the original Madras Act IV of 1919 ceased and thereafter if the rules in Schedule IV had to be applied to them these had to be suitably modified. This, as we have pointed out earlier, was done only from April 1, 1942, so that in reality taxes on pensioners were "lawfully" levied up to 1936 and then after a break from April 1, 1942. We use the word "lawfully" on the assumption that this could have been legally done underthe Government of India Act, 1935, a point already discussed. The learned Judges of the High Court have rejected the argument addressed to them under this head by reference to S. 18 of the Madras General Clauses Act corresponding to S. 24 of the General Clauses Act (Central Act X of 1897).With great respect to the learned Judges we do not see how this provision affords any assistance in the matter. The Schedule and the rules continued without repeal or amendment when the new S. 111(1) was substituted in 1936, and when this section made a reference to the rules, in Schedule IV it could only be a reference to the rules in the Schedule IV which stood unaltered. If the phraseology employed in the Schedule was inappropriate to a class which fell within S. 111(1), the only effect would be that the tax could not be levied because of the defect in the law imposing the tax but such a situation is not remedied by reference to the provision in the General Clauses Act on which the learned Judges have relied.14. If, therefore, the tax was one not lawfully levied just prior to April 1, 1937 and was one brought afterthe Government of India Act, 1935 came into force and really only from April 1, 1942 assuming this to be lawful it is obvious that the validity of tax could not be sustained as a continuation of a lawful pre-existing levy under S.argument was admittedly not urged before the learned Judges of the High Court and is obviously untenable.The taxes specified in item 60 are taxes on the carrying on of a profession, trade etc. and would therefore apply only to a case of present employment. The mere fact that a person has previously been in a profession or carried on a trade etc., cannot justify a tax under this Entry. The tax on the receipt of pension or on the income from investments which is referred to in the last part of S. 111 (1) is in truth and substance a tax on income and in fact the argument before the High Court proceeded on this basis, so have the learned Judges. At the time the tax is levied the pensioner is in no employment but is only in receipt of income though it might be for past services, in anour opinion, they were in error. The question of the correlation between Art. 372 corresponding to S. 292 of the Government of India Act and Art. 277 corresponding to S. 143 (2) of the Government of India Act was considered by this Court in South India Corporation (P) Ltd. v. Secy., Board of Revenue Trivendrum, Civil Appeals Nos. 295 to 298 (Not yet reported) D/- 13-8-1963 : (Since reported in AIR 1964 SCprovision, again, was not adverted to before the learned Judges of the High Court and for a proper reason. S. 142-A(1) which corresponds to Art. 276(1) of the Constitutionanything in section one hundred of this Act no Provincial law relating to taxes for the benefit of Province or of a municipality, district board, local board or other local authority therein in respect of professions trades, callings or employments shall be invalid on the ground that it relates to a tax onsection would assist the respondent only if tax imposed were one on a profession, trade, calling, or employment and in that event the section provides that such a tax shall not be deemed to be a tax on income, but where the tax imposed is one not on a profession etc. at all, it does not mean that the State might levy a tax on income and call it profession tax. This is sufficient to dispose of a similar argument as regards the scope of the amended Entry 46 in the Provincial Legislative List (List II) to which we have adverted earlier.

### 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: done under the Government of India Act, 1935, a point already discussed. The learned Judges of the High Court have rejected the argument addressed to them under this head by reference to S. 18 of the Madras General Clauses Act corresponding to S. 24 of the General Clauses Act (Central Act X of 1897).With great respect to the learned Judges we do not see how this provision affords any assistance in the matter. The Schedule and the rules continued without repeal or amendment when the new S. 111(1) was substituted in 1936, and when this section made a reference to the rules, in Schedule IV it could only be a reference to the rules in the Schedule IV which stood unaltered. If the phraseology employed in the Schedule was inappropriate to a class which fell within S. 111(1), the only effect would be that the tax could not be levied because of the defect in the law imposing the tax but such a situation is not remedied by reference to the provision in the General Clauses Act on which the learned Judges have relied.14. If, therefore, the tax was one not lawfully levied just prior to April 1, 1937 and was one brought after the Government of India Act, 1935 came into force and really only from April 1, 1942 assuming this to be lawful it is obvious that the validity of tax could not be sustained as a continuation of a lawful pre-existing levy under S. 143(2):15. In this view it is not necessary to consider the last of the points urged by learned Counsel and examine whether in case of an increase of rate, the entire tax would become a new tax and so unconstitutional or whether it is only the increase in the rate that would become unenforceable.16. Learned Counsel for the respondent-Corporation submitted that the tax could not be deemed to be a tax on income, as was suggested by the appellant, but was really a tax on employment because it was in consideration of part services during employment that pension was payable. This argument was admittedly not urged before the learned Judges of the High Court and is obviously untenable.The taxes specified in item 60 are taxes on the carrying on of a profession, trade etc. and would therefore apply only to a case of present employment. The mere fact that a person has previously been in a profession or carried on a trade etc., cannot justify a tax under this Entry. The tax on the receipt of pension or on the income from investments which is referred to in the last part of S. 111 (1) is in truth and substance a tax on income and in fact the argument before the High Court proceeded on this basis, so have the learned Judges. At the time the tax is levied the pensioner is in no employment but is only in receipt of income though it might be for past services, in an employment.17. He next submitted that Act X of 1936 which had been enacted prior to the Government of India Act, 1935 was continued as an existing law by S. 292 of the Government of India Act and as there was nothing in the Government of India Act against its continuance it would have effect even if the terms of S. 143(2) were not satisfied by the present levy.The learned Judges of the High Court accepted this submission. In our opinion, they were in error. The question of the correlation between Art. 372 corresponding to S. 292 of the Government of India Act and Art. 277 corresponding to S. 143 (2) of the Government of India Act was considered by this Court in South India Corporation (P) Ltd. v. Secy., Board of Revenue Trivendrum, Civil Appeals Nos. 295 to 298 (Not yet reported) D/- 13-8-1963 : (Since reported in AIR 1964 SC 207) and this Court said :"It is settled law that a special provision should be given effect to the extend of its scope leaving the general provision to control cases where the special provision does not apply. The earlier discussion of makes it abundantly clear that the Constitution gives a separate treatment to the subject finances, and Art. 277 saves the existing taxes etc. levied by States, if the conditions mentioned therein are complied with. While Art. 372 saves all pre-Constitution valid laws, Art. 277 is confined only to taxes duties, cesses or fees lawfully levied immediately before the Constitution. Therefore, Art. 372 cannot be construed in such a way as to enlarge the scope of the saving of taxes, duties, cesses or fees. To state it differently, Art. 372 must be read subject to Art. 277".18. Learned Counsel next drew our attention to S. 142-A(1) of the Government of India Act, 1935 and faintly suggested that it might afford him some assistance. This provision, again, was not adverted to before the learned Judges of the High Court and for a proper reason. S. 142-A(1) which corresponds to Art. 276(1) of the Constitution enacted:"Notwithstanding anything in section one hundred of this Act no Provincial law relating to taxes for the benefit of Province or of a municipality, district board, local board or other local authority therein in respect of professions trades, callings or employments shall be invalid on the ground that it relates to a tax on income".19. This section would assist the respondent only if tax imposed were one on a profession, trade, calling, or employment and in that event the section provides that such a tax shall not be deemed to be a tax on income, but where the tax imposed is one not on a profession etc. at all, it does not mean that the State might levy a tax on income and call it profession tax. This is sufficient to dispose of a similar argument as regards the scope of the amended Entry 46 in the Provincial Legislative List (List II) to which we have adverted earlier.20. ### Response: 1 ### Explanation: of Part III of the Government of India Act which alone are permitted to be continued to be levied notwithstanding that these duties were in the Federal Legislative List. This question has been considered by us in great detail in The Town Municipal Committee v. Ramchandra Vasudeo Chimote, Civil Appeals Nos. 598 695 and 700 of 1962, D/- 3-3-1964: (AIR 1964 SC 1166 ) in which judgment has been pronounced today and it is unnecessary to reexamine the same. The mere existence of a power to bring a power tax into operation, cannot as pointed out, be equated with "a tax which was being lawfully levied" before Part III of Government of India Act 1935.13. The third submission of learned Counsel for the appellant is also well-founded. The conclusion we have reached as to the effect of the amendment to S. 111 by Act X of 1936 and of tax being imposed by resolution of the Council from 1-4-1937 not a tax which was being lawfully levied immediately prior to 1-4-1942, is reinforced by reference to the rules in Schedule IV remained unamended till 1942. Under S. 111 (1) as amended, the tax could be levied only in accordance with the rules in Schedule IV and as those rules did not make a provision for the levy of a tax on pensioners, it would follow that the tax "was not being lawfully levied" on them. As already pointed out the relevant rules in that Schedule were framed at a time when explanation 2 formed part of S. 111 and "pensioners" were deemed to "hold appointments." With the deletion of the Explanation, the fiction created by the original Madras Act IV of 1919 ceased and thereafter if the rules in Schedule IV had to be applied to them these had to be suitably modified. This, as we have pointed out earlier, was done only from April 1, 1942, so that in reality taxes on pensioners were "lawfully" levied up to 1936 and then after a break from April 1, 1942. We use the word "lawfully" on the assumption that this could have been legally done underthe Government of India Act, 1935, a point already discussed. The learned Judges of the High Court have rejected the argument addressed to them under this head by reference to S. 18 of the Madras General Clauses Act corresponding to S. 24 of the General Clauses Act (Central Act X of 1897).With great respect to the learned Judges we do not see how this provision affords any assistance in the matter. The Schedule and the rules continued without repeal or amendment when the new S. 111(1) was substituted in 1936, and when this section made a reference to the rules, in Schedule IV it could only be a reference to the rules in the Schedule IV which stood unaltered. If the phraseology employed in the Schedule was inappropriate to a class which fell within S. 111(1), the only effect would be that the tax could not be levied because of the defect in the law imposing the tax but such a situation is not remedied by reference to the provision in the General Clauses Act on which the learned Judges have relied.14. If, therefore, the tax was one not lawfully levied just prior to April 1, 1937 and was one brought afterthe Government of India Act, 1935 came into force and really only from April 1, 1942 assuming this to be lawful it is obvious that the validity of tax could not be sustained as a continuation of a lawful pre-existing levy under S.argument was admittedly not urged before the learned Judges of the High Court and is obviously untenable.The taxes specified in item 60 are taxes on the carrying on of a profession, trade etc. and would therefore apply only to a case of present employment. The mere fact that a person has previously been in a profession or carried on a trade etc., cannot justify a tax under this Entry. The tax on the receipt of pension or on the income from investments which is referred to in the last part of S. 111 (1) is in truth and substance a tax on income and in fact the argument before the High Court proceeded on this basis, so have the learned Judges. At the time the tax is levied the pensioner is in no employment but is only in receipt of income though it might be for past services, in anour opinion, they were in error. The question of the correlation between Art. 372 corresponding to S. 292 of the Government of India Act and Art. 277 corresponding to S. 143 (2) of the Government of India Act was considered by this Court in South India Corporation (P) Ltd. v. Secy., Board of Revenue Trivendrum, Civil Appeals Nos. 295 to 298 (Not yet reported) D/- 13-8-1963 : (Since reported in AIR 1964 SCprovision, again, was not adverted to before the learned Judges of the High Court and for a proper reason. S. 142-A(1) which corresponds to Art. 276(1) of the Constitutionanything in section one hundred of this Act no Provincial law relating to taxes for the benefit of Province or of a municipality, district board, local board or other local authority therein in respect of professions trades, callings or employments shall be invalid on the ground that it relates to a tax onsection would assist the respondent only if tax imposed were one on a profession, trade, calling, or employment and in that event the section provides that such a tax shall not be deemed to be a tax on income, but where the tax imposed is one not on a profession etc. at all, it does not mean that the State might levy a tax on income and call it profession tax. This is sufficient to dispose of a similar argument as regards the scope of the amended Entry 46 in the Provincial Legislative List (List II) to which we have adverted earlier.

Kumar Digvijaysinghji Hamirsinghji Vs. Manji Savda & Others

Girasdar for the purposes of the Act, S. 2 (15). It is common case that the appellant is a Girasdar by virtue of the notification of the Saurashtra Government declaring him to be a Girasdar. The Act overrides other laws. Save as otherwise provided in the Act, its provisions have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority, (S. 3). Chapter III regulates the relationship of Girasdars with their tenants. Subject to certain exceptions any person who is lawfully cultivating any land belonging to a Girasdar is for the purposes of the Act deemed to be the tenant, (S. 6). Sections 6 to 17 confer on the tenants certain benefits, privileges and immunities in respect of rent, cess, rate, hak, tax, service, termination of tenancy and eviction from dwelling houses. Particularly S. 12 provides that no tenancy can be terminated except in accordance with the provisions of Chapter IV or except on certain specified grounds. Section 18 provides:-"Nothing contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever." Section 18 shows that the Act is intended to confer on the tenant rights and privileges which he does not otherwise enjoy or possess under any usage or law in force or any contract, grant, decree or order of a court or arising in any other way. If the tenant has any right or privilege apart from the provisions of the Act, he needs no protection under the Act. He can claim protection under his existing rights and privileges. His existing rights and privileges are not limited or abridged by anything in the Act. 5. The conditions incorporated in the letter dated November 2, 1949 were intended for the benefit of the tenants. The tenants can claim the benefit of the condition that the appellant would not evict them. The condition is annexed to the grant to the appellant. The right or privilege of the tenant arising out of this condition is a right or privilege arising out of a grant within the meaning of Section 18. The expression "grant" in Section 18 is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant. 6. The next question is whether the rights and privileges of the tenant arising out of the conditions incorporated in the letter dated November 2, 1949 are limited or abridged by an order for allotment of land to the appellant under Section 19 for personal cultivation. Chapter lV enables Girasdars to obtain allotment of land for personal cultivation. Any Girasdar may file an application for such allotment before the Mamlatdar under Section 19 within a certain time. On making the necessary enquiries the Mamlatdar may pass an order making an allotment of land to the Girasdar, S. 20 (2). After making the order the Mamlatdar has to issue an occupancy certificate to the Girasdar in respect of the deed, S. 20 (3). No Girasdar can obtain possession of any land held by a tenant except in accordance with such order, S. 20 (4). Nothing contained in Chapter IV applies to any land in respect of which a tenant has acquired chav or buta hak, (S. 27). Under S. 39 the Girasdar may obtain an occupancy certificate in respect of land allotted to him under Chapter IV. Section 50 (2) provides for execution of orders of the Mamlatdar awarding possession. Chapter V provides for acquisition of occupancy rights by tenants. Having regard to S. 30 (1) and the proviso to S. 32 (b) the acquisition of occupancy rights by tenants is subject to an order of allotment to the Girisdar under Chapter IV and any occupancy certificate issued to a tenant ceases to be effective as soon as any agricultural land or any portion thereof is allotted to a Girasdar under Chapter IV either before or after the date on which the occupancy certificate issued to the tenant has become effective. 7. On the strength of the order of allotment of land for personal cultivation under S. 20 (2) the Girasdar is entitled to evict the tenants from the land allotted to him. When the Girasdar applies under S. 19 for allotment of land for personal cultivation, he seeks to evict the tenants from the land. Therefore when the appellant filed his application under S. 19 he sought under which would enable him to evict the tenants in contravention of the condition of his grant that he would not evict the tenants. In view of S. 18 nothing in Chapter IV enables him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition. The Mamlatdar could not under S. 10 pass an order which would have the effect of limiting or abridging those rights and privileges. The appellant had no right to evict the tenants and the Mamlatdar could not pass an order which would enable the appellant to evict them.The application filed by the appellant under S. 19 was therefore incompetent. 8. The appellant as a Girasdar was subject to the provisions of S. 18. The declaration in the notification dated January 29, 1954 that he was subject to the provisions of S. 18 stated what followed from the express provisions of the Act. Because of S. 18, the appellant was subject to the conditions imposed by the Government at the time of his recognition that he cannot evict the tenants. The notification dated July 10, 1954 declared the existing disability of the appellant in respect of eviction of tenants.

0[ds]Section 18 shows that the Act is intended to confer on the tenant rights and privileges which he does not otherwise enjoy or possess under any usage or law in force or any contract, grant, decree or order of a court or arising in any other way. If the tenant has any right or privilege apart from the provisions of the Act, he needs no protection under the Act. He can claim protection under his existing rights and privileges. His existing rights and privileges are not limited or abridged by anything in the Act5. The conditions incorporated in the letter dated November 2, 1949 were intended for the benefit of the tenants. The tenants can claim the benefit of the condition that the appellant would not evict them. The condition is annexed to the grant to the appellant. The right or privilege of the tenant arising out of this condition is a right or privilege arising out of a grant within the meaning of Section 18. The expression "grant" in Section 18 is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant7. On the strength of the order of allotment of land for personal cultivation under S. 20 (2) the Girasdar is entitled to evict the tenants from the land allotted to him. When the Girasdar applies under S. 19 for allotment of land for personal cultivation, he seeks to evict the tenants from the land. Therefore when the appellant filed his application under S. 19 he sought under which would enable him to evict the tenants in contravention of the condition of his grant that he would not evict the tenants. In view of S. 18 nothing in Chapter IV enables him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition. The Mamlatdar could not under S. 10 pass an order which would have the effect of limiting or abridging those rights and privileges. The appellant had no right to evict the tenants and the Mamlatdar could not pass an order which would enable the appellant to evict them.The application filed by the appellant under S. 19 was therefore incompetent8. The appellant as a Girasdar was subject to the provisions of S. 18. The declaration in the notification dated January 29, 1954 that he was subject to the provisions of S. 18 stated what followed from the express provisions of the Act. Because of S. 18, the appellant was subject to the conditions imposed by the Government at the time of his recognition that he cannot evict the tenants. The notification dated July 10, 1954 declared the existing disability of the appellant in respect of eviction of tenants.

### 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: Girasdar for the purposes of the Act, S. 2 (15). It is common case that the appellant is a Girasdar by virtue of the notification of the Saurashtra Government declaring him to be a Girasdar. The Act overrides other laws. Save as otherwise provided in the Act, its provisions have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority, (S. 3). Chapter III regulates the relationship of Girasdars with their tenants. Subject to certain exceptions any person who is lawfully cultivating any land belonging to a Girasdar is for the purposes of the Act deemed to be the tenant, (S. 6). Sections 6 to 17 confer on the tenants certain benefits, privileges and immunities in respect of rent, cess, rate, hak, tax, service, termination of tenancy and eviction from dwelling houses. Particularly S. 12 provides that no tenancy can be terminated except in accordance with the provisions of Chapter IV or except on certain specified grounds. Section 18 provides:-"Nothing contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever." Section 18 shows that the Act is intended to confer on the tenant rights and privileges which he does not otherwise enjoy or possess under any usage or law in force or any contract, grant, decree or order of a court or arising in any other way. If the tenant has any right or privilege apart from the provisions of the Act, he needs no protection under the Act. He can claim protection under his existing rights and privileges. His existing rights and privileges are not limited or abridged by anything in the Act. 5. The conditions incorporated in the letter dated November 2, 1949 were intended for the benefit of the tenants. The tenants can claim the benefit of the condition that the appellant would not evict them. The condition is annexed to the grant to the appellant. The right or privilege of the tenant arising out of this condition is a right or privilege arising out of a grant within the meaning of Section 18. The expression "grant" in Section 18 is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant. 6. The next question is whether the rights and privileges of the tenant arising out of the conditions incorporated in the letter dated November 2, 1949 are limited or abridged by an order for allotment of land to the appellant under Section 19 for personal cultivation. Chapter lV enables Girasdars to obtain allotment of land for personal cultivation. Any Girasdar may file an application for such allotment before the Mamlatdar under Section 19 within a certain time. On making the necessary enquiries the Mamlatdar may pass an order making an allotment of land to the Girasdar, S. 20 (2). After making the order the Mamlatdar has to issue an occupancy certificate to the Girasdar in respect of the deed, S. 20 (3). No Girasdar can obtain possession of any land held by a tenant except in accordance with such order, S. 20 (4). Nothing contained in Chapter IV applies to any land in respect of which a tenant has acquired chav or buta hak, (S. 27). Under S. 39 the Girasdar may obtain an occupancy certificate in respect of land allotted to him under Chapter IV. Section 50 (2) provides for execution of orders of the Mamlatdar awarding possession. Chapter V provides for acquisition of occupancy rights by tenants. Having regard to S. 30 (1) and the proviso to S. 32 (b) the acquisition of occupancy rights by tenants is subject to an order of allotment to the Girisdar under Chapter IV and any occupancy certificate issued to a tenant ceases to be effective as soon as any agricultural land or any portion thereof is allotted to a Girasdar under Chapter IV either before or after the date on which the occupancy certificate issued to the tenant has become effective. 7. On the strength of the order of allotment of land for personal cultivation under S. 20 (2) the Girasdar is entitled to evict the tenants from the land allotted to him. When the Girasdar applies under S. 19 for allotment of land for personal cultivation, he seeks to evict the tenants from the land. Therefore when the appellant filed his application under S. 19 he sought under which would enable him to evict the tenants in contravention of the condition of his grant that he would not evict the tenants. In view of S. 18 nothing in Chapter IV enables him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition. The Mamlatdar could not under S. 10 pass an order which would have the effect of limiting or abridging those rights and privileges. The appellant had no right to evict the tenants and the Mamlatdar could not pass an order which would enable the appellant to evict them.The application filed by the appellant under S. 19 was therefore incompetent. 8. The appellant as a Girasdar was subject to the provisions of S. 18. The declaration in the notification dated January 29, 1954 that he was subject to the provisions of S. 18 stated what followed from the express provisions of the Act. Because of S. 18, the appellant was subject to the conditions imposed by the Government at the time of his recognition that he cannot evict the tenants. The notification dated July 10, 1954 declared the existing disability of the appellant in respect of eviction of tenants. ### Response: 0 ### Explanation: Section 18 shows that the Act is intended to confer on the tenant rights and privileges which he does not otherwise enjoy or possess under any usage or law in force or any contract, grant, decree or order of a court or arising in any other way. If the tenant has any right or privilege apart from the provisions of the Act, he needs no protection under the Act. He can claim protection under his existing rights and privileges. His existing rights and privileges are not limited or abridged by anything in the Act5. The conditions incorporated in the letter dated November 2, 1949 were intended for the benefit of the tenants. The tenants can claim the benefit of the condition that the appellant would not evict them. The condition is annexed to the grant to the appellant. The right or privilege of the tenant arising out of this condition is a right or privilege arising out of a grant within the meaning of Section 18. The expression "grant" in Section 18 is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant7. On the strength of the order of allotment of land for personal cultivation under S. 20 (2) the Girasdar is entitled to evict the tenants from the land allotted to him. When the Girasdar applies under S. 19 for allotment of land for personal cultivation, he seeks to evict the tenants from the land. Therefore when the appellant filed his application under S. 19 he sought under which would enable him to evict the tenants in contravention of the condition of his grant that he would not evict the tenants. In view of S. 18 nothing in Chapter IV enables him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition. The Mamlatdar could not under S. 10 pass an order which would have the effect of limiting or abridging those rights and privileges. The appellant had no right to evict the tenants and the Mamlatdar could not pass an order which would enable the appellant to evict them.The application filed by the appellant under S. 19 was therefore incompetent8. The appellant as a Girasdar was subject to the provisions of S. 18. The declaration in the notification dated January 29, 1954 that he was subject to the provisions of S. 18 stated what followed from the express provisions of the Act. Because of S. 18, the appellant was subject to the conditions imposed by the Government at the time of his recognition that he cannot evict the tenants. The notification dated July 10, 1954 declared the existing disability of the appellant in respect of eviction of tenants.

M/S. Serajuddin & Co Vs. Their Workmen

minerals are ready and all operations incidental to or connected with them are over. This position is not disputed. Therefore, there can be no doubt that under the Mines Act, office of the mine, though situated at the surface of the mine is not necessarily a mine and the employees in the said office cannot necessarily be said to be persons employed in a mine and so, the regulatory provisions of the Mines Act would not necessarily apply to the office and would not govern the conditions of service of the employees in the said office.7. It is in the light of the dictionary meaning of the word "mine" or in the light of the definition of the word "mine" contained in the Mines Act that we have to decide what an industrial dispute concerning a mine means under S 2(a)(i). Judged in that way, there can be no difficulty in holding that an industrial dispute between the employees engaged in the Head Office at Calcutta and the employer is not an industrial dispute concerning a mine. The Head Office is not a mine and so an industrial dispute raised by the employees engaged in the Head Office is not an industrial dispute concerning a mine.8. It is, however, urged by Mr. Sanyal on behalf of the appellant that a mining lease under the Mines and Minerals (Regulation and Development) Act (53 of 1948 means a lease granted for the purpose of searching for, winning, working, getting making merchantable, carrying away or disposing of minerals or for purposes connected therewith, and includes an exploring or a prospecting license. This Act has been substantially amended in 1957. But for the purpose of the argument urged on the definition of the "mining lease" contained in S. 3(d), it is not necessary to refer to the subsequent amendments made in the Act or in the said definition itself. The argument is that a mining lease contains a provision which enables the lessee to carry away or dispose of the minerals and so, the process of disposal of the minerals being covered by the mining lease must be held to be integrally connected with the mining operations and since sales of minerals are looked after in the Head Office, the Head Office itself is a part of the mine. In our opinion, there is no substance in this argument. The purpose of granting a mining lease obviously is to enable the lessee to search for and win minerals and make them merchantable. The said purpose must necessarily include the right of the lessee to carry away the minerals and to dispose of them in the market. But the rights conferred on the lessee under a mining lease can have no direct bearing on the question of the construction of S. 2(a) with which we are concerned. As have already pointed out, in the absence of a definition of the word "mine" in the Act itself, we have to take either the dictionary meaning of the word or the definition of the word "mine" in the Mines Act.The rights conferred on the lessee in whose favour a mining lease is executed can be of no assistance in interpreting the word "mine" in S. 2(a)(i). Therefore, we are satisfied that the Tribunal was right in holding that the present dispute between the appellant and its employees at its Head Office at Calcutta is not a dispute in relation to a mine.9. On general considerations also, the conclusion of the Tribunal appears to be right. The Central Government would be interested in industrial disputes in relation to a mine and so, in regard to such disputes the Central Government is made the appropriate Government by S. 2(a). In this connection it would be unreasonable to assume that the Central Government would be interested in industrial disputes relating to mines as defined by the Mines Act. The relevant provisions of the Mines Act are intended to regulate labour in mines and as the scheme of the Act shows several provisions have been made by the Act for the health and safety of the persons working in the mines and provisions have also been made for hours and limitation of employment in that behalf. If the scheme of the Act shows that office of the mine is outside the purview of the Act and the employees engaged in the office would, therefore, not ordinarily be governed by the major provisions of the Act, it would not be unreasonable to hold that an industrial dispute between such employees of the office of the mine and the employer is not a dispute in which the Central Government would be interested. It may be that some of the work done in the office of the mine situated at the surface of the mine may be incidental to or connected with the mining operations, as for example, keeping muster roll of workmen or payment register maintained for them. Clerks engaged in such type of work may be said to be persons employed in a mine; but the work in the Head Office with which we are directly concerned in this appeal is wholly unconnected with mining operations. All industrial disputes which are outside S. 2(a)(i) are the concern of the State Government under S. 2(a) (ii); in other words, the general rule is that an industrial dispute arising between an employer and his employees would be referred for adjudication by the State Government, except in cases falling under S. 2(a)(i); and so it is the extent of one of the exceptions mentioned in S. 2(a)(i) that we have to determine in the present case. In determining the extent of the said exception, it would not be irrelevant to bear in mind the scope of the provisions of the Mines Act itself. That is why we think the fact that an office of a mine is outside the definition of a mine is of some assistance in interpreting the word "mine" under S. 2(a)(i).

0[ds]5. On the other hand, if we look at the definition in S. 2(a)(i), it would be noticed that were it was intended to refer to an industry as such, the definition uses the word industry as for instance, it refers to an industrial dispute concerning any such controlled industry as may be specified in this behalf by the Central Government, whereas in referring to the dispute in regard to a mine the definition does not refer to an industrial dispute concerning a mining industry but it merely says an industrial dispute concerning a mine. In the context, a mine is referred to just as a banking or an insurance company is referred to or an oil-field or a major port is referred. Therefore, in construing the words "an industrial dispute" in relation to a mine, we must first determine what a mine means and this must be done without reference to the broad definition of industry prescribed by S. 2(j).6. In the absence of any definition of the word "mine" in the Act, we may take into account the dictionary meaning as excavation in earth for metal, coal, salt etc. The Mines Act (35 of 1952) also contains a definition of "mine" in S. 2(j).The said definition shows, inter alia, that a "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on. It is significant that the definition of mine under S. 2(j) excludes an office of a mine which is separately defined by S. 2(k) as meaning an office at the surface of the mine concerned so that there is no doubt that the office of the mine, though it may be situated at the surface of the mine itself, is not within the definition of mine. This position is further clarified when we consider the definition of the person employed in a mine which is prescribed by S. 2(h). A person is said to be employed in a mine who works under appointment by or with the knowledge of the manager, whether for wages or not, in any mining operation, or in cleaning or oiling any part of any machinery used in or about the mine, or in any other kind of work whatsoever incidental to, or connected with, mining operations. It is obvious that the persons employed in the Head Office wherever it may be situated cannot be said to do the mining operation within the first part of the definition. In our opinion, they cannot be said to be ordinarily engaged in any other kind of work which is incidental to or connected with mining operation either The work which is incidental to or connected with mining operations must have some connection with or relation to the mining operations themselves. The work that is carried on in the Head Office which consists principally of the sale operations really begins after the minerals are ready and all operations incidental to or connected with them are over. This position is not disputed. Therefore, there can be no doubt that under the Mines Act, office of the mine, though situated at the surface of the mine is not necessarily a mine and the employees in the said office cannot necessarily be said to be persons employed in a mine and so, the regulatory provisions of the Mines Act would not necessarily apply to the office and would not govern the conditions of service of the employees in the said office.7. It is in the light of the dictionary meaning of the word "mine" or in the light of the definition of the word "mine" contained in the Mines Act that we have to decide what an industrial dispute concerning a mine means under S 2(a)(i). Judged in that way, there can be no difficulty in holding that an industrial dispute between the employees engaged in the Head Office at Calcutta and the employer is not an industrial dispute concerning a mine. The Head Office is not a mine and so an industrial dispute raised by the employees engaged in the Head Office is not an industrial dispute concerning aour opinion, there is no substance in this argument. The purpose of granting a mining lease obviously is to enable the lessee to search for and win minerals and make them merchantable. The said purpose must necessarily include the right of the lessee to carry away the minerals and to dispose of them in the market. But the rights conferred on the lessee under a mining lease can have no direct bearing on the question of the construction of S. 2(a) with which we are concerned. As have already pointed out, in the absence of a definition of the word "mine" in the Act itself, we have to take either the dictionary meaning of the word or the definition of the word "mine" in the Mines Act.The rights conferred on the lessee in whose favour a mining lease is executed can be of no assistance in interpreting the word "mine" in S. 2(a)(i). Therefore, we are satisfied that the Tribunal was right in holding that the present dispute between the appellant and its employees at its Head Office at Calcutta is not a dispute in relation to a mine.9. On general considerations also, the conclusion of the Tribunal appears to be right. The Central Government would be interested in industrial disputes in relation to a mine and so, in regard to such disputes the Central Government is made the appropriate Government by S. 2(a). In this connection it would be unreasonable to assume that the Central Government would be interested in industrial disputes relating to mines as defined by the Mines Act. The relevant provisions of the Mines Act are intended to regulate labour in mines and as the scheme of the Act shows several provisions have been made by the Act for the health and safety of the persons working in the mines and provisions have also been made for hours and limitation of employment in that behalf. If the scheme of the Act shows that office of the mine is outside the purview of the Act and the employees engaged in the office would, therefore, not ordinarily be governed by the major provisions of the Act, it would not be unreasonable to hold that an industrial dispute between such employees of the office of the mine and the employer is not a dispute in which the Central Government would be interested. It may be that some of the work done in the office of the mine situated at the surface of the mine may be incidental to or connected with the mining operations, as for example, keeping muster roll of workmen or payment register maintained for them. Clerks engaged in such type of work may be said to be persons employed in a mine; but the work in the Head Office with which we are directly concerned in this appeal is wholly unconnected with mining operations. All industrial disputes which are outside S. 2(a)(i) are the concern of the State Government under S. 2(a) (ii); in other words, the general rule is that an industrial dispute arising between an employer and his employees would be referred for adjudication by the State Government, except in cases falling under S. 2(a)(i); and so it is the extent of one of the exceptions mentioned in S. 2(a)(i) that we have to determine in the present case. In determining the extent of the said exception, it would not be irrelevant to bear in mind the scope of the provisions of the Mines Act itself. That is why we think the fact that an office of a mine is outside the definition of a mine is of some assistance in interpreting the word "mine" under S. 2(a)(i).

### 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: minerals are ready and all operations incidental to or connected with them are over. This position is not disputed. Therefore, there can be no doubt that under the Mines Act, office of the mine, though situated at the surface of the mine is not necessarily a mine and the employees in the said office cannot necessarily be said to be persons employed in a mine and so, the regulatory provisions of the Mines Act would not necessarily apply to the office and would not govern the conditions of service of the employees in the said office.7. It is in the light of the dictionary meaning of the word "mine" or in the light of the definition of the word "mine" contained in the Mines Act that we have to decide what an industrial dispute concerning a mine means under S 2(a)(i). Judged in that way, there can be no difficulty in holding that an industrial dispute between the employees engaged in the Head Office at Calcutta and the employer is not an industrial dispute concerning a mine. The Head Office is not a mine and so an industrial dispute raised by the employees engaged in the Head Office is not an industrial dispute concerning a mine.8. It is, however, urged by Mr. Sanyal on behalf of the appellant that a mining lease under the Mines and Minerals (Regulation and Development) Act (53 of 1948 means a lease granted for the purpose of searching for, winning, working, getting making merchantable, carrying away or disposing of minerals or for purposes connected therewith, and includes an exploring or a prospecting license. This Act has been substantially amended in 1957. But for the purpose of the argument urged on the definition of the "mining lease" contained in S. 3(d), it is not necessary to refer to the subsequent amendments made in the Act or in the said definition itself. The argument is that a mining lease contains a provision which enables the lessee to carry away or dispose of the minerals and so, the process of disposal of the minerals being covered by the mining lease must be held to be integrally connected with the mining operations and since sales of minerals are looked after in the Head Office, the Head Office itself is a part of the mine. In our opinion, there is no substance in this argument. The purpose of granting a mining lease obviously is to enable the lessee to search for and win minerals and make them merchantable. The said purpose must necessarily include the right of the lessee to carry away the minerals and to dispose of them in the market. But the rights conferred on the lessee under a mining lease can have no direct bearing on the question of the construction of S. 2(a) with which we are concerned. As have already pointed out, in the absence of a definition of the word "mine" in the Act itself, we have to take either the dictionary meaning of the word or the definition of the word "mine" in the Mines Act.The rights conferred on the lessee in whose favour a mining lease is executed can be of no assistance in interpreting the word "mine" in S. 2(a)(i). Therefore, we are satisfied that the Tribunal was right in holding that the present dispute between the appellant and its employees at its Head Office at Calcutta is not a dispute in relation to a mine.9. On general considerations also, the conclusion of the Tribunal appears to be right. The Central Government would be interested in industrial disputes in relation to a mine and so, in regard to such disputes the Central Government is made the appropriate Government by S. 2(a). In this connection it would be unreasonable to assume that the Central Government would be interested in industrial disputes relating to mines as defined by the Mines Act. The relevant provisions of the Mines Act are intended to regulate labour in mines and as the scheme of the Act shows several provisions have been made by the Act for the health and safety of the persons working in the mines and provisions have also been made for hours and limitation of employment in that behalf. If the scheme of the Act shows that office of the mine is outside the purview of the Act and the employees engaged in the office would, therefore, not ordinarily be governed by the major provisions of the Act, it would not be unreasonable to hold that an industrial dispute between such employees of the office of the mine and the employer is not a dispute in which the Central Government would be interested. It may be that some of the work done in the office of the mine situated at the surface of the mine may be incidental to or connected with the mining operations, as for example, keeping muster roll of workmen or payment register maintained for them. Clerks engaged in such type of work may be said to be persons employed in a mine; but the work in the Head Office with which we are directly concerned in this appeal is wholly unconnected with mining operations. All industrial disputes which are outside S. 2(a)(i) are the concern of the State Government under S. 2(a) (ii); in other words, the general rule is that an industrial dispute arising between an employer and his employees would be referred for adjudication by the State Government, except in cases falling under S. 2(a)(i); and so it is the extent of one of the exceptions mentioned in S. 2(a)(i) that we have to determine in the present case. In determining the extent of the said exception, it would not be irrelevant to bear in mind the scope of the provisions of the Mines Act itself. That is why we think the fact that an office of a mine is outside the definition of a mine is of some assistance in interpreting the word "mine" under S. 2(a)(i). ### Response: 0 ### Explanation: when we consider the definition of the person employed in a mine which is prescribed by S. 2(h). A person is said to be employed in a mine who works under appointment by or with the knowledge of the manager, whether for wages or not, in any mining operation, or in cleaning or oiling any part of any machinery used in or about the mine, or in any other kind of work whatsoever incidental to, or connected with, mining operations. It is obvious that the persons employed in the Head Office wherever it may be situated cannot be said to do the mining operation within the first part of the definition. In our opinion, they cannot be said to be ordinarily engaged in any other kind of work which is incidental to or connected with mining operation either The work which is incidental to or connected with mining operations must have some connection with or relation to the mining operations themselves. The work that is carried on in the Head Office which consists principally of the sale operations really begins after the minerals are ready and all operations incidental to or connected with them are over. This position is not disputed. Therefore, there can be no doubt that under the Mines Act, office of the mine, though situated at the surface of the mine is not necessarily a mine and the employees in the said office cannot necessarily be said to be persons employed in a mine and so, the regulatory provisions of the Mines Act would not necessarily apply to the office and would not govern the conditions of service of the employees in the said office.7. It is in the light of the dictionary meaning of the word "mine" or in the light of the definition of the word "mine" contained in the Mines Act that we have to decide what an industrial dispute concerning a mine means under S 2(a)(i). Judged in that way, there can be no difficulty in holding that an industrial dispute between the employees engaged in the Head Office at Calcutta and the employer is not an industrial dispute concerning a mine. The Head Office is not a mine and so an industrial dispute raised by the employees engaged in the Head Office is not an industrial dispute concerning aour opinion, there is no substance in this argument. The purpose of granting a mining lease obviously is to enable the lessee to search for and win minerals and make them merchantable. The said purpose must necessarily include the right of the lessee to carry away the minerals and to dispose of them in the market. But the rights conferred on the lessee under a mining lease can have no direct bearing on the question of the construction of S. 2(a) with which we are concerned. As have already pointed out, in the absence of a definition of the word "mine" in the Act itself, we have to take either the dictionary meaning of the word or the definition of the word "mine" in the Mines Act.The rights conferred on the lessee in whose favour a mining lease is executed can be of no assistance in interpreting the word "mine" in S. 2(a)(i). Therefore, we are satisfied that the Tribunal was right in holding that the present dispute between the appellant and its employees at its Head Office at Calcutta is not a dispute in relation to a mine.9. On general considerations also, the conclusion of the Tribunal appears to be right. The Central Government would be interested in industrial disputes in relation to a mine and so, in regard to such disputes the Central Government is made the appropriate Government by S. 2(a). In this connection it would be unreasonable to assume that the Central Government would be interested in industrial disputes relating to mines as defined by the Mines Act. The relevant provisions of the Mines Act are intended to regulate labour in mines and as the scheme of the Act shows several provisions have been made by the Act for the health and safety of the persons working in the mines and provisions have also been made for hours and limitation of employment in that behalf. If the scheme of the Act shows that office of the mine is outside the purview of the Act and the employees engaged in the office would, therefore, not ordinarily be governed by the major provisions of the Act, it would not be unreasonable to hold that an industrial dispute between such employees of the office of the mine and the employer is not a dispute in which the Central Government would be interested. It may be that some of the work done in the office of the mine situated at the surface of the mine may be incidental to or connected with the mining operations, as for example, keeping muster roll of workmen or payment register maintained for them. Clerks engaged in such type of work may be said to be persons employed in a mine; but the work in the Head Office with which we are directly concerned in this appeal is wholly unconnected with mining operations. All industrial disputes which are outside S. 2(a)(i) are the concern of the State Government under S. 2(a) (ii); in other words, the general rule is that an industrial dispute arising between an employer and his employees would be referred for adjudication by the State Government, except in cases falling under S. 2(a)(i); and so it is the extent of one of the exceptions mentioned in S. 2(a)(i) that we have to determine in the present case. In determining the extent of the said exception, it would not be irrelevant to bear in mind the scope of the provisions of the Mines Act itself. That is why we think the fact that an office of a mine is outside the definition of a mine is of some assistance in interpreting the word "mine" under S. 2(a)(i).

Haryana State M.I.Tubewell Corp. Vs. G.S. Uppal

performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation. 23. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of removal of anomaly in pay scales given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner. The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation. When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending the pay scale which is the subject matter of the correction. It should be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity. 24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union [(2000) 4 SCC 245] . However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.

0[ds]16. There is no dispute nor can there be any to the principle as settled in the above-cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors22. It is not in dispute that a deputationist holds the post in a particular cadre office for the duration he remains on deputation and is a part of that cadre. No material has been placed on record by the appellants to show that the deputationists are appointed against only certain particular posts or that they cannot be posted or transferred to the posts held by the respondents. In fact, it is an admitted position that the posts are mutually inter-changeable. In this situation, it is reasonable to infer that a deputationist performs the same duties as those performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation23. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of removal of anomaly in pay scales given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner. The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation. When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending the pay scale which is the subject matter of the correction. It should be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union [(2000) 4 SCC 245] . However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the sameHaving regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.

### 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: performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation. 23. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of removal of anomaly in pay scales given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner. The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation. When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending the pay scale which is the subject matter of the correction. It should be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity. 24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union [(2000) 4 SCC 245] . However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us. ### Response: 0 ### Explanation: same duties as those performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation23. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of removal of anomaly in pay scales given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner. The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation. When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending the pay scale which is the subject matter of the correction. It should be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union [(2000) 4 SCC 245] . However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the sameHaving regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.

Abdul Kadir Shamsuddin Bubere Vs. Madhav Prabhakar Oak

We are clearly of opinion that merely because some allegations have been made that accounts are not correct or that certain items are exaggerated and so on that is not enough to induce the court to refuse to make a reference to arbitration. It is only in cases of allegations of fraud of a serious nature that the court will refuse as decided in Russells case (1880) 14 Ch D 471 to order an arbitration agreement to be filed and will not make a reference. We may in this connection refer to Minifie v. Railway Passengers Assurance Co., (1881) 44 LT 552. There the question was whether certain proceedings should be stayed; and it was held that notwithstanding the fact that the issue and the evidence in support of it might bear upon the conduct of a certain person and of those who attended him and so might involve a question similar to that of fraud or no fraud, that was no ground for refusing stay. It is only when serious allegations of fraud are made which it is desirable should be tried in open court that a court would be justified in refusing to order the arbitration agreement to be filed and in refusing to make a reference. 18. Let us therefore turn to the allegations in this case to see what their nature is. These allegations are that (i) the accounts were not made up to date, and even on demand by the respondents, the appellant did not bring them up to date; (ii) the statements of accounts which were shown by the appellant were not complete and did not appear to be correct; and (iii) the whole stock of goods was not to be found therein and the debit items appeared to be exaggerated and incorrect. These were the only allegations with respect to the accounts in the application and they do not in our opinion amount to serious allegations of fraud against the appellant which would necessitate that there should be a trial in open court. Such allegation as to the correctness or otherwise of entries in the accounts are often made in accounts suits; but they in our opinion are not such serious allegations of fraud as to induce a court to order that the arbitration agreement should not be filed and no reference should be made. Besides these allegations as to accounts the respondents also said that an injunction should be granted restraining the appellant from removing the stock so as to avoid misappropriation thereof pending the appointment of a receiver. That was not an actual allegation of misappropriation; it merely said that the respondents were afraid that there might be misappropriation in future unless an injunction was issued and a receiver appointed. Further in the affidavit in support of the application for appointment of receiver after referring to their own conclusions from the state of accounts, the respondents said that they had not received the true and complete account of the felling of the jungle, ready goods, the goods sold and the goods in balance from the appellant. They also said that they suspected that on their conclusions from the accounts supplied to them, there might be misappropriation of the goods and of money. They further alleged that in the accounts shown to them, the sale of charcoal was shown at a rate much lower than the prevailing market rate and under these circumstances the respondents apprehended that if the work of the sale of goods remained in the hand of the appellant the real price of the goods would not be realised. There is no allegation, however, that in actual fact the appellant had made secret profits by selling goods at a higher price and showing a lower price in the account. The respondents pointed the entries in the account which owed the lower rate of the sale price in support of their apprehension that if the work of sale of goods remained in the hand of the appellant the real price would not in future be realised. A perusal therefore of the application under S. 20 and the affidavit filed in support of the application for appointment of receiver does not disclose any serious allegations of fraud against the appellant. What it discloses is that the respondents were not satisfied with the accounts submitted to them and were suspicious that they did not disclose the true and complete state of affairs. Such allegations, as we have already remarked are often made in account suits and if they were to be sufficient ground for not referring an account suit to arbitration, on the ground of fraud, hardly any arbitration agreement in a matter in which accounting would be necessary could be referred to arbitration. That is why we emphasise that even in the leading case of Russel, (1880) 14 Ch D 471, the learned Master of the Rolls was at pains to point out that it could not necessarily be said in a case of accounts that no reference to arbitration should be made, even though questions relating to accounts which might involve misconduct amounting even to dishonesty on the part of some partner might arise in the arbitration proceedings and even cases where moral dishonesty or moral misconduct is attributed to one party or the other might be referred to arbitration. It seems to us that every allegation tending to suggest or imply moral dishonesty or moral misconduct in the matter of keeping accounts would not amount to such serious allegation of fraud as would impel a court to refuse to order the arbitration agreement to be filed and refuse to make a reference. Looking to the allegations which have been made in this case we are of opinion that there are no such serious allegations of fraud in this case as would be sufficient for the court to say that there is sufficient cause for not referring the dispute to arbitration. This contention of the appellant must also therefore fail.

0[ds]If that is so, there could be no objection on this ground to the filing of the arbitration agreement; but even if that is not so, we are of opinion that that is no ground in the circumstances of this case for not referring the dispute to arbitration in accordance with the arbitration clause in the agreement of February 27, 1953. Babaji had a brother Yeshwant and Anant is his son. It is not disputed that Babaji was holding eight annas share in the forest on behalf of the Joint family consisting of himself and his nephew Anant, and his personal share in it was half, i.e., four annas. On his death his personal share would go to his widow Ambikabai while Anant would have the remaining half. Anant appears to be the eldest male member of the family now alive. Therefore, in a sense the High Court was right in holding that Anant would represent the entire interest of the joint family which consisted of eight annas share in this forest. But even if this was not so because at one stage at any rate Ambikabai was also a party to the agreement of May 5, 1952, we can see no reason why the dispute as between the appellant and the respondents should not be referred to arbitration. The share of Ambikabai as we have already stated above is not in dispute. Ambikabai was not a party to the agreement of February 27, 1953, though she was a party to the agreement dated May 5, 1952. The appellant was also a party to the earlier agreement of May 1952 and knew that Ambikabai had a share in this forest. Even so, he entered into the agreement of February 27, 1953, with the two respondents and agreed to the disputes between him and the respondents being referred to arbitration. We fall to see how he can now say that the disputes between him and the respondents should not be referred to arbitration because Ambikabai was not a party to the agreement of February 1953. The reason why Ambikabai did not join in the application under S. 20 was that she was not a party to the agreement of February 1953 and could not therefore apply under S,.20; but that is no reason why the dispute between the appellant and the two respondents should not be referred to arbitration, particularly when there is no dispute as to the share of Ambikabai in this forest. All that would happen would be that the arbitrator would decide the dispute between the appellant and the respondents and give an award leaving out the share of Ambikabai, the extent of which is not in dispute. The matter might have been different if the share of Ambikabai was in dispute; but as the share of Ambikabai and its extent are not in dispute, the arbitrator can go into accounts and give an award with respect to the parties before him, leaving out the four annas share of Ambikabai. We see no reason why where parties entered into an arbitration agreement of this nature knowing full well that there was another person who was interested but leaving her out, the court should not send the parties to the forum chosen by them, even if the other person who might be interested and whose share is not in dispute cannot be made party before the arbitrator. We are therefore of opinion that even if Anant may not be able to represent the interest of Ambikabai in the arbitration proceedings that will follow in this case, that is no reason for not giving effect to the arbitration clause in the agreement of February 27, 1953 as between the parties to that agreement. The contention therefore of the appellant on this point must fail10. Re. (2)- It is true that in the application under S.20 the respondents have asked for the agreement of February 27, 1953 to be filed in court and the dispute in connection with that agreement and the agreement of October 22, 1948 to be referred to arbitration, and have not specifically asked for reference of the agreement of May 5, 1952, even though it was included in the agreement of February 1953. But as already indicated, the agreement of May 1952 is merely in confirmation of the agreement of 1948 and when the arbitrator goes into the dispute between the parties he will necessarily have to refer to the agreement of May 1952, so far as it is relevant. The agreement of May 1952 had to be entered into because of the death of Babaji. It is merely supplementary to the main agreement which is of October 22, 1948. In the circumstances when the dispute is referred to the arbitrator under the agreement of February 1953, with respect to the agreement of October 1948, the arbitrator will be entitled to look into the confirmatory agreement of 1952, for the main agreement was that of October 1948. We agree with the view of the trial court in this connection that the pleadings in muffasal courts cannot be considered too strictly; even the trial court was prepared in case the matter should be referred to arbitrator to ask the arbitrator to consider also the agreement of May 1952. The agreement of May 1952 would have to be considered by any arbitrator who is going into the dispute arising out of the agreement of October 1948. In the circumstances we are of opinion that it cannot be said that the reference desired in this case is piecemeal and splits up the cause of action. The contention of the appellant on this score must also fail11. Re. (3)- The contention under this head is that the dispute sought to be referred was not covered by the arbitration clause. We have already set out the arbitration clause and as we read it we find it is of very wide import, It provides for reference to arbitration of all disputes arising out of agreements of October 22, 1948, May 5, 1952 and February 27, 1953. It also provides for reference of all disputes arising out of the jungle cutting or export or in any other way in view of this wide language of the arbitration clause it cannot be possibly said that the dispute. which has been raised in the present case is outside the terms of the arbitration clauseThese words do not in our opinion in any way cut down the wide amplitude of the arbitration clause; at the best they can only mean that the appellant was free to raise the contentions which he had raised in this letter for the decision of the arbitrator. Nor do these words confine the agreement of February, 1953, only to the dispute arising out of the agreement with Divkar as contended for on behalf of the appellant. We are therefore of opinion that the dispute raised in this case is covered by the arbitration clause, and the contention of the appellant in this behalf must also fail12. Re. (4)- We now turn to the question of fraud.It is neither necessary nor desirable to lay down in general terms what would be sufficient cause which would entitle a court to refuse to order the agreement to be filed and thus refuse to make an order of reference. The court will have to decide on the facts of each case whether sufficient cause has been made out for not ordering the agreement to be filed and not making the order of reference14. This case certainly lays down that where allegations of fraud are made, the party against whom such allegations are made may successfully resist the reference to arbitration17. There is no doubt that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open court, that would be a sufficient cause for the court not to order an arbitration agreement to be filed and not to make the reference. But it is not every allegation imputing some kind of dishonesty, particularly in matters of accounts, which would be enough to dispose a court to take the matter out of the forum which the parties themselves have chosen. This to our mind is clear even from the decision in Russells case (1880) 14 Ch D 471. In that case there were allegations of constructive and actual fraud by one brother against the other and it was in those circumstances that the court made the observations to which we have referred aboveWe are clearly of opinion that merely because some allegations have been made that accounts are not correct or that certain items are exaggerated and so on that is not enough to induce the court to refuse to make a reference to arbitration. It is only in cases of allegations of fraud of a serious nature that the court will refuse as decided in Russells case (1880) 14 Ch D 471 to order an arbitration agreement to be filed and will not make a reference.These were the only allegations with respect to the accounts in the application and they do not in our opinion amount to serious allegations of fraud against the appellant which would necessitate that there should be a trial in open court. Such allegation as to the correctness or otherwise of entries in the accounts are often made in accounts suits; but they in our opinion are not such serious allegations of fraud as to induce a court to order that the arbitration agreement should not be filed and no reference should be made. Besides these allegations as to accounts the respondents also said that an injunction should be granted restraining the appellant from removing the stock so as to avoid misappropriation thereof pending the appointment of a receiver. That was not an actual allegation of misappropriation; it merely said that the respondents were afraid that there might be misappropriation in future unless an injunction was issued and a receiver appointed. Further in the affidavit in support of the application for appointment of receiver after referring to their own conclusions from the state of accounts, the respondents said that they had not received the true and complete account of the felling of the jungle, ready goods, the goods sold and the goods in balance from the appellant. They also said that they suspected that on their conclusions from the accounts supplied to them, there might be misappropriation of the goods and of money. They further alleged that in the accounts shown to them, the sale of charcoal was shown at a rate much lower than the prevailing market rate and under these circumstances the respondents apprehended that if the work of the sale of goods remained in the hand of the appellant the real price of the goods would not be realised. There is no allegation, however, that in actual fact the appellant had made secret profits by selling goods at a higher price and showing a lower price in the account. The respondents pointed the entries in the account which owed the lower rate of the sale price in support of their apprehension that if the work of sale of goods remained in the hand of the appellant the real price would not in future be realised. A perusal therefore of the application under S. 20 and the affidavit filed in support of the application for appointment of receiver does not disclose any serious allegations of fraud against the appellant. What it discloses is that the respondents were not satisfied with the accounts submitted to them and were suspicious that they did not disclose the true and complete state of affairs. Such allegations, as we have already remarked are often made in account suits and if they were to be sufficient ground for not referring an account suit to arbitration, on the ground of fraud, hardly any arbitration agreement in a matter in which accounting would be necessary could be referred to arbitration. That is why we emphasise that even in the leading case of Russel, (1880) 14 Ch D 471, the learned Master of the Rolls was at pains to point out that it could not necessarily be said in a case of accounts that no reference to arbitration should be made, even though questions relating to accounts which might involve misconduct amounting even to dishonesty on the part of some partner might arise in the arbitration proceedings and even cases where moral dishonesty or moral misconduct is attributed to one party or the other might be referred to arbitration. It seems to us that every allegation tending to suggest or imply moral dishonesty or moral misconduct in the matter of keeping accounts would not amount to such serious allegation of fraud as would impel a court to refuse to order the arbitration agreement to be filed and refuse to make a reference. Looking to the allegations which have been made in this case we are of opinion that there are no such serious allegations of fraud in this case as would be sufficient for the court to say that there is sufficient cause for not referring the dispute to arbitration. This contention of the appellant must also therefore fail.

### 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: We are clearly of opinion that merely because some allegations have been made that accounts are not correct or that certain items are exaggerated and so on that is not enough to induce the court to refuse to make a reference to arbitration. It is only in cases of allegations of fraud of a serious nature that the court will refuse as decided in Russells case (1880) 14 Ch D 471 to order an arbitration agreement to be filed and will not make a reference. We may in this connection refer to Minifie v. Railway Passengers Assurance Co., (1881) 44 LT 552. There the question was whether certain proceedings should be stayed; and it was held that notwithstanding the fact that the issue and the evidence in support of it might bear upon the conduct of a certain person and of those who attended him and so might involve a question similar to that of fraud or no fraud, that was no ground for refusing stay. It is only when serious allegations of fraud are made which it is desirable should be tried in open court that a court would be justified in refusing to order the arbitration agreement to be filed and in refusing to make a reference. 18. Let us therefore turn to the allegations in this case to see what their nature is. These allegations are that (i) the accounts were not made up to date, and even on demand by the respondents, the appellant did not bring them up to date; (ii) the statements of accounts which were shown by the appellant were not complete and did not appear to be correct; and (iii) the whole stock of goods was not to be found therein and the debit items appeared to be exaggerated and incorrect. These were the only allegations with respect to the accounts in the application and they do not in our opinion amount to serious allegations of fraud against the appellant which would necessitate that there should be a trial in open court. Such allegation as to the correctness or otherwise of entries in the accounts are often made in accounts suits; but they in our opinion are not such serious allegations of fraud as to induce a court to order that the arbitration agreement should not be filed and no reference should be made. Besides these allegations as to accounts the respondents also said that an injunction should be granted restraining the appellant from removing the stock so as to avoid misappropriation thereof pending the appointment of a receiver. That was not an actual allegation of misappropriation; it merely said that the respondents were afraid that there might be misappropriation in future unless an injunction was issued and a receiver appointed. Further in the affidavit in support of the application for appointment of receiver after referring to their own conclusions from the state of accounts, the respondents said that they had not received the true and complete account of the felling of the jungle, ready goods, the goods sold and the goods in balance from the appellant. They also said that they suspected that on their conclusions from the accounts supplied to them, there might be misappropriation of the goods and of money. They further alleged that in the accounts shown to them, the sale of charcoal was shown at a rate much lower than the prevailing market rate and under these circumstances the respondents apprehended that if the work of the sale of goods remained in the hand of the appellant the real price of the goods would not be realised. There is no allegation, however, that in actual fact the appellant had made secret profits by selling goods at a higher price and showing a lower price in the account. The respondents pointed the entries in the account which owed the lower rate of the sale price in support of their apprehension that if the work of sale of goods remained in the hand of the appellant the real price would not in future be realised. A perusal therefore of the application under S. 20 and the affidavit filed in support of the application for appointment of receiver does not disclose any serious allegations of fraud against the appellant. What it discloses is that the respondents were not satisfied with the accounts submitted to them and were suspicious that they did not disclose the true and complete state of affairs. Such allegations, as we have already remarked are often made in account suits and if they were to be sufficient ground for not referring an account suit to arbitration, on the ground of fraud, hardly any arbitration agreement in a matter in which accounting would be necessary could be referred to arbitration. That is why we emphasise that even in the leading case of Russel, (1880) 14 Ch D 471, the learned Master of the Rolls was at pains to point out that it could not necessarily be said in a case of accounts that no reference to arbitration should be made, even though questions relating to accounts which might involve misconduct amounting even to dishonesty on the part of some partner might arise in the arbitration proceedings and even cases where moral dishonesty or moral misconduct is attributed to one party or the other might be referred to arbitration. It seems to us that every allegation tending to suggest or imply moral dishonesty or moral misconduct in the matter of keeping accounts would not amount to such serious allegation of fraud as would impel a court to refuse to order the arbitration agreement to be filed and refuse to make a reference. Looking to the allegations which have been made in this case we are of opinion that there are no such serious allegations of fraud in this case as would be sufficient for the court to say that there is sufficient cause for not referring the dispute to arbitration. This contention of the appellant must also therefore fail. ### Response: 0 ### Explanation: refuse to make an order of reference. The court will have to decide on the facts of each case whether sufficient cause has been made out for not ordering the agreement to be filed and not making the order of reference14. This case certainly lays down that where allegations of fraud are made, the party against whom such allegations are made may successfully resist the reference to arbitration17. There is no doubt that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open court, that would be a sufficient cause for the court not to order an arbitration agreement to be filed and not to make the reference. But it is not every allegation imputing some kind of dishonesty, particularly in matters of accounts, which would be enough to dispose a court to take the matter out of the forum which the parties themselves have chosen. This to our mind is clear even from the decision in Russells case (1880) 14 Ch D 471. In that case there were allegations of constructive and actual fraud by one brother against the other and it was in those circumstances that the court made the observations to which we have referred aboveWe are clearly of opinion that merely because some allegations have been made that accounts are not correct or that certain items are exaggerated and so on that is not enough to induce the court to refuse to make a reference to arbitration. It is only in cases of allegations of fraud of a serious nature that the court will refuse as decided in Russells case (1880) 14 Ch D 471 to order an arbitration agreement to be filed and will not make a reference.These were the only allegations with respect to the accounts in the application and they do not in our opinion amount to serious allegations of fraud against the appellant which would necessitate that there should be a trial in open court. Such allegation as to the correctness or otherwise of entries in the accounts are often made in accounts suits; but they in our opinion are not such serious allegations of fraud as to induce a court to order that the arbitration agreement should not be filed and no reference should be made. Besides these allegations as to accounts the respondents also said that an injunction should be granted restraining the appellant from removing the stock so as to avoid misappropriation thereof pending the appointment of a receiver. That was not an actual allegation of misappropriation; it merely said that the respondents were afraid that there might be misappropriation in future unless an injunction was issued and a receiver appointed. Further in the affidavit in support of the application for appointment of receiver after referring to their own conclusions from the state of accounts, the respondents said that they had not received the true and complete account of the felling of the jungle, ready goods, the goods sold and the goods in balance from the appellant. They also said that they suspected that on their conclusions from the accounts supplied to them, there might be misappropriation of the goods and of money. They further alleged that in the accounts shown to them, the sale of charcoal was shown at a rate much lower than the prevailing market rate and under these circumstances the respondents apprehended that if the work of the sale of goods remained in the hand of the appellant the real price of the goods would not be realised. There is no allegation, however, that in actual fact the appellant had made secret profits by selling goods at a higher price and showing a lower price in the account. The respondents pointed the entries in the account which owed the lower rate of the sale price in support of their apprehension that if the work of sale of goods remained in the hand of the appellant the real price would not in future be realised. A perusal therefore of the application under S. 20 and the affidavit filed in support of the application for appointment of receiver does not disclose any serious allegations of fraud against the appellant. What it discloses is that the respondents were not satisfied with the accounts submitted to them and were suspicious that they did not disclose the true and complete state of affairs. Such allegations, as we have already remarked are often made in account suits and if they were to be sufficient ground for not referring an account suit to arbitration, on the ground of fraud, hardly any arbitration agreement in a matter in which accounting would be necessary could be referred to arbitration. That is why we emphasise that even in the leading case of Russel, (1880) 14 Ch D 471, the learned Master of the Rolls was at pains to point out that it could not necessarily be said in a case of accounts that no reference to arbitration should be made, even though questions relating to accounts which might involve misconduct amounting even to dishonesty on the part of some partner might arise in the arbitration proceedings and even cases where moral dishonesty or moral misconduct is attributed to one party or the other might be referred to arbitration. It seems to us that every allegation tending to suggest or imply moral dishonesty or moral misconduct in the matter of keeping accounts would not amount to such serious allegation of fraud as would impel a court to refuse to order the arbitration agreement to be filed and refuse to make a reference. Looking to the allegations which have been made in this case we are of opinion that there are no such serious allegations of fraud in this case as would be sufficient for the court to say that there is sufficient cause for not referring the dispute to arbitration. This contention of the appellant must also therefore fail.

Shrinivas Krishnarao Kango Vs. Narayan Devji Kango And Others

applicable to adoption by a widow of a deceased coparcener had therefore had therefore no application. It was a case in which the adopted son laid a claim to properties, not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in - AIR 1943 PC 196 (A). The contention was that if Anant could as adopted son divest the personal properties of Keshav which had devolved on Shankar as his perferential heir, Jivaji could also divest the properties which had devolved on. Hanmant as the perferential heir of vishnu. The learned Judges made no secret of the fact that this contention received support from the decision in - AIR 1943 PC 196 (A), but they were impressed by the fact that the statement of the law in - 12 Ind App 137 (PC (N), as to the rights of an adopted son quoad the estate of a collateral had been reaffirmd and they accordingly held that the decision in - "AIR 1943 PC 196 (A) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral prior to the case of adoption. They distinguished the actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will be analogous to that of a coparcener who has also self-acquisitions, in which case the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. 25. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in - AIR 1943 PC 196 (A), and as it was an authority binding on the Indian Courts, they could not refuse to follow it, and were obliged to discover a distinction. This Court, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption, - AIR 1943 PC 196 (A) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well-established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient when an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alterations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity or benefit. And if the adoption takes place long after the succession to the collateral had opened - in this case it was 41 years, thereafter - and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should be extended so as to lead to unjust results. We are of opinion that the decision in - AIR 1943 PC 196 (A) in so far as it results to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay on claim on the ground of relation back. The decision of the High Court in respect of C schedule properties must therefore be affirmed. 26. It was finally, contended that the defendants had blended C schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of providing blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties as to show an intention to abandon their separate claim over it. This is a question of fact of which the Courts below have concurrently found against the appellant, and there are no grounds for differing from them.

1[ds]But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that, they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even it we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold o the facts that that burden had been dischargedLikewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds the result is the same.The contention of theappellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must failWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint family3. The oral evidence relating to this is that a family temple stands on it. It cannot be partitionedIn the result, it must be held that the plots. S. Nos. 634 and 635,S. Nos. 639, 640 and641andS. Nos. 642, 644and645 are ancestral properties,andthat the plaintiff is entitled to a half share there in. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suitIt is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of, but that, however, would make no difference in the legal position, if the principle of relation back was applicableIt will be seen that in this case no claim of the adopted son to succeed to a collateral was involved,andno question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra,andif the adoption was at all valid, it related back to the date of Brajendras death,andenabled Amarendra to divest BanamalaiConsiderable emphasis is laid on the fact that a coparcener has only a fluctuating interest in the joint family properties, that it may increase by deathanddecrease by birthandthat such a qualified interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held incoparcenary, such as the estate of a collateral devolving by inheritanceWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties,andan issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties,andthe same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint familyThe order of the trial court rejecting the document has not been produced before us. But there is on the record a petition filed by the plaintiff on6 after the evidence was closedandbefore arguments were addressed, for the admission of the 32 documents rejected ond thereinit stated that "they have been rejected on the ground of late production". The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidenceandthe trial would have to bed theprayer for admission of these documents was accordingly opposed. The courtdismissedThe rejection of the documents was therefore clearly made under Order 13, Rule 2,andthere are no grounds for now setting aside that orderandreopening the whole case. This ground of objection must therefore failThe trial Court held thatin the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral,andon that ground, decreed to the plaintiff a half share in S. Nos. 639and640. The High Court reversed this decision observing generally that the evidence relation to the house sites was not clear, "when they were acquired or by whom",andWith respect, we are unable to agree with this view. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be found to have been in the possession of a family from time immemorial; it is not unreasonable to presume that it is ancestralandto throw the burden on the party pleadingn to establish it14. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. S. No. 634and635 from one block, on which one of the houses has been constructed. The sanads relating to them are Exhibitsthey merely recite that the grantee was in occupation of plots,andthat was confirmed. There is reference in them to a previous patta granted by the Government, Exhibits 52 to 55 are pastas showing that the propertiescomprisedthereinhad been acquired from the Government. If the identity of S. Nos. 634and635 with the propertiescomprisedin these documents had been established, the plea that they are not ancestral would have been made outBut that has not been done,andthe presumption in favour of their being ancestral propertys unrebutted. The claim of the plaintiff to a half sharethereinmust be allowed. S. Nos. 639, 640and641from one block, on which there is another houseg there is no title deed for S. No. 639, Exhibit7 is the sanad for S. No. 640andit merely recognises the previous occupation by the grantee,andthat is consistent with its character as ancestral property. Exhibit terms as Exhibits8 is the sanad for S. No.641andis in the same terms as Exhibit. The claim of the plaintiff with reference to all these items must be upheldIn the result, it must be held that the plots. S. Nos. 634and635,S. Nos. 639, 640and641and

### 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: applicable to adoption by a widow of a deceased coparcener had therefore had therefore no application. It was a case in which the adopted son laid a claim to properties, not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in - AIR 1943 PC 196 (A). The contention was that if Anant could as adopted son divest the personal properties of Keshav which had devolved on Shankar as his perferential heir, Jivaji could also divest the properties which had devolved on. Hanmant as the perferential heir of vishnu. The learned Judges made no secret of the fact that this contention received support from the decision in - AIR 1943 PC 196 (A), but they were impressed by the fact that the statement of the law in - 12 Ind App 137 (PC (N), as to the rights of an adopted son quoad the estate of a collateral had been reaffirmd and they accordingly held that the decision in - "AIR 1943 PC 196 (A) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral prior to the case of adoption. They distinguished the actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will be analogous to that of a coparcener who has also self-acquisitions, in which case the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. 25. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in - AIR 1943 PC 196 (A), and as it was an authority binding on the Indian Courts, they could not refuse to follow it, and were obliged to discover a distinction. This Court, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption, - AIR 1943 PC 196 (A) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well-established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient when an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alterations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity or benefit. And if the adoption takes place long after the succession to the collateral had opened - in this case it was 41 years, thereafter - and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should be extended so as to lead to unjust results. We are of opinion that the decision in - AIR 1943 PC 196 (A) in so far as it results to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay on claim on the ground of relation back. The decision of the High Court in respect of C schedule properties must therefore be affirmed. 26. It was finally, contended that the defendants had blended C schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of providing blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties as to show an intention to abandon their separate claim over it. This is a question of fact of which the Courts below have concurrently found against the appellant, and there are no grounds for differing from them. ### Response: 1 ### Explanation: had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds the result is the same.The contention of theappellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must failWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint family3. The oral evidence relating to this is that a family temple stands on it. It cannot be partitionedIn the result, it must be held that the plots. S. Nos. 634 and 635,S. Nos. 639, 640 and641andS. Nos. 642, 644and645 are ancestral properties,andthat the plaintiff is entitled to a half share there in. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suitIt is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of, but that, however, would make no difference in the legal position, if the principle of relation back was applicableIt will be seen that in this case no claim of the adopted son to succeed to a collateral was involved,andno question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra,andif the adoption was at all valid, it related back to the date of Brajendras death,andenabled Amarendra to divest BanamalaiConsiderable emphasis is laid on the fact that a coparcener has only a fluctuating interest in the joint family properties, that it may increase by deathanddecrease by birthandthat such a qualified interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held incoparcenary, such as the estate of a collateral devolving by inheritanceWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties,andan issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties,andthe same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint familyThe order of the trial court rejecting the document has not been produced before us. But there is on the record a petition filed by the plaintiff on6 after the evidence was closedandbefore arguments were addressed, for the admission of the 32 documents rejected ond thereinit stated that "they have been rejected on the ground of late production". The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidenceandthe trial would have to bed theprayer for admission of these documents was accordingly opposed. The courtdismissedThe rejection of the documents was therefore clearly made under Order 13, Rule 2,andthere are no grounds for now setting aside that orderandreopening the whole case. This ground of objection must therefore failThe trial Court held thatin the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral,andon that ground, decreed to the plaintiff a half share in S. Nos. 639and640. The High Court reversed this decision observing generally that the evidence relation to the house sites was not clear, "when they were acquired or by whom",andWith respect, we are unable to agree with this view. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be found to have been in the possession of a family from time immemorial; it is not unreasonable to presume that it is ancestralandto throw the burden on the party pleadingn to establish it14. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. S. No. 634and635 from one block, on which one of the houses has been constructed. The sanads relating to them are Exhibitsthey merely recite that the grantee was in occupation of plots,andthat was confirmed. There is reference in them to a previous patta granted by the Government, Exhibits 52 to 55 are pastas showing that the propertiescomprisedthereinhad been acquired from the Government. If the identity of S. Nos. 634and635 with the propertiescomprisedin these documents had been established, the plea that they are not ancestral would have been made outBut that has not been done,andthe presumption in favour of their being ancestral propertys unrebutted. The claim of the plaintiff to a half sharethereinmust be allowed. S. Nos. 639, 640and641from one block, on which there is another houseg there is no title deed for S. No. 639, Exhibit7 is the sanad for S. No. 640andit merely recognises the previous occupation by the grantee,andthat is consistent with its character as ancestral property. Exhibit terms as Exhibits8 is the sanad for S. No.641andis in the same terms as Exhibit. The claim of the plaintiff with reference to all these items must be upheldIn the result, it must be held that the plots. S. Nos. 634and635,S. Nos. 639, 640and641and

Virudhunagar Steel Rolling Mills Limited Vs. Government of Madras

). It is further contended that Section 12 of the Madras Act is not hit by Article 14. 5. We are of opinion that the preliminary objection must prevail. It is urged on behalf of the petitioner that the decision in the case of Daryao, (1962) l SCR 574 = (AIR 1961 SC 1457 ) shows that it was only when notice had been issued on a writ petition and it is decided on contest that the principle of res judicata would apply and a petitioner losing on such contest in the High Court would not be entitled to come to this Court under Article 32 of the Constitution. In this connection reference has been made to the observation at p. 592, where this Court observed that"if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution." But it was later observed on that very page that"if the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata." 6 .It is true that this Court said in that case that if a writ petition under Article 226 is dismissed on merits after contest it would bar a petition under Article 32 on the same facts. But the later observations at the same page show that that was not the only case in which there would be a bar of res judicata. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article 32. The petitioners only proper remedy in such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side. What has been decided in Daryaos case, (1962) I SCR 574 = (AIR 1961 SC 1457 ) is that the High Court should have decided the petition on the merits by a speaking order. If that is done, it is immaterial whether notice was issued to the other side or not before such a decision was given. The bar arises not because there was a notice issued but because the High Court has dealt with the merits of the petition before it and has passed a speaking order even though no notice might have been issued. 7. In the present case the petition is clearly barred in view of the decision in Daryaos case, (1962) I SCR 574 = (AIR 1961 SC 1457 ). 8. The learned Single Judge who first dealt with the petition passed a short order dealing with the merits and stating that the validity of Section 12 of the Madras Act could not be attacked as the exemption was based on sound principles. He therefore repelled the attack on S. 12 of the Madras Act based on Article 14 of the Constitution. The petitioner then went in appeal to the Division Bench. The order of the Division Bench is more comprehensive than the order of the learned Single Judge and the Division Bench has dealt with the attack under Article 14 of the Constitution. It has rejected the contention that there was any element of hostile discrimination. It has also held that there was no arbitrary or unreasonable classification by Section 12 of the Madras Act. It has finally held that it could not be said that there was no nexus between the conditions specified in the Madras Act and the Central Act which seeks, for reasons of national development and prosperity, to license and supervise undertakings. The order of the Division Bench in appeal is clearly a speaking order dealing with the merits of the petition where only one point under Article 14 was raised. In our opinion it bars the making of the present petition under Article 32 on the same facts for the same relief based on the same article of the Constitution. The petitioner did not appeal from the order of the Division Bench. The High Court made a speaking order dealing with the merits of the case and the fact that no notice was issued to the other side before such an order was passed is immaterial in the circumstances. We therefore uphold the preliminary objection. 9. We may add that if we were to go into the merits of the case ourselves we would see no reason to differ from the view taken by the Division Bench as to the application of Article 14. 10.

0[ds]is true that this Court said in that case that if a writ petition under Article 226 is dismissed on merits after contest it would bar a petition under Article 32 on the same facts. But the later observations at the same page show that that was not the only case in which there would be a bar of res judicata. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article 32. The petitioners only proper remedy in such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side. What has been decided in Daryaos case, (1962) I SCR 574 = (AIR 1961 SC 1457 ) is that the High Court should have decided the petition on the merits by a speaking order. If that is done, it is immaterial whether notice was issued to the other side or not before such a decision was given. The bar arises not because there was a notice issued but because the High Court has dealt with the merits of the petition before it and has passed a speaking order even though no notice might have been issuedWe may add that if we were to go into the merits of the case ourselves we would see no reason to differ from the view taken by the Division Bench as to the application of Article 14.

### 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: ). It is further contended that Section 12 of the Madras Act is not hit by Article 14. 5. We are of opinion that the preliminary objection must prevail. It is urged on behalf of the petitioner that the decision in the case of Daryao, (1962) l SCR 574 = (AIR 1961 SC 1457 ) shows that it was only when notice had been issued on a writ petition and it is decided on contest that the principle of res judicata would apply and a petitioner losing on such contest in the High Court would not be entitled to come to this Court under Article 32 of the Constitution. In this connection reference has been made to the observation at p. 592, where this Court observed that"if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution." But it was later observed on that very page that"if the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata." 6 .It is true that this Court said in that case that if a writ petition under Article 226 is dismissed on merits after contest it would bar a petition under Article 32 on the same facts. But the later observations at the same page show that that was not the only case in which there would be a bar of res judicata. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article 32. The petitioners only proper remedy in such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side. What has been decided in Daryaos case, (1962) I SCR 574 = (AIR 1961 SC 1457 ) is that the High Court should have decided the petition on the merits by a speaking order. If that is done, it is immaterial whether notice was issued to the other side or not before such a decision was given. The bar arises not because there was a notice issued but because the High Court has dealt with the merits of the petition before it and has passed a speaking order even though no notice might have been issued. 7. In the present case the petition is clearly barred in view of the decision in Daryaos case, (1962) I SCR 574 = (AIR 1961 SC 1457 ). 8. The learned Single Judge who first dealt with the petition passed a short order dealing with the merits and stating that the validity of Section 12 of the Madras Act could not be attacked as the exemption was based on sound principles. He therefore repelled the attack on S. 12 of the Madras Act based on Article 14 of the Constitution. The petitioner then went in appeal to the Division Bench. The order of the Division Bench is more comprehensive than the order of the learned Single Judge and the Division Bench has dealt with the attack under Article 14 of the Constitution. It has rejected the contention that there was any element of hostile discrimination. It has also held that there was no arbitrary or unreasonable classification by Section 12 of the Madras Act. It has finally held that it could not be said that there was no nexus between the conditions specified in the Madras Act and the Central Act which seeks, for reasons of national development and prosperity, to license and supervise undertakings. The order of the Division Bench in appeal is clearly a speaking order dealing with the merits of the petition where only one point under Article 14 was raised. In our opinion it bars the making of the present petition under Article 32 on the same facts for the same relief based on the same article of the Constitution. The petitioner did not appeal from the order of the Division Bench. The High Court made a speaking order dealing with the merits of the case and the fact that no notice was issued to the other side before such an order was passed is immaterial in the circumstances. We therefore uphold the preliminary objection. 9. We may add that if we were to go into the merits of the case ourselves we would see no reason to differ from the view taken by the Division Bench as to the application of Article 14. 10. ### Response: 0 ### Explanation: is true that this Court said in that case that if a writ petition under Article 226 is dismissed on merits after contest it would bar a petition under Article 32 on the same facts. But the later observations at the same page show that that was not the only case in which there would be a bar of res judicata. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article 32. The petitioners only proper remedy in such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side. What has been decided in Daryaos case, (1962) I SCR 574 = (AIR 1961 SC 1457 ) is that the High Court should have decided the petition on the merits by a speaking order. If that is done, it is immaterial whether notice was issued to the other side or not before such a decision was given. The bar arises not because there was a notice issued but because the High Court has dealt with the merits of the petition before it and has passed a speaking order even though no notice might have been issuedWe may add that if we were to go into the merits of the case ourselves we would see no reason to differ from the view taken by the Division Bench as to the application of Article 14.

Raghubir Singh & Others Etc Vs. State Of Bihar

1. We have heard the learned advocates for the parties and after hearing them we are of the view that the High Court was in error in dismissing the appeal preferred by the appellant, on the ground of limitation. The appellant was discharged from service on July 27, 1961 and the appeal preferred by him against the order of discharge was rejected by the Commissioner, Bhagalpur Division on September 27, 1961. The appellant thereupon preferred a further appeal before the Board of Revenue but this appeal also met with the same fate and was dismissed by the Board of Revenue on March 4, 1964. Rule 12 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 (hereinafter referred to as Rules of 1935) empowered the State Government and the Head of the Department to call for departmental proceedings and pass appropriate orders and pursuant to this provision the appellant filed a revision application before the State Government. The State Government rejected the revision application and though the order of rejection was made on August 5, 1965, it was not communicated to the appellant until December 19, 1965. The appellant being dissatisfied with the order of the State Government filed a suit on August 7, 1968 seeking a declaration that the order of discharge from service was illegal and void since it had been passed without complying with the principles of natural justice and affording an opportunity to the appellant to show cause why the order of discharge should not be made. The trial court as also the first appellant court took the view that the order of discharge suffered from a serious infirmity inasmuch as it was passed without following the principles of natural justice and on that account it was null and void, but they held that the suit of the appellant was barred by limitation since it was not filed within three years from the date when the original order of discharge was passed against the appellant. The result was that the suit filed by the appellant was dismissed by the trial court and the dismissal was confirmed by the first appellate court. The appellant thereupon preferred a second appeal before the High Court. Since the only ground on which the appellant had lost before the first appellate court was the ground of limitation, the appellant contended before the High Court that the ground of limitation had been wrongly decide against him and the period of limitation ought to have been computed not from July 17, 1961 but from December 19, 1965 when the dismissal of his revision application by the State Government was communicated to him. The High Court rejected this contention of the appellant and dismissed his appeal without going into the merits of the question of illegality of the order of discharge was right or wrong. The appellant thereupon preferred the present appeal with special leave obtained from this Court.2. Now, it is true that the original order of discharge was made on July 27, 1961 but it was taken in appeal to the Commissioner of Bhagalpur Division and then in revision to the Board of Revenue and in further revision to the State Government under Rule 12 of the Rules of 1935. The final order was thus passed by the State Government in revision and it was communicated to the appellant on December 19, 1965. The period of limitation should have therefore been counted from December 19, 1965, being the date of communication of the order of the State Government. If the period of limitation is computed from December 19, 1965, being the date of communication of the order of the State Government, the suit preferred by the appellant on August 7, 1968 would be within time.

1[ds]2. Now, it is true that the original order of discharge was made on July 27, 1961 but it was taken in appeal to the Commissioner of Bhagalpur Division and then in revision to the Board of Revenue and in further revision to the State Government under Rule 12 of the Rules of 1935. The final order was thus passed by the State Government in revision and it was communicated to the appellant on December 19, 1965. The period of limitation should have therefore been counted from December 19, 1965, being the date of communication of the order of the State Government. If the period of limitation is computed from December 19, 1965, being the date of communication of the order of the State Government, the suit preferred by the appellant on August 7, 1968 would be within time.

### 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: 1. We have heard the learned advocates for the parties and after hearing them we are of the view that the High Court was in error in dismissing the appeal preferred by the appellant, on the ground of limitation. The appellant was discharged from service on July 27, 1961 and the appeal preferred by him against the order of discharge was rejected by the Commissioner, Bhagalpur Division on September 27, 1961. The appellant thereupon preferred a further appeal before the Board of Revenue but this appeal also met with the same fate and was dismissed by the Board of Revenue on March 4, 1964. Rule 12 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 (hereinafter referred to as Rules of 1935) empowered the State Government and the Head of the Department to call for departmental proceedings and pass appropriate orders and pursuant to this provision the appellant filed a revision application before the State Government. The State Government rejected the revision application and though the order of rejection was made on August 5, 1965, it was not communicated to the appellant until December 19, 1965. The appellant being dissatisfied with the order of the State Government filed a suit on August 7, 1968 seeking a declaration that the order of discharge from service was illegal and void since it had been passed without complying with the principles of natural justice and affording an opportunity to the appellant to show cause why the order of discharge should not be made. The trial court as also the first appellant court took the view that the order of discharge suffered from a serious infirmity inasmuch as it was passed without following the principles of natural justice and on that account it was null and void, but they held that the suit of the appellant was barred by limitation since it was not filed within three years from the date when the original order of discharge was passed against the appellant. The result was that the suit filed by the appellant was dismissed by the trial court and the dismissal was confirmed by the first appellate court. The appellant thereupon preferred a second appeal before the High Court. Since the only ground on which the appellant had lost before the first appellate court was the ground of limitation, the appellant contended before the High Court that the ground of limitation had been wrongly decide against him and the period of limitation ought to have been computed not from July 17, 1961 but from December 19, 1965 when the dismissal of his revision application by the State Government was communicated to him. The High Court rejected this contention of the appellant and dismissed his appeal without going into the merits of the question of illegality of the order of discharge was right or wrong. The appellant thereupon preferred the present appeal with special leave obtained from this Court.2. Now, it is true that the original order of discharge was made on July 27, 1961 but it was taken in appeal to the Commissioner of Bhagalpur Division and then in revision to the Board of Revenue and in further revision to the State Government under Rule 12 of the Rules of 1935. The final order was thus passed by the State Government in revision and it was communicated to the appellant on December 19, 1965. The period of limitation should have therefore been counted from December 19, 1965, being the date of communication of the order of the State Government. If the period of limitation is computed from December 19, 1965, being the date of communication of the order of the State Government, the suit preferred by the appellant on August 7, 1968 would be within time. ### Response: 1 ### Explanation: 2. Now, it is true that the original order of discharge was made on July 27, 1961 but it was taken in appeal to the Commissioner of Bhagalpur Division and then in revision to the Board of Revenue and in further revision to the State Government under Rule 12 of the Rules of 1935. The final order was thus passed by the State Government in revision and it was communicated to the appellant on December 19, 1965. The period of limitation should have therefore been counted from December 19, 1965, being the date of communication of the order of the State Government. If the period of limitation is computed from December 19, 1965, being the date of communication of the order of the State Government, the suit preferred by the appellant on August 7, 1968 would be within time.

State of Haryana Vs. State of Punjab & Another

in OS 6 of 1996, it was admitted that the issues referred to in paragraphs 9.1 and 9.2 of the Punjab settlement were referred to the Ravi-Beas Tribunal by Government notification dated 2nd April 1986 and the affirmation of the continued availability of water from the Ravi-Beas system as on 1.7.85 referred to in the notification was relied upon. The notification dated 2nd April, 1986 was issued under Section 14 of the Inter-States Water Disputes Act. As far as the report of the Tribunal is concerned, paragraph 8 of the written statement says that it could not be relied upon because it had not become final and that Punjab did not accept the correctness of most of its findings. There was no dispute raised as to the constitutionality of Section 14 at any stage. Even in the course of arguments, when Section 14 was specifically to in elaborate written notes on the scope, purport and effect of Section 14, it was submitted that the effect of Section 14 is four-hold. (a) To overcome procedural hurdles that no dispute had been raised and to by pass the mandatory requirement of negotiations. (b) To deem matters referred under Section 14 to be a water dispute and place this beyond challenge. (c) To constitute this special section 14 Tribunal under this Act and not any other provision or statute and make the other provisions applicable. (d) To oust the jurisdiction of all Courts including the Supreme Court by making Section 11 applicable to this dispute. (e) To leave all other disputes relating to the Punjab settlement to be decided under the amended Act of 1956. 81. This Court in the judgment dated 15th January, 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata. 82. In this suit Punjab has claimed that the section is ultra vires because:-- "i) the raison-detre for the introduction of Section 14 in the Act, 1956 was the assumption validity of Punjab Settlement i.e. Memorandum of Settlement dated 24.7.1985, which is incorrect as the said Settlement is not a valid or binding Agreement.ii) The enactment of Section 14 is beyond the competence of Parliament since on the face of it, it is against the constitution Scheme as set out in the Constitution under Article 262 read with entry 56 of 7th Schedule, List 1.iii) The special enactment has the effect of making a general legislation specific to Ravi Beas Waters. This is discriminatory to the inhabitants of Punjab living in the Ravi-Beas Valley and is therefore, constitutionally invalid.iv) There can be no legislative enactment by Parliament in respect of an invalid Agreement...v) In any event and without prejudice to the foregoing no Agreement can be executed in part of the exclusion of other obligations imposed thereunder, as each obligation is an inter-connected and dependent bargain;vi) Because in any event and without prejudice to the foregoing, the Punjab Settlement has become incapable of being performed under the changed circumstances as also for the reasons that the State of Haryana has resiled therefrom and is unwilling to abide by the letter and spirit of the said Settlement. From these reasons it also follows that Section 14 which is nothing but a statutory adjudication has no efficacy in law.vii) In any event and without prejudice to the foregoing the purposes for which Section 14 was incorporated in the Act, 1956 have become redundant in the light of the facts and circumstances set out above and as the said provision is no longer capable of meeting the objectives for which it was purportedly enacted: 83. The challenge to Section 14 of the 1956 Act has been made without prejudice to Punjabs pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible the ground for submitting Section 14 of the 1956 Act is unsustainable is legally impermissible. It is well established that constitutional invalidity (presumably) that is what Punjab means when it used the word unsustainable) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in sub-paragraphs (i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particular provision is legislative incompetent (ground (ii) or discriminatory (ground (iii) will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.84. The grounds given in support of Punjabs challenge to Article 14 are ex-facie no grounds in law and no cause of action has been disclosed to challenge the constitutional validity of Section 14 of the Inter-State Water Disputes Act, 1956. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint and the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application.85. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of the Rules.

1[ds]The normal rule is that an application for modification of the decree or order is to be made before the Bench which passed the decree or order. Merely because the litigating parties are States, would not alter this position. In any event we are not for the view that any such issue has been raised which requires determination by a larger Bench. This submission of the State of Punjab, therefore, is rejected.22. It is also our opinion that Punjabs challenge to Order XXIII Rule 6(a), even if successful, would not result in dismissal of Haryanas application because the grounds made out for rejection under Order XXIII Rule 6 pertain not only to clause (a) but also to clause (b) thereof.Doubtless, a suit under Article 131 is not an ordinary suit, and the phrase cause of action is conspicuous by its absence in the Article. But the argument that by the use of the phrase in Order XXIII Rule 6(a), the burden and limitations created by judicial interpretation of the phrases in connection with ordinary suits are necessarily introduced, shackling an otherwise exclusive jurisdiction, is unacceptable. The phrase, in our opinion, as occurring in Order XXIII Rule 6(a), will have to be read and construed in the context of Article 131 unimpaired by the meaning judicially given to it in other contexts.The majority view dismissed the suit under clause (a) of Rule 6 of Order XXIII. The phrase cause of action was considered with reference to Article 131 as meaning a dispute involving a question of fact or law on which the existence or extent of a legal right depends.The cause of action under Order XXIII Rule 6(a) is that sole condition which is required to be satisfied before the jurisdiction of this Court can be invoked under Article 131. If the plaint does not ex facie show the fulfillment of that condition, it would not be maintainable. This follows from the language of Article 131 itself. Therefore merely because the phrase cause of action has been used in Order XXIII Rule 6(a) does not mean that principles enunciated in the context of Section 20 of the Code of Civil Procedure are imported. Order XXIII Rule 6(a) only gives effect to limitations implicit in Article 131 itself. It follows that it does not violate Article 131 or any other provision of thethe projects identified by the Union of India was theLink, as a result of which, according to the plaintiff, Haryana would get more water and there was no question of burdening the deficitBasin. The third ground is that an issue had been raised in the complaint filed by the plaintiff under Section 3 of theWater Disputes Act, 1956, as tot he rights of Haryana and Rajasthan to the rivers waters as non riparian States.An analysis of the averments in the plaint shows that the entire thrust of the suit filed by the State of Punjab is aimed at the decree dated 15th January, 2002 in O.S. No. 6 of 1996. One portion of the plaint relates to the discharge of the injunction granted by the decree by reason of changed circumstances. The second portion challenges the decree as beingthese provisions may not limit the powers of this Court under Article 131 nevertheless they provide valuable guidelines as to the nature of this form of equitable relief. An injunction may be permanent (perpetual) or temporary.The principles that emerge from these decisions are that (a) There is a distinction between a final peremptory injunction and a final decree which requires a continuous course of action.(a) A decree granting a preventive injunction continuously operates to prevent a course of action and(c) Such a decree may be modified prospectively if the circumstances, whether of fact or law on which the decree is based, are substantially altered and(d) such a decree cannot be impeached or reopened.52. It is only if the decree is one which grants a continuous injunction an dif conditions (b), (c), and (d) are fulfilled that proceedings for modification of the decree can be maintained.53. In the present case the decree granted a final mandatory injunction. Punjabs contention is that the injunction granted by this Court was temporary merely because in the course of the judgment of the Court said.A decree cannot reach a prima facie conclusion. The use of the phrase prima facie was clearly an accident of language and does not detract from the conclusiveness of the finding and the finality of the mandate.. It directed the construction of a canal as a final adjudication of rights.The mandate in the decree was to carry out the obligations under agreement dated 31st December, 1981. It did not envisage a continuing process over which the equity court necessarily retains jurisdiction in order to do equity Principle (b) relating to modification of decrees enunciated earlier is therefore absent.The decree was not based on the quantum of water that may be made available to Haryana. Therefore the fact that Punjabs complaint is pending under Section 3 of theWater Disputes Act, 1956 or that Haryana may, in the future, be entitled to more water is immaterial. For the same reason the principle (if any) of the right to ask for a review of water allocations would not apply.It is evident that the Punjab Settlement was referred to as a piece of evidence that the parties had kept the construction of the canal distinct from the disputes relating to the sharing of river waters between the two States. If the other clauses in the Punjab settlement are allegedly not being complied with by Haryana that is not a change of circumstance or ground for modification of the decree passed on 15th January, 2002. The challenge to Section 14 of the Inter State Water Disputes Act, 1956 is also inapposite to the question of modification of the decree. The section related to and was in enforcement of paragraphs 9.1 and 9.2 of the Punjab Settlement and relates to the resolution of the water disputes between the States by the Tribunal. Paragraph 9.3 which related to the canal and referred to by the Court does not form part of Section 14. It has not been averred that either of the two grounds which founded the decree have in any sense of the word changed. Principle (c) is therefore unfulfilled.In other words since the plaint in the present suit does not even ex facie fulfill all four conditions subject to which a decree may be modified, there is no legal right to apply for modification of the decree dated 15 January, 2002 within the meaning of Article 131. We can therefore only conclude that there is no cause of action within the meaning of Article 131 as far as the prayers relating to the discharge of the injunction granted by the decree dated 12th January, 2002 isthe impugned judgment, we merely applied the interpretation of the Constitution Bench of the provisions of Articles 131 and 262 to the facts of the case. There was no further interpretation of Article 131 and 262 to be done in the case before us which required to the decision of a bench of five judges under Articlethe meanwhile a suit was filed under Article 131 by the State of Karnataka against the State of Tamil Nadu contending that the Tribunals order granting interim relief was without jurisdiction and, therefore, null and void etc. In the context of these developments, the President referred three questions to this Court for its opinion under Article 143 of the Constitution. Of the three questions , question No.3 raised the issue whether a Water Disputes Tribunal constituted under theWater Disputes Act, 1956 was competent to grant any interim relief to the parties in the dispute. This Court approached the question from two angles namely: (1) when no reference for grant of interim relief is made to the Tribunal and (2) when such reference is made tothe Court had in such earlier decision kept open the question whether the Tribunal would have the power to grant interim relief when no reference was made, it was held that the earlier decision had in terms concluded the second aspect of the question. A submission was then made on behalf of the State of Karnataka that the earlier directions in the Courts order dated 26th April, 1991 should be declared as being without jurisdiction and void.Since the doctrine of res judicata is an essential part of the rule of Law it follows that if the issues raised in the suit are barred by res judicata ex facie then this Court is required to reject the plaint in terms of Order XXIII Rule 6(b). There is no substance in the submission of Punjab that even when there is no dispute of fact the issue of res judicata should be left for consideration at the trial of the suit.As far as OS No. 2/79 is concerned it was unconditionally withdrawn in view of the agreement dated 13th December, 1981 as has been noted earlier.In the order allowing OS 2 of 1979 to be withdrawn no such conditions are present. Consequently a fresh suit in respect of the same subject matter viz., the validity of section 78 of the 1966 Act does not lie. We leave open the question as to whether it is open to the State of Punjab to question the vires of the statute by which it was created.In paragraph 51 of Punjabs Written Statement in OS 6 of 1996, it was admitted that the issues referred to in paragraphs 9.1 and 9.2 of the Punjab settlement were referred to theTribunal by Government notification dated 2nd April 1986 and the affirmation of the continued availability of water from thesystem as on 1.7.85 referred to in the notification was relied upon. The notification dated 2nd April, 1986 was issued under Section 14 of theThis Court in the judgment dated 15th January, 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata.The challenge to Section 14 of the 1956 Act has been made without prejudice to Punjabs pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible the ground for submitting Section 14 of the 1956 Act is unsustainable is legally impermissible. It is well established that constitutional invalidity (presumably) that is what Punjab means when it used the word unsustainable) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in(i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particular provision is legislative incompetent (ground (ii) or discriminatory (ground (iii) will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.84. The grounds given in support of Punjabs challenge to Article 14 areno grounds in law and no cause of action has been disclosed to challenge the constitutional validity of Section 14 of theWater Disputes Act, 1956. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint and the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application.85. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of thefrom rendering the provisions of Article 131 a dated letter such a stand is contrary to Article 144 which requires all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. It is not in the circumstances expected, that Governments whether at the Centre or in the States, will not comply with the decree of this Court. By refusing to comply with the decree of this Court under Article 131 not only is the offending party guilty of contempt but the very foundation of the Constitution which the people governing the State have sworn to uphold when assuming office and to which this country owes its continues existence is shaken. It is, we repeat, the Constitutional duty of those who wield power in the States to create the appropriate political climate to ensure a respect for the constitutional processes and not set such processes at naught only to gain political mileage. As was observed by the Constitution Bench in Cauvery Water Disputes Tribunal (supra) when an Ordinance was passed by a State seeking to nullity the order of thisvague plea relating to the possible rise of militancy by the construction of the canal is not an acceptable defence at all. The fact that a letter of complaint has been filed under Section 3 of the 1956 Act is immaterial as that pertains to a water dispute within the meaning of Section 2(c) of the 1956 Act and we have already held that the construction of SYL canal is not a water dispute within the meaning of the 1956 Act read with Article 262 of the Constitution. We have already held that the decree cannot be said to be a nullity. In any event this is not a question which can be raised while opposing an application for execution. What remains of Punjabs opposition is its submission that the application of Haryana is not maintainable under the 1954Haryana has suggested the passing of directions to ensure implementation of the decree which may not be acceptable to us, but it has in prayer (c) prayed for "such other or further order or orders or such directions as this Honble may deem fit and proper in the facts and circumstances of the case and to meet the ends of justice. That prayer is sufficient to meet even the entirely technical objection of Punjab and it cannot be said that Haryanas application is not maintainable.The residuary power under Section 51 (e) allows a Court to pass orders for enforcing a decree in a manner which would give effect to it. The period specified in the decree for completion of the canal by Punjab is long since over. The Union of India has said that it had worked out a contingent action plan during this period. The contingency, in the form of expiry of theperiod in January 2003 has occurred. We have not been told whether the contingency plan has been put into question. Although it appears that the Cabinet Committee on Project Appraisals had approved the proposal for completion of the SYL canal by the BRO and at a meeting convened as early as on 20th February 1991, the then Prime Minister directed that the BRO take over the work for completion of the SYL Canal in the minimum time possible, the BRO is not now available for the purpose.

### 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 OS 6 of 1996, it was admitted that the issues referred to in paragraphs 9.1 and 9.2 of the Punjab settlement were referred to the Ravi-Beas Tribunal by Government notification dated 2nd April 1986 and the affirmation of the continued availability of water from the Ravi-Beas system as on 1.7.85 referred to in the notification was relied upon. The notification dated 2nd April, 1986 was issued under Section 14 of the Inter-States Water Disputes Act. As far as the report of the Tribunal is concerned, paragraph 8 of the written statement says that it could not be relied upon because it had not become final and that Punjab did not accept the correctness of most of its findings. There was no dispute raised as to the constitutionality of Section 14 at any stage. Even in the course of arguments, when Section 14 was specifically to in elaborate written notes on the scope, purport and effect of Section 14, it was submitted that the effect of Section 14 is four-hold. (a) To overcome procedural hurdles that no dispute had been raised and to by pass the mandatory requirement of negotiations. (b) To deem matters referred under Section 14 to be a water dispute and place this beyond challenge. (c) To constitute this special section 14 Tribunal under this Act and not any other provision or statute and make the other provisions applicable. (d) To oust the jurisdiction of all Courts including the Supreme Court by making Section 11 applicable to this dispute. (e) To leave all other disputes relating to the Punjab settlement to be decided under the amended Act of 1956. 81. This Court in the judgment dated 15th January, 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata. 82. In this suit Punjab has claimed that the section is ultra vires because:-- "i) the raison-detre for the introduction of Section 14 in the Act, 1956 was the assumption validity of Punjab Settlement i.e. Memorandum of Settlement dated 24.7.1985, which is incorrect as the said Settlement is not a valid or binding Agreement.ii) The enactment of Section 14 is beyond the competence of Parliament since on the face of it, it is against the constitution Scheme as set out in the Constitution under Article 262 read with entry 56 of 7th Schedule, List 1.iii) The special enactment has the effect of making a general legislation specific to Ravi Beas Waters. This is discriminatory to the inhabitants of Punjab living in the Ravi-Beas Valley and is therefore, constitutionally invalid.iv) There can be no legislative enactment by Parliament in respect of an invalid Agreement...v) In any event and without prejudice to the foregoing no Agreement can be executed in part of the exclusion of other obligations imposed thereunder, as each obligation is an inter-connected and dependent bargain;vi) Because in any event and without prejudice to the foregoing, the Punjab Settlement has become incapable of being performed under the changed circumstances as also for the reasons that the State of Haryana has resiled therefrom and is unwilling to abide by the letter and spirit of the said Settlement. From these reasons it also follows that Section 14 which is nothing but a statutory adjudication has no efficacy in law.vii) In any event and without prejudice to the foregoing the purposes for which Section 14 was incorporated in the Act, 1956 have become redundant in the light of the facts and circumstances set out above and as the said provision is no longer capable of meeting the objectives for which it was purportedly enacted: 83. The challenge to Section 14 of the 1956 Act has been made without prejudice to Punjabs pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible the ground for submitting Section 14 of the 1956 Act is unsustainable is legally impermissible. It is well established that constitutional invalidity (presumably) that is what Punjab means when it used the word unsustainable) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in sub-paragraphs (i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particular provision is legislative incompetent (ground (ii) or discriminatory (ground (iii) will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.84. The grounds given in support of Punjabs challenge to Article 14 are ex-facie no grounds in law and no cause of action has been disclosed to challenge the constitutional validity of Section 14 of the Inter-State Water Disputes Act, 1956. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint and the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application.85. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of the Rules. ### Response: 1 ### Explanation: 1.7.85 referred to in the notification was relied upon. The notification dated 2nd April, 1986 was issued under Section 14 of theThis Court in the judgment dated 15th January, 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata.The challenge to Section 14 of the 1956 Act has been made without prejudice to Punjabs pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible the ground for submitting Section 14 of the 1956 Act is unsustainable is legally impermissible. It is well established that constitutional invalidity (presumably) that is what Punjab means when it used the word unsustainable) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in(i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particular provision is legislative incompetent (ground (ii) or discriminatory (ground (iii) will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.84. The grounds given in support of Punjabs challenge to Article 14 areno grounds in law and no cause of action has been disclosed to challenge the constitutional validity of Section 14 of theWater Disputes Act, 1956. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint and the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application.85. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of thefrom rendering the provisions of Article 131 a dated letter such a stand is contrary to Article 144 which requires all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. It is not in the circumstances expected, that Governments whether at the Centre or in the States, will not comply with the decree of this Court. By refusing to comply with the decree of this Court under Article 131 not only is the offending party guilty of contempt but the very foundation of the Constitution which the people governing the State have sworn to uphold when assuming office and to which this country owes its continues existence is shaken. It is, we repeat, the Constitutional duty of those who wield power in the States to create the appropriate political climate to ensure a respect for the constitutional processes and not set such processes at naught only to gain political mileage. As was observed by the Constitution Bench in Cauvery Water Disputes Tribunal (supra) when an Ordinance was passed by a State seeking to nullity the order of thisvague plea relating to the possible rise of militancy by the construction of the canal is not an acceptable defence at all. The fact that a letter of complaint has been filed under Section 3 of the 1956 Act is immaterial as that pertains to a water dispute within the meaning of Section 2(c) of the 1956 Act and we have already held that the construction of SYL canal is not a water dispute within the meaning of the 1956 Act read with Article 262 of the Constitution. We have already held that the decree cannot be said to be a nullity. In any event this is not a question which can be raised while opposing an application for execution. What remains of Punjabs opposition is its submission that the application of Haryana is not maintainable under the 1954Haryana has suggested the passing of directions to ensure implementation of the decree which may not be acceptable to us, but it has in prayer (c) prayed for "such other or further order or orders or such directions as this Honble may deem fit and proper in the facts and circumstances of the case and to meet the ends of justice. That prayer is sufficient to meet even the entirely technical objection of Punjab and it cannot be said that Haryanas application is not maintainable.The residuary power under Section 51 (e) allows a Court to pass orders for enforcing a decree in a manner which would give effect to it. The period specified in the decree for completion of the canal by Punjab is long since over. The Union of India has said that it had worked out a contingent action plan during this period. The contingency, in the form of expiry of theperiod in January 2003 has occurred. We have not been told whether the contingency plan has been put into question. Although it appears that the Cabinet Committee on Project Appraisals had approved the proposal for completion of the SYL canal by the BRO and at a meeting convened as early as on 20th February 1991, the then Prime Minister directed that the BRO take over the work for completion of the SYL Canal in the minimum time possible, the BRO is not now available for the purpose.

Radha Kishan Sao Vs. Gopal Modi and Others

may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The Court may further order recovery of cost of suit and such other com- pensation as may be determined by it from the tenant".10. It is submitted by the defendant that an order under section 11A can be passed only by the trial court. We are, however, unable to accept this position, since appeal is a continuation of the suit. The ad vantage which is given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secure d by the landlord at any stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act.11. The only ground that remains for consideration is whether the defendant defaulted m the payment of rent from July to September, 1965. If it were merely a finding of fact by the first appellate court there would be nothing wrong for the High Court to dismiss the second appeal. The question, however, assumes a legal complexion even on the findings of facts of the first appellate court.12. The first appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs . 28/- per month for the furniture was a subject matter of "subsequent supply" and "a quite independent contract unconnected with the original tenancy". It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J- per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act. The High Court has accepted this legal conclusion of the Subordinate Judge.13. We are, however, unable to accept the above legal position of the defendants default in this case on the finding of facts set out above. Rent has been always Rs. 50/- per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953. The parties having been already before the Rent Controller for fixation of fair rent of the premises , the plaintiff could not alter that fixed rent without order of the Rent Controller. Section 4 of the Act provides that "notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is payable for the time being, in respect of any building except in accordance with the provisions of this Act". The two shops, which are building for the purpose of section 2(an) of the Act, were rented out as an unfurnished building. This amount of rent of Rs.50/- was determined by the Rent Controller as fair rent under section 5 of the Act. It is the default in the payment of this rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d) of the Act. Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mischief of section 11(1)(d) to entitle the landlord to a decree for eviction. On the findings of the first appellate court the furniture rent remains divorced from the rent of the building under the original demise. Even if the furniture be returned, the lease for the building in this case will not be affected.The plaintiff submits that since the definition of building includes furniture the rent becomes consolidated and the defendant was liable to pay the total amount of Rs. 78/- and any default for two months to pay the consolidated rent will attract sections 11(1)(d) of the Act. The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermination of the rent under section 7 o f the Act.14. We are unable to accept the above submission. Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller. Section 7, inter alia, provides that if, at. any time after the fair rent of a building has been determined, it appears to the Rent Con- troller that subsequent to such determination some addition or improvement has been made to the building at the land- lords expense, the Controller may redetermine the .fair rent of the building. There is no-legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to mal-practices and unholy devices deterimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Art. The High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, therefore, no basis for granting decree for eviction under section 11(1)(d) of the Act.15.

0[ds]It is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non-compliance with section 11A of thea matter where the first appellate court came to a positive finding in favour of the defendant with regard to the non-compliance with its order under section 11A, we do not consider that the High Court was right in adopting the course. it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latters oral testimony. There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on Marc h 14, 1974. The matter would have been different if the High Court, in the interest of justice, had called for additional evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportunity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation. It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend- ant. Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of -additional evidence before the High Court.In view of the fact that the first appellate court held the deposit of the amount sufficient under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it. This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in the extract from the judgment quoted above. The only objection of the. High Court was that the defendant instead of handing over the amount to. the Nazir should have "himself deposited the amount on March 15, 1974. Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment. The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore,ad vantage which is given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secure d by the landlord at any stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of thefirst appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs . 28/- per month for the furniture was a subject matter of "subsequent supply" and "a quite independent contract unconnected with the original tenancy". It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J- per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act. The High Court has accepted this legal conclusion of the Subordinateare, however, unable to accept the above legal position of the defendants default in this case on the finding of facts set out above. Rent has been always Rs. 50/- per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953. The parties having been already before the Rent Controller for fixation of fair rent of the premises , the plaintiff could not alter that fixed rent without order of the Rentis the default in the payment of this rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d) of the Act. Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mischief of section 11(1)(d) to entitle the landlord to a decree for eviction. On the findings of the first appellate court the furniture rent remains divorced from the rent of the building under the original demise. Even if the furniture be returned, the lease for the building in this case will not bealteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller. Section 7, inter alia, provides that if, at. any time after the fair rent of a building has been determined, it appears to the Rent Con- troller that subsequent to such determination some addition or improvement has been made to the building at the land- lords expense, the Controller may redetermine the .fair rent of the building. There is no-legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to mal-practices and unholy devices deterimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Art. The High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, therefore, no basis for granting decree for eviction under section 11(1)(d) of the Act.

### 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: may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The Court may further order recovery of cost of suit and such other com- pensation as may be determined by it from the tenant".10. It is submitted by the defendant that an order under section 11A can be passed only by the trial court. We are, however, unable to accept this position, since appeal is a continuation of the suit. The ad vantage which is given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secure d by the landlord at any stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act.11. The only ground that remains for consideration is whether the defendant defaulted m the payment of rent from July to September, 1965. If it were merely a finding of fact by the first appellate court there would be nothing wrong for the High Court to dismiss the second appeal. The question, however, assumes a legal complexion even on the findings of facts of the first appellate court.12. The first appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs . 28/- per month for the furniture was a subject matter of "subsequent supply" and "a quite independent contract unconnected with the original tenancy". It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J- per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act. The High Court has accepted this legal conclusion of the Subordinate Judge.13. We are, however, unable to accept the above legal position of the defendants default in this case on the finding of facts set out above. Rent has been always Rs. 50/- per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953. The parties having been already before the Rent Controller for fixation of fair rent of the premises , the plaintiff could not alter that fixed rent without order of the Rent Controller. Section 4 of the Act provides that "notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is payable for the time being, in respect of any building except in accordance with the provisions of this Act". The two shops, which are building for the purpose of section 2(an) of the Act, were rented out as an unfurnished building. This amount of rent of Rs.50/- was determined by the Rent Controller as fair rent under section 5 of the Act. It is the default in the payment of this rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d) of the Act. Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mischief of section 11(1)(d) to entitle the landlord to a decree for eviction. On the findings of the first appellate court the furniture rent remains divorced from the rent of the building under the original demise. Even if the furniture be returned, the lease for the building in this case will not be affected.The plaintiff submits that since the definition of building includes furniture the rent becomes consolidated and the defendant was liable to pay the total amount of Rs. 78/- and any default for two months to pay the consolidated rent will attract sections 11(1)(d) of the Act. The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermination of the rent under section 7 o f the Act.14. We are unable to accept the above submission. Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller. Section 7, inter alia, provides that if, at. any time after the fair rent of a building has been determined, it appears to the Rent Con- troller that subsequent to such determination some addition or improvement has been made to the building at the land- lords expense, the Controller may redetermine the .fair rent of the building. There is no-legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to mal-practices and unholy devices deterimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Art. The High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, therefore, no basis for granting decree for eviction under section 11(1)(d) of the Act.15. ### Response: 0 ### Explanation: the amount of rent to the Nazir in absence of the latters oral testimony. There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on Marc h 14, 1974. The matter would have been different if the High Court, in the interest of justice, had called for additional evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportunity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation. It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend- ant. Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of -additional evidence before the High Court.In view of the fact that the first appellate court held the deposit of the amount sufficient under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it. This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in the extract from the judgment quoted above. The only objection of the. High Court was that the defendant instead of handing over the amount to. the Nazir should have "himself deposited the amount on March 15, 1974. Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment. The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore,ad vantage which is given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secure d by the landlord at any stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of thefirst appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs . 28/- per month for the furniture was a subject matter of "subsequent supply" and "a quite independent contract unconnected with the original tenancy". It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J- per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act. The High Court has accepted this legal conclusion of the Subordinateare, however, unable to accept the above legal position of the defendants default in this case on the finding of facts set out above. Rent has been always Rs. 50/- per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953. The parties having been already before the Rent Controller for fixation of fair rent of the premises , the plaintiff could not alter that fixed rent without order of the Rentis the default in the payment of this rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d) of the Act. Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mischief of section 11(1)(d) to entitle the landlord to a decree for eviction. On the findings of the first appellate court the furniture rent remains divorced from the rent of the building under the original demise. Even if the furniture be returned, the lease for the building in this case will not bealteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller. Section 7, inter alia, provides that if, at. any time after the fair rent of a building has been determined, it appears to the Rent Con- troller that subsequent to such determination some addition or improvement has been made to the building at the land- lords expense, the Controller may redetermine the .fair rent of the building. There is no-legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to mal-practices and unholy devices deterimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Art. The High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, therefore, no basis for granting decree for eviction under section 11(1)(d) of the Act.

Mysore Steel Works Vs. Jitendra Chandra Kar and Others

natural justice, the employers were entitled to lead evidence and the Tribunal had jurisdiction to record that evidence and come to its own conclusion as to the justifiability of the order of dismissal on that evidence. Therefore, it would not be correct to say that the Tribunal exceeded its jurisdiction.10. The question as to the scope of the power of an Industrial Tribunal in an enquiry under S.33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principle of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. (See P. M. Kalyani v. M/s. Air France (1964) 2 S.C.R. 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parities agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C.A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under S. 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such case does not sit as an appellate Court and come to its own findings of fact.11. The question then is whether the domestic enquiry suffered from breach of the principles of natural justice. If it was as the High Court has in terms held it to be so, the whole question of dismissal would be at large before the Tribunal and the Tribunal would come to its own conclusion thereon. Therefore, once the High Court came to the conclusion that the domestic enquiry was defective, it appears to us to be somewhat contradictory to say that the Tribunal acted beyond its jurisdiction in allowing the employers to lead evidence and in its coming to its own conclusion that the dismissal was justified and was not a consequence of victimisation.12. The fact that the workman absented himself without leave was admitted. It was, therefore, clearly for him to show that he was protected against an order of dismissal under S. 73 or any other provision of the Employees State Insurance Act by producing a proper certificate from the relevant authorities under that Act. The certificates which the management had before them were contradictory. The Insurance authorities till the hearing of S. 33(2) proceeding was over had not made up their mind whether the treatment alleged to have been taken by respondent 1 at Nowgong hospital should be treated as alternative evidence. The certificate dated May 11, 1964 reached the Tribunal after the hearing was over. It is difficult to say whether it was sent by respondent 1 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its veracity. The Tribunal, therefore, was right in observing that it did not help respondent 1. Respondent 1 thus failed to show that he was protected for his absence from June 4, 1963 to November 1, 1963, or that his dismissal was unjustified or was as a result of victimisation.13. It is true that the Tribunal at more than one place in its judgment has used the words "prima facie" but reading the judgment as a whole it is abundantly clear that it came to its own findings on the evidence adduced before it that the order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice of victimisation. This the Tribunal was entitled to do on the finding of the High Court itself that the domestic enquiry was vitiated by breach of the principles of natural justice. On the finding the High Court could not hold that the Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore, bad.14. Counsel for respondent 1 contended that the Board of Enquiry did not make any report regarding its findings and, therefore, the domestic enquiry was vitiated. But if that be so, and the enquiry was for that reason defective, the Tribunal had in that event all the more reason to record evidence and come to its own conclusions. Counsel, however, is not right in raising this point as it was never raised in the High Court nor raised in the writ petition filed by respondent 1. It is impossible to say whether there was a report or not. There might be one, but it might not have been produced as that fact was never challenged in the High Court nor before the Tribunal.

1[ds]6. From the judgment of the Tribunal it appears that it was at a loss to understand the contradictory certificates issued by the Insurance Medical Officer.It appears that after the hearing of the case was over a letter purporting to be by the Employees State Insurance authorities dated May 11, 1964 was received by the Tribunal on May 19, 1964 to the effect that they accepted the period from May 1, 1963 and onwards "on medical ground as alternative evidence of incapacity under Regulation 53 of the Employees State Insurance Regulations, 1950".In our opinion the High Courts judgment suffers from contradiction. If the High Court was right that the enquiry was defective in that it was held in breach of the principle of natural justice, the employers were entitled to lead evidence and the Tribunal had jurisdiction to record that evidence and come to its own conclusion as to the justifiability of the order of dismissal on that evidence. Therefore, it would not be correct to say that the Tribunal exceeded its jurisdiction.10. The question as to the scope of the power of an Industrial Tribunal in an enquiry under S.33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principle of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. (See P. M. Kalyani v. M/s. Air France (1964) 2 S.C.R. 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parities agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C.A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under S. 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such case does not sit as an appellate Court and come to its own findings of fact.If it was as the High Court has in terms held it to be so, the whole question of dismissal would be at large before the Tribunal and the Tribunal would come to its own conclusion thereon. Therefore, once the High Court came to the conclusion that the domestic enquiry was defective, it appears to us to be somewhat contradictory to say that the Tribunal acted beyond its jurisdiction in allowing the employers to lead evidence and in its coming to its own conclusion that the dismissal was justified and was not a consequence of victimisation.12. The fact that the workman absented himself without leave was admitted. It was, therefore, clearly for him to show that he was protected against an order of dismissal under S. 73 or any other provision of the Employees State Insurance Act by producing a proper certificate from the relevant authorities under that Act. The certificates which the management had before them were contradictory. The Insurance authorities till the hearing of S. 33(2) proceeding was over had not made up their mind whether the treatment alleged to have been taken by respondent 1 at Nowgong hospital should be treated as alternative evidence. The certificate dated May 11, 1964 reached the Tribunal after the hearing was over. It is difficult to say whether it was sent by respondent 1 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its veracity. The Tribunal, therefore, was right in observing that it did not help respondent 1. Respondent 1 thus failed to show that he was protected for his absence from June 4, 1963 to November 1, 1963, or that his dismissal was unjustified or was as a result of victimisation.13. It is true that the Tribunal at more than one place in its judgment has used the words "prima facie" but reading the judgment as a whole it is abundantly clear that it came to its own findings on the evidence adduced before it that the order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice of victimisation. This the Tribunal was entitled to do on the finding of the High Court itself that the domestic enquiry was vitiated by breach of the principles of natural justice. On the finding the High Court could not hold that the Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore,But if that be so, and the enquiry was for that reason defective, the Tribunal had in that event all the more reason to record evidence and come to its own conclusions. Counsel, however, is not right in raising this point as it was never raised in the High Court nor raised in the writ petition filed by respondent 1. It is impossible to say whether there was a report or not. There might be one, but it might not have been produced as that fact was never challenged in the High Court nor before 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: natural justice, the employers were entitled to lead evidence and the Tribunal had jurisdiction to record that evidence and come to its own conclusion as to the justifiability of the order of dismissal on that evidence. Therefore, it would not be correct to say that the Tribunal exceeded its jurisdiction.10. The question as to the scope of the power of an Industrial Tribunal in an enquiry under S.33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principle of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. (See P. M. Kalyani v. M/s. Air France (1964) 2 S.C.R. 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parities agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C.A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under S. 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such case does not sit as an appellate Court and come to its own findings of fact.11. The question then is whether the domestic enquiry suffered from breach of the principles of natural justice. If it was as the High Court has in terms held it to be so, the whole question of dismissal would be at large before the Tribunal and the Tribunal would come to its own conclusion thereon. Therefore, once the High Court came to the conclusion that the domestic enquiry was defective, it appears to us to be somewhat contradictory to say that the Tribunal acted beyond its jurisdiction in allowing the employers to lead evidence and in its coming to its own conclusion that the dismissal was justified and was not a consequence of victimisation.12. The fact that the workman absented himself without leave was admitted. It was, therefore, clearly for him to show that he was protected against an order of dismissal under S. 73 or any other provision of the Employees State Insurance Act by producing a proper certificate from the relevant authorities under that Act. The certificates which the management had before them were contradictory. The Insurance authorities till the hearing of S. 33(2) proceeding was over had not made up their mind whether the treatment alleged to have been taken by respondent 1 at Nowgong hospital should be treated as alternative evidence. The certificate dated May 11, 1964 reached the Tribunal after the hearing was over. It is difficult to say whether it was sent by respondent 1 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its veracity. The Tribunal, therefore, was right in observing that it did not help respondent 1. Respondent 1 thus failed to show that he was protected for his absence from June 4, 1963 to November 1, 1963, or that his dismissal was unjustified or was as a result of victimisation.13. It is true that the Tribunal at more than one place in its judgment has used the words "prima facie" but reading the judgment as a whole it is abundantly clear that it came to its own findings on the evidence adduced before it that the order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice of victimisation. This the Tribunal was entitled to do on the finding of the High Court itself that the domestic enquiry was vitiated by breach of the principles of natural justice. On the finding the High Court could not hold that the Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore, bad.14. Counsel for respondent 1 contended that the Board of Enquiry did not make any report regarding its findings and, therefore, the domestic enquiry was vitiated. But if that be so, and the enquiry was for that reason defective, the Tribunal had in that event all the more reason to record evidence and come to its own conclusions. Counsel, however, is not right in raising this point as it was never raised in the High Court nor raised in the writ petition filed by respondent 1. It is impossible to say whether there was a report or not. There might be one, but it might not have been produced as that fact was never challenged in the High Court nor before the Tribunal. ### Response: 1 ### Explanation: alternative evidence of incapacity under Regulation 53 of the Employees State Insurance Regulations, 1950".In our opinion the High Courts judgment suffers from contradiction. If the High Court was right that the enquiry was defective in that it was held in breach of the principle of natural justice, the employers were entitled to lead evidence and the Tribunal had jurisdiction to record that evidence and come to its own conclusion as to the justifiability of the order of dismissal on that evidence. Therefore, it would not be correct to say that the Tribunal exceeded its jurisdiction.10. The question as to the scope of the power of an Industrial Tribunal in an enquiry under S.33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principle of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. (See P. M. Kalyani v. M/s. Air France (1964) 2 S.C.R. 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parities agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C.A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under S. 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such case does not sit as an appellate Court and come to its own findings of fact.If it was as the High Court has in terms held it to be so, the whole question of dismissal would be at large before the Tribunal and the Tribunal would come to its own conclusion thereon. Therefore, once the High Court came to the conclusion that the domestic enquiry was defective, it appears to us to be somewhat contradictory to say that the Tribunal acted beyond its jurisdiction in allowing the employers to lead evidence and in its coming to its own conclusion that the dismissal was justified and was not a consequence of victimisation.12. The fact that the workman absented himself without leave was admitted. It was, therefore, clearly for him to show that he was protected against an order of dismissal under S. 73 or any other provision of the Employees State Insurance Act by producing a proper certificate from the relevant authorities under that Act. The certificates which the management had before them were contradictory. The Insurance authorities till the hearing of S. 33(2) proceeding was over had not made up their mind whether the treatment alleged to have been taken by respondent 1 at Nowgong hospital should be treated as alternative evidence. The certificate dated May 11, 1964 reached the Tribunal after the hearing was over. It is difficult to say whether it was sent by respondent 1 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its veracity. The Tribunal, therefore, was right in observing that it did not help respondent 1. Respondent 1 thus failed to show that he was protected for his absence from June 4, 1963 to November 1, 1963, or that his dismissal was unjustified or was as a result of victimisation.13. It is true that the Tribunal at more than one place in its judgment has used the words "prima facie" but reading the judgment as a whole it is abundantly clear that it came to its own findings on the evidence adduced before it that the order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice of victimisation. This the Tribunal was entitled to do on the finding of the High Court itself that the domestic enquiry was vitiated by breach of the principles of natural justice. On the finding the High Court could not hold that the Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore,But if that be so, and the enquiry was for that reason defective, the Tribunal had in that event all the more reason to record evidence and come to its own conclusions. Counsel, however, is not right in raising this point as it was never raised in the High Court nor raised in the writ petition filed by respondent 1. It is impossible to say whether there was a report or not. There might be one, but it might not have been produced as that fact was never challenged in the High Court nor before the Tribunal.

ADANI GAS LIMITED Vs. PETROLEUM AND NATURAL GAS REGULATORY BOARD & ORS

the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census data. Lastly, the Member Technical (Petroleum and Natural Gas) observed: 51. … Moreover, the calculations have been done by an expert body (the Board) which has been constituted as per Statutory Act. In addition, the estimates on future PNG domestic connections made by the 3 bidders based on various parameters are only estimates. These are not meant to be arrived at by any specified formula or direct mathematical precision. The power to weed out unreasonably high or low quote is only an enabling power and not a yardstick or parameter for evaluation. (Emphasis supplied) The power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households. 54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the Chairperson. Therefore, for the sake of completeness it is necessary to briefly advert to the opinion of the Chairperson allowing the appeals. The Chairperson observed as follows: 136. … On 23.07.2018 certain criteria/parameters were indicated by this so called Evaluation Committee in the Agenda Note. … This indicates that the exercise so far as criteria/ parameters was uniform for all the bids. …. The report on Agenda Note dated 09.08.2018, in fact, recommended that the highest bidders of GA 51, 61, and 62 were disqualified since their quote of PNG connections were beyond 100% of the total households of 2011 census. … However, the Minutes of the Board dated 10.08.2018 indicate that the four members of the Board out of which three had approved Agenda Note, changed their opinion so far as disqualification of highest bidder of these three GAs 51, 61 and 62. Its also noticed from the affidavit of the Board filed 09.11.2018 that the Board has correctly applied the unreasonable low criteria to all the bidders whose bid was below 2%, but surprisingly the bids which were beyond the limit of 100% of 2011 census, the Board thought it fit to relax the criteria by calling the high bidders for negotiation. If the Board thought it fit to hear the affected parties, then it ought to have invited all the affected parties of the said GA i.e., all the bidders who stand to lose the bid, since such procedure was exercised so far as unreasonably low criteria to all bidders who quoted below 2% of 2011 census. Assessment of reasonability of a bid cannot be equated with the concept of rejection of a bid as not qualified for a particular criteria. Reasonability of a bid has reference to subjective assessment/satisfaction. The assessment of a bid based on the available material would amount to objective assessment. (Emphasis supplied) It is evident from the above extract that the Chairpersons findings are based on three key assumptions: (i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature; (ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and (iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders. 55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary.

0[ds]43. Our analysis of the CGD Authorisation Regulations, as amended on 6 April 2018, as explained earlier, reveals that the Regulations did not contain any stipulation determining a range of 2 to 100 per cent of the number of households under the 2011 Census as the criterion to evaluate bids. The Regulations in fact do not link the highness factor of domestic PNG connections to the 2011 Census data. In Clause 4.4.1 of the Bid Document, the Board reserved to itself the right to reject any unreasonably high or low bid. In Addendum-1 to the Bid Document, the Board clarified to all prospective bidders that the evaluation of whether a bid was unreasonably low or high would be conducted on a case to case basis at the time of bid evaluationThe terminology adopted by the Board Note indicates that the 2-100 per cent range was not laid down as an absolute or inflexible basis for disqualifying bids below the minimum or in excess of the maximum. On the contrary, the use of the expression may be is one indicator that a bid which was below 2 per cent or in excess of 100 per cent may trigger the exercise of the power which the Board had reserved to itself in clause 4.4.1 of the Bid Document. On its plain terms, the Board Note cannot be construed to have laid down an absolute norm by which bids quoting below the minimum of 2 per cent or above the ceiling of 100 per cent of the number of households under the 2011 Census data would automatically be rejected as unreasonable45. If the Board Note of 23 July 2018 were to be construed in the manner in which the learned Senior Counsel for the appellants urged, the automatic disqualification of bidders based on a criterion introduced by the Board Note would raise serious doubts about its fairness and legality. This is because the Board Note was not notified to bidders as a basis for the evaluation of bids before the date for the submission of the bids had closed. To disqualify a bidder on the basis of a criterion which was not notified and of which bidders had no knowledge would be arbitrary and would constitute an infraction of Article 14. The Board was thus correct in determining that the automatic disqualification of a bid on the basis of a criterion specified in the Board Note (which was never notified to the bidders) would not be legally correct. Hence, it would be reasonable to interpret the Board Note dated 23 July 2018 as being the formulation of a guideline for the Board. As a guideline in the process of evaluation, the decision taken by the Board on 23 July 2018 was not to the effect that every bid below 2 per cent or above 100 per cent would necessarily stand disqualified. Consistently with the use of the word may be, as already noticed, the decision of the Board meant that the power which the Board reserved to itself in Clause 4.4.1 could be invoked if it came to the conclusion that the bid had not been justified to be reasonable. In other words, the breaching of the range of 2-100 per cent was a trigger for the Board to scrutinise the bid and determine whether the power under Clause 4.4.1 should be invoked. Hence, the course of action which the Board followed of calling upon the bidders with the highest composite scores in GAs 51, 61 and 62 to justify their bids in terms of their reasonableness cannot be faulted. On the contrary, if the Board had rejected these bids solely on the ground that they were above the limit of 100 per cent of households under the 2011 Census data, the decision would have been seriously flawed for having applied a criterion which was not a part of the Regulations, was not embodied in the Bid Document and in any event, was not notified to bidders before they had submitted their bidsThis, in our view, is an incorrect reading of the agenda note. What this submission misses is the last paragraph of the Board agenda noteThe agenda note dated 9 August 2018 was a recommendation which was prepared on the basis of the 2–100 per cent criterion contained in the Board Note dated 23 July 2018. Obviously in the light of that decision, a recommendation was made which was still to be deliberated upon by the Board as a body. When the Board met on 10 August 2018, it correctly came to the conclusion that the lower and upper thresholds were not to be applied mechanically to disqualify bidders. This decision, as we have indicated earlier, was justified not only by the terms of the Board Note dated 23 July 2018 but was intrinsic to a fair exercise of power by the Board. The Board decided that it would call the bidders with the highest composite score to explain the reasonableness of their bids. This was a fair opportunity which was granted to the bidders who had the highest composite score to justify the basis of their computation of projected households over the eight-contract years47. There is no merit in the submission that there was a breach of the principles of natural justice in calling only the bidders with the highest composite score to explain the reasonableness of their bids. None of these bidders was being called upon to revise or improve their bids. In terms of the CGD Authorisation Regulations, the bidder with the highest composite score has to be declared as the successful bidder. If despite having the highest composite score, a bidder was being considered for rejection by the Board, it was that bidder who was justifiably called to explain the reasonableness of the bid. The other bidders had no locus to participate in the process. It is a settled principle of law that the rules of natural justice are attracted where a decision affects a right of a party against whom the decision has to be made. After the composite score of all bidders is calculated, the second highest bidder has no rights vis-à-vis the highest bidder or the Board unless the method of calculating the highest composite score itself is impugned. Calling upon the bidders with the highest composite score to explain the reasonableness of their bid did not alter the composite score of the H1 bidders or any other bidder for the same GA. The question of hearing any other bidder would have arisen only if the H1 bidder stood disqualified, and the bidder with the next highest composite score also breached the 2-100 per cent range, thereby warranting scrutiny from the Board. In the present situation, when the Board decided to call the bidders with the highest composite score in order to allow them an opportunity to explain reasonableness of their bid, the administrative decision taken by the Board cannot be faulted as being in violation of the principles of natural justice49. In its minutes dated 29 August 2018, the Board noted that the four GAs: 51, 61, 62 and 72 were compared with the upper limit fixed by the agenda note dated 23 July 2018 and projected households in 2026. The penetration of PNG domestic connections based on the upper limit fixed by the Board with reference to the projected number of households in 2026 varied from 45 per cent to 59 per cent. However, the penetration of PNG domestic connections based on quoted PNG connections with reference to the projected number of households in 2026 varied from 55 per cent to 99 per cent. The variation between the two sets of numbers was between 7 per cent to 54 per cent. The Board noted that it was in GA 72 where the highest variation of 54 per cent took place. The bid submitted by Torrent Gas Private Limited for GA 72 was consequently rejected. The Board observed that the computation for GA 72 by Torrent Gas Private Limited was based on untenable assumptions as described in para 14.3 of the agenda note. According to these assumptions, the PNG domestic connections quoted by the Torrent Gas Private Limited was 99 per cent of the projected households by 2026 which was taken as an unreasonably high penetration figure. However, for the remaining three GAs, the variation was between 7 per cent to 23 per cent of the projected households in 2026, and PNG penetration would be in the range of 55 per cent to 79 per cent. This exercise was carried out by the Board to enable it to consider the reasonableness of the bids. Torrent Gas Limited, whose bid was accepted for GA 62, was however not considered for acceptance for GA 72 since its computation of the number of projected households and penetration rate was deemed unreasonable. In our view, the Board has certainly given a possible basis for coming to the conclusion that the bids submitted by the bidders with the highest composite score for GAs 51, 61 and 62 were reasonable and ought not to be rejected50. The agenda note dated 9 August 2018 merely tabled discussion on the disputed GAs. The highest bidders for GAs 61 and 62 were heard by the Board on 14 August 2018. The highest bidder for GA 51 was heard by the Board on 23 August 2018. The final decision to award authorisation in GAs 51, 61 and 62 to AG & P LNG, Torrent Gas Private Limited and SKN Haryana (the highest bidders) respectively was finally taken by the Board in its meeting on 29 August 2018. This decision was taken after hearing the bidders on whether their bids were reasonable or not. The Board did not reject all other bidders or presumptively announce these entities as successful bidders before making a determination as to the reasonableness of their bids. In light of this chronology of events, at no point did the Board reverse its decision with respect to the GAs in questionThis clarification by the Board as well as the findings which have been recorded by the Member Technical (Petroleum and Natural Gas) commends itself for acceptance53. In his judgement, the Member Technical noted that the appellant had in fact calculated the CAGR using overall population growth instead of using household growth. Evidently, for the purpose of projecting the number of PNG connections within a GA, it is the number of households and not the overall population that is relevant as each household is unlikely to have more than one PNG connection. Moreover, as neither the CGD Regulations nor the Bid Document required the number of projected households to be calculated on the basis of 2011 Census data, the decision of the Board to accept the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census dataThe power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the ChairpersonIt is evident from the above extract that the Chairpersons findings are based on three key assumptions:(i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature;(ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and(iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary.

### 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 justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census data. Lastly, the Member Technical (Petroleum and Natural Gas) observed: 51. … Moreover, the calculations have been done by an expert body (the Board) which has been constituted as per Statutory Act. In addition, the estimates on future PNG domestic connections made by the 3 bidders based on various parameters are only estimates. These are not meant to be arrived at by any specified formula or direct mathematical precision. The power to weed out unreasonably high or low quote is only an enabling power and not a yardstick or parameter for evaluation. (Emphasis supplied) The power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households. 54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the Chairperson. Therefore, for the sake of completeness it is necessary to briefly advert to the opinion of the Chairperson allowing the appeals. The Chairperson observed as follows: 136. … On 23.07.2018 certain criteria/parameters were indicated by this so called Evaluation Committee in the Agenda Note. … This indicates that the exercise so far as criteria/ parameters was uniform for all the bids. …. The report on Agenda Note dated 09.08.2018, in fact, recommended that the highest bidders of GA 51, 61, and 62 were disqualified since their quote of PNG connections were beyond 100% of the total households of 2011 census. … However, the Minutes of the Board dated 10.08.2018 indicate that the four members of the Board out of which three had approved Agenda Note, changed their opinion so far as disqualification of highest bidder of these three GAs 51, 61 and 62. Its also noticed from the affidavit of the Board filed 09.11.2018 that the Board has correctly applied the unreasonable low criteria to all the bidders whose bid was below 2%, but surprisingly the bids which were beyond the limit of 100% of 2011 census, the Board thought it fit to relax the criteria by calling the high bidders for negotiation. If the Board thought it fit to hear the affected parties, then it ought to have invited all the affected parties of the said GA i.e., all the bidders who stand to lose the bid, since such procedure was exercised so far as unreasonably low criteria to all bidders who quoted below 2% of 2011 census. Assessment of reasonability of a bid cannot be equated with the concept of rejection of a bid as not qualified for a particular criteria. Reasonability of a bid has reference to subjective assessment/satisfaction. The assessment of a bid based on the available material would amount to objective assessment. (Emphasis supplied) It is evident from the above extract that the Chairpersons findings are based on three key assumptions: (i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature; (ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and (iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders. 55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary. ### Response: 0 ### Explanation: However, for the remaining three GAs, the variation was between 7 per cent to 23 per cent of the projected households in 2026, and PNG penetration would be in the range of 55 per cent to 79 per cent. This exercise was carried out by the Board to enable it to consider the reasonableness of the bids. Torrent Gas Limited, whose bid was accepted for GA 62, was however not considered for acceptance for GA 72 since its computation of the number of projected households and penetration rate was deemed unreasonable. In our view, the Board has certainly given a possible basis for coming to the conclusion that the bids submitted by the bidders with the highest composite score for GAs 51, 61 and 62 were reasonable and ought not to be rejected50. The agenda note dated 9 August 2018 merely tabled discussion on the disputed GAs. The highest bidders for GAs 61 and 62 were heard by the Board on 14 August 2018. The highest bidder for GA 51 was heard by the Board on 23 August 2018. The final decision to award authorisation in GAs 51, 61 and 62 to AG & P LNG, Torrent Gas Private Limited and SKN Haryana (the highest bidders) respectively was finally taken by the Board in its meeting on 29 August 2018. This decision was taken after hearing the bidders on whether their bids were reasonable or not. The Board did not reject all other bidders or presumptively announce these entities as successful bidders before making a determination as to the reasonableness of their bids. In light of this chronology of events, at no point did the Board reverse its decision with respect to the GAs in questionThis clarification by the Board as well as the findings which have been recorded by the Member Technical (Petroleum and Natural Gas) commends itself for acceptance53. In his judgement, the Member Technical noted that the appellant had in fact calculated the CAGR using overall population growth instead of using household growth. Evidently, for the purpose of projecting the number of PNG connections within a GA, it is the number of households and not the overall population that is relevant as each household is unlikely to have more than one PNG connection. Moreover, as neither the CGD Regulations nor the Bid Document required the number of projected households to be calculated on the basis of 2011 Census data, the decision of the Board to accept the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census dataThe power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the ChairpersonIt is evident from the above extract that the Chairpersons findings are based on three key assumptions:(i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature;(ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and(iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary.

M/S.Soorajmull Nagarmull Vs. State Of Bihar

447 and Bhimandas Ambwani vs Delhi Power Company Limited (2013) 14 SCC 195 , the 1981 acquisition stood superseded upon the issuance of the fresh Notifications in 1996. This Court has consistently held that old notifications are superseded and obliterated by subsequent ones, as the subsequent acquisition proceeding manifest and indicate the intention of the State to abandon the preceding one. This is particularly clear in the case at hand, where the Respondent State, in its Counter Affidavit in previous litigation, had asserverated that it believed that the 1981 acquisition had lapsed. We find no reason or basis to allow the Respondent State to revive the lapsed acquisition. 8 We therefore conclude that the actions of the Respondent State have denied the Appellant just and fair compensation as envisaged and postulated in the L.A. Act, for its land from which it was dispossessed well over three decades ago. The 1981 acquisition is accordingly set aside for non-compliance with the provisions of Section 11A of the L.A. Act. We must hasten to reiterate the submission made by the learned Solicitor General to the effect that Section 11A, or the necessity to pass an Award, is not necessary in view of the exposition of the law in Satendra Prasad Jain. We may adumbrate, since it already been discussed by us in detail in Laxmi Devi, that the ratio of the Three judge bench in Satendra Prasad Jain is confined to the proposition that the errant Respondent State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A, and that once possession has been taken by the State under Section 17 of the L.A. Act, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it. Accordingly, we refrain from passing any orders or directions interfering with the possession of the Respondent State over the subject land. 9. In this situation the current acquisition law needs to be analysed. We have already concluded that the 1981 acquisition had lapsed because of the failure of the Respondent State to pass an Award and secondly because it had launched upon a fresh acquisition in 1996. Section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereafter 2013 Act) deserves to be placed here – “24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases. –(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), -(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or(b)Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been replealed”.(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:" Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. 10. At first perusal, there seems to be an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. It appears that the State is in a better position in situations where it has been remiss in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. However, it is possible that the reason behind this differentiation is that Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. To give the State the discretion to set aside an acquisition for its own error in not passing an award would be in the face of the decision in Satendra Prasad Jain. The Parliament has therefore sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. There still remains an incongruity, but which presently we are not burdened to unravel. Which provision in the 2013 Act governs a situation where the State has not progressed beyond making a Declaration under Section 6; where possession of the land has not assumed by the State; where neither part nor whole of the compensation has been paid or tendered! However, since in this Appeal we do not have to traverse this legal labyrinth, we shall refrain from indulging in a more detailed discussion of it.

1[ds]Since the acquisition was initiated in 1981, there was no statutory obligation to pass an award within two years, as Section 11A came to be introduced by way of an amendment in 1984. However, upon Section 11A coming into force on 24.9.1984, the Respondent State was under a statutory obligation to pass an Award within two years of its commencement. No Award was passed in 1986 (i.e. within two years), or in fact even till 2006, causing grave prejudice to, nay deracinating, the Constitutional rights of the Appellant landowner. It seems to us that the realization by the Respondent State that the failure to pass an Award for over a decade was likely to render the acquisition void, is the reason that prompted it to once again initiate steps to acquire the land, in terms of the Notification dated 13.8.1996. under Section 4 and 17(4) of the L.A. Act.6. It is thus clear that the validity of the 2005 revival and the 2006 Award is immaterial, as the 1981 acquisition in itself cannot be allowed to stand for its abject failure to comply with the requirements of Section 11A of the L.A. Act. The Respondent State has argued that the Appellant has not challenged the 1981 acquisition proceeding, or indeed the 2006 Award, till today. While it is true that the Appellant had initially prayed for the issuance of a writ of mandamus commanding the Respondent State to hand over possession of the land, the restricted nature of that demand was because thecase was predicated on the premise that the 1981 acquisition had lapsed, as is clear from a perusal of theAffidavit filed before this Court. We shall therefore not be prejudiced by the fact that the Appellant has not directly challenged the 1981 proceedings, but has instead done so indirectly. To penalize the Appellant for a viewpoint that the Respondent State clearly adhered to as well, till the time of initiating the 2005 revival of the acquisition, would be patentlyWe therefore conclude that the actions of the Respondent State have denied the Appellant just and fair compensation as envisaged and postulated in the L.A. Act, for its land from which it was dispossessed well over three decades ago. The 1981 acquisition is accordingly set aside forwith the provisions of Section 11A of the L.A. Act. We must hasten to reiterate the submission made by the learned Solicitor General to the effect that Section 11A, or the necessity to pass an Award, is not necessary in view of the exposition of the law in Satendra Prasad Jain. We may adumbrate, since it already been discussed by us in detail in Laxmi Devi, that the ratio of the Three judge bench in Satendra Prasad Jain is confined to the proposition that the errant Respondent State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A, and that once possession has been taken by the State under Section 17 of the L.A. Act, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it. Accordingly, we refrain from passing any orders or directions interfering with the possession of the Respondent State over the subject land.At first perusal, there seems to be an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. It appears that the State is in a better position in situations where it has been remiss in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. However, it is possible that the reason behind this differentiation is that Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. To give the State the discretion to set aside an acquisition for its own error in not passing an award would be in the face of the decision in Satendra Prasad Jain. The Parliament has therefore sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. There still remains an incongruity, but which presently we are not burdened to unravel. Which provision in the 2013 Act governs a situation where the State has not progressed beyond making a Declaration under Section 6; where possession of the land has not assumed by the State; where neither part nor whole of the compensation has been paid or tendered! However, since in this Appeal we do not have to traverse this legal labyrinth, we shall refrain from indulging in a more detailed discussion of it.

### 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: 447 and Bhimandas Ambwani vs Delhi Power Company Limited (2013) 14 SCC 195 , the 1981 acquisition stood superseded upon the issuance of the fresh Notifications in 1996. This Court has consistently held that old notifications are superseded and obliterated by subsequent ones, as the subsequent acquisition proceeding manifest and indicate the intention of the State to abandon the preceding one. This is particularly clear in the case at hand, where the Respondent State, in its Counter Affidavit in previous litigation, had asserverated that it believed that the 1981 acquisition had lapsed. We find no reason or basis to allow the Respondent State to revive the lapsed acquisition. 8 We therefore conclude that the actions of the Respondent State have denied the Appellant just and fair compensation as envisaged and postulated in the L.A. Act, for its land from which it was dispossessed well over three decades ago. The 1981 acquisition is accordingly set aside for non-compliance with the provisions of Section 11A of the L.A. Act. We must hasten to reiterate the submission made by the learned Solicitor General to the effect that Section 11A, or the necessity to pass an Award, is not necessary in view of the exposition of the law in Satendra Prasad Jain. We may adumbrate, since it already been discussed by us in detail in Laxmi Devi, that the ratio of the Three judge bench in Satendra Prasad Jain is confined to the proposition that the errant Respondent State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A, and that once possession has been taken by the State under Section 17 of the L.A. Act, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it. Accordingly, we refrain from passing any orders or directions interfering with the possession of the Respondent State over the subject land. 9. In this situation the current acquisition law needs to be analysed. We have already concluded that the 1981 acquisition had lapsed because of the failure of the Respondent State to pass an Award and secondly because it had launched upon a fresh acquisition in 1996. Section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereafter 2013 Act) deserves to be placed here – “24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases. –(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), -(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or(b)Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been replealed”.(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:" Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. 10. At first perusal, there seems to be an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. It appears that the State is in a better position in situations where it has been remiss in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. However, it is possible that the reason behind this differentiation is that Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. To give the State the discretion to set aside an acquisition for its own error in not passing an award would be in the face of the decision in Satendra Prasad Jain. The Parliament has therefore sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. There still remains an incongruity, but which presently we are not burdened to unravel. Which provision in the 2013 Act governs a situation where the State has not progressed beyond making a Declaration under Section 6; where possession of the land has not assumed by the State; where neither part nor whole of the compensation has been paid or tendered! However, since in this Appeal we do not have to traverse this legal labyrinth, we shall refrain from indulging in a more detailed discussion of it. ### Response: 1 ### Explanation: Since the acquisition was initiated in 1981, there was no statutory obligation to pass an award within two years, as Section 11A came to be introduced by way of an amendment in 1984. However, upon Section 11A coming into force on 24.9.1984, the Respondent State was under a statutory obligation to pass an Award within two years of its commencement. No Award was passed in 1986 (i.e. within two years), or in fact even till 2006, causing grave prejudice to, nay deracinating, the Constitutional rights of the Appellant landowner. It seems to us that the realization by the Respondent State that the failure to pass an Award for over a decade was likely to render the acquisition void, is the reason that prompted it to once again initiate steps to acquire the land, in terms of the Notification dated 13.8.1996. under Section 4 and 17(4) of the L.A. Act.6. It is thus clear that the validity of the 2005 revival and the 2006 Award is immaterial, as the 1981 acquisition in itself cannot be allowed to stand for its abject failure to comply with the requirements of Section 11A of the L.A. Act. The Respondent State has argued that the Appellant has not challenged the 1981 acquisition proceeding, or indeed the 2006 Award, till today. While it is true that the Appellant had initially prayed for the issuance of a writ of mandamus commanding the Respondent State to hand over possession of the land, the restricted nature of that demand was because thecase was predicated on the premise that the 1981 acquisition had lapsed, as is clear from a perusal of theAffidavit filed before this Court. We shall therefore not be prejudiced by the fact that the Appellant has not directly challenged the 1981 proceedings, but has instead done so indirectly. To penalize the Appellant for a viewpoint that the Respondent State clearly adhered to as well, till the time of initiating the 2005 revival of the acquisition, would be patentlyWe therefore conclude that the actions of the Respondent State have denied the Appellant just and fair compensation as envisaged and postulated in the L.A. Act, for its land from which it was dispossessed well over three decades ago. The 1981 acquisition is accordingly set aside forwith the provisions of Section 11A of the L.A. Act. We must hasten to reiterate the submission made by the learned Solicitor General to the effect that Section 11A, or the necessity to pass an Award, is not necessary in view of the exposition of the law in Satendra Prasad Jain. We may adumbrate, since it already been discussed by us in detail in Laxmi Devi, that the ratio of the Three judge bench in Satendra Prasad Jain is confined to the proposition that the errant Respondent State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A, and that once possession has been taken by the State under Section 17 of the L.A. Act, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it. Accordingly, we refrain from passing any orders or directions interfering with the possession of the Respondent State over the subject land.At first perusal, there seems to be an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. It appears that the State is in a better position in situations where it has been remiss in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. However, it is possible that the reason behind this differentiation is that Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. To give the State the discretion to set aside an acquisition for its own error in not passing an award would be in the face of the decision in Satendra Prasad Jain. The Parliament has therefore sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. There still remains an incongruity, but which presently we are not burdened to unravel. Which provision in the 2013 Act governs a situation where the State has not progressed beyond making a Declaration under Section 6; where possession of the land has not assumed by the State; where neither part nor whole of the compensation has been paid or tendered! However, since in this Appeal we do not have to traverse this legal labyrinth, we shall refrain from indulging in a more detailed discussion of it.

State of Madras Vs. Bell Mark Tobacco Company

tobacco is allowed to ferment for about 40 days. Heat is thereby generated and "the tobacco gets well processed". Stalks of tobacco are broken and removed, and sand and dust are removed. After payment of excise duty the bundles of tobacco are brought to the premises of the factory, where chewing tobacco is prepared. "Jaggery juice" is sprinkled on tobacco, and it is then cut into thin strips by shearing machines. The resulting tobacco is called "nice" tobacco. This "nice" tobacco is allowed to dry for some days. Then "flavouring essences" are sprinkled on it and it is then packed in special wrappers. The packets are known as "chewing tobacco" packets. A large number of workmen are employed to carry out these several processes.In the view of the High Court the cumulative effect of the various processes, such as soaking in jaggery water, "shredding of tobacco" and addition of "flavouring essences" to which tobacco was subjected before it was sold, amounted to a manufacturing process and the product sold was a manufactured product from raw tobacco purchased by the respondents. We are in complete agreement with the view of the High Court on this part of the case.4. Rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, in so far as it is material provides :"The tax or taxes under section 3 or 5 or the notification or notifications under section 6(1) shall be levied on the net turnover of a dealer. In determining the net turnover the amounts specified in clauses (a) to (1) shall, subject to the conditions specified therein, be deducted from the gross turnover of a dealer -(i) the excise duty, if any, paid by the dealer to the Central Government in respect of the goods sold by him."It is clear on the terms of the rule that if the dealer has paid excise duty in respect of the goods sold by him, that excise duty is liable to be deducted in the computation of the net turnover of the dealer. But if the excise duty has been paid in respect of another commodity, it is not liable to be deducted. We have pointed out that chewing tobacco is not raw tobacco, and the respondents paid excise duty to the Central Government only in respect of raw tobacco. They do not claim to have paid excise duty in respect of "chewing tobacco". Excise duty paid in respect of raw tobacco is not therefore liable to be excluded in the computation of the taxable turnover of the respondents, since the excise duty paid in respect of raw tobacco used in the manufacture of chewing tobacco is not duty paid in respect of the goods sold by the respondents within the meaning of rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.5. Counsel for the respondents contended that under section 5 of the Madras General Sales Tax Act, 1939, also the respondents were entitled to get rebate in respect of excise duty paid by them on raw tobacco. He submitted that the provisions of section 5 of the Act were not brought to the notice of this Court when Swasthik Tobacco Factorys case ([1966] 17 S.T.C. 316) was decided and therefore the judgment in that case cannot be regarded as decisive of the right of the respondents in this case to claim deduction in respect of excise duty paid by them on raw tobacco. In our judgment this argument proceeds upon a misconception of the true meaning of section 5 of the Act. The material part of section 5 on which reliance is placed is as follows :-"Subject to such restrictions and conditions as may be prescribed, including conditions as to licences and licence fees -(vii) the sale of cigars and cheroots at less than two annas per cigar or cheroot and bidis, snuff, chewing tobacco or any other product manufactured from tobacco, shall be liable to tax under section 3, sub-section (2) only at the point of the first sale effected in the State of Madras by a dealer who is not exempt from taxation under section 3, sub-section (3), but at the rate of six pies for every rupee on his turnover;(viii) raw tobacco, whether cured or uncured, shall be liable to tax under section 3, sub-section (2) only at the point of the first purchase effected in the State of Madras by a dealer who is not exempt from taxation under section 3, sub-section (3), but at the rate of six pies for every rupee on his turnover :Provided that when a dealer who has paid tax in respect of his turnover relating to goods included in clause (vii) has also paid the tax on the purchase of raw tobacco used in the manufacture of such goods under clause (viii) he shall be entitled to rebate to the extent of tax paid in respect of the tax on raw tobacco so used.""Chewing tobacco" is, for reasons already set out, manufactured from raw tobacco. It is common ground that the respondents were charged to tax in respect of the first sale effected by them in the State of Madras and they are not exempt from taxation under section 3, sub-section (3). But it was urged that the expression "tax" in the proviso includes "excise duty". The Madras General Sales Tax Act deals with the levy of sales tax and section 5 provides for the rates of sales tax and the point at which tax is to be levied. The proviso could obviously not refer to tax other than the sales tax with which the whole Act, and especially the provisions of section 5, deals. It is intended to provide by the proviso that in the computation of taxable turnover of a dealer in respect of any goods included in clause (vii) the dealer is entitled to the rebate to the extent of sales tax paid by him on the raw tobacco used in the manufacture of those goods.

0[ds]This decision is prima facie determinative of the only question which is raised in these appeals by the State.In the view of the High Court the cumulative effect of the various processes, such as soaking in jaggery water, "shredding of tobacco" and addition of "flavouring essences" to which tobacco was subjected before it was sold, amounted to a manufacturing process and the product sold was a manufactured product from raw tobacco purchased by the respondents. We are in complete agreement with the view of the High Court on this part of theis clear on the terms of the rule that if the dealer has paid excise duty in respect of the goods sold by him, that excise duty is liable to be deducted in the computation of the net turnover of the dealer. But if the excise duty has been paid in respect of another commodity, it is not liable to be deducted. We have pointed out that chewing tobacco is not raw tobacco, and the respondents paid excise duty to the Central Government only in respect of raw tobacco. They do not claim to have paid excise duty in respect of "chewing tobacco". Excise duty paid in respect of raw tobacco is not therefore liable to be excluded in the computation of the taxable turnover of the respondents, since the excise duty paid in respect of raw tobacco used in the manufacture of chewing tobacco is not duty paid in respect of the goods sold by the respondents within the meaning of rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules,our judgment this argument proceeds upon a misconception of the true meaning of section 5 of thetobacco" is, for reasons already set out, manufactured from raw tobacco. It is common ground that the respondents were charged to tax in respect of the first sale effected by them in the State of Madras and they are not exempt from taxation under section 3,he proviso could obviously not refer to tax other than the sales tax with which the whole Act, and especially the provisions of section 5, deals. It is intended to provide by the proviso that in the computation of taxable turnover of a dealer in respect of any goods included in clause (vii) the dealer is entitled to the rebate to the extent of sales tax paid by him on the raw tobacco used in the manufacture of those goods.

### 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: tobacco is allowed to ferment for about 40 days. Heat is thereby generated and "the tobacco gets well processed". Stalks of tobacco are broken and removed, and sand and dust are removed. After payment of excise duty the bundles of tobacco are brought to the premises of the factory, where chewing tobacco is prepared. "Jaggery juice" is sprinkled on tobacco, and it is then cut into thin strips by shearing machines. The resulting tobacco is called "nice" tobacco. This "nice" tobacco is allowed to dry for some days. Then "flavouring essences" are sprinkled on it and it is then packed in special wrappers. The packets are known as "chewing tobacco" packets. A large number of workmen are employed to carry out these several processes.In the view of the High Court the cumulative effect of the various processes, such as soaking in jaggery water, "shredding of tobacco" and addition of "flavouring essences" to which tobacco was subjected before it was sold, amounted to a manufacturing process and the product sold was a manufactured product from raw tobacco purchased by the respondents. We are in complete agreement with the view of the High Court on this part of the case.4. Rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, in so far as it is material provides :"The tax or taxes under section 3 or 5 or the notification or notifications under section 6(1) shall be levied on the net turnover of a dealer. In determining the net turnover the amounts specified in clauses (a) to (1) shall, subject to the conditions specified therein, be deducted from the gross turnover of a dealer -(i) the excise duty, if any, paid by the dealer to the Central Government in respect of the goods sold by him."It is clear on the terms of the rule that if the dealer has paid excise duty in respect of the goods sold by him, that excise duty is liable to be deducted in the computation of the net turnover of the dealer. But if the excise duty has been paid in respect of another commodity, it is not liable to be deducted. We have pointed out that chewing tobacco is not raw tobacco, and the respondents paid excise duty to the Central Government only in respect of raw tobacco. They do not claim to have paid excise duty in respect of "chewing tobacco". Excise duty paid in respect of raw tobacco is not therefore liable to be excluded in the computation of the taxable turnover of the respondents, since the excise duty paid in respect of raw tobacco used in the manufacture of chewing tobacco is not duty paid in respect of the goods sold by the respondents within the meaning of rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.5. Counsel for the respondents contended that under section 5 of the Madras General Sales Tax Act, 1939, also the respondents were entitled to get rebate in respect of excise duty paid by them on raw tobacco. He submitted that the provisions of section 5 of the Act were not brought to the notice of this Court when Swasthik Tobacco Factorys case ([1966] 17 S.T.C. 316) was decided and therefore the judgment in that case cannot be regarded as decisive of the right of the respondents in this case to claim deduction in respect of excise duty paid by them on raw tobacco. In our judgment this argument proceeds upon a misconception of the true meaning of section 5 of the Act. The material part of section 5 on which reliance is placed is as follows :-"Subject to such restrictions and conditions as may be prescribed, including conditions as to licences and licence fees -(vii) the sale of cigars and cheroots at less than two annas per cigar or cheroot and bidis, snuff, chewing tobacco or any other product manufactured from tobacco, shall be liable to tax under section 3, sub-section (2) only at the point of the first sale effected in the State of Madras by a dealer who is not exempt from taxation under section 3, sub-section (3), but at the rate of six pies for every rupee on his turnover;(viii) raw tobacco, whether cured or uncured, shall be liable to tax under section 3, sub-section (2) only at the point of the first purchase effected in the State of Madras by a dealer who is not exempt from taxation under section 3, sub-section (3), but at the rate of six pies for every rupee on his turnover :Provided that when a dealer who has paid tax in respect of his turnover relating to goods included in clause (vii) has also paid the tax on the purchase of raw tobacco used in the manufacture of such goods under clause (viii) he shall be entitled to rebate to the extent of tax paid in respect of the tax on raw tobacco so used.""Chewing tobacco" is, for reasons already set out, manufactured from raw tobacco. It is common ground that the respondents were charged to tax in respect of the first sale effected by them in the State of Madras and they are not exempt from taxation under section 3, sub-section (3). But it was urged that the expression "tax" in the proviso includes "excise duty". The Madras General Sales Tax Act deals with the levy of sales tax and section 5 provides for the rates of sales tax and the point at which tax is to be levied. The proviso could obviously not refer to tax other than the sales tax with which the whole Act, and especially the provisions of section 5, deals. It is intended to provide by the proviso that in the computation of taxable turnover of a dealer in respect of any goods included in clause (vii) the dealer is entitled to the rebate to the extent of sales tax paid by him on the raw tobacco used in the manufacture of those goods. ### Response: 0 ### Explanation: This decision is prima facie determinative of the only question which is raised in these appeals by the State.In the view of the High Court the cumulative effect of the various processes, such as soaking in jaggery water, "shredding of tobacco" and addition of "flavouring essences" to which tobacco was subjected before it was sold, amounted to a manufacturing process and the product sold was a manufactured product from raw tobacco purchased by the respondents. We are in complete agreement with the view of the High Court on this part of theis clear on the terms of the rule that if the dealer has paid excise duty in respect of the goods sold by him, that excise duty is liable to be deducted in the computation of the net turnover of the dealer. But if the excise duty has been paid in respect of another commodity, it is not liable to be deducted. We have pointed out that chewing tobacco is not raw tobacco, and the respondents paid excise duty to the Central Government only in respect of raw tobacco. They do not claim to have paid excise duty in respect of "chewing tobacco". Excise duty paid in respect of raw tobacco is not therefore liable to be excluded in the computation of the taxable turnover of the respondents, since the excise duty paid in respect of raw tobacco used in the manufacture of chewing tobacco is not duty paid in respect of the goods sold by the respondents within the meaning of rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules,our judgment this argument proceeds upon a misconception of the true meaning of section 5 of thetobacco" is, for reasons already set out, manufactured from raw tobacco. It is common ground that the respondents were charged to tax in respect of the first sale effected by them in the State of Madras and they are not exempt from taxation under section 3,he proviso could obviously not refer to tax other than the sales tax with which the whole Act, and especially the provisions of section 5, deals. It is intended to provide by the proviso that in the computation of taxable turnover of a dealer in respect of any goods included in clause (vii) the dealer is entitled to the rebate to the extent of sales tax paid by him on the raw tobacco used in the manufacture of those goods.

R. C. Sharma Vs. The Chief Secretary, Government Of Madhyapradesh, Bhopal &

to as the said undertakings) to the Madhya Pradesh State Industries Corporation (hereinafter referred to as the said Corporation) with effect from 1st day of April 1963. AND WHEREAS from and after the aforesaid date the said undertakings will cease to exist. Now, therefore, it is proposed to transfer your services to the said Corporation on the conditions detailed below: (1) Your present pay and scale, and other conditions of service and benefits to which you are at present entitled will not be affected by transfer. (2) The transfer of your services will not be treated as an interruption in your service. In other words you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings The person to whom the letter was addressed was required to let the General Manager of each of the Undertakings know by the 20th day of March 1963 whether he agreed to the transfer of service to the Corporation on the conditions mentioned above. It is not necessary to refer to the other terms of the offer. This offer had been accepted by the employees of the three undertakings. 2. However Gwalior Shasakiya Audyogik Karamchari Sangh, Lashkar. Gwalior, filed an application under Section 33C (2) of the Industrial Disputes Act, 1947, on August 28, 1968 claiming that the Dearness Allowance should be paid by the Corporation at the same rate and on the same basis on which the Madhya Pradesh State Government was paying this allowance to its employees. It was alleged that the Corporation had paid the same rates as were , being paid by the Madhya Pradesh State Government for about two years but later on the Corporation declined to pay the same rates of Dearness Allowance to its employees. The Labour Court did not accede to the contention of the Union of the employees that they were entitled to Dearness Allowance at the same rates and on the same basis on which it was being paid to the employees of the State Government. A petition was filed under Article 226 of the Constitution by R. C. Sharma-the Secretary of the Union mentioned before. The High Court dismissed that petition. 3. The short question involved in this appeal is whether under the terms of the offer made and accepted by the employees they are entitled to the same Dearness Allowance as is being paid by the State Government to its employees. The first term made it quite clear that when the employees of the erstwhile undertakings of the State would join the service of the Corporation their subsisting pay and scale and other conditions of service and benefits to which they were entitled at that time would not be affected by the transfer. The case of the Union was that the second term or condition entitled them to the same Dearness Allowance which the employees of the Madhya Pradesh State Government were getting. Now this term or condition was confined only to the question of the effect of the transfer on the service of an employee. It was made clear that the transfer of service would not be treated as an. interruption in his service. This was amplified by saying, you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings. The High Court relied on an earlier decision given by it in Misc. Petition No. 237 of 1968 decided on March 26, 1969 (Mach Pra). According to that decision leave and other benefits that were secured under condition No. 2 were leave and such benefits which depended upon the length of service, e.g., gratuity, pension etc. The object of creating a fiction of continuity of service was not to make the Corporation employees Government employees and to make applicable to them any change effected in the conditions of service of government employees; but what was intended was to secure to the transferred employees leave and benefits depending upon the length of service by making their service fictionally uninterrupted. Ordinarily the change of employers would have the effect of interrupting service. Condition No. 2 was, therefore, meant to overcome that situation. That condition dealt solely with the effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service, the second sentence therein, namely in other words etc. was merely explanatory of the first sentence that the transfer of service will not be treated as an interruption in the service. The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them. As pointed out by the High Court in the earlier judgment if condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee was entitled at the time of transfer. We are in entire agreement with this view of the High Court. 4. Mr. C. R. Daphtary who appeared for the appellant tried to persuade us that condition No. 2 should be so interpreted as to confer on the employees of the Corporation the same benefits to which the employees of the State became entitled in the course of subsequent years. We are unable to construe condition No. 2 in the manner suggested. All that that condition secured was that the employees should not suffer in the length of their service and in the enjoyment of the benefits which an uninterrupted service confers on them because of the transfer of their service from the State Government to the Corporation.

0[ds]The first term made it quite clear that when the employees of the erstwhile undertakings of the State would join the service of the Corporation their subsisting pay and scale and other conditions of service and benefits to which they were entitled at that time would not be affected by the transfer. The case of the Union was that the second term or condition entitled them to the same Dearness Allowance which the employees of the Madhya Pradesh State Government were getting. Now this term or condition was confined only to the question of the effect of the transfer on the service of an employee. It was made clear that the transfer of service would not be treated as an. interruption in his service. This was amplified by saying, you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings. The High Court relied on an earlier decision given by it in Misc. Petition No. 237 of 1968 decided on March 26, 1969 (Mach Pra). According to that decision leave and other benefits that were secured under condition No. 2 were leave and such benefits which depended upon the length of service, e.g., gratuity, pension etc. The object of creating a fiction of continuity of service was not to make the Corporation employees Government employees and to make applicable to them any change effected in the conditions of service of government employees; but what was intended was to secure to the transferred employees leave and benefits depending upon the length of service by making their service fictionally uninterrupted. Ordinarily the change of employers would have the effect of interrupting service. Condition No. 2 was, therefore, meant to overcome that situation. That condition dealt solely with the effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service, the second sentence therein, namely in other words etc. was merely explanatory of the first sentence that the transfer of service will not be treated as an interruption in the service. The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them. As pointed out by the High Court in the earlier judgment if condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee was entitled at the time of transfer. We are in entire agreement with this view of the High CourtWe are unable to construe condition No. 2 in the manner suggested. All that that condition secured was that the employees should not suffer in the length of their service and in the enjoyment of the benefits which an uninterrupted service confers on them because of the transfer of their service from the State Government to the Corporation.

### 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: to as the said undertakings) to the Madhya Pradesh State Industries Corporation (hereinafter referred to as the said Corporation) with effect from 1st day of April 1963. AND WHEREAS from and after the aforesaid date the said undertakings will cease to exist. Now, therefore, it is proposed to transfer your services to the said Corporation on the conditions detailed below: (1) Your present pay and scale, and other conditions of service and benefits to which you are at present entitled will not be affected by transfer. (2) The transfer of your services will not be treated as an interruption in your service. In other words you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings The person to whom the letter was addressed was required to let the General Manager of each of the Undertakings know by the 20th day of March 1963 whether he agreed to the transfer of service to the Corporation on the conditions mentioned above. It is not necessary to refer to the other terms of the offer. This offer had been accepted by the employees of the three undertakings. 2. However Gwalior Shasakiya Audyogik Karamchari Sangh, Lashkar. Gwalior, filed an application under Section 33C (2) of the Industrial Disputes Act, 1947, on August 28, 1968 claiming that the Dearness Allowance should be paid by the Corporation at the same rate and on the same basis on which the Madhya Pradesh State Government was paying this allowance to its employees. It was alleged that the Corporation had paid the same rates as were , being paid by the Madhya Pradesh State Government for about two years but later on the Corporation declined to pay the same rates of Dearness Allowance to its employees. The Labour Court did not accede to the contention of the Union of the employees that they were entitled to Dearness Allowance at the same rates and on the same basis on which it was being paid to the employees of the State Government. A petition was filed under Article 226 of the Constitution by R. C. Sharma-the Secretary of the Union mentioned before. The High Court dismissed that petition. 3. The short question involved in this appeal is whether under the terms of the offer made and accepted by the employees they are entitled to the same Dearness Allowance as is being paid by the State Government to its employees. The first term made it quite clear that when the employees of the erstwhile undertakings of the State would join the service of the Corporation their subsisting pay and scale and other conditions of service and benefits to which they were entitled at that time would not be affected by the transfer. The case of the Union was that the second term or condition entitled them to the same Dearness Allowance which the employees of the Madhya Pradesh State Government were getting. Now this term or condition was confined only to the question of the effect of the transfer on the service of an employee. It was made clear that the transfer of service would not be treated as an. interruption in his service. This was amplified by saying, you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings. The High Court relied on an earlier decision given by it in Misc. Petition No. 237 of 1968 decided on March 26, 1969 (Mach Pra). According to that decision leave and other benefits that were secured under condition No. 2 were leave and such benefits which depended upon the length of service, e.g., gratuity, pension etc. The object of creating a fiction of continuity of service was not to make the Corporation employees Government employees and to make applicable to them any change effected in the conditions of service of government employees; but what was intended was to secure to the transferred employees leave and benefits depending upon the length of service by making their service fictionally uninterrupted. Ordinarily the change of employers would have the effect of interrupting service. Condition No. 2 was, therefore, meant to overcome that situation. That condition dealt solely with the effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service, the second sentence therein, namely in other words etc. was merely explanatory of the first sentence that the transfer of service will not be treated as an interruption in the service. The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them. As pointed out by the High Court in the earlier judgment if condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee was entitled at the time of transfer. We are in entire agreement with this view of the High Court. 4. Mr. C. R. Daphtary who appeared for the appellant tried to persuade us that condition No. 2 should be so interpreted as to confer on the employees of the Corporation the same benefits to which the employees of the State became entitled in the course of subsequent years. We are unable to construe condition No. 2 in the manner suggested. All that that condition secured was that the employees should not suffer in the length of their service and in the enjoyment of the benefits which an uninterrupted service confers on them because of the transfer of their service from the State Government to the Corporation. ### Response: 0 ### Explanation: The first term made it quite clear that when the employees of the erstwhile undertakings of the State would join the service of the Corporation their subsisting pay and scale and other conditions of service and benefits to which they were entitled at that time would not be affected by the transfer. The case of the Union was that the second term or condition entitled them to the same Dearness Allowance which the employees of the Madhya Pradesh State Government were getting. Now this term or condition was confined only to the question of the effect of the transfer on the service of an employee. It was made clear that the transfer of service would not be treated as an. interruption in his service. This was amplified by saying, you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings. The High Court relied on an earlier decision given by it in Misc. Petition No. 237 of 1968 decided on March 26, 1969 (Mach Pra). According to that decision leave and other benefits that were secured under condition No. 2 were leave and such benefits which depended upon the length of service, e.g., gratuity, pension etc. The object of creating a fiction of continuity of service was not to make the Corporation employees Government employees and to make applicable to them any change effected in the conditions of service of government employees; but what was intended was to secure to the transferred employees leave and benefits depending upon the length of service by making their service fictionally uninterrupted. Ordinarily the change of employers would have the effect of interrupting service. Condition No. 2 was, therefore, meant to overcome that situation. That condition dealt solely with the effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service, the second sentence therein, namely in other words etc. was merely explanatory of the first sentence that the transfer of service will not be treated as an interruption in the service. The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them. As pointed out by the High Court in the earlier judgment if condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee was entitled at the time of transfer. We are in entire agreement with this view of the High CourtWe are unable to construe condition No. 2 in the manner suggested. All that that condition secured was that the employees should not suffer in the length of their service and in the enjoyment of the benefits which an uninterrupted service confers on them because of the transfer of their service from the State Government to the Corporation.

Seedsman Association, Hyderabad and Others Vs. Principal Secretary to Govt., A.P. and Others

treated were treated and subjected to chemical process for preservation, those grains become commercially known as seeds. If, however, a dealer was found dealing in foodgrains under the garb of seeds, the authorities were not precluded from prosecuting the offender in a criminal Court. The judgment of the High Court was upheld on the following premise: "It is undoubtedly true that foodgrains per se could be used as seeds for being sown and achieving germination, but in that from they retain the dual utility of being foodgrains as well as seeds. By process of coating and applying insecticides; other chemicals and poisonous substance to the foodgrain meant to be utilised as seeds, one of its basic character, i.e. its consumption as food by human beings or animals or for extraction for the like purpose, gets irretrievably lost and such processed seeds become a commodity distinct from foodgrains as commonly understood. That distinction was borne in mind by the High Court in allowing the writ petition of the respondents, and in our view rightly." 8. A similar controversy has recently been examined again by this Court in Krishi Utpadan Mandi Samiti vs. Pilibhit Patnagar Beej Ltd. JT 2003(9) SC 548 . The High Court allowed the writ petition of the respondent company, namely, Pilibhit Pantnagar Beej Ltd. and issued a writ of mandamus restraining the Agriculture Market Committee from interfering in the business of the Company in certified seeds and from demanding and realizing market fee on the transaction of unprocessed or processed certified seeds. The case set up by the company was that the business of the company is to purchase breeder seeds from Agricultural Research Institute and thereafter to produce certified seeds. The first step of production is to distribute this breeder seeds to the listed and scheduled farmers. The breeder seeds are sown and are germinated under strict supervision of the statutory Seeds Certification Agency, set up under the Seeds Act, 1966. The harvest is selected carefully under supervision of the Agency. The lots which do not conform to specifications are rejected. The standardized seeds so obtained are called Foundation Seeds. These foundation seeds are thereafter again supplied to the listed farmers variety-wise with intimation to the Agency. The farmers sow these foundation seeds which are also supervised by the Agency. This crop is thus germinated under strict supervision of the Agency and the lots rejected are not taken back by farmers. After harvesting the approved standardized certified seeds, the lots are fumigated for preservation and the samples of each lot is tested in the laboratories of Seeds Certification Agency. The rejected lots and losses at processing are returned to farmers only after the foundation seeds are certified as conforming to specifications, the lots are subjected to treatment with insecticides (Cell phose, Quick phose) and pesticides (thiram and barastin) at the time of packing. The company had filed certificates issued by the Seeds Certification Agency and other relevant documents to show that they are not dealing in sale and purchase of foodgrains or wheat but only in certified seeds and that the stock stored by them were not of wheat but of certified seeds of wheat under the supervision of the U.P. Seeds Certification Agency. Having regard to the material produced by the company it was held that as the wheat seed converted into certified seed is unfit for human consumption, the levy of market fee is not permissible. 9. The writ petitioner no.1 in the writ petition filed before the High Court (Appellant No.1) in this Civil Appeal) is Seedsman Association, Hyderabad. No details regarding the members of the Association have been given. The only fact stated in the affidavit is that the petitioner association is a society registered under the Societies Act formed for looking after the interests and welfare of the members who are organizing seed production and processing and marketing the seeds. No details of the activity being carried on by the members of the association have been given. The writ petition and the affidavit filed in support thereof is conspicuously silent about the nature and variety of the seeds allegedly being produced by them and the method or process being adopted in production of seeds. There is no averment that the seeds in which the members of the petitioner association are dealing have been certified by the Seeds Certification Agency of the State Government. The averment in the affidavit filed in support of the writ petition that it is from the date of sowing, the Breeder/Foundation seeds, the petitioners responsibility is to procure the seeds produced according to the procedure laid down in the Indian Minimum Seed Certification Standards, 1988, .... " is not only vague but also shows that the petitioners themselves do not produce seeds but they in fact procure seeds produced by someone else. Who is the producer of seeds and what steps have been taken by such producer to ensure the quality of the seeds is not disposed. Similarly, there is no clear averment that on account of application of insecticides or chemicals and poisonous substances, the basic character of the article, namely its consumption as food by human beings or animals is irretrievably lost and that such commodity is distinct from foodgrains.10. In view of the fact that the writ petition is very vague and necessary details of the commodity and the manner of its production in which the members of the writ petitioner no. 1 (Association) claim to be dealing have not been given, it is not possible to arrive at the necessary factual finding that the foodgrains meant to be utilised as seeds has irretrievably lost its basic character i.e. its consumption as food by human beings or animals or for extraction for the like purpose and that such processed seeds have become a commodity distinct from foodgrains as commonly understood. Similar is the case of the other connected appeals. It is, therefore, not possible to give any relief to the appellants in the present appeals.

0[ds]9. The writ petitioner no.1 in the writ petition filed before the High Court (Appellant No.1) in this Civil Appeal) is Seedsman Association, Hyderabad. No details regarding the members of the Association have been given. The only fact stated in the affidavit is that the petitioner association is a society registered under the Societies Act formed for looking after the interests and welfare of the members who are organizing seed production and processing and marketing the seeds. No details of the activity being carried on by the members of the association have been given. The writ petition and the affidavit filed in support thereof is conspicuously silent about the nature and variety of the seeds allegedly being produced by them and the method or process being adopted in production of seeds. There is no averment that the seeds in which the members of the petitioner association are dealing have been certified by the Seeds Certification Agency of the State Government. The averment in the affidavit filed in support of the writ petition that it is from the date of sowing, the Breeder/Foundation seeds, the petitioners responsibility is to procure the seeds produced according to the procedure laid down in the Indian Minimum Seed Certification Standards, 1988, .... " is not only vague but also shows that the petitioners themselves do not produce seeds but they in fact procure seeds produced by someone else. Who is the producer of seeds and what steps have been taken by such producer to ensure the quality of the seeds is not disposed. Similarly, there is no clear averment that on account of application of insecticides or chemicals and poisonous substances, the basic character of the article, namely its consumption as food by human beings or animals is irretrievably lost and that such commodity is distinct from foodgrains.10. In view of the fact that the writ petition is very vague and necessary details of the commodity and the manner of its production in which the members of the writ petitioner no. 1 (Association) claim to be dealing have not been given, it is not possible to arrive at the necessary factual finding that the foodgrains meant to be utilised as seeds has irretrievably lost its basic character i.e. its consumption as food by human beings or animals or for extraction for the like purpose and that such processed seeds have become a commodity distinct from foodgrains as commonly understood. Similar is the case of the other connected appeals. It is, therefore, not possible to give any relief to the appellants in the present appeals.

### 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: treated were treated and subjected to chemical process for preservation, those grains become commercially known as seeds. If, however, a dealer was found dealing in foodgrains under the garb of seeds, the authorities were not precluded from prosecuting the offender in a criminal Court. The judgment of the High Court was upheld on the following premise: "It is undoubtedly true that foodgrains per se could be used as seeds for being sown and achieving germination, but in that from they retain the dual utility of being foodgrains as well as seeds. By process of coating and applying insecticides; other chemicals and poisonous substance to the foodgrain meant to be utilised as seeds, one of its basic character, i.e. its consumption as food by human beings or animals or for extraction for the like purpose, gets irretrievably lost and such processed seeds become a commodity distinct from foodgrains as commonly understood. That distinction was borne in mind by the High Court in allowing the writ petition of the respondents, and in our view rightly." 8. A similar controversy has recently been examined again by this Court in Krishi Utpadan Mandi Samiti vs. Pilibhit Patnagar Beej Ltd. JT 2003(9) SC 548 . The High Court allowed the writ petition of the respondent company, namely, Pilibhit Pantnagar Beej Ltd. and issued a writ of mandamus restraining the Agriculture Market Committee from interfering in the business of the Company in certified seeds and from demanding and realizing market fee on the transaction of unprocessed or processed certified seeds. The case set up by the company was that the business of the company is to purchase breeder seeds from Agricultural Research Institute and thereafter to produce certified seeds. The first step of production is to distribute this breeder seeds to the listed and scheduled farmers. The breeder seeds are sown and are germinated under strict supervision of the statutory Seeds Certification Agency, set up under the Seeds Act, 1966. The harvest is selected carefully under supervision of the Agency. The lots which do not conform to specifications are rejected. The standardized seeds so obtained are called Foundation Seeds. These foundation seeds are thereafter again supplied to the listed farmers variety-wise with intimation to the Agency. The farmers sow these foundation seeds which are also supervised by the Agency. This crop is thus germinated under strict supervision of the Agency and the lots rejected are not taken back by farmers. After harvesting the approved standardized certified seeds, the lots are fumigated for preservation and the samples of each lot is tested in the laboratories of Seeds Certification Agency. The rejected lots and losses at processing are returned to farmers only after the foundation seeds are certified as conforming to specifications, the lots are subjected to treatment with insecticides (Cell phose, Quick phose) and pesticides (thiram and barastin) at the time of packing. The company had filed certificates issued by the Seeds Certification Agency and other relevant documents to show that they are not dealing in sale and purchase of foodgrains or wheat but only in certified seeds and that the stock stored by them were not of wheat but of certified seeds of wheat under the supervision of the U.P. Seeds Certification Agency. Having regard to the material produced by the company it was held that as the wheat seed converted into certified seed is unfit for human consumption, the levy of market fee is not permissible. 9. The writ petitioner no.1 in the writ petition filed before the High Court (Appellant No.1) in this Civil Appeal) is Seedsman Association, Hyderabad. No details regarding the members of the Association have been given. The only fact stated in the affidavit is that the petitioner association is a society registered under the Societies Act formed for looking after the interests and welfare of the members who are organizing seed production and processing and marketing the seeds. No details of the activity being carried on by the members of the association have been given. The writ petition and the affidavit filed in support thereof is conspicuously silent about the nature and variety of the seeds allegedly being produced by them and the method or process being adopted in production of seeds. There is no averment that the seeds in which the members of the petitioner association are dealing have been certified by the Seeds Certification Agency of the State Government. The averment in the affidavit filed in support of the writ petition that it is from the date of sowing, the Breeder/Foundation seeds, the petitioners responsibility is to procure the seeds produced according to the procedure laid down in the Indian Minimum Seed Certification Standards, 1988, .... " is not only vague but also shows that the petitioners themselves do not produce seeds but they in fact procure seeds produced by someone else. Who is the producer of seeds and what steps have been taken by such producer to ensure the quality of the seeds is not disposed. Similarly, there is no clear averment that on account of application of insecticides or chemicals and poisonous substances, the basic character of the article, namely its consumption as food by human beings or animals is irretrievably lost and that such commodity is distinct from foodgrains.10. In view of the fact that the writ petition is very vague and necessary details of the commodity and the manner of its production in which the members of the writ petitioner no. 1 (Association) claim to be dealing have not been given, it is not possible to arrive at the necessary factual finding that the foodgrains meant to be utilised as seeds has irretrievably lost its basic character i.e. its consumption as food by human beings or animals or for extraction for the like purpose and that such processed seeds have become a commodity distinct from foodgrains as commonly understood. Similar is the case of the other connected appeals. It is, therefore, not possible to give any relief to the appellants in the present appeals. ### Response: 0 ### Explanation: 9. The writ petitioner no.1 in the writ petition filed before the High Court (Appellant No.1) in this Civil Appeal) is Seedsman Association, Hyderabad. No details regarding the members of the Association have been given. The only fact stated in the affidavit is that the petitioner association is a society registered under the Societies Act formed for looking after the interests and welfare of the members who are organizing seed production and processing and marketing the seeds. No details of the activity being carried on by the members of the association have been given. The writ petition and the affidavit filed in support thereof is conspicuously silent about the nature and variety of the seeds allegedly being produced by them and the method or process being adopted in production of seeds. There is no averment that the seeds in which the members of the petitioner association are dealing have been certified by the Seeds Certification Agency of the State Government. The averment in the affidavit filed in support of the writ petition that it is from the date of sowing, the Breeder/Foundation seeds, the petitioners responsibility is to procure the seeds produced according to the procedure laid down in the Indian Minimum Seed Certification Standards, 1988, .... " is not only vague but also shows that the petitioners themselves do not produce seeds but they in fact procure seeds produced by someone else. Who is the producer of seeds and what steps have been taken by such producer to ensure the quality of the seeds is not disposed. Similarly, there is no clear averment that on account of application of insecticides or chemicals and poisonous substances, the basic character of the article, namely its consumption as food by human beings or animals is irretrievably lost and that such commodity is distinct from foodgrains.10. In view of the fact that the writ petition is very vague and necessary details of the commodity and the manner of its production in which the members of the writ petitioner no. 1 (Association) claim to be dealing have not been given, it is not possible to arrive at the necessary factual finding that the foodgrains meant to be utilised as seeds has irretrievably lost its basic character i.e. its consumption as food by human beings or animals or for extraction for the like purpose and that such processed seeds have become a commodity distinct from foodgrains as commonly understood. Similar is the case of the other connected appeals. It is, therefore, not possible to give any relief to the appellants in the present appeals.

M/S Kaushik Coop.Building Society Vs. N.Parvathamma

Officer v. Goundla Venkaiah & Anr., (2010) 2 SCC 461 , para 20, wherein it was held that the Land Grabbing Act is a self-contained Code which deals with various facets of Land Grabbing and provides for a comprehensive machinery for determination of various issues relating to land grabbing, including the claim of the alleged land grabber that he has a right to occupy the land or that he has acquired title by adverse possession. 14. It was further submitted by the learned counsel that the findings in OS No.29/1965, CCCA No.14/1972 and the E.A. No.14/1995 in E.P. No.20/1995 do not have force so as to attract principles of res judicata as against Abdul Bashisht and his legal heirs and Abdul Rub and his legal heirs. He drew our attention to the relevant part of the order dated 17.04.1970, passed by the learned II Additional Chief Judge in O.S. No.29/1965, which is as follows: 6. Subsequent to the filing of the suit the fourth defendant died and no legal representatives have been brought on record. Hence the suit was abated against the 4th defendant. 15. Learned counsel relied upon the following judgments of this Court: Williams v. Lourdu Swamy & Anr, 2008(3) R.C.R.(Civil) 877 : (2008) 5 SCC 647 ; Sajjadda Nashin Sayyeed v. Musa Dada Bhai Umar, (2000) 3 SCC 350 and Malia Bajrangi dead through LRs & Anr. v. Badri Bai wife of Jagannath & Anr, (2003) 2 SCC 464, wherein scope of Section 11 of the Code of Civil Procedure, 1908 was discussed and it was found that when the matter in issue is substantially different from the previous proceedings, res judicata could not be applied. 16. Learned counsel for respondents (L.Rs. of deceased Md. Moulana) concluded his arguments while submitting that the Special Court and the High Court while appreciating the evidence are per se perverse while relying upon the law laid down by this Court in Shama Prassanth Raji v. Ganapath Rao & Ors., 2000(2) R.C.R.(Rent) 431 : (2000) 7 SCC 522, which is as follows: Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent Tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same on a mere perusal of the order of an inferior Tribunal if the High Court comes to a conclusion that such Tribunal has committed manifest error by mis-construing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior Tribunal or the inferior Tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior Tribunal. 17. Before arriving at the conclusion, we would like to emphasize on the ratio of another judgment of this Court in the case of Ramji Gupta & Anr. v. Gopi Krishan Agrawal (dead) & Ors., 2013(2) R.C.R.(Civil) 898 : 2013(3) Recent Apex Judgments (R.A.J.) 270 : (2013) 9 SCC 438, para 15, which reads as follows: In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata. 18. We have perused the written notes on arguments of the learned counsels for both the parties and after a punctilious scrutiny of complete record, we are of the considered opinion that it may be true that the Court at initial stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Court shall also bear in mind that the basic character of this principle is public policy and preventive as to give finality to the decision of the Court of competent jurisdiction and prevent further litigation. 19. In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res-judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata. 20. Judged in this background and the principle set out above, the inevitable conclusion is that both the Special Court and the High Court have committed error in not appreciating the fact that orders, judgments and decrees passed in previously decided land grabbing cases have attained finality, wherein it was reiterated many a times that the appellant society i.e. M/s. Kaushik Coop. Building Society is the owner of the suit property which is comprised of Survey No.129/68 and not in Survey No.129/51 or 129/52 (which has been re-numbered as 327). Thus, in our considered opinion, the approach of the High Court in the impugned order seems to be erroneous. Therefore, the question before us is, thus, answered in negative.

1[ds]6. The main point revolves around the principles of res-judicata which is neither against public policy nor res-integra to civil procedure prevailing in our country. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations7. The question of res-judicata is not res integra to our judicial system. The rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time and that the application of the rule by the Courts should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law17. Before arriving at the conclusion, we would like to emphasize on the ratio of another judgment of this Court in the case of Ramji Gupta & Anr. v. Gopi Krishan Agrawal (dead) & Ors., 2013(2) R.C.R.(Civil) 898 : 2013(3) Recent Apex Judgments (R.A.J.) 270 : (2013) 9 SCC 438, para 15, which reads as follows:In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata18. We have perused the written notes on arguments of the learned counsels for both the parties and after a punctilious scrutiny of complete record, we are of the considered opinion that it may be true that the Court at initial stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Court shall also bear in mind that the basic character of this principle is public policy and preventive as to give finality to the decision of the Court of competent jurisdiction and prevent further litigation19. In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res-judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata20. Judged in this background and the principle set out above, the inevitable conclusion is that both the Special Court and the High Court have committed error in not appreciating the fact that orders, judgments and decrees passed in previously decided land grabbing cases have attained finality, wherein it was reiterated many a times that the appellant society i.e. M/s. Kaushik Coop. Building Society is the owner of the suit property which is comprised of Survey No.129/68 and not in Survey No.129/51 or 129/52 (which has been re-numbered as 327). Thus, in our considered opinion, the approach of the High Court in the impugned order seems to be erroneous. Therefore, the question before us is, thus, answered in negative

### 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: Officer v. Goundla Venkaiah & Anr., (2010) 2 SCC 461 , para 20, wherein it was held that the Land Grabbing Act is a self-contained Code which deals with various facets of Land Grabbing and provides for a comprehensive machinery for determination of various issues relating to land grabbing, including the claim of the alleged land grabber that he has a right to occupy the land or that he has acquired title by adverse possession. 14. It was further submitted by the learned counsel that the findings in OS No.29/1965, CCCA No.14/1972 and the E.A. No.14/1995 in E.P. No.20/1995 do not have force so as to attract principles of res judicata as against Abdul Bashisht and his legal heirs and Abdul Rub and his legal heirs. He drew our attention to the relevant part of the order dated 17.04.1970, passed by the learned II Additional Chief Judge in O.S. No.29/1965, which is as follows: 6. Subsequent to the filing of the suit the fourth defendant died and no legal representatives have been brought on record. Hence the suit was abated against the 4th defendant. 15. Learned counsel relied upon the following judgments of this Court: Williams v. Lourdu Swamy & Anr, 2008(3) R.C.R.(Civil) 877 : (2008) 5 SCC 647 ; Sajjadda Nashin Sayyeed v. Musa Dada Bhai Umar, (2000) 3 SCC 350 and Malia Bajrangi dead through LRs & Anr. v. Badri Bai wife of Jagannath & Anr, (2003) 2 SCC 464, wherein scope of Section 11 of the Code of Civil Procedure, 1908 was discussed and it was found that when the matter in issue is substantially different from the previous proceedings, res judicata could not be applied. 16. Learned counsel for respondents (L.Rs. of deceased Md. Moulana) concluded his arguments while submitting that the Special Court and the High Court while appreciating the evidence are per se perverse while relying upon the law laid down by this Court in Shama Prassanth Raji v. Ganapath Rao & Ors., 2000(2) R.C.R.(Rent) 431 : (2000) 7 SCC 522, which is as follows: Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent Tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same on a mere perusal of the order of an inferior Tribunal if the High Court comes to a conclusion that such Tribunal has committed manifest error by mis-construing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior Tribunal or the inferior Tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior Tribunal. 17. Before arriving at the conclusion, we would like to emphasize on the ratio of another judgment of this Court in the case of Ramji Gupta & Anr. v. Gopi Krishan Agrawal (dead) & Ors., 2013(2) R.C.R.(Civil) 898 : 2013(3) Recent Apex Judgments (R.A.J.) 270 : (2013) 9 SCC 438, para 15, which reads as follows: In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata. 18. We have perused the written notes on arguments of the learned counsels for both the parties and after a punctilious scrutiny of complete record, we are of the considered opinion that it may be true that the Court at initial stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Court shall also bear in mind that the basic character of this principle is public policy and preventive as to give finality to the decision of the Court of competent jurisdiction and prevent further litigation. 19. In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res-judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata. 20. Judged in this background and the principle set out above, the inevitable conclusion is that both the Special Court and the High Court have committed error in not appreciating the fact that orders, judgments and decrees passed in previously decided land grabbing cases have attained finality, wherein it was reiterated many a times that the appellant society i.e. M/s. Kaushik Coop. Building Society is the owner of the suit property which is comprised of Survey No.129/68 and not in Survey No.129/51 or 129/52 (which has been re-numbered as 327). Thus, in our considered opinion, the approach of the High Court in the impugned order seems to be erroneous. Therefore, the question before us is, thus, answered in negative. ### Response: 1 ### Explanation: 6. The main point revolves around the principles of res-judicata which is neither against public policy nor res-integra to civil procedure prevailing in our country. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations7. The question of res-judicata is not res integra to our judicial system. The rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time and that the application of the rule by the Courts should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law17. Before arriving at the conclusion, we would like to emphasize on the ratio of another judgment of this Court in the case of Ramji Gupta & Anr. v. Gopi Krishan Agrawal (dead) & Ors., 2013(2) R.C.R.(Civil) 898 : 2013(3) Recent Apex Judgments (R.A.J.) 270 : (2013) 9 SCC 438, para 15, which reads as follows:In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata18. We have perused the written notes on arguments of the learned counsels for both the parties and after a punctilious scrutiny of complete record, we are of the considered opinion that it may be true that the Court at initial stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Court shall also bear in mind that the basic character of this principle is public policy and preventive as to give finality to the decision of the Court of competent jurisdiction and prevent further litigation19. In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res-judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata20. Judged in this background and the principle set out above, the inevitable conclusion is that both the Special Court and the High Court have committed error in not appreciating the fact that orders, judgments and decrees passed in previously decided land grabbing cases have attained finality, wherein it was reiterated many a times that the appellant society i.e. M/s. Kaushik Coop. Building Society is the owner of the suit property which is comprised of Survey No.129/68 and not in Survey No.129/51 or 129/52 (which has been re-numbered as 327). Thus, in our considered opinion, the approach of the High Court in the impugned order seems to be erroneous. Therefore, the question before us is, thus, answered in negative

MUNICIPAL CORPORATION OF GREATER MUMBAI Vs. RAFIQUNNISA M. KHALIFA (DECEASED) THROUGH HIS LEGAL HEIR MR. MOHD MUQUEEN QURESHI

erecting of any structure or fixture of any nature such as ¬ wall, fence, rail, post, step, booth upon any street or over any open channel, drain, well or tank in any street which causes obstruction or encroachment or projection or to occupy portion of such street, channel, drain, well or tank as the case may be. Only those structures/fixtures are saved from Section 312 of the Act which are erected with the permission of the Commissioner granted under Sections 310 and 317 of the Act. In other words, Section 312 has no application to those structures/fixtures which are erected by the person with the permission of the Commissioner under Sections 310 and 317 of the Act. 19. Section 314(1) with which we are concerned in this case confers power on the Commissioner to remove any wall, fence, rail, post, step, booth or other structure or fixture which is found erected or set up on any street, open channel, drain, well or tank contrary to the provisions of sub¬Section (1) of Section 312 of the Act after coming into force the provisions of Bombay Municipal (Extension of limits) Act, 1950 or in the extended suburbs after coming into force Further Extension of Limits and Schedule BBA (Amendment) Act, 1956. 20. In other words, in order to exercise the power under Section 314 (1) of the Act, two conditions must be present. First, the disputed wall, fence, rail, post, step, booth or any other type of structure or fixture, as the case may be, is erected or set up on any public street or open channel or drain or well or tank; and Second, any such structure or fixture, as the case may be, is erected or set up in the city or suburbs contrary to the provisions of Section 312(1) of the Act after coming into force the two Acts specified in sub¬section (1). 21. Coming now to the facts of the case, it is apposite to mention here that the appellants filed certain additional documents in these appeals such as map and the photographs of the site in question in support of their case. These documents were not filed before the High Court as is clear from the perusal of the impugned order. These documents were allowed to be taken on record being relevant and material for deciding the issue involved in these appeals. The respondents, however, did not dispute the veracity of these documents and, therefore, these documents remained indisputable. 22. Perusal of the counter affidavit, map and the photographs of the site in question clearly show that, first, the stalls/structures of the respondents were found erected on the sewer line/chamber; Second, these structures/stalls were not erected by the respondents with the permission of the Commissioner as required under Section 312 (1) of the Act; Third, no sanctioned map was filed by the respondents to prove that the structures were legal; and fourth, the stalls/structures were causing obstruction to public at large and were causing encroachment on the street (Bandra Station Road), which is very narrow. 23. In the light of the aforementioned four factors being present, we are of the considered opinion that the appellant (Commissioner) was justified in invoking the powers under Section 314 of the Act against the respondents on 26.05.2018 for removal of their stalls/structures. Since the action to remove the stalls/structures was taken under Section 314 of the Act, it was not necessary to give any prior notice to the respondents though a circular was issued on 05.10.2015 requesting the respondents to remove their stalls/structures from the site in question. 24. We are, therefore, unable to find any illegality or arbitrariness or unreasonableness in the action taken by the Commissioner under Section 314 of the Act, which resulted in removal of the respondents? stalls/structures. 25. Learned counsel for the respondents, however, argued that since the respondents were granted health licenses under the Act for selling their foodstuff in these stalls/structures, their removal from the site in question was illegal. 26. We find no merit in this submission. In our opinion, grant of health license has nothing to do with erection of stall/structure and its removal. In order to exercise the power under Section 314 of the Act, the conditions specified therein need to be satisfied. Section 314 nowhere says that if a person is carrying on any activity in such stall/structure on the strength of health license on the street, or open channel, drain, well or tank, no action to remove such stall/structure can be taken against such person. The action under Section 314 can be attacked successfully only by showing that the person had erected his stall/structure with the permission of the Commissioner granted under Section 312(1) of the Act. Such is, however, not the case here. 27. In our opinion, the High Court was, therefore, not justified in striking down the action of the appellant (Commissioner) taken under Section 314 of the Act for removal of their stalls/structures on 26.05.2018. The High Court was also not justified in issuing a mandamus directing the appellant¬ Municipal Corporation to provide to each respondent some suitable land either in the same area or in adjacent area. 28. It is a settled principle of law that a writ of mandamus under Article 226 of the Constitution is issued, when there is a right and correspondingly there is a legal duty to perform. In this case, neither there was any right (contractual or legal) in writ petitioners? favour and nor there is any provision in the Act which casts an obligation to provide any alternate land to the respondents. 29. We also do not find any scheme/policy made in this behalf by the appellants or the State, which could be enforced by the respondents. Moreover, once this Court holds that the action taken under Section 314 of the Act against the respondents is legal and proper, there is no occasion to issue any mandamus much less the mandamus of the nature issued by the High Court.

1[ds]18. Section 312 of the Act prohibits erecting of any structure or fixture of any nature such as ¬ wall, fence, rail, post, step, booth upon any street or over any open channel, drain, well or tank in any street which causes obstruction or encroachment or projection or to occupy portion of such street, channel, drain, well or tank as the case may be. Only those structures/fixtures are saved from Section 312 of the Act which are erected with the permission of the Commissioner granted under Sections 310 and 317 of the Act. In other words, Section 312 has no application to those structures/fixtures which are erected by the person with the permission of the Commissioner under Sections 310 and 317 of the Act.Section 314(1) with which we are concerned in this case confers power on the Commissioner to remove any wall, fence, rail, post, step, booth or other structure or fixture which is found erected or set up on any street, open channel, drain, well or tank contrary to the provisions of sub¬Section (1) of Section 312 of the Act after coming into force the provisions of Bombay Municipal (Extension of limits) Act, 1950 or in the extended suburbs after coming into force Further Extension of Limits and Schedule BBA (Amendment) Act, 1956.In other words, in order to exercise the power under Section 314 (1) of the Act, two conditions must be present. First, the disputed wall, fence, rail, post, step, booth or any other type of structure or fixture, as the case may be, is erected or set up on any public street or open channel or drain or well or tank; and Second, any such structure or fixture, as the case may be, is erected or set up in the city or suburbs contrary to the provisions of Section 312(1) of the Act after coming into force the two Acts specified in sub¬section (1).Coming now to the facts of the case, it is apposite to mention here that the appellants filed certain additional documents in these appeals such as map and the photographs of the site in question in support of their case. These documents were not filed before the High Court as is clear from the perusal of the impugned order. These documents were allowed to be taken on record being relevant and material for deciding the issue involved in these appeals. The respondents, however, did not dispute the veracity of these documents and, therefore, these documents remained indisputable.Perusal of the counter affidavit, map and the photographs of the site in question clearly show that, first, the stalls/structures of the respondents were found erected on the sewer line/chamber; Second, these structures/stalls were not erected by the respondents with the permission of the Commissioner as required under Section 312 (1) of the Act; Third, no sanctioned map was filed by the respondents to prove that the structures were legal; and fourth, the stalls/structures were causing obstruction to public at large and were causing encroachment on the street (Bandra Station Road), which is very narrow.In the light of the aforementioned four factors being present, we are of the considered opinion that the appellant (Commissioner) was justified in invoking the powers under Section 314 of the Act against the respondents on 26.05.2018 for removal of their stalls/structures. Since the action to remove the stalls/structures was taken under Section 314 of the Act, it was not necessary to give any prior notice to the respondents though a circular was issued on 05.10.2015 requesting the respondents to remove their stalls/structures from the site in question.We are, therefore, unable to find any illegality or arbitrariness or unreasonableness in the action taken by the Commissioner under Section 314 of the Act, which resulted in removal of the respondents? stalls/structures.We find no merit in this submission. In our opinion, grant of health license has nothing to do with erection of stall/structure and its removal. In order to exercise the power under Section 314 of the Act, the conditions specified therein need to be satisfied. Section 314 nowhere says that if a person is carrying on any activity in such stall/structure on the strength of health license on the street, or open channel, drain, well or tank, no action to remove such stall/structure can be taken against such person. The action under Section 314 can be attacked successfully only by showing that the person had erected his stall/structure with the permission of the Commissioner granted under Section 312(1) of the Act. Such is, however, not the case here.In our opinion, the High Court was, therefore, not justified in striking down the action of the appellant (Commissioner) taken under Section 314 of the Act for removal of their stalls/structures on 26.05.2018. The High Court was also not justified in issuing a mandamus directing the appellant¬ Municipal Corporation to provide to each respondent some suitable land either in the same area or in adjacent area.It is a settled principle of law that a writ of mandamus under Article 226 of the Constitution is issued, when there is a right and correspondingly there is a legal duty to perform. In this case, neither there was any right (contractual or legal) in writ petitioners? favour and nor there is any provision in the Act which casts an obligation to provide any alternate land to the respondents.We also do not find any scheme/policy made in this behalf by the appellants or the State, which could be enforced by the respondents. Moreover, once this Court holds that the action taken under Section 314 of the Act against the respondents is legal and proper, there is no occasion to issue any mandamus much less the mandamus of the nature issued by the High Court.

### 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: erecting of any structure or fixture of any nature such as ¬ wall, fence, rail, post, step, booth upon any street or over any open channel, drain, well or tank in any street which causes obstruction or encroachment or projection or to occupy portion of such street, channel, drain, well or tank as the case may be. Only those structures/fixtures are saved from Section 312 of the Act which are erected with the permission of the Commissioner granted under Sections 310 and 317 of the Act. In other words, Section 312 has no application to those structures/fixtures which are erected by the person with the permission of the Commissioner under Sections 310 and 317 of the Act. 19. Section 314(1) with which we are concerned in this case confers power on the Commissioner to remove any wall, fence, rail, post, step, booth or other structure or fixture which is found erected or set up on any street, open channel, drain, well or tank contrary to the provisions of sub¬Section (1) of Section 312 of the Act after coming into force the provisions of Bombay Municipal (Extension of limits) Act, 1950 or in the extended suburbs after coming into force Further Extension of Limits and Schedule BBA (Amendment) Act, 1956. 20. In other words, in order to exercise the power under Section 314 (1) of the Act, two conditions must be present. First, the disputed wall, fence, rail, post, step, booth or any other type of structure or fixture, as the case may be, is erected or set up on any public street or open channel or drain or well or tank; and Second, any such structure or fixture, as the case may be, is erected or set up in the city or suburbs contrary to the provisions of Section 312(1) of the Act after coming into force the two Acts specified in sub¬section (1). 21. Coming now to the facts of the case, it is apposite to mention here that the appellants filed certain additional documents in these appeals such as map and the photographs of the site in question in support of their case. These documents were not filed before the High Court as is clear from the perusal of the impugned order. These documents were allowed to be taken on record being relevant and material for deciding the issue involved in these appeals. The respondents, however, did not dispute the veracity of these documents and, therefore, these documents remained indisputable. 22. Perusal of the counter affidavit, map and the photographs of the site in question clearly show that, first, the stalls/structures of the respondents were found erected on the sewer line/chamber; Second, these structures/stalls were not erected by the respondents with the permission of the Commissioner as required under Section 312 (1) of the Act; Third, no sanctioned map was filed by the respondents to prove that the structures were legal; and fourth, the stalls/structures were causing obstruction to public at large and were causing encroachment on the street (Bandra Station Road), which is very narrow. 23. In the light of the aforementioned four factors being present, we are of the considered opinion that the appellant (Commissioner) was justified in invoking the powers under Section 314 of the Act against the respondents on 26.05.2018 for removal of their stalls/structures. Since the action to remove the stalls/structures was taken under Section 314 of the Act, it was not necessary to give any prior notice to the respondents though a circular was issued on 05.10.2015 requesting the respondents to remove their stalls/structures from the site in question. 24. We are, therefore, unable to find any illegality or arbitrariness or unreasonableness in the action taken by the Commissioner under Section 314 of the Act, which resulted in removal of the respondents? stalls/structures. 25. Learned counsel for the respondents, however, argued that since the respondents were granted health licenses under the Act for selling their foodstuff in these stalls/structures, their removal from the site in question was illegal. 26. We find no merit in this submission. In our opinion, grant of health license has nothing to do with erection of stall/structure and its removal. In order to exercise the power under Section 314 of the Act, the conditions specified therein need to be satisfied. Section 314 nowhere says that if a person is carrying on any activity in such stall/structure on the strength of health license on the street, or open channel, drain, well or tank, no action to remove such stall/structure can be taken against such person. The action under Section 314 can be attacked successfully only by showing that the person had erected his stall/structure with the permission of the Commissioner granted under Section 312(1) of the Act. Such is, however, not the case here. 27. In our opinion, the High Court was, therefore, not justified in striking down the action of the appellant (Commissioner) taken under Section 314 of the Act for removal of their stalls/structures on 26.05.2018. The High Court was also not justified in issuing a mandamus directing the appellant¬ Municipal Corporation to provide to each respondent some suitable land either in the same area or in adjacent area. 28. It is a settled principle of law that a writ of mandamus under Article 226 of the Constitution is issued, when there is a right and correspondingly there is a legal duty to perform. In this case, neither there was any right (contractual or legal) in writ petitioners? favour and nor there is any provision in the Act which casts an obligation to provide any alternate land to the respondents. 29. We also do not find any scheme/policy made in this behalf by the appellants or the State, which could be enforced by the respondents. Moreover, once this Court holds that the action taken under Section 314 of the Act against the respondents is legal and proper, there is no occasion to issue any mandamus much less the mandamus of the nature issued by the High Court. ### Response: 1 ### Explanation: 18. Section 312 of the Act prohibits erecting of any structure or fixture of any nature such as ¬ wall, fence, rail, post, step, booth upon any street or over any open channel, drain, well or tank in any street which causes obstruction or encroachment or projection or to occupy portion of such street, channel, drain, well or tank as the case may be. Only those structures/fixtures are saved from Section 312 of the Act which are erected with the permission of the Commissioner granted under Sections 310 and 317 of the Act. In other words, Section 312 has no application to those structures/fixtures which are erected by the person with the permission of the Commissioner under Sections 310 and 317 of the Act.Section 314(1) with which we are concerned in this case confers power on the Commissioner to remove any wall, fence, rail, post, step, booth or other structure or fixture which is found erected or set up on any street, open channel, drain, well or tank contrary to the provisions of sub¬Section (1) of Section 312 of the Act after coming into force the provisions of Bombay Municipal (Extension of limits) Act, 1950 or in the extended suburbs after coming into force Further Extension of Limits and Schedule BBA (Amendment) Act, 1956.In other words, in order to exercise the power under Section 314 (1) of the Act, two conditions must be present. First, the disputed wall, fence, rail, post, step, booth or any other type of structure or fixture, as the case may be, is erected or set up on any public street or open channel or drain or well or tank; and Second, any such structure or fixture, as the case may be, is erected or set up in the city or suburbs contrary to the provisions of Section 312(1) of the Act after coming into force the two Acts specified in sub¬section (1).Coming now to the facts of the case, it is apposite to mention here that the appellants filed certain additional documents in these appeals such as map and the photographs of the site in question in support of their case. These documents were not filed before the High Court as is clear from the perusal of the impugned order. These documents were allowed to be taken on record being relevant and material for deciding the issue involved in these appeals. The respondents, however, did not dispute the veracity of these documents and, therefore, these documents remained indisputable.Perusal of the counter affidavit, map and the photographs of the site in question clearly show that, first, the stalls/structures of the respondents were found erected on the sewer line/chamber; Second, these structures/stalls were not erected by the respondents with the permission of the Commissioner as required under Section 312 (1) of the Act; Third, no sanctioned map was filed by the respondents to prove that the structures were legal; and fourth, the stalls/structures were causing obstruction to public at large and were causing encroachment on the street (Bandra Station Road), which is very narrow.In the light of the aforementioned four factors being present, we are of the considered opinion that the appellant (Commissioner) was justified in invoking the powers under Section 314 of the Act against the respondents on 26.05.2018 for removal of their stalls/structures. Since the action to remove the stalls/structures was taken under Section 314 of the Act, it was not necessary to give any prior notice to the respondents though a circular was issued on 05.10.2015 requesting the respondents to remove their stalls/structures from the site in question.We are, therefore, unable to find any illegality or arbitrariness or unreasonableness in the action taken by the Commissioner under Section 314 of the Act, which resulted in removal of the respondents? stalls/structures.We find no merit in this submission. In our opinion, grant of health license has nothing to do with erection of stall/structure and its removal. In order to exercise the power under Section 314 of the Act, the conditions specified therein need to be satisfied. Section 314 nowhere says that if a person is carrying on any activity in such stall/structure on the strength of health license on the street, or open channel, drain, well or tank, no action to remove such stall/structure can be taken against such person. The action under Section 314 can be attacked successfully only by showing that the person had erected his stall/structure with the permission of the Commissioner granted under Section 312(1) of the Act. Such is, however, not the case here.In our opinion, the High Court was, therefore, not justified in striking down the action of the appellant (Commissioner) taken under Section 314 of the Act for removal of their stalls/structures on 26.05.2018. The High Court was also not justified in issuing a mandamus directing the appellant¬ Municipal Corporation to provide to each respondent some suitable land either in the same area or in adjacent area.It is a settled principle of law that a writ of mandamus under Article 226 of the Constitution is issued, when there is a right and correspondingly there is a legal duty to perform. In this case, neither there was any right (contractual or legal) in writ petitioners? favour and nor there is any provision in the Act which casts an obligation to provide any alternate land to the respondents.We also do not find any scheme/policy made in this behalf by the appellants or the State, which could be enforced by the respondents. Moreover, once this Court holds that the action taken under Section 314 of the Act against the respondents is legal and proper, there is no occasion to issue any mandamus much less the mandamus of the nature issued by the High Court.

ALL INDIA INSTITUTE OF MEDICAL SCIENCES Vs. SANJIV CHATURVEDI

Benches of the Supreme Court and that was the practice also to be followed by the Supreme Court itself. The practice has now crystallized into a rule of law declared by the Supreme Court. A similar view was taken by the Supreme Court in Bharat Petroleum Corporation Ltd. vs. Mumbai Shramik Sangha & Ors. (2001) 4 SCC 448 . A five Judge Constitution Bench of the Supreme Court observed that the decision of a Constitution Bench of the Supreme Court would bind a Bench of two judges of the Supreme Court and that judicial discipline obliged them to follow it, regardless of their doubts about its correctness.67. It is true that the interim order passed by a Court does not operate as a precedent and the law declared by the Supreme Court with regard to the precedential value of judgments of Benches of larger strength may not operate as a binding precedent in the facts and circumstances of this case. The judgments referred to in the preceding paragraphs lay down the norms of judicial decorum and propriety which give precedence to Benches of higher strength. There is no reason at all why the same principles should not apply even to interim orders in pending proceedings.68. An interim order passed by a court, on consideration of the prima facie case made out by an applicant, should ordinarily have been vacated by a Bench of coordinate strength after giving open notice to the applicant. If the Chairman was of the considered opinion that there was urgency in the application for vacating the interim order, the Chairman ought to have assigned the application for vacating and/or vacation of the interim order to a Bench of two or more Members to consider whether the interim order should continue or be vacated. The Chairman could also have exercised his power to suo motu transfer the proceedings to another Bench without prior notice. The order of stay of the proceedings before the Nainital Bench is without jurisdiction and unsustainable in law.69. Neither the judgment of the Constitution Bench of this Court in L. Chandra Kumar (supra) nor the judgment of the Division Bench of this Court in Dr. Mahabal Ram vs. Indian Council of Agricultural Research and Others is an authority for the proposition that the Chairman of CAT, sitting singly to decide on application for transfer under Section 25 of the Act, can stay the proceeding before a two Member Bench or interfere with the orders of a two Member Bench.70. In L. Chandra Kumar (supra), cited on behalf of the appellant, a Constitution Bench of seven Judges of the Supreme Court held that the power of judicial review vested in the High Court under Article 226 and in the Supreme Court under Article 32 of the Constitution was an integral and essential feature of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislations could never be ousted or excluded. The power vested in the High Court to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdictions was also part of the basic structure of the Constitution. Further, in L. Chandra Kumar (supra), this Court upheld the vires of Section 5(6) of the Act observing that Section 5(6) could harmoniously operate with Section 5(2) in view of the proviso to Section 5(6). This Court also held that the Tribunals are even competent to hear matters where vires of statutory provisions are questioned, except where the vires of their parent statute is in question, following the settled principle that a Tribunal which is the creature of a statute cannot declare that very statute to be unconstitutional. In such cases alone, the High Court might be approached directly. However, in discharging the duty of deciding vires of statutory provisions, Tribunals cannot act as substitute for the High Courts and the Supreme Court. Their function is supplementary and all such decision of the Tribunals would be subject to scrutiny before the Division Bench of the respective High Courts.71. In L. Chandra Kumar (supra) this Court held that whenever any question involving the interpretation of a statutory provision or rule in relation to Constitution arose for consideration of a Single Bench of the Administrative Tribunal, the provision to Section 5(6) would automatically apply and the Chairman or the member concerned would be obliged to refer the matter to a Bench consisting of at least two members one of whom must be a judicial member. This would ensure that questions involving vires of statutory provisions or rules would never arise for adjudication before a Single Member Bench or a Bench which does not consist of a judicial member. So construed, Section 5(6) would no longer be susceptible to charges of unconstitutionality and, therefore, valid and constitutional.72. In Dr. Mahabal Ram vs. Indian Council of Agricultural Research and Others (1994) 2 SCC 401 , the Supreme Court held that sub- sections (2) and (6) appearing as limbs of the same Section 5 of the Act, have to be harmoniously construed. While allocating work to a single Member, whether Judicial or Administrative in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law or interpretation of constitutional provisions are involved, they should not be assigned to a single Member. It would be open to either party appearing before the single Member to suggest to that Member hearing the matter that it should go to a Bench of two Members. The Member should ordinarily allow the matter to go to a Bench of two Members when so requested. However, the contention that the single Member contemplated under sub-section (6) had to mean a Judicial Member only, was not accepted. In Dr. Mahabal Ram (supra), the question was whether a Bench consisting of a single Member under Section 5(6) necessarily had to be a Bench comprising of a judicial member.

1[ds]37. It is not in dispute that the impugned order, under challenge in this Court, records the appearance of Shri Rakesh Thapliyal, Additional Solicitor General on behalf of AIIMS as well. Any objection with regard to erroneous recording of appearances, or the authority of the learned Additional Solicitor General of India to represent the AIIMS ought to have been urged before the High Court by making an appropriate application. The objection to the appearances of the Additional Solicitor General, representing the Central government in the same proceedings, is prima facie preposterous, considering that the AIIMS is under full control of the Central Government. It is, however, not for this Court to examine whether the learned Additional Solicitor General of India had been authorized to appear before the High Court on behalf of AIIMS or not.38. The judgments of this Court in Munna Lal Karosia vs. State of Madhya Pradesh and Others(2012) 12 SCC 255 and Association of Synthetic Fibre Industries vs. Apollo Tyres Limited and Others (2010) 13 SCC 735 , cited by the appellant to argue that a final order ought not be passed by the High Court against any person without giving that person an opportunity of hearing, have no application in the facts and circumstances of this case, since the appellant had apparently been represented by the Additional Solicitor General. The judgments were rendered in the particular facts and circumstances of those cases.39. In Munna Lal Karosia (supra), the High Court had held Munna Lal Karosia to be guilty of contempt without hearing him. It was in the aforesaid context that this Court deprecated the passing of stigmatic orders against a person without giving that person an opportunity of hearing. An order of contempt may be stigmatic. The order under appeal is not so. Imposition of costs does render an order stigmatic, as sought to be argued on behalf of the appellant.The Act has been enacted in pursuance of Article 323 A, inserted into the Constitution of India by the Constitution (42 nd Amendment) Act, 1976, which enables Parliament to enact law to provide for adjudication and/or trial by Administrative Tribunals of disputes in respect of recruitment and conditions of service of persons in public services and posts inter alia in connection with the Union of India and authorities under its control.Even though the Evidence Act and Civil Procedure Code may not apply to Tribunals constituted in pursuance of Article 323 A of the Constitution, such Tribunals, like ordinary law courts are bound by rules of evidence and procedure as laid down under the law under which the Tribunal is constituted and/or the rules and regulations framed thereunder and are required to determine the lis brought before them strictly in accordance with the law.46. The preamble to the Act states the object of the Act, which is to provide for adjudication or trial by Administrative Tribunals, of disputes and complaints in respect of recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government, in pursuance of Article 323A of the Constitution of India and for the matters connected therewith or incidental thereto.47. The reference by Counsel for the appellant to the Preamble of the Act is of no relevance. The respondent no.1 approached the Tribunal for redressal of his grievances. His case was heard by a Division Bench and a reasoned interim order passed on 18.9.2017. The preamble, which states the aims and objects of the Act is of no assistance to the appellant, as it does not lend support tocontention that the Chairman of the Tribunal sitting singly could have stayed further proceedings before a Division Bench. The reliance placed by Counsel on the Preamble is misconceived.The Chairman of the Tribunal is an entity distinct from the Tribunal and exercises administrative powers and such other powers as are expressly conferred o him under the Act. Section 5(4)(a) of the Act empowers the Chairman to discharge in addition to the functions of the Judicial Member or the Administrative Member, of the Bench to which he is appointed, the functions of the Judicial Member or the Administrative Member of any other Bench.51. Section 5(4)(b) empowers the Chairman to transfer a Member from one Bench to another Bench, and Section 5(4)(c) enables the Chairman to authorize the Judicial Member or the Administrative Member of one Bench to discharge the duties and functions of Judicial Member or Administrative Member, as the case may be, of any other Bench. The Chairman can also constitute Benches of more than two Members having regard to the nature of the cases involved, by issuance of general or special orders.52. Section 5(6) enables the Chairman or any other Member authorized by the Chairman to function as a Single Bench and exercise jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.53. The proviso to Section 5(c) of the Act states that if at any stage of hearing of any such case or matter it appears to the Chairman or the Member functioning singly that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairman, or as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit.54. A perusal of Section 5 indicates that the Chairman is empowered to discharge administrative functions of constituting Benches by transferring a Member from one Bench to another, authorizing the Judicial Member or the Administrative Member appointed to one Bench to discharge the functions of Judicial Member or Administrative Member of another Bench.55. Sub-section (6) of Section 5 empowers the Chairman or any other Member authorized by the Chairman to sit singly to exercise jurisdiction, powers and authority of the Tribunal only in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman might, by general or special orders specify. The aforesaid provision does not enable the Chairman sitting singly to nullify orders passed by a larger Bench.56. Section 24 of the Act limits the power to pass interim order whether by way of injunction, stay or otherwise by imposing conditions on the exercise of such power. No interim order is to be made unless copies of the application along with documents in support of the plea for interim order are furnished to the party against whom such application is made and opportunity to the heard is given to such party.57. The aforesaid condition can only be dispensed with in exceptional cases, if the Tribunal is satisfied, for reasons to be recorded in writing, that it is necessary to pass an interim order for preventing any loss to the applicant which cannot adequately be compensated in money. The interim order, in such case is to be of maximum duration of fourteen days unless the requirements of sub-sections (a) and (b) are complied with, before the expiry of fourteen days and the interim order is extended.58. The power under Section 25 of the Act to transfer cases from one Bench to another is essentially an administrative power of the Chairman of CAT. Such power is to be exercised by the Chairman on his own motion or on the application of any of the parties after notice to the parties, and after hearing such of them as he may desire to be heard. The Chairman may, on his motion, transfer any case pending before one Bench to another without notice.59. A careful reading of Section 25 of the Act makes it clear that the Chairman deciding the question of whether a matter should be transferred from one Bench to another cannot grant interim stay of proceedings, their being no power conferred on the Chairman under the said section to pass such interim stay.60. Power under Section 24 to grant interim orders has been conferred on the Tribunal, and/or in other words, a Bench of the Tribunal in seisin of proceedings in respect of which the Bench is entitled to exercise the jurisdiction and powers of the Tribunal.61. A Tribunal created under the Act as also its Chairman derives its powers from the Act and can only exercise such powers as are conferred by the Act. The Chairman of the Tribunal exercising its power under Section 25 of the Act does not function as a Tribunal. The proposition that the power to grant interim relief must expressly be provided by statute finds support from the judgment of the Supreme Court in Morgan Stanley Mutual Fund vs. Kartick Das(1994) 4 SCC 225 . The Chairman of CAT does not have power under Section 25 to pass any interim order of stay of proceedings pending before a Bench of the Tribunal.62. A careful reading of the provisions of the Act and in particular Sections 14 and 15 thereof in juxtaposition with Article 323A of the Constitution leaves no manner of doubt that an Administrative Tribunal constituted under the Act to give effect to Article 323A of the Constitution exercises all the jurisdiction powers and authority exercisable by all the Courts before commencement of the Act and has all the attributes of a Court of law except that it is not bound by the strict rules of procedure embodied in the Civil Procedure Code or the strict rules of evidence prescribed by the Evidence Act, as observed above. All norms of judicial propriety and judicial discipline apply as much to the Tribunal as to Courts including the High Court.63. A judicial order passed by a Tribunal is binding on all concerned, including the Tribunal itself on its administrative side, unless set aside or modified by a higher forum in exercise of appellate or revisional powers. In no circumstance, can a judicial order of a Bench of the Tribunal be nullified or rendered nugatory by its Chairman.64. In view of Section 12 of the Act, the Chairman of the Tribunal can only exercise financial and administrative powers over the Benches as may be vested under the Rules. The Chairman may thus constitute Benches, shift members from one Bench to another, constitute Single Benches, Division Benches and even larger Benches, allocate business to the Benches and even transfer cases from one Bench to the other, but having done so he cannot interfere with the functioning of the Benches or tinker with its orders by passing interim orders in a transfer petition.65. In any case, judicial decorum and propriety demands that a judicial order, ad interim, interim or final be vacated, varied, modified, recalled or reviewed by a Bench of coordinate strength or larger strength or a higher forum, but not a smaller Bench of lesser strength, except in cases where such authority to a lower forum and/or smaller Bench is expressly conferred or implicit in the order sought to be vacated, varied, modified, recalled or reviewed.It is true that the interim order passed by a Court does not operate as a precedent and the law declared by the Supreme Court with regard to the precedential value of judgments of Benches of larger strength may not operate as a binding precedent in the facts and circumstances of this case. The judgments referred to in the preceding paragraphs lay down the norms of judicial decorum and propriety which giveprecedence to Benches of higher strength. There is no reason at all why the same principles should not apply even to interim orders in pending proceedings.68. An interim order passed by a court, on consideration of the prima facie case made out by an applicant, should ordinarily have been vacated by a Bench of coordinate strength after giving open notice to the applicant. If the Chairman was of the considered opinion that there was urgency in the application for vacating the interim order, the Chairman ought to have assigned the application for vacating and/or vacation of the interim order to a Bench of two or more Members to consider whether the interim order should continue or be vacated. The Chairman could also have exercised his power to suo motu transfer the proceedings to another Bench without prior notice. The order of stay of the proceedings before the Nainital Bench is without jurisdiction and unsustainable in law.69. Neither the judgment of the Constitution Bench of this Court in L. Chandra Kumar (supra) nor the judgment of the Division Bench of this Court in Dr. Mahabal Ram vs. Indian Council of Agricultural Research and Others is an authority for the proposition that the Chairman of CAT, sitting singly to decide on application for transfer under Section 25 of the Act, can stay the proceeding before a two Member Bench or interfere with the orders of a two Member Bench.70. In L. Chandra Kumar (supra), cited on behalf of the appellant, a Constitution Bench of seven Judges of the Supreme Court held that the power of judicial review vested in the High Court under Article 226 and in the Supreme Court under Article 32 of the Constitution was an integral and essential feature of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislations could never be ousted or excluded. The power vested in the High Court to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdictions was also part of the basic structure of the Constitution. Further, in L. Chandra Kumar (supra), this Court upheld the vires of Section 5(6) of the Act observing that Section 5(6) could harmoniously operate with Section 5(2) in view of the proviso to Section 5(6). This Court also held that the Tribunals are even competent to hear matters where vires of statutory provisions are questioned, except where the vires of their parent statute is in question, following the settled principle that a Tribunal which is the creature of a statute cannot declare that very statute to be unconstitutional. In such cases alone, the High Court might be approached directly. However, in discharging the duty of deciding vires of statutory provisions, Tribunals cannot act as substitute for the High Courts and the Supreme Court. Their function is supplementary and all such decision of the Tribunals would be subject to scrutiny before the Division Bench of the respective High Courts.71. In L. Chandra Kumar (supra) this Court held that whenever any question involving the interpretation of a statutory provision or rule in relation to Constitution arose for consideration of a Single Bench of the Administrative Tribunal, the provision to Section 5(6) would automatically apply and the Chairman or the member concerned would be obliged to refer the matter to a Bench consisting of at least two members one of whom must be a judicial member. This would ensure that questions involving vires of statutory provisions or rules would never arise for adjudication before a Single Member Bench or a Bench which does not consist of a judicial member. So construed, Section 5(6) would no longer be susceptible to charges of unconstitutionality and, therefore, valid and constitutional.

### 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: Benches of the Supreme Court and that was the practice also to be followed by the Supreme Court itself. The practice has now crystallized into a rule of law declared by the Supreme Court. A similar view was taken by the Supreme Court in Bharat Petroleum Corporation Ltd. vs. Mumbai Shramik Sangha & Ors. (2001) 4 SCC 448 . A five Judge Constitution Bench of the Supreme Court observed that the decision of a Constitution Bench of the Supreme Court would bind a Bench of two judges of the Supreme Court and that judicial discipline obliged them to follow it, regardless of their doubts about its correctness.67. It is true that the interim order passed by a Court does not operate as a precedent and the law declared by the Supreme Court with regard to the precedential value of judgments of Benches of larger strength may not operate as a binding precedent in the facts and circumstances of this case. The judgments referred to in the preceding paragraphs lay down the norms of judicial decorum and propriety which give precedence to Benches of higher strength. There is no reason at all why the same principles should not apply even to interim orders in pending proceedings.68. An interim order passed by a court, on consideration of the prima facie case made out by an applicant, should ordinarily have been vacated by a Bench of coordinate strength after giving open notice to the applicant. If the Chairman was of the considered opinion that there was urgency in the application for vacating the interim order, the Chairman ought to have assigned the application for vacating and/or vacation of the interim order to a Bench of two or more Members to consider whether the interim order should continue or be vacated. The Chairman could also have exercised his power to suo motu transfer the proceedings to another Bench without prior notice. The order of stay of the proceedings before the Nainital Bench is without jurisdiction and unsustainable in law.69. Neither the judgment of the Constitution Bench of this Court in L. Chandra Kumar (supra) nor the judgment of the Division Bench of this Court in Dr. Mahabal Ram vs. Indian Council of Agricultural Research and Others is an authority for the proposition that the Chairman of CAT, sitting singly to decide on application for transfer under Section 25 of the Act, can stay the proceeding before a two Member Bench or interfere with the orders of a two Member Bench.70. In L. Chandra Kumar (supra), cited on behalf of the appellant, a Constitution Bench of seven Judges of the Supreme Court held that the power of judicial review vested in the High Court under Article 226 and in the Supreme Court under Article 32 of the Constitution was an integral and essential feature of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislations could never be ousted or excluded. The power vested in the High Court to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdictions was also part of the basic structure of the Constitution. Further, in L. Chandra Kumar (supra), this Court upheld the vires of Section 5(6) of the Act observing that Section 5(6) could harmoniously operate with Section 5(2) in view of the proviso to Section 5(6). This Court also held that the Tribunals are even competent to hear matters where vires of statutory provisions are questioned, except where the vires of their parent statute is in question, following the settled principle that a Tribunal which is the creature of a statute cannot declare that very statute to be unconstitutional. In such cases alone, the High Court might be approached directly. However, in discharging the duty of deciding vires of statutory provisions, Tribunals cannot act as substitute for the High Courts and the Supreme Court. Their function is supplementary and all such decision of the Tribunals would be subject to scrutiny before the Division Bench of the respective High Courts.71. In L. Chandra Kumar (supra) this Court held that whenever any question involving the interpretation of a statutory provision or rule in relation to Constitution arose for consideration of a Single Bench of the Administrative Tribunal, the provision to Section 5(6) would automatically apply and the Chairman or the member concerned would be obliged to refer the matter to a Bench consisting of at least two members one of whom must be a judicial member. This would ensure that questions involving vires of statutory provisions or rules would never arise for adjudication before a Single Member Bench or a Bench which does not consist of a judicial member. So construed, Section 5(6) would no longer be susceptible to charges of unconstitutionality and, therefore, valid and constitutional.72. In Dr. Mahabal Ram vs. Indian Council of Agricultural Research and Others (1994) 2 SCC 401 , the Supreme Court held that sub- sections (2) and (6) appearing as limbs of the same Section 5 of the Act, have to be harmoniously construed. While allocating work to a single Member, whether Judicial or Administrative in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law or interpretation of constitutional provisions are involved, they should not be assigned to a single Member. It would be open to either party appearing before the single Member to suggest to that Member hearing the matter that it should go to a Bench of two Members. The Member should ordinarily allow the matter to go to a Bench of two Members when so requested. However, the contention that the single Member contemplated under sub-section (6) had to mean a Judicial Member only, was not accepted. In Dr. Mahabal Ram (supra), the question was whether a Bench consisting of a single Member under Section 5(6) necessarily had to be a Bench comprising of a judicial member. ### Response: 1 ### Explanation: authority exercisable by all the Courts before commencement of the Act and has all the attributes of a Court of law except that it is not bound by the strict rules of procedure embodied in the Civil Procedure Code or the strict rules of evidence prescribed by the Evidence Act, as observed above. All norms of judicial propriety and judicial discipline apply as much to the Tribunal as to Courts including the High Court.63. A judicial order passed by a Tribunal is binding on all concerned, including the Tribunal itself on its administrative side, unless set aside or modified by a higher forum in exercise of appellate or revisional powers. In no circumstance, can a judicial order of a Bench of the Tribunal be nullified or rendered nugatory by its Chairman.64. In view of Section 12 of the Act, the Chairman of the Tribunal can only exercise financial and administrative powers over the Benches as may be vested under the Rules. The Chairman may thus constitute Benches, shift members from one Bench to another, constitute Single Benches, Division Benches and even larger Benches, allocate business to the Benches and even transfer cases from one Bench to the other, but having done so he cannot interfere with the functioning of the Benches or tinker with its orders by passing interim orders in a transfer petition.65. In any case, judicial decorum and propriety demands that a judicial order, ad interim, interim or final be vacated, varied, modified, recalled or reviewed by a Bench of coordinate strength or larger strength or a higher forum, but not a smaller Bench of lesser strength, except in cases where such authority to a lower forum and/or smaller Bench is expressly conferred or implicit in the order sought to be vacated, varied, modified, recalled or reviewed.It is true that the interim order passed by a Court does not operate as a precedent and the law declared by the Supreme Court with regard to the precedential value of judgments of Benches of larger strength may not operate as a binding precedent in the facts and circumstances of this case. The judgments referred to in the preceding paragraphs lay down the norms of judicial decorum and propriety which giveprecedence to Benches of higher strength. There is no reason at all why the same principles should not apply even to interim orders in pending proceedings.68. An interim order passed by a court, on consideration of the prima facie case made out by an applicant, should ordinarily have been vacated by a Bench of coordinate strength after giving open notice to the applicant. If the Chairman was of the considered opinion that there was urgency in the application for vacating the interim order, the Chairman ought to have assigned the application for vacating and/or vacation of the interim order to a Bench of two or more Members to consider whether the interim order should continue or be vacated. The Chairman could also have exercised his power to suo motu transfer the proceedings to another Bench without prior notice. The order of stay of the proceedings before the Nainital Bench is without jurisdiction and unsustainable in law.69. Neither the judgment of the Constitution Bench of this Court in L. Chandra Kumar (supra) nor the judgment of the Division Bench of this Court in Dr. Mahabal Ram vs. Indian Council of Agricultural Research and Others is an authority for the proposition that the Chairman of CAT, sitting singly to decide on application for transfer under Section 25 of the Act, can stay the proceeding before a two Member Bench or interfere with the orders of a two Member Bench.70. In L. Chandra Kumar (supra), cited on behalf of the appellant, a Constitution Bench of seven Judges of the Supreme Court held that the power of judicial review vested in the High Court under Article 226 and in the Supreme Court under Article 32 of the Constitution was an integral and essential feature of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislations could never be ousted or excluded. The power vested in the High Court to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdictions was also part of the basic structure of the Constitution. Further, in L. Chandra Kumar (supra), this Court upheld the vires of Section 5(6) of the Act observing that Section 5(6) could harmoniously operate with Section 5(2) in view of the proviso to Section 5(6). This Court also held that the Tribunals are even competent to hear matters where vires of statutory provisions are questioned, except where the vires of their parent statute is in question, following the settled principle that a Tribunal which is the creature of a statute cannot declare that very statute to be unconstitutional. In such cases alone, the High Court might be approached directly. However, in discharging the duty of deciding vires of statutory provisions, Tribunals cannot act as substitute for the High Courts and the Supreme Court. Their function is supplementary and all such decision of the Tribunals would be subject to scrutiny before the Division Bench of the respective High Courts.71. In L. Chandra Kumar (supra) this Court held that whenever any question involving the interpretation of a statutory provision or rule in relation to Constitution arose for consideration of a Single Bench of the Administrative Tribunal, the provision to Section 5(6) would automatically apply and the Chairman or the member concerned would be obliged to refer the matter to a Bench consisting of at least two members one of whom must be a judicial member. This would ensure that questions involving vires of statutory provisions or rules would never arise for adjudication before a Single Member Bench or a Bench which does not consist of a judicial member. So construed, Section 5(6) would no longer be susceptible to charges of unconstitutionality and, therefore, valid and constitutional.

SHRI KSHETRIMAYUM MAHESHKUMAR SINGH AND ANR Vs. THE MANIPUR UNIVERSITY AND ORS

in CEIs located in the areas subsequently defined as the Specified north eastern region in the Amendment Act. 30. Once the two provisos were inserted in Section 3 of the Parent Act by virtue of the Amendment Act, the general norms of reservation as laid down in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act had to be restricted in terms of the said provisos. While the first proviso deals with State seats, if any, in a CEI situated in tribal areas referred to in the Sixth Schedule to the Constitution, the second proviso addresses a situation where there are no State seats in a CEI and the seats reserved for the SC/ST candidates exceeds the percentage specified under Clauses (i) and (ii) of Section 3 (viz., 15% seats for SCs plus 7.5% for STs, totalling to 22.5% seats) or if the combined seats reserved for the SC and ST candidates exceeds the sum total of the percentage as specified under Clauses (i) and (ii). Two riders have also been dovetailed in the second proviso to Section 3, namely Clauses (a) and (b). Clause (a) of the second proviso, contemplates a situation where seats referred to in the second proviso are less than 50% of the annual permitted strength on the date immediately preceding the date of commencement of the Amendment Act. Clause (b) provides for a situation where such seats are over 50% of the annual permitted strength on the date immediately preceding the date of commencement of the Amendment Act. In a situation contemplated in Clause (a) of the second proviso, a restriction has been imposed on the total percentage of seats required to be reserved for OBC candidates under Section 3(iii) of the Parent Act by limiting them to the balance seats available after factoring in the combined percentage of seats specified in Clauses (i) and (ii) of Section 3 of the Parent Act, falling short of 50% of the annual permitted strength. But in circumstances contemplated in Clause (b), the Act recognizes the fact that no seats need be reserved for the OBC candidates under Clause (iii) of Section 3 of the Parent Act. However, this is subject to the condition that the extent of reservation of seats for SC and ST candidates shall not be reduced when it comes to CEIs established in Specified north eastern region. This goes to demonstrate that the underlying intent of the Amendment Act was to secure a particular percentage of seats through reservation for a set of candidates and leave some space for capping of seats for OBC candidates, depending on the circumstances contemplated in Clauses (a) and (b) of the second proviso to the amended Section 3. 31. In the instant case, the respondent No.1 – University has clarified in its affidavit that prior to commencement of the Reservation Act, the prevalent percentage of reservation for ST and SC candidates was 31% and 2% respectively. Nothing to the contrary has been brought forth by the appellant. That being the position, we are in complete agreement with the findings returned in the impugned judgment that the respondent No. 1 – University was right in reverting back to the position obtaining immediately before the commencement of the Reservation Act by reserving seats in respect of ST, SC and OBC candidates, pegged at 31%, 2% and 17% respectively which was in consonance with the Manipur State Reservation Policy. 32. The submission made by learned counsel for the appellants that the respondent No. 1 – University was under a mandate to follow the norms provided under Clauses (i) and (ii) of Section 3 of the Parent Act while giving a complete go by to the provisos inserted in the said provision by virtue of the Amendment Act which, as per the learned counsel, could be applied only to determine the percentage of seats required to be reserved for OBC candidates, is devoid of merits and turned down. To our mind, the learned Single Judge is perfectly right in making the observation that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3, ought to be gathered from the same source and any other interpretation would lead to uncertainty. 33. To put it differently, the reference point of the period for determining the reservation quota for OBC candidates must be the same as that of the SC and ST candidates for the simple reason that for working out the reservation quota for OBC candidates would necessarily require one to find out in the first instance, as to what would be the difference between 50% of the annual permitted strength and the combined existing percentage for the SC and ST candidates, as obtained on the date immediately preceding the date of commencement of the Reservation Act. Both the issues are so interlaced that to determine the percentage of reservation for OBC candidates, one would have to undertake an exercise of determining the percentage of seats to be reserved for SC and ST candidates, all within the four corners of the second proviso inserted in Section 3 of the Parent Act. Any other interpretation sought to be assigned to the second proviso to Section 3 inserted post-amendment, would make the proviso itself unworkable and redundant and is, therefore, impermissible. Thus, we make it clear that the general rules of reservation have been encapsulated in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act. But when it comes to CEIs established in States falling under the definition of Specified north eastern region, categorized in Section 2(ia) introduced by the Amendment Act, the two new provisos appended to Section 3 would govern the norms of reservation which prescribes a different criteria, vis-à-vis the main provision and would apply irrespective of whether they are situated in areas covered by the Sixth Schedule to the Constitution or not.

0[ds]24. It is noteworthy that the Division Bench of the High Court of Meghalaya did discuss the 234th Report at page 24 of the judgment dated 20th April, 2017, in the context of the reasons offered by the learned Single Judge in the earlier judgment dated 1st September, 2015 wherein it was held that by an inference drawn from the said Report, one could determine the percentage of reservation for SC and ST candidates for purposes of applying the second proviso inserted in Section 3 of the Parent Act post- amendment, but the appellate court was not persuaded by the said logic.25. It is no longer res integra that Reports and recommendations made by the Parliamentary Committees/Commissions that precede enactment of a Statute can be used as external aids to interpret the meaning of ambiguous words in a statutory provision wherever considered necessary. It can also be taken note of as to the existence of a historical fact. At the same time, it must be borne in mind that such Reports are not decisive and a Court is free to arrive at a different conclusion based on its own findings and other evidence produced by the parties. [Refer State of Mysore v. R.V. Bidap (1974) 3 SCC 337, R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183 and Kalpana Mehta and Others. v. Union of India and Others (2018) 7 SCC 1] . For our purpose, we do not intend to take notice of the said Report with an idea of determining the extent of reservation for SC and ST candidates in the light of the amendment by way of insertion to Section 3 of the Parent Act. However, the said Report can be treated as a useful tool to fathom the background in which the Amendment Act was introduced and throw light on what had weighed with the legislating authorities in proposing the amendments to the Reservation Act.27. In the aforesaid backdrop, learned counsel for the appellants cannot be heard to state that the amendments brought about in the Reservation Act by legislating the Amendment Act were only directed towards tribal States covered by the Sixth Schedule to the Constitution and cannot be made applicable to the State of Manipur, even though the definition of the expression Specified north eastern region introduced by virtue of the amended Section 2(ia) encompasses the State of Manipur. Nor is this Court persuaded by the submission made on behalf of the appellants that the second proviso was inserted in Section 3 only to make sure that the percentage of reservation provided for in Section 3(i) and (ii) of the Parent Act would remain untouched. Accepting such a submission would tantamount to negating the very aim and object of the Amendment Act, which was enacted only to resolve the difficulties that were being faced by the CEIs in implementing the Reservation Act when it came to the North Eastern States, including the State of Manipur. The two provisos inserted in Section 3 of the Parent Act are nothing but a recognition of the demography of the North Eastern States covered under the umbrella of Specified north eastern region which have a substantial tribal population.28. It is in the light of the aforesaid factors that it has been held in the impugned judgment that the respondent No. 1 – University was correct in calculating the extent of reservation of seats in making admissions to different courses, viz., 31% for ST candidates, 2% for SC candidates and 17% for OBC candidates which is in line with the mandate of the Amendment Act.29. It can be understood from the aforesaid averments made in the affidavit that on the date immediately preceding the date of commencement of the Reservation Act, the respondent No. 1 – University had been reserving 2% seats for SC and 31% for ST candidates for purposes of admission.It has been strenuously argued by learned counsel for the appellants that the meaning ascribed to the words date immediately preceding the date of commencement of the 2006 Act, used in Clause (a) of the second proviso to Section 3 should be taken to mean the date just before enactment of the Amendment Act, i.e., a roll back to the situation as was prevalent when the Reservation Act had come into force viz. 15% for SCs, 7.5% for STs and 27% for OBC candidates.In our opinion, any such interpretation would strike at the root of the Amendment Act which was legislated with the sole object of overcoming the ambiguities that had come to the fore on working out the warp and woof of the Reservation Act, namely, the inability to meet the aspirations of a large number of ST candidates looking for opportunities to gain entry in CEIs located in the areas subsequently defined as the Specified north eastern region in the Amendment Act.31. In the instant case, the respondent No.1 – University has clarified in its affidavit that prior to commencement of the Reservation Act, the prevalent percentage of reservation for ST and SC candidates was 31% and 2% respectively. Nothing to the contrary has been brought forth by the appellant. That being the position, we are in complete agreement with the findings returned in the impugned judgment that the respondent No. 1 – University was right in reverting back to the position obtaining immediately before the commencement of the Reservation Act by reserving seats in respect of ST, SC and OBC candidates, pegged at 31%, 2% and 17% respectively which was in consonance with the Manipur State Reservation Policy.32. The submission made by learned counsel for the appellants that the respondent No. 1 – University was under a mandate to follow the norms provided under Clauses (i) and (ii) of Section 3 of the Parent Act while giving a complete go by to the provisos inserted in the said provision by virtue of the Amendment Act which, as per the learned counsel, could be applied only to determine the percentage of seats required to be reserved for OBC candidates, is devoid of merits and turned down. To our mind, the learned Single Judge is perfectly right in making the observation that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3, ought to be gathered from the same source and any other interpretation would lead to uncertainty.33. To put it differently, the reference point of the period for determining the reservation quota for OBC candidates must be the same as that of the SC and ST candidates for the simple reason that for working out the reservation quota for OBC candidates would necessarily require one to find out in the first instance, as to what would be the difference between 50% of the annual permitted strength and the combined existing percentage for the SC and ST candidates, as obtained on the date immediately preceding the date of commencement of the Reservation Act. Both the issues are so interlaced that to determine the percentage of reservation for OBC candidates, one would have to undertake an exercise of determining the percentage of seats to be reserved for SC and ST candidates, all within the four corners of the second proviso inserted in Section 3 of the Parent Act. Any other interpretation sought to be assigned to the second proviso to Section 3 inserted post-amendment, would make the proviso itself unworkable and redundant and is, therefore, impermissible. Thus, we make it clear that the general rules of reservation have been encapsulated in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act. But when it comes to CEIs established in States falling under the definition of Specified north eastern region, categorized in Section 2(ia) introduced by the Amendment Act, the two new provisos appended to Section 3 would govern the norms of reservation which prescribes a different criteria, vis-à-vis the main provision and would apply irrespective of whether they are situated in areas covered by the Sixth Schedule to the Constitution or not.

### 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: in CEIs located in the areas subsequently defined as the Specified north eastern region in the Amendment Act. 30. Once the two provisos were inserted in Section 3 of the Parent Act by virtue of the Amendment Act, the general norms of reservation as laid down in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act had to be restricted in terms of the said provisos. While the first proviso deals with State seats, if any, in a CEI situated in tribal areas referred to in the Sixth Schedule to the Constitution, the second proviso addresses a situation where there are no State seats in a CEI and the seats reserved for the SC/ST candidates exceeds the percentage specified under Clauses (i) and (ii) of Section 3 (viz., 15% seats for SCs plus 7.5% for STs, totalling to 22.5% seats) or if the combined seats reserved for the SC and ST candidates exceeds the sum total of the percentage as specified under Clauses (i) and (ii). Two riders have also been dovetailed in the second proviso to Section 3, namely Clauses (a) and (b). Clause (a) of the second proviso, contemplates a situation where seats referred to in the second proviso are less than 50% of the annual permitted strength on the date immediately preceding the date of commencement of the Amendment Act. Clause (b) provides for a situation where such seats are over 50% of the annual permitted strength on the date immediately preceding the date of commencement of the Amendment Act. In a situation contemplated in Clause (a) of the second proviso, a restriction has been imposed on the total percentage of seats required to be reserved for OBC candidates under Section 3(iii) of the Parent Act by limiting them to the balance seats available after factoring in the combined percentage of seats specified in Clauses (i) and (ii) of Section 3 of the Parent Act, falling short of 50% of the annual permitted strength. But in circumstances contemplated in Clause (b), the Act recognizes the fact that no seats need be reserved for the OBC candidates under Clause (iii) of Section 3 of the Parent Act. However, this is subject to the condition that the extent of reservation of seats for SC and ST candidates shall not be reduced when it comes to CEIs established in Specified north eastern region. This goes to demonstrate that the underlying intent of the Amendment Act was to secure a particular percentage of seats through reservation for a set of candidates and leave some space for capping of seats for OBC candidates, depending on the circumstances contemplated in Clauses (a) and (b) of the second proviso to the amended Section 3. 31. In the instant case, the respondent No.1 – University has clarified in its affidavit that prior to commencement of the Reservation Act, the prevalent percentage of reservation for ST and SC candidates was 31% and 2% respectively. Nothing to the contrary has been brought forth by the appellant. That being the position, we are in complete agreement with the findings returned in the impugned judgment that the respondent No. 1 – University was right in reverting back to the position obtaining immediately before the commencement of the Reservation Act by reserving seats in respect of ST, SC and OBC candidates, pegged at 31%, 2% and 17% respectively which was in consonance with the Manipur State Reservation Policy. 32. The submission made by learned counsel for the appellants that the respondent No. 1 – University was under a mandate to follow the norms provided under Clauses (i) and (ii) of Section 3 of the Parent Act while giving a complete go by to the provisos inserted in the said provision by virtue of the Amendment Act which, as per the learned counsel, could be applied only to determine the percentage of seats required to be reserved for OBC candidates, is devoid of merits and turned down. To our mind, the learned Single Judge is perfectly right in making the observation that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3, ought to be gathered from the same source and any other interpretation would lead to uncertainty. 33. To put it differently, the reference point of the period for determining the reservation quota for OBC candidates must be the same as that of the SC and ST candidates for the simple reason that for working out the reservation quota for OBC candidates would necessarily require one to find out in the first instance, as to what would be the difference between 50% of the annual permitted strength and the combined existing percentage for the SC and ST candidates, as obtained on the date immediately preceding the date of commencement of the Reservation Act. Both the issues are so interlaced that to determine the percentage of reservation for OBC candidates, one would have to undertake an exercise of determining the percentage of seats to be reserved for SC and ST candidates, all within the four corners of the second proviso inserted in Section 3 of the Parent Act. Any other interpretation sought to be assigned to the second proviso to Section 3 inserted post-amendment, would make the proviso itself unworkable and redundant and is, therefore, impermissible. Thus, we make it clear that the general rules of reservation have been encapsulated in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act. But when it comes to CEIs established in States falling under the definition of Specified north eastern region, categorized in Section 2(ia) introduced by the Amendment Act, the two new provisos appended to Section 3 would govern the norms of reservation which prescribes a different criteria, vis-à-vis the main provision and would apply irrespective of whether they are situated in areas covered by the Sixth Schedule to the Constitution or not. ### Response: 0 ### Explanation: tribal States covered by the Sixth Schedule to the Constitution and cannot be made applicable to the State of Manipur, even though the definition of the expression Specified north eastern region introduced by virtue of the amended Section 2(ia) encompasses the State of Manipur. Nor is this Court persuaded by the submission made on behalf of the appellants that the second proviso was inserted in Section 3 only to make sure that the percentage of reservation provided for in Section 3(i) and (ii) of the Parent Act would remain untouched. Accepting such a submission would tantamount to negating the very aim and object of the Amendment Act, which was enacted only to resolve the difficulties that were being faced by the CEIs in implementing the Reservation Act when it came to the North Eastern States, including the State of Manipur. The two provisos inserted in Section 3 of the Parent Act are nothing but a recognition of the demography of the North Eastern States covered under the umbrella of Specified north eastern region which have a substantial tribal population.28. It is in the light of the aforesaid factors that it has been held in the impugned judgment that the respondent No. 1 – University was correct in calculating the extent of reservation of seats in making admissions to different courses, viz., 31% for ST candidates, 2% for SC candidates and 17% for OBC candidates which is in line with the mandate of the Amendment Act.29. It can be understood from the aforesaid averments made in the affidavit that on the date immediately preceding the date of commencement of the Reservation Act, the respondent No. 1 – University had been reserving 2% seats for SC and 31% for ST candidates for purposes of admission.It has been strenuously argued by learned counsel for the appellants that the meaning ascribed to the words date immediately preceding the date of commencement of the 2006 Act, used in Clause (a) of the second proviso to Section 3 should be taken to mean the date just before enactment of the Amendment Act, i.e., a roll back to the situation as was prevalent when the Reservation Act had come into force viz. 15% for SCs, 7.5% for STs and 27% for OBC candidates.In our opinion, any such interpretation would strike at the root of the Amendment Act which was legislated with the sole object of overcoming the ambiguities that had come to the fore on working out the warp and woof of the Reservation Act, namely, the inability to meet the aspirations of a large number of ST candidates looking for opportunities to gain entry in CEIs located in the areas subsequently defined as the Specified north eastern region in the Amendment Act.31. In the instant case, the respondent No.1 – University has clarified in its affidavit that prior to commencement of the Reservation Act, the prevalent percentage of reservation for ST and SC candidates was 31% and 2% respectively. Nothing to the contrary has been brought forth by the appellant. That being the position, we are in complete agreement with the findings returned in the impugned judgment that the respondent No. 1 – University was right in reverting back to the position obtaining immediately before the commencement of the Reservation Act by reserving seats in respect of ST, SC and OBC candidates, pegged at 31%, 2% and 17% respectively which was in consonance with the Manipur State Reservation Policy.32. The submission made by learned counsel for the appellants that the respondent No. 1 – University was under a mandate to follow the norms provided under Clauses (i) and (ii) of Section 3 of the Parent Act while giving a complete go by to the provisos inserted in the said provision by virtue of the Amendment Act which, as per the learned counsel, could be applied only to determine the percentage of seats required to be reserved for OBC candidates, is devoid of merits and turned down. To our mind, the learned Single Judge is perfectly right in making the observation that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3, ought to be gathered from the same source and any other interpretation would lead to uncertainty.33. To put it differently, the reference point of the period for determining the reservation quota for OBC candidates must be the same as that of the SC and ST candidates for the simple reason that for working out the reservation quota for OBC candidates would necessarily require one to find out in the first instance, as to what would be the difference between 50% of the annual permitted strength and the combined existing percentage for the SC and ST candidates, as obtained on the date immediately preceding the date of commencement of the Reservation Act. Both the issues are so interlaced that to determine the percentage of reservation for OBC candidates, one would have to undertake an exercise of determining the percentage of seats to be reserved for SC and ST candidates, all within the four corners of the second proviso inserted in Section 3 of the Parent Act. Any other interpretation sought to be assigned to the second proviso to Section 3 inserted post-amendment, would make the proviso itself unworkable and redundant and is, therefore, impermissible. Thus, we make it clear that the general rules of reservation have been encapsulated in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act. But when it comes to CEIs established in States falling under the definition of Specified north eastern region, categorized in Section 2(ia) introduced by the Amendment Act, the two new provisos appended to Section 3 would govern the norms of reservation which prescribes a different criteria, vis-à-vis the main provision and would apply irrespective of whether they are situated in areas covered by the Sixth Schedule to the Constitution or not.

Mahatma Education Society'S Pillai'S Institute Of Information Technology, Engineering , Media Studi Vs. All India Council For Technical Education

Anil R. Dave, J. Rule. 2. Looking at the urgency in the matter, at the request of the learned counsel appearing for the parties, the petition has been finally heard.3. The short question involved in this petition is with regard to grant of approval to educational institutions run by the petitioner society. The petitioner is a Trust registered under the provisions of the Bombay Public Trust Act, 1950 and is having four educational institutions, mainly imparting studies in the field of engineering to the students.4. The issue involved is with regard to approval to the institutions for the academic year 2014-15. At the time of usual inspection, it was found that the petitioner was not having land as per the provisions of the All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2012 (hereinafter referred to as "the Regulations"). According to Regulation 6 of the Regulations, the petitioner was supposed to have certain land with lawful possession and clear title in the name of the petitioner society. The relevant portion of the Regulation reads as under:- "6. Requirement of land The promoter society/trust/company established under Section 25 of the Companies Act, 1956 of a new Technical Education Institution shall have the land as required and prescribed in its lawful possession with clear title in the name of promoter society/trust/company established under Section 25 of the Company Act, 1956 on or before the date of submission of application. Provided that it shall be open for the promoter society/trust/company established under Section 25 of the Companies Act, 1956 proposed Institution to mortgage the land only after the receipt of letter of approval, only for raising the resources for the purpose of development of the Technical Education Institute situated on that land." 5. As it was found that the petitioner was not having land as per the requirements of the Regulation, the approval granted to the institutions managed by the petitioner for the last 15 years had been denied for the academic year 2014-15. 6. It is not in dispute that approximately 550 students are prosecuting studies in the Engineering College at present and because of non-approval to the institutions run by the petitioner, academic career of the students would be ruined.7. As the approval had not been granted, the petitioner had filed Writ Petition No.6021 of 2014 in the High Court of Judicature at Bombay and by an interim order, the High Court was pleased to grant limited interim relief, whereby the petitioner was permitted to give admission to students.8. Ultimately, by an order dated 27th August, 2014, the High Court disposed of the petition with an observation that it was open to respondent no.1 Council to take appropriate action in the matter of approval to the institutions run by the petitioner. The Council had expressed its inability to grant approval to the institutions run by the petitioner for the academic year 2014-15 as the aforestated provision of the Regulation had not been complied with. 9. We have heard the learned counsel for the parties. It is not in dispute that the petitioner society has been imparting education to students through its colleges for the last 15 years. If approval is not granted, the students, who have already been admitted by an interim order of the High Court for the academic year 2014-15, would be put to great inconvenience and difficulties for no fault on their part. In the circumstances, as an exceptional case, without going into the merits of this case, we exercise our power under Article 142 of the Constitution of India and direct respondent no.1 to grant a letter of approval to the concerned colleges managed by the petitioner for the academic year 2014-15. For the subsequent academic year, we are sure that the petitioner shall do the needful to comply with the requirements of the aforestated Regulation and other Regulations.10. As and when an application for approval for academic year 2015-2016 is sought for by the petitioner, the respondent authorities shall consider the application and shall decide in accordance with law.

1[ds]It is not in dispute that the petitioner society has been imparting education to students through its colleges for the last 15 years. If approval is not granted, the students, who have already been admitted by an interim order of the High Court for the academic yearwould be put to great inconvenience and difficulties for no fault on their part. In the circumstances, as an exceptional case, without going into the merits of this case, we exercise our power under Article 142 of the Constitution of India and direct respondent no.1 to grant a letter of approval to the concerned colleges managed by the petitioner for the academic yearthe subsequent academic year, we are sure that the petitioner shall do the needful to comply with the requirements of the aforestated Regulation and other Regulations.10. As and when an application for approval for academic yearis sought for by the petitioner, the respondent authorities shall consider the application and shall decide in accordance with law.

### 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: Anil R. Dave, J. Rule. 2. Looking at the urgency in the matter, at the request of the learned counsel appearing for the parties, the petition has been finally heard.3. The short question involved in this petition is with regard to grant of approval to educational institutions run by the petitioner society. The petitioner is a Trust registered under the provisions of the Bombay Public Trust Act, 1950 and is having four educational institutions, mainly imparting studies in the field of engineering to the students.4. The issue involved is with regard to approval to the institutions for the academic year 2014-15. At the time of usual inspection, it was found that the petitioner was not having land as per the provisions of the All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2012 (hereinafter referred to as "the Regulations"). According to Regulation 6 of the Regulations, the petitioner was supposed to have certain land with lawful possession and clear title in the name of the petitioner society. The relevant portion of the Regulation reads as under:- "6. Requirement of land The promoter society/trust/company established under Section 25 of the Companies Act, 1956 of a new Technical Education Institution shall have the land as required and prescribed in its lawful possession with clear title in the name of promoter society/trust/company established under Section 25 of the Company Act, 1956 on or before the date of submission of application. Provided that it shall be open for the promoter society/trust/company established under Section 25 of the Companies Act, 1956 proposed Institution to mortgage the land only after the receipt of letter of approval, only for raising the resources for the purpose of development of the Technical Education Institute situated on that land." 5. As it was found that the petitioner was not having land as per the requirements of the Regulation, the approval granted to the institutions managed by the petitioner for the last 15 years had been denied for the academic year 2014-15. 6. It is not in dispute that approximately 550 students are prosecuting studies in the Engineering College at present and because of non-approval to the institutions run by the petitioner, academic career of the students would be ruined.7. As the approval had not been granted, the petitioner had filed Writ Petition No.6021 of 2014 in the High Court of Judicature at Bombay and by an interim order, the High Court was pleased to grant limited interim relief, whereby the petitioner was permitted to give admission to students.8. Ultimately, by an order dated 27th August, 2014, the High Court disposed of the petition with an observation that it was open to respondent no.1 Council to take appropriate action in the matter of approval to the institutions run by the petitioner. The Council had expressed its inability to grant approval to the institutions run by the petitioner for the academic year 2014-15 as the aforestated provision of the Regulation had not been complied with. 9. We have heard the learned counsel for the parties. It is not in dispute that the petitioner society has been imparting education to students through its colleges for the last 15 years. If approval is not granted, the students, who have already been admitted by an interim order of the High Court for the academic year 2014-15, would be put to great inconvenience and difficulties for no fault on their part. In the circumstances, as an exceptional case, without going into the merits of this case, we exercise our power under Article 142 of the Constitution of India and direct respondent no.1 to grant a letter of approval to the concerned colleges managed by the petitioner for the academic year 2014-15. For the subsequent academic year, we are sure that the petitioner shall do the needful to comply with the requirements of the aforestated Regulation and other Regulations.10. As and when an application for approval for academic year 2015-2016 is sought for by the petitioner, the respondent authorities shall consider the application and shall decide in accordance with law. ### Response: 1 ### Explanation: It is not in dispute that the petitioner society has been imparting education to students through its colleges for the last 15 years. If approval is not granted, the students, who have already been admitted by an interim order of the High Court for the academic yearwould be put to great inconvenience and difficulties for no fault on their part. In the circumstances, as an exceptional case, without going into the merits of this case, we exercise our power under Article 142 of the Constitution of India and direct respondent no.1 to grant a letter of approval to the concerned colleges managed by the petitioner for the academic yearthe subsequent academic year, we are sure that the petitioner shall do the needful to comply with the requirements of the aforestated Regulation and other Regulations.10. As and when an application for approval for academic yearis sought for by the petitioner, the respondent authorities shall consider the application and shall decide in accordance with law.

Baleshwar Dass and Others Etc Vs. State of Uttar Pradesh and Others Etc

touchstone of seniority as that will be indefensible:Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.In Chauhans case this Court observed:"Seniority, normally, is measured by length of continuous officiating service-the actual is easily accepted as the legal."39. Of course, an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim. Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term. We must make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head temporary for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporary post.40. What, in the context, is a substantive capacity vis-a-vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is t o a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.41. Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it i s not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, c an it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations.42. We take the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so. the various. groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.43.

1[ds]So, the order of appointment to the Service is decisive of seniority and the service horoscope of each Assistant Engineer has to be cast with reference to his appointmentnext question then, is, when is an engineer appointed to the Service? When, under the Rules, he becomes a member of the Service. For. until he gains entry into the Service he cannot claim to be appointed to it. To hover around with prospects of entry is not the same as actual entry. Therefore, we have to examine when an engineer becomes a member of the Service under the Rules. Clause (b) of Rule 3 defines Member of the Service to mean a government servants appointed in a substantive capacity under the provisions of these rules.. to a post in the cadre Of the Service. What, then, is the cadre of the Service? What do we mean by appointment in a substantive capacity to a post in the cadre? Can there be a temporary post included in the cadre? Here, r. 1 becomes relevant. Rule 4 prescribes the sanctioned strength of the cadre. It provides that the government may, subject to the provisions of r. 40 of the Civil Services (Classification. Control an d Appeal) Rules, 1930 increase the cadre by creating permanent or temporary posts from time to time as may be found necessary. So a cadre post can be permanent or temporary and if an engineer were appointed substantively to a temporary or permanent post he becomes a member of the Service. The touchstone then, is the substantive capacity of the appointment. Here we get into service jargon with slippery semantics and flavouredvital factors must guide us in this interpretative exercise. If a dated rule of colonial times is to be appliedthat meaning which sustains it as constitutionally valid must be preferred to another which may be appealing, going by officialese or literal sense. We have to regard it as a case of new wine in old bottle. We mustthe rules to comport with Arts. 14 and 16 by constitutionally acceptable construction, not rigid connotation given to expressions in the vintage vocabulary of British Indian days. We Stress this aspect because the argument urged is one of unconstitutionality of the Seniority List and of the Rules which deprive many engineers appointed in the normal course and serving for long years arbitrarily and unreasonably of the credit of such service merely because the literal rigour of old Rules requires it. We must strive to salvage the Rules, if need be, by assigning a fresh sense, language permitting, which will fit the Rules into the "fundamental rights " mould. We are thus thrown into the meaning of meanings, released from officially sanctified meanings. In short, while reading the Rules we must remember the Constitution.,Secondly, words themselves are but them skins of thought an d once we get that, the root though which the language of the rules seeks to express, it is possible to interpret the words accordingly. Even so, we cannot run away from the Rules as they are, thoughby time and by tinkeringof the principal groups in this forensic battle is the direct recruits selected by competitive tests by the Public Service Commission. So we must bestow some attention on their genesis and position in the total scheme. We reject the submission that the official Memorandum incorporating these Rules, not being expressed to have been issued in the name of the Governor, is of no legal validity. We cannot bastardize these Rules made and published under Government authority, acted upon f or two decades and recruitments made by the Public Service Commission and universally accepted as binding Rules Regulating Selection for Recruitment of Assistant Engineers (U. P. Service of Engineers class II) in the Various State Engineering Services in Uttar Pradesh. We will set out some parts of these Rules of December 7,may, at this point, crystallise the effect of the Rules read A so far, so that it may serve as a spring board for further discussion. The battle between the parties or groups very much turns on what is the intent and effect of Rules 23, 3, 4, S, 6, 17 and 18 and their impact on r.23 read in the new context of this 1961 Rules. We have to grapple with the crucial question of seniority which, w hen we hark back to r.23, in turn, revolves round the "date of the order of appointment". The effect of probation and confirmation is also another consideration. But r.23 sets out the guideline and the entire endeavour of both sides has been to supply an answer which gives one group a superior position as against another in the competition for seniority which apparently has promotional value when posts of Executive Engineers fall vacantWe must confess that because of the absence of a coherent policy of recruitment and conditions of service and on account of frequent changes through executive instructions, apart from the mystique of officialese, it has become difficult for us to rationalise the rules and decode the principles underlying regular appointments relevant to seniority. Even in court, as the argument proceeded. judges and advocates had to wrestle with the rules to extract a coherent system out of them. The High Court, on both the occasions, w hen challenges were made, quashed the seniority lists and directed fresh lists to be prepared. But in the absence of clear judicial guidelines the exercise by the Executive would lead to further confusion and cavil and that is why we express our dismay at the whole situation where from stage to stage, chaos, not cosmos, has been thecandidates selected on the results of competitive examination and appointed against permanent vacancies shall be placed on probation for a period of 3 years. However, in the case of such directly recruited candidates who have served as Assistant Engineers in a particular department in temporary capacity, continuous period of temporary service rendered as Assistant Engineer immediately before selection for permanent post of Assistant Engineer may be allowed to count towards this period of probation.The candidates will not be required to possess one years practical experience, prescribed in the existing rules for recruitment of Assistant Engineers as aqualification for recruitment of Assistant Engineer in the various departments. The period of practical experience will be covered by the period ofthe probationary period candidates will be required to pass the Departmental Examination prescribed by the various departments. Probationers may be confirmed subject to passing these examinations and their work continuing to beand officiating Assistant Engineers possessing the requisite technical qualifications will be eligible to appear in the competitive examination. The maximum age limit in the case of those working in the department with the approval of the Commission or after having been recruited by the Commission will be 40and the syllabus of the competitive examination will be as shown in Appendix A enclosed with theseis more of this maze of rules and notifications but we desist from bringing t hem on record since they have not much bearing on the ultimate result. We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, f or certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtuallyIt is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Courts pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorise and do not admit of any ambiguity and cruelly arbitraryof long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types ofrules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 andthere are to be direct recruits through open competition held by the Public Service Commission. 50% of the posts will go to them although it is stated that the vacancies are to be "in that permanent cadre". Secondly, the subordinate services will get 20% by promotion and thirdly, 30% will belong to the temporary Assistant Engineers recruited through the Public Service Commission in the past. The office Memorandum makes it clear that direct recruitments will be made to "both permanent and temporary vacancies of Assistant Engineers". But this scheme of 1961 cannot stand in isolation and has to be read as subordinate to the 1936 Rules. After all, the 1961 Memorandum cannot override the Rules which are valid under Art. 313, and so must be treated as filling the gaps, not flouting the provisions. So, read, what is the eventualare inclined to proceed on that footing because, after that decision was rendered, Government accepted it and went through the exercise of preparing a fresh seniority list and all the engineers concerned acquiesced in the decision and never raised any objection to the fresh preparation of a seniority list consequent upon the High Courts decision of 1967. That, by itself, does not give us any conclusive answer to the present question which has been agitated before us. First of all, we must understand the two grievances brought to our notice by the appellant and the writwas nothing more by way of impediment in their appointments being treated as regular. They were Assistant Engineers duly qualified. Their appointments might have been temporary, but temporary posts and temporary appointments are within the Rules. The Public Service Commission has since been consulted and has concurred and Government has accepted it. Every indicium of regular appointment is thus present. There is nothing relied on by the rivals to dislodge the reckoning of service for purposes of seniority from then on except the sole contention that the temporary Assistant Engineers are not members of the Service because their appointment is not in substantive capacity and not a permanentare free to confess that the rules, stricking divergent notes, likecymbals, have vexed us a while. The touchstone of valid interpretation being the Constitution and harmonisation of rules with fundamental rights being the proper path we have tried to sensitize the provisions to do equal justice under the la w refusing to petrify r. 23 or the other relevant rules we have referred to Rule 4 of the 1936 Rules clearly contemplates a cadre, as covering "permanent or temporary posts". So, a cadre takes in temporary posts. Once we cease to be allergic to temporary posts as a component of a cadre we reach the next step that a cadre is, as it were, a layer in the Service. Rule 4 itself, while dealing with the strength of the cadre, speaks of a holder of a post in a cadre as a member of the Service may be the holder of a temporary or a permanenthave two, perhaps three, types of direct recruits. The first is the vanishing species of Roorkee University engineer students. They were directly appointed but on a temporary footing. Massive appointments were made of otheras Assistant Engineers on a temporary footing to meet the massive developmental requirements. No one can imagine that the guaranteed posts to the brilliant Roorkee boys was temporary only or that the large number of graduates were being lured into employment forengineering requirements on a fleeting footing for a few months. Surely, Government wanted to recruit them on a regular basis but hesitated to appoint them to permanent posts as such because budgetary provisions, creation of permanent posts by assessment of the total requirements and the like were not instant jobs but needed more time. The Plan was to take these degree holders on a regular lasting basis but to make them permanent after study of the situation. Permanency carries with it other rights than mere seniority and promotion. Permanent posts and temporary posts are, in ordinary officialese, sharply different but in the historical context of the evolving U.P. Service of Engineers thin partition do their bounds divide. The recruitment of even temporary engineers under source (iii) of r. 5 requires consultation with the Public Service Commission. Likewise r. 14 requires for all the three types of direct recruits, temporary included, physical fitness tests.No person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. Before a candidate is finally approved for appointment to the service under the provisions of rules 5(i), 5(ii) or 5(ii i) he shall be required to pass an examination by a Medical Board at his own expenses and shall pay a fee of Rs. 16 for such examination.Probation, tests and confirmation are laid down under rr. 17 to 19 for "all persons appointed to the service". We delve into these details to drive home the propinquity in status of permanent and temporary engineers in the special conspectus of factssee no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity. In Service terminology, perhaps,may be raised when we say so, but then, we must remember that the State itself in its counteraffidavit has construed r. 17 of the Rules as providing "that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years). This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officer s are not put on probation unless they are on their way to membership in the Service on completion of probation. That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Service. It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity. The only advantage for permanent appointees, i.e. Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of officialare not interested in the arithmatics given in the affidavits andregarding the permanent vacancies in the various categories designated as A, B and C. What we focus on is the set of principles which must regulate the service available for computation of seniority. In paragraph 22 of the States counter affidavit the breakup of the vacancies available in the various years to the various categories has been set out. Their accuracy has not been shown to be wrong and we may, perhaps, proceed on the correctness of those figures. It is also made clear by the State that many officers belonging to the class of temporary Assistant Engineers were direct ly recruited before October 1958 and some of them were promoted as temporally Assistant Engineers from the Subordinate Engineers Service. "These officers had been approved for temporary appointment by the Public Service Commission before 1958". Likewise, for the other years, particulars have been furnished. The Government has also clearly undertaken that the competitive seniority as between direct recruits and the temporary appointees who have been regularised may have to be taken up laterdo not consider it right or necessary to fix the senioritythe date of appointment of the various parties, as that is the administrative function of Government. Nor do we think we should interfere with the order of the High Court setting aside the seniority list of 1969. A fresh list has anyway to be prepared but the more meaningful judicial exercise is to lay down the correct principles and guidelines, free from discriminatory infirmities and fairly in keeping with the extant Service Rules. The Rules are, we make it clear, those made in 1936 under the Government of India Act, 1919 and continued by force of Art. 313 of the Constitution. Changes wrought by orders and instructions such as the 196 1 Memorandum cannotoverride the Rulesthemselves but will operate subject to them in case of inconsistency. Even an Administration of Inaction Unlimited must remember that a systematic set of Service Rules is vital not only in fulfillment of its constitutional obligation under the proviso to Art. 309 but also to keep the morale and to promote contentment among the Civil Services by eliminating the inglorious uncertainties about career prospects which cut at the root of planned living. So we hope that, what with two expert committee reports slumbering in the Secretariat cells, Government will frame rules, tuned to the finer notes of Art. 16 and other mandates and in consonance with the realities obtaining in this and sister services, after hearing affected sides as a stroke ofand without beingfor long. We hold that r. 23 is the relevant mariners compass when a question of seniority arises. Deducing therefrom we get the further guideline that the order of appointment in a substantive capacity is the significant starting point for reckoningcapacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Art. 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of anature, there is not much to distinguish the quality of service as between the two. Patwardhans case and Chauhans case have primarily or in passing clarified the equal value of officiatingfact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IVmust make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head temporary for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporaryin the context, is a substantive capacityan appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is t o a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantivewill ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it i s not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under theclassification, c an it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations andtake the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so. the various. groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.

### 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: touchstone of seniority as that will be indefensible:Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.In Chauhans case this Court observed:"Seniority, normally, is measured by length of continuous officiating service-the actual is easily accepted as the legal."39. Of course, an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim. Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term. We must make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head temporary for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporary post.40. What, in the context, is a substantive capacity vis-a-vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is t o a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.41. Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it i s not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, c an it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations.42. We take the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so. the various. groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.43. ### Response: 1 ### Explanation: and in consonance with the realities obtaining in this and sister services, after hearing affected sides as a stroke ofand without beingfor long. We hold that r. 23 is the relevant mariners compass when a question of seniority arises. Deducing therefrom we get the further guideline that the order of appointment in a substantive capacity is the significant starting point for reckoningcapacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Art. 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of anature, there is not much to distinguish the quality of service as between the two. Patwardhans case and Chauhans case have primarily or in passing clarified the equal value of officiatingfact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IVmust make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head temporary for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporaryin the context, is a substantive capacityan appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is t o a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantivewill ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it i s not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under theclassification, c an it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations andtake the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so. the various. groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.

D.S.P., Chennai Vs. K. Inbasagaran

the burden never shifts on to the accused to disprove the charge framed against him. 15. Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time it has been held in a case of State of M.P. Vs. Awadh Kishore Gupta and Others reported in (2004) 1 SCC 691 that accused has to account satisfactorily the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In order to substantiate the plea taken by the accused that all the moneys which had been received belonged to his wife and in support thereof he has examined as many as 13 witnesses including himself, his wife and his son-in-law. D.W. 12 is the wife of the accused. She has deposed that the entire money belonged to her. She has admitted the raid on her house and she has also admitted that she has amassed the wealth by selling cycle rims and leather products without any bill and out of the money amassed by her she had persuaded her husband to deposit the same at various Banks. She has come forward and admitted the recovery of the foreign exchange at her house and she has accounted for the same. She has also admitted the recovery of the gold ornaments at her house and she has explained that she has purchased those gold ornaments. She has also submitted that some real estate was purchased out of self earning as well as the loan from the mother of the son-in-law and some contribution was made by the son-in-law and the son-in-law has also admitted. Likewise, D.W.8 - her son-in-law, Thiru S. Rajasankar also appeared in the witness box and admitted that he has also saved certain foreign exchange when he had gone on various visits abroad. He has also admitted to have carried some money to be deposited in the Bank. The accused has also come forward in the witness box as D.W.13 and has deposed that all the moneys belonged to his wife and when he came to know about the unaccounted money at his house, he gave his piece of mind to her. He has admitted that on one or two occasions money was carried by himself to be deposited in the account in Punjab National Bank and some money was also deposited on account of some of the members of the family by P.W.8, S. Rajasankar, son-in-law. 16. Therefore, under these circumstances, the respondent has explained the possession of unaccounted money. Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife.17. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal.

0[ds]It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in thereturn and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by theDepartment, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife.17. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal.

### 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 burden never shifts on to the accused to disprove the charge framed against him. 15. Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time it has been held in a case of State of M.P. Vs. Awadh Kishore Gupta and Others reported in (2004) 1 SCC 691 that accused has to account satisfactorily the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In order to substantiate the plea taken by the accused that all the moneys which had been received belonged to his wife and in support thereof he has examined as many as 13 witnesses including himself, his wife and his son-in-law. D.W. 12 is the wife of the accused. She has deposed that the entire money belonged to her. She has admitted the raid on her house and she has also admitted that she has amassed the wealth by selling cycle rims and leather products without any bill and out of the money amassed by her she had persuaded her husband to deposit the same at various Banks. She has come forward and admitted the recovery of the foreign exchange at her house and she has accounted for the same. She has also admitted the recovery of the gold ornaments at her house and she has explained that she has purchased those gold ornaments. She has also submitted that some real estate was purchased out of self earning as well as the loan from the mother of the son-in-law and some contribution was made by the son-in-law and the son-in-law has also admitted. Likewise, D.W.8 - her son-in-law, Thiru S. Rajasankar also appeared in the witness box and admitted that he has also saved certain foreign exchange when he had gone on various visits abroad. He has also admitted to have carried some money to be deposited in the Bank. The accused has also come forward in the witness box as D.W.13 and has deposed that all the moneys belonged to his wife and when he came to know about the unaccounted money at his house, he gave his piece of mind to her. He has admitted that on one or two occasions money was carried by himself to be deposited in the account in Punjab National Bank and some money was also deposited on account of some of the members of the family by P.W.8, S. Rajasankar, son-in-law. 16. Therefore, under these circumstances, the respondent has explained the possession of unaccounted money. Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife.17. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. ### Response: 0 ### Explanation: It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in thereturn and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by theDepartment, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife.17. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal.

Baradakanta Mishra Vs. Bhimsen Dixit

disregard or disobedience of the courts order; it also signifies such conduct as tends to bring the authority of the court and the administration of law into disrepute.(vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939) Edn. Page 14, Oswalds Contempt of Court (1910) Edn. Pages 5 and 6.)12. It is a commonplace that where the superior courts order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court, for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeopardise the preservation of law and order. The appellants case is to be examined in the light of the foregoing principles and analogy.13. The remark in the appellants order found objectionable by the High Court is this: "Further, against the order we have moved the Supreme Court, and as such the matter can be safely deemed to be sub judice. It may be observed that on the date of the order nothing was pending in the Supreme Court only a petition was pending in the High Court for a certificate to appeal to the Supreme Court from the decision in Bhramarbar Santra, ILR 1970 Cut 54 = (AIR 1970 Orissa 141). The appellant has thus made wrong statement of fact. Secondly, the use of the personal pronoun "We is also significant. It indicates that the appellant identified himself as a litigant in the case and did not observe due detachment and decorum as a quasi-judicial authority. Lastly, we agree with the High Court that it is not possible to believe that the appellant could have entertained the view that as soon as a petition for certificate to appeal to the Supreme Court was filed in the High Court against its decision, the binding character of the decision disappeared. He has had 23 years judicial experience and he could scarcely entertain that belief.We agree with the High Court that the appellant deliberately avoided to follow its decision by giving wrong and illegitimate reasons and that his conduct was "clearly mala fide.14. Under Art. 227 of the Constitution, the High Court is vested with the power of superintendence over the courts and tribunals in the State, Acting as a quasi judicial authority under the Orissa Hindu Religious Endowments Act, the appellant was subject to the superintendence of the High Court.Accordingly the decision of the High Court were binding on him. He could not get away from them by adducing factually wrong and illegitimate reasons.15. In East India Commercial Co. Ltd. Calcutta v. The Collector of Customs, Calcutta, (1963) 3 SCR 338 = (AIR 1962 SC 1893 ), Subba Rao J. observed:"The Division Bench of the High Court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under S. 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared. Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.16. The conduct of the appellant in following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior courts disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.17. Our view that a deliberate and mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bona fide act of distinguishing the binding precedent, even though it may turn out to be mistaken.

0[ds]conduct of the appellant in following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior courts disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.17. Our view that a deliberate and mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bona fide act of distinguishing the binding precedent, even though it may turn out to be mistaken.

### 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: disregard or disobedience of the courts order; it also signifies such conduct as tends to bring the authority of the court and the administration of law into disrepute.(vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939) Edn. Page 14, Oswalds Contempt of Court (1910) Edn. Pages 5 and 6.)12. It is a commonplace that where the superior courts order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court, for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeopardise the preservation of law and order. The appellants case is to be examined in the light of the foregoing principles and analogy.13. The remark in the appellants order found objectionable by the High Court is this: "Further, against the order we have moved the Supreme Court, and as such the matter can be safely deemed to be sub judice. It may be observed that on the date of the order nothing was pending in the Supreme Court only a petition was pending in the High Court for a certificate to appeal to the Supreme Court from the decision in Bhramarbar Santra, ILR 1970 Cut 54 = (AIR 1970 Orissa 141). The appellant has thus made wrong statement of fact. Secondly, the use of the personal pronoun "We is also significant. It indicates that the appellant identified himself as a litigant in the case and did not observe due detachment and decorum as a quasi-judicial authority. Lastly, we agree with the High Court that it is not possible to believe that the appellant could have entertained the view that as soon as a petition for certificate to appeal to the Supreme Court was filed in the High Court against its decision, the binding character of the decision disappeared. He has had 23 years judicial experience and he could scarcely entertain that belief.We agree with the High Court that the appellant deliberately avoided to follow its decision by giving wrong and illegitimate reasons and that his conduct was "clearly mala fide.14. Under Art. 227 of the Constitution, the High Court is vested with the power of superintendence over the courts and tribunals in the State, Acting as a quasi judicial authority under the Orissa Hindu Religious Endowments Act, the appellant was subject to the superintendence of the High Court.Accordingly the decision of the High Court were binding on him. He could not get away from them by adducing factually wrong and illegitimate reasons.15. In East India Commercial Co. Ltd. Calcutta v. The Collector of Customs, Calcutta, (1963) 3 SCR 338 = (AIR 1962 SC 1893 ), Subba Rao J. observed:"The Division Bench of the High Court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under S. 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared. Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.16. The conduct of the appellant in following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior courts disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.17. Our view that a deliberate and mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bona fide act of distinguishing the binding precedent, even though it may turn out to be mistaken. ### Response: 0 ### Explanation: conduct of the appellant in following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior courts disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.17. Our view that a deliberate and mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bona fide act of distinguishing the binding precedent, even though it may turn out to be mistaken.

Bagri Synthetics Private Ltd Vs. Hanuman Prasad Bagri

Shiva Kirti Singh, J. 1. Appellant is a company against whom a winding up petition filed by the respondent under Sections 433, 434 and 439 of the Companies Act bearing Company Petition No. 112 of 2002 is pending in the High Court at Calcutta. The plea for winding up is based upon just and equitable grounds. In the facts of the case, after hearing the parties the Court ordered that the shares of the company be valued by an approved auditor so that company would settle the dispute by purchasing the three hundred shares held by the respondent in the company and bring the dispute to a quietus. The Valuation Report was submitted in January 2004. The appellant raised objections to the report to which reply was filed by the respondent. The learned Single Judge on 17.3.2004 directed the appellant company to purchase the shares of the respondent as per Valuation Report in respect of the rate of the shares. That order was partly modified on 29.3.2004 to provide that in case of default by the company, the respondents shall be at liberty to make publication in ?The Statesman? and ?Anand Bazar Patrika?. By yet another order dated 20.4.2004 learned Single Judge fixed 1.6.2004 as the time schedule by which the appellant company was required to pay the due amount. All the aforesaid three orders were challenged by the appellant through an intra-court appeal before the Division Bench bearing Civil Appeal No. 266 of 2004. Ultimately that appeal was dismissed by an order dated 12.7.2004 and that order of the Division Bench is the subject matter of the present appeal.2. The order of the learned Single Judge dated 17.3.2004 refers to an earlier order dated 7.5.2003 which records that in course of hearing of application for winding up, the parties agreed that the shares of the company be valued so that the management could offer purchase of the shares of the petitioner (respondent herein). At the first instance the cost of valuation of shares was ordered to be borne by the respondent herein. On 17.3.2004 the Court noted that the Valuation Report declared the value of the shares as Rs.2,530/- per share and at that rate the respondent herein was agreeable to sell his three hundred shares. The company however offered to buy the shares at Rs.500/- per share. The Court found such variation in the stand of the company without any reason and hence it directed the company to purchase the shares as per Valuation Report. The Court also directed the appellant to bear 50% of the cost paid to the valuer by reimbursing the respondent herein for a sum of Rs.12,900/-. As noted earlier the above order was modified partly on 29.3.2004 by adding a default clause in case the company failed to make the required payment and further by order dated 20.4.2004 the time for payment was fixed as - on or before 1.6.2004. The Division Bench noted the aforesaid relevant facts and came to the view, and in our opinion rightly, that the case of the parties rested on the issue whether the parties had agreed on 7.5.2003 that the purchase of the shares by the present management will be made as per the valuation to be determined. The only submission advanced before the Division Bench was that the company or its management was not bound to offer for purchase of the shares at the rate determined by the Valuation Report. The Division Bench found such submission to be unacceptable in the light of the gist/substance of the order dated 7.5.2003. The Division Bench inferred that the learned Single Judge could not have forced the parties to reach to an agreement and nearly Rs.26,000/- spent for finding out valuation of the shares could not have been just for fun. The Division Bench dismissed the appeal with costs. 3. On hearing the parties we find that the same contention which was raised by the appellant before the Division Bench has been reiterated. We also find no merit in the contentions. There is no infirmity factual or legal in the order of the Division Bench to warrant interference.

0[ds]3. On hearing the parties we find that the same contention which was raised by the appellant before the Division Bench has been reiterated. We also find no merit in the contentions. There is no infirmity factual or legal in the order of the Division Bench to warrant interference.

### 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: Shiva Kirti Singh, J. 1. Appellant is a company against whom a winding up petition filed by the respondent under Sections 433, 434 and 439 of the Companies Act bearing Company Petition No. 112 of 2002 is pending in the High Court at Calcutta. The plea for winding up is based upon just and equitable grounds. In the facts of the case, after hearing the parties the Court ordered that the shares of the company be valued by an approved auditor so that company would settle the dispute by purchasing the three hundred shares held by the respondent in the company and bring the dispute to a quietus. The Valuation Report was submitted in January 2004. The appellant raised objections to the report to which reply was filed by the respondent. The learned Single Judge on 17.3.2004 directed the appellant company to purchase the shares of the respondent as per Valuation Report in respect of the rate of the shares. That order was partly modified on 29.3.2004 to provide that in case of default by the company, the respondents shall be at liberty to make publication in ?The Statesman? and ?Anand Bazar Patrika?. By yet another order dated 20.4.2004 learned Single Judge fixed 1.6.2004 as the time schedule by which the appellant company was required to pay the due amount. All the aforesaid three orders were challenged by the appellant through an intra-court appeal before the Division Bench bearing Civil Appeal No. 266 of 2004. Ultimately that appeal was dismissed by an order dated 12.7.2004 and that order of the Division Bench is the subject matter of the present appeal.2. The order of the learned Single Judge dated 17.3.2004 refers to an earlier order dated 7.5.2003 which records that in course of hearing of application for winding up, the parties agreed that the shares of the company be valued so that the management could offer purchase of the shares of the petitioner (respondent herein). At the first instance the cost of valuation of shares was ordered to be borne by the respondent herein. On 17.3.2004 the Court noted that the Valuation Report declared the value of the shares as Rs.2,530/- per share and at that rate the respondent herein was agreeable to sell his three hundred shares. The company however offered to buy the shares at Rs.500/- per share. The Court found such variation in the stand of the company without any reason and hence it directed the company to purchase the shares as per Valuation Report. The Court also directed the appellant to bear 50% of the cost paid to the valuer by reimbursing the respondent herein for a sum of Rs.12,900/-. As noted earlier the above order was modified partly on 29.3.2004 by adding a default clause in case the company failed to make the required payment and further by order dated 20.4.2004 the time for payment was fixed as - on or before 1.6.2004. The Division Bench noted the aforesaid relevant facts and came to the view, and in our opinion rightly, that the case of the parties rested on the issue whether the parties had agreed on 7.5.2003 that the purchase of the shares by the present management will be made as per the valuation to be determined. The only submission advanced before the Division Bench was that the company or its management was not bound to offer for purchase of the shares at the rate determined by the Valuation Report. The Division Bench found such submission to be unacceptable in the light of the gist/substance of the order dated 7.5.2003. The Division Bench inferred that the learned Single Judge could not have forced the parties to reach to an agreement and nearly Rs.26,000/- spent for finding out valuation of the shares could not have been just for fun. The Division Bench dismissed the appeal with costs. 3. On hearing the parties we find that the same contention which was raised by the appellant before the Division Bench has been reiterated. We also find no merit in the contentions. There is no infirmity factual or legal in the order of the Division Bench to warrant interference. ### Response: 0 ### Explanation: 3. On hearing the parties we find that the same contention which was raised by the appellant before the Division Bench has been reiterated. We also find no merit in the contentions. There is no infirmity factual or legal in the order of the Division Bench to warrant interference.

National Insurance Co. Ltd Vs. Kusum Rai

a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-Ã -vis the driver being not possessed of a valid licence was considered in Swaran Singh (supra) stating: Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are goods carriage, heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi-cab, medium goods vehicle, medium passenger motor vehicle, motor-cab, motorcycle, omnibus, private service vehicle, semi- trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for motorcycle without gear, [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab, motor-cab or omnibus for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. 13. The matter came up for consideration again before a Division Bench of this Court in National Insurance Corporation Ltd. vs. Kanti Devi (Mrs.) and others [(2005) 5 SCC 789] wherein this Court upon consideration of the observations made in Swaran Singh (supra) opined: 12. The decision in Swaran Singh case was not before either MACT or the High Court when the respective orders were passed. Therefore, we think it proper to remit the matter to MACT for fresh consideration. It shall permit the parties to lead such further evidence as they may intend to lead. The matter shall be decided keeping in view the principle enunciated by this Court in Swaran Singh case. 14. In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. 15. However, in this case the owner has not appeared. The victim was aged only 12 years. The claimants are from a poor background. They must have suffered great mental agony. Therefore, we are of the opinion that it may not be appropriate to push them into another round of litigation particularly when it may be difficult for them to secure the presence of the owner of the vehicle. 16. In Nanjappan (supra), this Court opined: 8. Therefore, while setting aside the judgment of the High court we direct in terms of what has been stated in Baljit Kaurs case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. The for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs. 17. Although, thus, we are of the opinion that the Appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India but we direct that the Appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra). 18.

0[ds]In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or notHowever, in this case the owner has not appeared. The victim was aged only 12 years. The claimants are from a poor background. They must have suffered great mental agony. Therefore, we are of the opinion that it may not be appropriate to push them into another round of litigation particularly when it may be difficult for them to secure the presence of the owner of the vehicleAlthough, thus, we are of the opinion that the Appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India but we direct that the Appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra)

### 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: a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-Ã -vis the driver being not possessed of a valid licence was considered in Swaran Singh (supra) stating: Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are goods carriage, heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi-cab, medium goods vehicle, medium passenger motor vehicle, motor-cab, motorcycle, omnibus, private service vehicle, semi- trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for motorcycle without gear, [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab, motor-cab or omnibus for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. 13. The matter came up for consideration again before a Division Bench of this Court in National Insurance Corporation Ltd. vs. Kanti Devi (Mrs.) and others [(2005) 5 SCC 789] wherein this Court upon consideration of the observations made in Swaran Singh (supra) opined: 12. The decision in Swaran Singh case was not before either MACT or the High Court when the respective orders were passed. Therefore, we think it proper to remit the matter to MACT for fresh consideration. It shall permit the parties to lead such further evidence as they may intend to lead. The matter shall be decided keeping in view the principle enunciated by this Court in Swaran Singh case. 14. In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. 15. However, in this case the owner has not appeared. The victim was aged only 12 years. The claimants are from a poor background. They must have suffered great mental agony. Therefore, we are of the opinion that it may not be appropriate to push them into another round of litigation particularly when it may be difficult for them to secure the presence of the owner of the vehicle. 16. In Nanjappan (supra), this Court opined: 8. Therefore, while setting aside the judgment of the High court we direct in terms of what has been stated in Baljit Kaurs case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. The for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs. 17. Although, thus, we are of the opinion that the Appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India but we direct that the Appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra). 18. ### Response: 0 ### Explanation: In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or notHowever, in this case the owner has not appeared. The victim was aged only 12 years. The claimants are from a poor background. They must have suffered great mental agony. Therefore, we are of the opinion that it may not be appropriate to push them into another round of litigation particularly when it may be difficult for them to secure the presence of the owner of the vehicleAlthough, thus, we are of the opinion that the Appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India but we direct that the Appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra)

CHERAN PROPERTIEES LIMITED Vs. KASTURI AND SONS LIMITED

new agreement, no other conclusion then the one that the transaction was in terms of the agreement, entered into between the parties to arbitration can be arrived at. At the sake of repetition, it may be mentioned that the reading of the letter dated 18.8.2004 on which reliance was placed by the third respondent shows that clear reference was made to the agreement dated 19.7.2004 entered into between the applicant and the first respondent. The High Court further held thus: The respondents 3 to 6 have purchased the shares, as nominees of the first respondent and not as of independent right. No material other than the agreement dated 19.7.2004 has been placed on record to show that the respondents 3 to 6 exercises their independent right to purchase the shares. The contention of Mr. V. Prakash, learned Senior counsel that the respondents 4 to 6 cannot be treated as nominees of the first respondent cannot be sustained, as shares were transferred, in pursuance to the letter dated 18.8.2004 addressed by the third respondent, for registration of the transfer deed by referring to the agreement dated 19.7.2004. Thus, the second question is also answered by holding that the respondents 2 to 6 purchased the shares, as the nominees of the first respondent. We have referred to the above findings for the completeness of the record. These findings of the Madras High Court would indicate that virtually everyone of the submission which was urged before this Court have been negatived. 34. Finally, having covered the entire gamut of submissions which were urged on behalf of the appellant, it would be worthwhile to revisit the fundamental principles which were formulated nearly fifty years ago in a judgment of a three judge Bench of this Court in Satish Kumar v Surinder Kumar 22 . That case arose under the provisions of the Indian Arbitration Act 1940. The question which arose before this Court was whether an award under the Act requires registration under Section 17(1)(b) of the Registration Act, if it effects partition of immovable property above the value of Rs 100. A Full Bench of the Patna High Court held that unless a decree is passed in terms of the award (in terms of the position as it stood under the 1940 Act) it had no legal effect. In holding thus, the Patna High Court had relied upon a Punjab Full Bench decision holding that under the Arbitration Act 1940, an award was effective only when a decree follows a judgment on the award. The Punjab Full Bench held that even if the award is registered, it is still a waste paper unless it is made a rule of the court. In appeal, this Court held that the two Full Benches had taken a view contrary to that formulated in an unreported decision of this Court in Uttam Singh Duggal & Co v Union of India 23 where it was held thus: The true legal position in regard to the effect of an award is not in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, no action can be started on the original claim which had been the subject-matter of the reference. As has been observed by Mookerjee, J., in the case of Bhajahari Saha Banikya v. Behary Lal Basak [33 Col 881 at p 898] the award is, in fact, a final adjudication of a Court of the parties own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the fact of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive … in reality, an award possesses all the elements of vitality, even though it has not been formally enforced, and it may be relied upon in a litigation between the parties relating to the same subject-matter This conclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to the judgment of a court of last resort. Therefore, if the award which has been pronounced between the parties has in fact, or can, in law, be deemed to have dealt with the present dispute, the second reference would be incompetent. This position also has not been and cannot be seriously disputed. (emphasis supplied) The above position was followed in Satish Kumar (supra) as stating a binding principle of law. The earlier decision was reiterated in the following observations: In our opinion this judgment lays down that the position under the Act is in no way different from what it was before the Act came into force, and that an award has some legal force and is not a mere waste paper. If the award in question is not a mere waste paper but has some legal effect it plainly purports to or affects property within the meaning of Section 17(1)(b) of the Registration Act. (emphasis supplied) The present case which arises under the Arbitration and Conciliation Act 1996 stands on even a higher pedestal. Under the provisions of Section 35, the award can be enforced in the same manner as if it were a decree of the Court. The award has attained finality. The transmission of shares as mandated by the award could be fully effectuated by obtaining a rectification of the register under Section 111 of the Companies Act. The remedy which was resorted to was competent. The view of the NCLT, which has been affirmed by the NCLAT does not warrant interference. 35.

0[ds]Mr Sibal has sought to make a distinction between the provisions of Section 45 and the unamended Section 8. Section 45, forms a part of Part II dealing with the enforcement of foreign awards to which the New York Convention applies. It contemplates a reference by a judicial authority to arbitration at the request of one of the parties or any person claiming through or under him, where there is an arbitration agreement. The submission of Mr Sibal is that a similar expression (any person claiming through or under him) has been introduced in the amended provisions of Section 8 (substituted by Act 3 of 2016 with effect from 23 October 2015) but that this expression did not find place in the unamended. The submission is a non-sequitur. Both Sections 8 and 45 operate in the sphere of the duty of a judicial authority to refer parties to arbitration. In the present case Section 35 is the material provision, which expressly stipulates that an arbitral award is, final and binding not only on the parties but on persons claiming under them.The submission which was urged on behalf of the appellant, proceeds on the basis that since the appellant was not impleaded as a party to the arbitral proceedings, proceedings for the enforcement of the award will not lie against it. This line of submissions clearly misses the central facet of Section 35, which is that a person who claims under a party is bound by the award. The fact that the appellant was not a party to the arbitral proceedings will not conclude the question as to whether the award can be enforced against it on the ground that it claims under a partyThe record establishes that the transfer of shares by KCP to his nominees was to be on the express condition that the nominee would abide by the terms of the agreement in relation to the take over of the management of SPIL and related financial aspects. The appellant, while purchasing the shares, was not merely aware of the agreement dated 19 July 2004 but expressly sought the allotment of shares in pursuance to it, to its group companies. In this background, it will not be open to the appellant to contend that while it was bound by all other terms of the agreement dated 19 July 2004, it would not be bound by the arbitration agreement contained in the very same agreement. The arbitral award, as we have noticed, attained finality after all attempts to raise objections to it failed before the High Court and, later, before this Court. The appellant, in purchasing the shares, was conscious of and accepted the terms of the agreement dated 19 July 2004. Its letter dated 17 August 2004 leaves no manner of doubt of the acceptance of this positionThe appellant questions the application of the Chloro Controls doctrine. Dr Singhvi urged that in Chloro Controls there was a joint venture agreement; the mother or parent agreement contained an arbitration clause and though the ancillary agreements did not contain an arbitration agreement, they could not have been performed in the absence of the mother agreement.The submission proceeds on a constricted interpretation of the Chloro Controls dictum. The principle which underlies Chloro Controls is that an arbitration agreement which is entered into by a company within a group of companies may bindy affiliates, if the circumstances are such as to demonstrate the mutual intention of the parties to bind both signatories and non-signatories. In applying the doctrine, the law seeks to enforce the common intention of the parties, where circumstances indicate that both signatories and non-signatories were intended to be bound. In Duro (supra), the case was held to stand on a different footing since all the five different packages as well as the corporate guarantee did not depend on the terms and conditions of the original package nor on the memorandum of understanding executed between the parties. The judgment in Duro does not detract from the principle which was enunciated in Chloro Controls.In the present case, as we have seen, the parent agreement dated 19 July 2004 envisaged the allotment of equity shares of KSL to KCP with the intent that KCP would take over the business, assets and liabilities of SPIL. While KCP was entitled to transfer his shareholding, this was expressly subject to the condition of the acceptance by the transferee of the terms and conditions of the agreement. KCPs letter dated 17 August 2004 to KSL contains a specific reference to the share purchase agreement dated 19 July 2004. It was in pursuance of that agreement that KCP indicated, as authorised signatory of the appellant, that his group of companies had agreed to purchase the shares in SPIL. The shares were to be purchased by several entities in the same group. A supplementary agreement was to be entered into, to reflect the altered consideration. Eventually, no supplementary agreement was executed and the transaction was structured on the basis of the parent agreement dated 19 July 2004 which the appellant recognised in its letter dated 17 August 2004. Having regard to this factual context, the defence of the appellant against the enforcement of the award cannot be accepted. To allow such a defence to prevail would be to cast the mutual intent of the parties to the winds and to put a premium on dishonesty.The arbitral award envisaged that KSL was entitled to the return of documents of title and the certificates pertaining to the shares of SPIL contemporaneously with the payment or tendering of a sum of Rs 3.58 crores together with interest. KSL is in terms of the arbitral award entitled to the share certificates. That necessarily means the transfer of the share certificates. To effectuate the transfer, recourse to the remedy of the rectification of the register under Section 111 was but appropriate and necessary. The arbitral award has the character of a decree of a civil court under Section 36 and is capable of being enforced as if it were a decree. Armed with that decree, KSL was entitled to seek rectification before the NCLT by invoking the provisions of Section 111 of the Companies Act, 1956. There can be, therefore, no question about the jurisdiction of NCLT to pass an appropriate order directing rectification of the registerWe have not been impressed with the submission that the application by KSL to the NCLT was not maintainable since the Tribunal has no power to execute an arbitral award. The submission proceeds on finding of the Tribunal that the purpose of the petition before it was to implement the award dated 16 December 2009 and that its ultimate direction is to the same effect. The submission relies on the provisions of Section 42 of the 1996 Act which provides as follows:42. Jurisdiction. -Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court.While dealing with the submission it is necessary to note that the award of the arbitral tribunal mandates that the appellant must return the share certificates relating to 2.43 crore shares of SPIL which were handed over in terms of the agreement dated 19 July 2004 against the payment of the consideration stipulated in the award. The transfer of the share certificates by the appellant will be effectual only by the rectification of the register of the company. The mere handing over of a share certificates will not constitute due implementation of the award. The award contemplates the transmission of the shares which stood in the name of the appellant in pursuance of the agreement dated 19 July 2004, to the claimant in the arbitral proceedings. This necessitated an application under Section 111 for the purpose of securing a rectification of the register. Sub-section 4 of Section 111 deals with a situation where a default is made in entering in the register, the fact of any person having become a member of the company. Under sub-section 5 while hearing the appeal, the Tribunal is entitled to direct that the transfer or transmission shall be registered by the company and to order rectification of the register.In the present case, the arbitral award required the shares to be transmitted to the claimants. The arbitral award attained finality. The award could be enforced in accordance with the provisions of the Code of Civil Procedure, in the same manner as if it were a decree of the Court. The award postulates a transmission of shares to the claimant. The directions contained in the award can be enforced only by moving the Tribunal for rectification in the manner contemplated by law.The reliance which has been sought to be placed on the provisions of Section 42 of the 1996 Act is inapposite.In the present case, the arbitral award, in essence, postulates the transmission of shares from the appellant to the claimant. The only remedy available for effectuating the transmission is that which was provided in Section 111 for seeking a rectification of the register. There is, therefore, no merit in the challenge addressed by the appellantWe may also note the fact that in the proceedings before the Madras High Court under Section 9, it was held that the purchase of shares by the appellant was as a nominee of KCP and not by way of an independent right. The purchase was held to be referable to the agreement dated 19 July 2004. There has been no challenge to this findingWe have referred to the above findings for the completeness of the record. These findings of the Madras High Court would indicate that virtually everyone of the submission which was urged before this Court have been negatived.The present case which arises under the Arbitration and Conciliation Act 1996 stands on even a higher pedestal. Under the provisions of Section 35, the award can be enforced in the same manner as if it were a decree of the Court. The award has attained finality. The transmission of shares as mandated by the award could be fully effectuated by obtaining a rectification of the register under Section 111 of the Companies Act. The remedy which was resorted to was competent. The view of the NCLT, which has been affirmed by the NCLAT does not warrant interference.

### 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: new agreement, no other conclusion then the one that the transaction was in terms of the agreement, entered into between the parties to arbitration can be arrived at. At the sake of repetition, it may be mentioned that the reading of the letter dated 18.8.2004 on which reliance was placed by the third respondent shows that clear reference was made to the agreement dated 19.7.2004 entered into between the applicant and the first respondent. The High Court further held thus: The respondents 3 to 6 have purchased the shares, as nominees of the first respondent and not as of independent right. No material other than the agreement dated 19.7.2004 has been placed on record to show that the respondents 3 to 6 exercises their independent right to purchase the shares. The contention of Mr. V. Prakash, learned Senior counsel that the respondents 4 to 6 cannot be treated as nominees of the first respondent cannot be sustained, as shares were transferred, in pursuance to the letter dated 18.8.2004 addressed by the third respondent, for registration of the transfer deed by referring to the agreement dated 19.7.2004. Thus, the second question is also answered by holding that the respondents 2 to 6 purchased the shares, as the nominees of the first respondent. We have referred to the above findings for the completeness of the record. These findings of the Madras High Court would indicate that virtually everyone of the submission which was urged before this Court have been negatived. 34. Finally, having covered the entire gamut of submissions which were urged on behalf of the appellant, it would be worthwhile to revisit the fundamental principles which were formulated nearly fifty years ago in a judgment of a three judge Bench of this Court in Satish Kumar v Surinder Kumar 22 . That case arose under the provisions of the Indian Arbitration Act 1940. The question which arose before this Court was whether an award under the Act requires registration under Section 17(1)(b) of the Registration Act, if it effects partition of immovable property above the value of Rs 100. A Full Bench of the Patna High Court held that unless a decree is passed in terms of the award (in terms of the position as it stood under the 1940 Act) it had no legal effect. In holding thus, the Patna High Court had relied upon a Punjab Full Bench decision holding that under the Arbitration Act 1940, an award was effective only when a decree follows a judgment on the award. The Punjab Full Bench held that even if the award is registered, it is still a waste paper unless it is made a rule of the court. In appeal, this Court held that the two Full Benches had taken a view contrary to that formulated in an unreported decision of this Court in Uttam Singh Duggal & Co v Union of India 23 where it was held thus: The true legal position in regard to the effect of an award is not in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, no action can be started on the original claim which had been the subject-matter of the reference. As has been observed by Mookerjee, J., in the case of Bhajahari Saha Banikya v. Behary Lal Basak [33 Col 881 at p 898] the award is, in fact, a final adjudication of a Court of the parties own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the fact of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive … in reality, an award possesses all the elements of vitality, even though it has not been formally enforced, and it may be relied upon in a litigation between the parties relating to the same subject-matter This conclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to the judgment of a court of last resort. Therefore, if the award which has been pronounced between the parties has in fact, or can, in law, be deemed to have dealt with the present dispute, the second reference would be incompetent. This position also has not been and cannot be seriously disputed. (emphasis supplied) The above position was followed in Satish Kumar (supra) as stating a binding principle of law. The earlier decision was reiterated in the following observations: In our opinion this judgment lays down that the position under the Act is in no way different from what it was before the Act came into force, and that an award has some legal force and is not a mere waste paper. If the award in question is not a mere waste paper but has some legal effect it plainly purports to or affects property within the meaning of Section 17(1)(b) of the Registration Act. (emphasis supplied) The present case which arises under the Arbitration and Conciliation Act 1996 stands on even a higher pedestal. Under the provisions of Section 35, the award can be enforced in the same manner as if it were a decree of the Court. The award has attained finality. The transmission of shares as mandated by the award could be fully effectuated by obtaining a rectification of the register under Section 111 of the Companies Act. The remedy which was resorted to was competent. The view of the NCLT, which has been affirmed by the NCLAT does not warrant interference. 35. ### Response: 0 ### Explanation: It was in pursuance of that agreement that KCP indicated, as authorised signatory of the appellant, that his group of companies had agreed to purchase the shares in SPIL. The shares were to be purchased by several entities in the same group. A supplementary agreement was to be entered into, to reflect the altered consideration. Eventually, no supplementary agreement was executed and the transaction was structured on the basis of the parent agreement dated 19 July 2004 which the appellant recognised in its letter dated 17 August 2004. Having regard to this factual context, the defence of the appellant against the enforcement of the award cannot be accepted. To allow such a defence to prevail would be to cast the mutual intent of the parties to the winds and to put a premium on dishonesty.The arbitral award envisaged that KSL was entitled to the return of documents of title and the certificates pertaining to the shares of SPIL contemporaneously with the payment or tendering of a sum of Rs 3.58 crores together with interest. KSL is in terms of the arbitral award entitled to the share certificates. That necessarily means the transfer of the share certificates. To effectuate the transfer, recourse to the remedy of the rectification of the register under Section 111 was but appropriate and necessary. The arbitral award has the character of a decree of a civil court under Section 36 and is capable of being enforced as if it were a decree. Armed with that decree, KSL was entitled to seek rectification before the NCLT by invoking the provisions of Section 111 of the Companies Act, 1956. There can be, therefore, no question about the jurisdiction of NCLT to pass an appropriate order directing rectification of the registerWe have not been impressed with the submission that the application by KSL to the NCLT was not maintainable since the Tribunal has no power to execute an arbitral award. The submission proceeds on finding of the Tribunal that the purpose of the petition before it was to implement the award dated 16 December 2009 and that its ultimate direction is to the same effect. The submission relies on the provisions of Section 42 of the 1996 Act which provides as follows:42. Jurisdiction. -Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court.While dealing with the submission it is necessary to note that the award of the arbitral tribunal mandates that the appellant must return the share certificates relating to 2.43 crore shares of SPIL which were handed over in terms of the agreement dated 19 July 2004 against the payment of the consideration stipulated in the award. The transfer of the share certificates by the appellant will be effectual only by the rectification of the register of the company. The mere handing over of a share certificates will not constitute due implementation of the award. The award contemplates the transmission of the shares which stood in the name of the appellant in pursuance of the agreement dated 19 July 2004, to the claimant in the arbitral proceedings. This necessitated an application under Section 111 for the purpose of securing a rectification of the register. Sub-section 4 of Section 111 deals with a situation where a default is made in entering in the register, the fact of any person having become a member of the company. Under sub-section 5 while hearing the appeal, the Tribunal is entitled to direct that the transfer or transmission shall be registered by the company and to order rectification of the register.In the present case, the arbitral award required the shares to be transmitted to the claimants. The arbitral award attained finality. The award could be enforced in accordance with the provisions of the Code of Civil Procedure, in the same manner as if it were a decree of the Court. The award postulates a transmission of shares to the claimant. The directions contained in the award can be enforced only by moving the Tribunal for rectification in the manner contemplated by law.The reliance which has been sought to be placed on the provisions of Section 42 of the 1996 Act is inapposite.In the present case, the arbitral award, in essence, postulates the transmission of shares from the appellant to the claimant. The only remedy available for effectuating the transmission is that which was provided in Section 111 for seeking a rectification of the register. There is, therefore, no merit in the challenge addressed by the appellantWe may also note the fact that in the proceedings before the Madras High Court under Section 9, it was held that the purchase of shares by the appellant was as a nominee of KCP and not by way of an independent right. The purchase was held to be referable to the agreement dated 19 July 2004. There has been no challenge to this findingWe have referred to the above findings for the completeness of the record. These findings of the Madras High Court would indicate that virtually everyone of the submission which was urged before this Court have been negatived.The present case which arises under the Arbitration and Conciliation Act 1996 stands on even a higher pedestal. Under the provisions of Section 35, the award can be enforced in the same manner as if it were a decree of the Court. The award has attained finality. The transmission of shares as mandated by the award could be fully effectuated by obtaining a rectification of the register under Section 111 of the Companies Act. The remedy which was resorted to was competent. The view of the NCLT, which has been affirmed by the NCLAT does not warrant interference.

Bharat Coking Coal Limited Vs. Bibhuti Kumar Singh and Others

within three months. The learned Judge made it clear that if the enquiry was not completed within three months the charges levelled against the petitioner/Respondent 1 should be deemed to be withdrawn and the entire disciplinary proceeding quashed. The learned Judge, however gave liberty to the parties to mention the matter if any cause of action arose subsequently 8. As the appellant could not complete the enquiry within the period of three months, as directed by the Court, it filed an application for extension of time before the learned Single Judge. In the application the appellant stated, inter alia, as under " (i) Pursuant to the order passed by the Honble Court as aforesaid an Enquiry Officer already appointed in July 1993 started the enquiry proceedings and as many as six witnesses adduced evidence on behalf of the respondent authorities before the Enquiry Officer (ii) Your petitioner states that there are about 28 witnesses to be examined on behalf of the respondent authorities and the said 28 witnesses are living in different villages. The respondent authorities had already taken steps to bring the said witnesses before the Enquiry Officer. Out of the said 28 witnesses the respondent authorities at present were able to produce six witnesses before the Enquiry Officer as stated hereinbefore (iii) Your petitioner states that a considerable time is required to produce all the witnesses before the Enquiry Officer (iv) Your petitioner further states that the Enquiry Officer went on leave for about 20 days on account of the marriage of his son and consequently the enquiry proceedings could not be conducted during the said period (v) Your petitioner states that due to the reasons as stated hereinbefore the enquiry proceedings could not be completed within the time as directed by this Honble Court." * 9. The learned Judge, however, rejected the application as devoid of merit, recording the following reason "It has been stated that the petitioner was suspended as far back as on 4-4-1991 and uptil now no steps have been taken save and except examination of 6 witnesses out of several witnesses. It has also been stated at the instance of the respondent Company, Coal India Limited, several adjournments are taken. It has also been indicated that on some occasions no body turned up on behalf of the Company." * 10. Against such rejection the appellant preferred a Letters Patent Appeal which was dismissed by the impugned order on the grounds that it was not maintainable and that the appellant was guilty of serious laches in concluding the departmental enquiry 11. It was submitted on behalf of the appellant that having regard to the serious nature of the charges levelled against Respondent 1 and the justifiable reasons canvassed by it for not being able to complete the enquiry within the time stipulated, the High Court should have allowed its prayer for extension of time to conclude the enquiry. The appellant further contended that one of the reasons, which weighed with the High Court in refusing to grant further time was that Respondent 1 was suspended as far back as 4-4-1991 but, in fact, at no point of time, was he suspended. That apart, the appellant contended, the claim for his promotion was fully protected as a post in E6 grade was kept vacant to accommodate him in case he was exonerated from the charges 12. In response, it was urged on behalf of Respondent 1 that the departmental enquiry was initiated against Respondent 1 on flimsy and baseless allegations only to delay and, if possible, to deny him his legitimate promotion. In support of this contention strong reliance was placed upon the final report submitted by the CBI on 18-4-1994 - that is, after the High Court passed the impugned order and before the special leave petition was filed in this Court - in the case registered against Respondent 1 exonerating him from the charges levelled against him and the order of the Special Judge, CBI, Ranchi Bench, dated 25-4-1994 discharging Respondent 1 after accepting the final report. The other contention based upon the report was that the appellant could not and should not be allowed to continue with the departmental enquiry as the misconducts alleged against Respondent 1 were identical to the accusations which formed the subject-matter of the case registered against him. Lastly, it was submitted that as the appellant was guilty of wilful laches and negligence in conducting the enquiry the High Court was fully justified in passing the impugned orders 13. Having gone through the material placed before us we are unable to accept the contentions raised by Respondent 1 relying upon the final report, firstly, because, the misconducts and for that matter, the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of Respondent 1 on the ground of non-availability of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecution vis-a-vis a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of Respondent 1 is that the enquiry has proceeded to some length in that six witnesses have already been examined 14. Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that Respondent 1 was suspended since the date the charge-sheet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time

1[ds]13. Having gone through the material placed before us we are unable to accept the contentions raised by Respondent 1 relying upon the final report, firstly, because, the misconducts and for that matter, the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of Respondent 1 on the ground ofy of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecutions a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of Respondent 1 is that the enquiry has proceeded to some length in that six witnesses have already been examined14. Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that Respondent 1 was suspended since the date thet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time

### 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: within three months. The learned Judge made it clear that if the enquiry was not completed within three months the charges levelled against the petitioner/Respondent 1 should be deemed to be withdrawn and the entire disciplinary proceeding quashed. The learned Judge, however gave liberty to the parties to mention the matter if any cause of action arose subsequently 8. As the appellant could not complete the enquiry within the period of three months, as directed by the Court, it filed an application for extension of time before the learned Single Judge. In the application the appellant stated, inter alia, as under " (i) Pursuant to the order passed by the Honble Court as aforesaid an Enquiry Officer already appointed in July 1993 started the enquiry proceedings and as many as six witnesses adduced evidence on behalf of the respondent authorities before the Enquiry Officer (ii) Your petitioner states that there are about 28 witnesses to be examined on behalf of the respondent authorities and the said 28 witnesses are living in different villages. The respondent authorities had already taken steps to bring the said witnesses before the Enquiry Officer. Out of the said 28 witnesses the respondent authorities at present were able to produce six witnesses before the Enquiry Officer as stated hereinbefore (iii) Your petitioner states that a considerable time is required to produce all the witnesses before the Enquiry Officer (iv) Your petitioner further states that the Enquiry Officer went on leave for about 20 days on account of the marriage of his son and consequently the enquiry proceedings could not be conducted during the said period (v) Your petitioner states that due to the reasons as stated hereinbefore the enquiry proceedings could not be completed within the time as directed by this Honble Court." * 9. The learned Judge, however, rejected the application as devoid of merit, recording the following reason "It has been stated that the petitioner was suspended as far back as on 4-4-1991 and uptil now no steps have been taken save and except examination of 6 witnesses out of several witnesses. It has also been stated at the instance of the respondent Company, Coal India Limited, several adjournments are taken. It has also been indicated that on some occasions no body turned up on behalf of the Company." * 10. Against such rejection the appellant preferred a Letters Patent Appeal which was dismissed by the impugned order on the grounds that it was not maintainable and that the appellant was guilty of serious laches in concluding the departmental enquiry 11. It was submitted on behalf of the appellant that having regard to the serious nature of the charges levelled against Respondent 1 and the justifiable reasons canvassed by it for not being able to complete the enquiry within the time stipulated, the High Court should have allowed its prayer for extension of time to conclude the enquiry. The appellant further contended that one of the reasons, which weighed with the High Court in refusing to grant further time was that Respondent 1 was suspended as far back as 4-4-1991 but, in fact, at no point of time, was he suspended. That apart, the appellant contended, the claim for his promotion was fully protected as a post in E6 grade was kept vacant to accommodate him in case he was exonerated from the charges 12. In response, it was urged on behalf of Respondent 1 that the departmental enquiry was initiated against Respondent 1 on flimsy and baseless allegations only to delay and, if possible, to deny him his legitimate promotion. In support of this contention strong reliance was placed upon the final report submitted by the CBI on 18-4-1994 - that is, after the High Court passed the impugned order and before the special leave petition was filed in this Court - in the case registered against Respondent 1 exonerating him from the charges levelled against him and the order of the Special Judge, CBI, Ranchi Bench, dated 25-4-1994 discharging Respondent 1 after accepting the final report. The other contention based upon the report was that the appellant could not and should not be allowed to continue with the departmental enquiry as the misconducts alleged against Respondent 1 were identical to the accusations which formed the subject-matter of the case registered against him. Lastly, it was submitted that as the appellant was guilty of wilful laches and negligence in conducting the enquiry the High Court was fully justified in passing the impugned orders 13. Having gone through the material placed before us we are unable to accept the contentions raised by Respondent 1 relying upon the final report, firstly, because, the misconducts and for that matter, the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of Respondent 1 on the ground of non-availability of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecution vis-a-vis a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of Respondent 1 is that the enquiry has proceeded to some length in that six witnesses have already been examined 14. Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that Respondent 1 was suspended since the date the charge-sheet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time ### Response: 1 ### Explanation: 13. Having gone through the material placed before us we are unable to accept the contentions raised by Respondent 1 relying upon the final report, firstly, because, the misconducts and for that matter, the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of Respondent 1 on the ground ofy of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecutions a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of Respondent 1 is that the enquiry has proceeded to some length in that six witnesses have already been examined14. Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that Respondent 1 was suspended since the date thet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time

M/s. Hochtlef Gammon Vs. State of Orissa and Others

and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives." .... a decision of the Minister stands on quite a different basis; he is a public officer charged by Parliament with the discharge of a public discretion affecting Her Majestys subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly."That was a case where the Minister had given elaborate reasons and it was, therefore, possible for their Lordships of the House of Lords to consider the reasons given by the Minister in elaborate detail and show how he had misdirected himself. They also pointed out that by merely keeping silent the Minister cannot avoid the Court considering the whole question.The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle may be set out as follows:The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should They take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see t hat the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. It they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.Judged by these tests the order of the State Government is unsustainable. Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant. Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum. In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus. The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever. In this contract the company had to pay for the material as well as labour. The appellant got paid only for its professional services. There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman. In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman. This however need not be taken as our final view on this point. But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not. Furthermore, when the question of bonus in this case arose what is known as t he Full Bench formula was holding the field in the matter of payment of bonus. If the bonus were to be paid by the appellant it could hardly be brought within that formula. As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either. The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from t he beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company.We have set out the facts of this case at considerable length and considered the whole question. We think that the Governments order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior. It has failed to realise that in effect the contractor employed labour for the company wh() was the real paymaster. It held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant. Naturally the workmen were not interested who paid them as long as they were paid. It would bear repetition to say again that the. Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also. He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts. It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellants application.

1[ds]It is apparent from their reply that the Government had not applied their mind to the facts placed before them. There was at least an arguable case on the point as to who was liable to pay the bonus and in that case the company would have been a necessary and appropriate party. Even if the Government thought that the company was not a necessary party the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary or at least a proper party. The attitude of the appellant had throughout been that their contract was a cost contract, that the company had to pay labour and whilehave employed the workmen the employer was really the company. That contention may or may not be upheld by the Tribunal. Ultimately if the Tribunal should hold that the appellant is the party responsible for payment of bonus the question as between the company on the one hand and appellant on the other may have to be decided by arbitration as provided in the contract between them or otherwise. It appears to us, therefore, that not only was this an appropriate question to be referred to the Industrial Tribunal for adjudication but even the company should be interested in getting itself impleaded as a party so as to put forward any contention which it may decide to put forward as regards the question whether bonus was payable and if so the quantum thereof, as also the question as to who would be liable to pay the bonus instead of adopting, as we have said earlier, an ostrich likepower of the Courts in relation to the orders of the appropriate Government in the matter of referring industrial disputes for adjudication is no longer inby these tests the order of the State Government is unsustainable. Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant. Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum. In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus. The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever. In this contract the company had to pay for the material as well as labour. The appellant got paid only for its professional services. There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman. In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman. This however need not be taken as our final view on this point. But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not. Furthermore, when the question of bonus in this case arose what is known as t he Full Bench formula was holding the field in the matter of payment of bonus. If the bonus were to be paid by the appellant it could hardly be brought within that formula. As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either. The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from t he beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company.We have set out the facts of this case at considerable length and considered the whole question. We think that the Governments order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior. It has failed to realise that in effect the contractor employed labour for the companywas the real paymaster. It held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant. Naturally the workmen were not interested who paid them as long as they were paid. It would bear repetition to say again that the. Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also. He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts. It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellants application.

### 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 that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives." .... a decision of the Minister stands on quite a different basis; he is a public officer charged by Parliament with the discharge of a public discretion affecting Her Majestys subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly."That was a case where the Minister had given elaborate reasons and it was, therefore, possible for their Lordships of the House of Lords to consider the reasons given by the Minister in elaborate detail and show how he had misdirected himself. They also pointed out that by merely keeping silent the Minister cannot avoid the Court considering the whole question.The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle may be set out as follows:The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should They take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see t hat the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. It they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.Judged by these tests the order of the State Government is unsustainable. Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant. Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum. In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus. The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever. In this contract the company had to pay for the material as well as labour. The appellant got paid only for its professional services. There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman. In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman. This however need not be taken as our final view on this point. But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not. Furthermore, when the question of bonus in this case arose what is known as t he Full Bench formula was holding the field in the matter of payment of bonus. If the bonus were to be paid by the appellant it could hardly be brought within that formula. As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either. The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from t he beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company.We have set out the facts of this case at considerable length and considered the whole question. We think that the Governments order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior. It has failed to realise that in effect the contractor employed labour for the company wh() was the real paymaster. It held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant. Naturally the workmen were not interested who paid them as long as they were paid. It would bear repetition to say again that the. Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also. He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts. It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellants application. ### Response: 1 ### Explanation: It is apparent from their reply that the Government had not applied their mind to the facts placed before them. There was at least an arguable case on the point as to who was liable to pay the bonus and in that case the company would have been a necessary and appropriate party. Even if the Government thought that the company was not a necessary party the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary or at least a proper party. The attitude of the appellant had throughout been that their contract was a cost contract, that the company had to pay labour and whilehave employed the workmen the employer was really the company. That contention may or may not be upheld by the Tribunal. Ultimately if the Tribunal should hold that the appellant is the party responsible for payment of bonus the question as between the company on the one hand and appellant on the other may have to be decided by arbitration as provided in the contract between them or otherwise. It appears to us, therefore, that not only was this an appropriate question to be referred to the Industrial Tribunal for adjudication but even the company should be interested in getting itself impleaded as a party so as to put forward any contention which it may decide to put forward as regards the question whether bonus was payable and if so the quantum thereof, as also the question as to who would be liable to pay the bonus instead of adopting, as we have said earlier, an ostrich likepower of the Courts in relation to the orders of the appropriate Government in the matter of referring industrial disputes for adjudication is no longer inby these tests the order of the State Government is unsustainable. Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant. Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum. In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus. The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever. In this contract the company had to pay for the material as well as labour. The appellant got paid only for its professional services. There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman. In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman. This however need not be taken as our final view on this point. But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not. Furthermore, when the question of bonus in this case arose what is known as t he Full Bench formula was holding the field in the matter of payment of bonus. If the bonus were to be paid by the appellant it could hardly be brought within that formula. As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either. The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from t he beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company.We have set out the facts of this case at considerable length and considered the whole question. We think that the Governments order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior. It has failed to realise that in effect the contractor employed labour for the companywas the real paymaster. It held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant. Naturally the workmen were not interested who paid them as long as they were paid. It would bear repetition to say again that the. Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also. He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts. It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellants application.

United Bank Of India Vs. Naresh Kumar

for consideration is whether the plaint was duly signed and verified by a competent person. 9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. 10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the Pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer. 11. The courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant-Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of the Code of Civil Procedure and should have directed a proper power of automate to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim. 12. The courts below having come to a conclusion that money had been taken by Respondent 1 and that Respondent 2 and the husband of Respondent 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable. 13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suitConclusions. 14. The suit of the appellant had been dismissed because Issue 1 had been decided against it. The counsel for the parties have not challenged the decision of the lower appellate court on the other issues, which decision was affirmed by the High Court when it dismissed the second appeal in limine. For the reasons stated hereinabove we hold that Issue 1 was wrongly decided and this being so the appellant was entitled to a decree in view of the decision of the lower appellate court on the other issues.

1[ds]11. The courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant-Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of theCode of Civil Procedure and should have directed a proper power of automate to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim12. The courts below having come to a conclusion that money had been taken by Respondent 1 and that Respondent 2 and the husband of Respondent 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suitConclusions14. The suit of the appellant had been dismissed because Issue 1 had been decided against it. The counsel for the parties have not challenged the decision of the lower appellate court on the other issues, which decision was affirmed by the High Court when it dismissed the second appeal in limine. For the reasons stated hereinabove we hold that Issue 1 was wrongly decided and this being so the appellant was entitled to a decree in view of the decision of the lower appellate court on the other issues

### 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: for consideration is whether the plaint was duly signed and verified by a competent person. 9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. 10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the Pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer. 11. The courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant-Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of the Code of Civil Procedure and should have directed a proper power of automate to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim. 12. The courts below having come to a conclusion that money had been taken by Respondent 1 and that Respondent 2 and the husband of Respondent 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable. 13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suitConclusions. 14. The suit of the appellant had been dismissed because Issue 1 had been decided against it. The counsel for the parties have not challenged the decision of the lower appellate court on the other issues, which decision was affirmed by the High Court when it dismissed the second appeal in limine. For the reasons stated hereinabove we hold that Issue 1 was wrongly decided and this being so the appellant was entitled to a decree in view of the decision of the lower appellate court on the other issues. ### Response: 1 ### Explanation: 11. The courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant-Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of theCode of Civil Procedure and should have directed a proper power of automate to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim12. The courts below having come to a conclusion that money had been taken by Respondent 1 and that Respondent 2 and the husband of Respondent 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suitConclusions14. The suit of the appellant had been dismissed because Issue 1 had been decided against it. The counsel for the parties have not challenged the decision of the lower appellate court on the other issues, which decision was affirmed by the High Court when it dismissed the second appeal in limine. For the reasons stated hereinabove we hold that Issue 1 was wrongly decided and this being so the appellant was entitled to a decree in view of the decision of the lower appellate court on the other issues

People'S Union For Civil Liberties &Anr Vs. Union Of India

nor do they impose any excessive burden or restriction on the right of the accused; that similar provisions are found in Section 37 of the NDPS Act 1985 and in Section 10 of the UP Dacoity Affected Areas Act; that on a true construction of Section 49(6) and (7) it is not correct to conclude that the accused cannot apply for bail at all for a period of one year; that the right of the accused to apply for bail during the period of one year is not completely taken away; that the stringent provision of bail under Section 49(7) would apply only for the first one year of detention and after its expiry the normal bail provisions under Cr.P.C. would apply; that there is no dispute that the principle laid down by this Court in D.K Basu V. State of West Bengal, 1997 (1) SCC 416 , will apply; that in the light of effective safeguards provided in the Act and effective remedies against adverse orders there is no frailty in Section 49.68. Section 49 of the Act is similar to that of Section 20 of TADA, constitutional validity of which has been upheld by this Court in Kartar Singhs case (supra) (pages 691-710 of SCC). Challenge before us is limited to the interpretation of Section 49(6) and (7). By virtue of Section 49(8), the powers under Section 49 (6) and (7) pertaining to bail is in addition to and not in derogation to the powers under the Code or any other law for the time being in force on granting of bail. The offences under POTA are more complex than that of ordinary offences. Usually the overt and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with anti- national elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49 (6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects, we don not think the unreasonableness attributed to Section 49(7) is fair. (See: Kartar Singhs case (supra) page 707, para 349-352 of SCC). 69. Proviso to Section 49(7) reads as under: "Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (6) of this Section shall apply." 70. It is contended that this proviso to Section 49(7) of POTA is read by some of the courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.71. Proviso to Section 49(7) provides that the condition enumerated in sub-section (6) will apply after the expiry of one-year. There appears to be an accidental omission or mistake of not including the word not after the word shall and before the word apply. Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Section 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49.72. There is no challenge to any other provisions of the Act.

0[ds]50. Mens rea by necessary implication could be excluded from a statue only where it is absolutely clear that the implementation of the object of the Statue would otherwise be defeated. Here we need to find out whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule regarding mens rea element. (See: State of Maharashtra V. M H George, AIR 1965 SC 722 , Nathulal V. State of MP, AIR 1966 SC 43 , Inder Sain V. State of Punjab, (1973) 2 SCC 372 , for the general principles concerning the exclusion or inclusion of mens rea elementa given statute). The prominent method of understanding the legislative intention, in a matter of this nature, is to see whether the substantive provisions of the Act requires mens rea element as a constituent ingredient for an offence. Offence under Section 3(1) of POTA will be constituted only if it is done with anintent. If Parliament stipulates that the terrorist act itself has to be committed with the criminal intention, can it be said that a person who profess (as under Section 20) or invites support or arranges, manages, or assist in arranging or managing a meeting or addresses a meeting (as under Section 21) has committed the offence if he does not have an intention or design to further the activities of any terrorist organization or the commission of terrorist acts? We are clear that it is not. Therefore, it is obvious that the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these Sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. If these Sections are understood in this way, there cannot be any misuse. With this clarification we uphold the constitutional validity of Sections 20, 21 and 22.We do not think, as feared by the Petitioner, that this Section fixes a blanket responsibility upon the Court to grant permission immediately upon the receipt of a request. Upon a close reading of the Section it will become clear that upon a request by an investigating police officer it shall only be lawful for the Court to grant permission. Nowhere it is stated that the Court will have to positively grant permission upon a request. It is very well within the ambit of Courts discretion. If the request is based on wrong premise, the Court is free to refuse the request. This discretionary power granted to the Court presupposes that the Court will have to record its reasoning for allowing or refusing aThis being the position in law, the argument of the Petitioners pertaining to the violation of Article 20(3) is not sustainable. It is meaningful to look into Section 91 of Cr. PC that empowers a criminal court as also a police officer to order any person to produce a document or other thing in his possession for the purpose of any inquiry or trial. (See: Shyamlal Mohanlal V. State of Gujarat, AIR 1961 SC 1808 , in this regard). Moreover, this Section is only a step in aid for further investigation and the samples so obtained can never be considered as conclusive proof for conviction. Consequently we uphold the constitutional validity of Section 27.Petitioners challenged the constitutional validity of this Section by leveling the argument; that the right tois an important part of fair trial and principles of natural justice which is guaranteed under Article 21; that even during emergency fundamental rights under Article 20 and 21 cannot be taken away; that Section 30 is in violation of the dictum in Kartar Singhs case (supra) because it does not contain the provision of disclosure of names and identities of the witness before commencement of trial; that fair trial includes the right for the defence to ascertain the true identity of an accuser; that therefore the same has to be declared unconstitutional. Learned Attorney General submitted that such provisions or exercise of such powers are enacted to protect the life and liberty of a person who is able and willing to give evidence in prosecution of grave criminal offences; that the Section is not only in the interest of witness whose life is in danger but also in the interest of community which lies in ensuring that heinous offences like terrorist acts are effectively prosecuted and punished; that if the witnesses are not given immunity they would not come forward to give evidence and there would be no effective prosecution of terrorist offences and the entire object of the Act would be frustrated; that crossexamination is not a universal or indispensable requirement of natural justice and fair trial; that under compelling circumstances it can be dispensed with natural justice and fair trial can be evolved; that the Section requires the Court to be satisfied that the life of witness is in danger and the reasons for keeping the identity of the witness secret are required to be recorded in writing; that, therefore, it is reasonable to hold that the Section is necessary for the operation of the Act.57. Section 30 of POTA is similar to Section 16 of TADA, the constitutional validity of which was upheld by this Court in Kartar Singhs case (supra) (see pages 683689 of SCC). In order to decide the constitutional validity of Section 30 we dont think it is necessary to go into the larger debate, which learned Counsel for both sides have argued, that whether right tois central to fair trial or not. Because right to crossexamination per se is not taken away by Section 30. This Section only confers discretion to the concerned Court to keep the identity of witness secret if the life of such witness is in danger. We cannot shy away from the unpleasant reality that often witnesses do not come forward to depose before Court even in serious cases. This precarious situation creates challenges to our criminal justice administration in general and terrorism related cases in particular. Witnesses do not volunteer to give evidence mainly due to the fear of their life. Ultimately, theaffects the larger interest of community, which lies in ensuring that the executors of heinous offences like terrorist acts are effectively prosecuted and punished. Legislature drafted Section 30 by taking all these factors into account. In our view a fair balance between the rights and interest of witness, rights of accused and larger public interest has been maintained under Section 30. It is also aimed to assist the State in justice administration and encourage others to do the same under the given circumstances. Anonymity of witness is not general rule under Section 30. Identity will be withheld only in exceptional circumstance when the Special Court is satisfied that the life of witness is in jeopardy. Earlier this Court has endorsed similar procedure. (See: Gurbachan Singh V. State of Bombay, 1952 SCR 737 , Hira Nath Mishra V. Principal, Rajendra Medical College, 1973 (1) SCC 805 , A. K. Roy V. Union of India, 1982 (1) SCC 271 ). While deciding the validity of Section 16 of TADA, this Court quoted all these cases with approval. (See also the subsequent decision inIslami Hind V. Union of India, 1995 (1) SCC 428. 58. The need for the existence and exercise of power to grant protection to a witness and preserve his or her anonymity in a criminal trial has been universally recognised. Provisions of such nature have been enacted to protect the life and liberty of the person who is able and willing to give evidence in support of the prosecution in grave criminal cases. A provision of this nature should not be looked at merely from the angle of protection of the witness whose life may be in danger if his or her identity is disclosed but also in the interest of the community to ensure that heinous offences like terrorist acts are effectively prosecuted and punished. It is a notorious fact that a witness who gives evidence which is unfavourable to an accused in a trial for terrorist offence would expose himself to severe reprisals which could result in death or severe bodily injury or that of his family members. If such witnesses are not given appropriate protection, they would not come forward to give evidence and there would be no effective prosecution of terrorist offences and the entire object of the enactment may possibly be frustrated. Under compelling circumstances this can be dispensed with by evolving such other mechanism, which complies with natural justice and thus ensures a fair trial.59. The observations made in this regard by this Court in the decisions to which we have adverted to earlier have been noticed by this Court in Kartar Singhs case (supra) and has upheld the validity of a similar provision subject, of course, to certain conditions which form part of Section 30 now. The present position is that Section 30(2) requires the court to be satisfied that the life of a witness is in danger to invoke a provision of this nature. Furthermore, reasons for keeping the identity and address of a witness secret are required to be recorded in writing and such reasons should be weighty. In order to safeguard the right of an accused to a fair trial and basic requirements of the due process a mechanism can be evolved whereby the special court is obligated to satisfy itself about the truthfulness and reliability of the statement or disposition of the witness whose identity is sought to be protected.60. Our attention has been drawn to legal position in USA, Canada, New Zealand, Australia and UK as well as the view expressed in the European Court of Human Rights in various decisions. However, it is not necessary to refer any of them because the legal position has been fully set out and explained in Kartar Singh and provision of POTA in Section 30 clause (2) has been modelled on the guidelines set out therein. We may further notice that the effort of the court has been to balance the right of the witness as to his life and liberty and the right of community in effective prosecution of heinous criminal offences with the right of the accused to a fair trial. This is done by devising a mechanism or arrangement to preserve anonymity of the witness when there is an identifiable threat to the life or physical safety of the witness or others whereby the court satisfies itself about the weight to be attached to the evidence of the witness. In some jurisdictions an independent counsel has been appointed for the purpose to act as amicus curie and after going through the deposition evidence assist the court in forming an opinion about the weight of the evidence in a given case or in appropriate cases to beon the basis of the questions formulated and given to him by either of the parties. Useful reference may be made in this context to the recommendations of the Law Commission of New Zealand.61. The necessity to protect the identity of the witness is not a factor that can be determined by a general principle. It is dependent on several factors and circumstances arising in a case and, therefore, the Act has left the determination of such question to an appropriate case.62. Keeping secret the identity of witness, though in the larger interest of public, is a deviation from the usual mode of trial. In extraordinary circumstances we are bound to take this path, which is less travelled. Here the Special Courts will have to exercise utmost care and caution to ensure fair trial. The reason for keeping identity of the witness has to be well substantiated. It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness secret. It shall be appropriate for the concerned Courts to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness. With these observations we uphold the validity of Section 30.At the outset it has to be noted that the Section 15 of TADA that was similar to this Section was upheld in Kartar Singhs case (supra) (pagesof SCC). While enacting this Section Parliament has taken into account of all the guidelines, which were suggested by this Court in Kartar Singhs case (supra). Main allegation of the Petitioners is that there is no need to empower the police to record confession since the accused has to be produced before the Magistrate withinhours in which case the Magistrate himself could record the statement or confession. In the context of terrorism the need for making such a provision so as to enable Police officers to record the confession was explained and upheld by this Court in Kartar Singhs case (supra) (page 680 para 253 of SCC). We need not go into that question at this stage. If the recording of confession by police is found to be necessary by Parliament and if it is in tune with the scheme of law, then an additional safeguard under Section 32 (4) and (5) is a fortiori legal. In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrates responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer. It will deter the police officers from obtaining a confession from an accused by subjecting him to torture. It is also worthwhile to note that an officer who is below the rank of a Superintendent of Police cannot record the confession statement. It is a settled position that if a confession was forcibly extracted, it is a nullity in law.of this obvious and settled principle does not make the Section invalid. (See : Kartar Singhs case (supra) page 678, para 248249 of SCC). Ultimately, it is for the concerned Court to decide the admissibility of the confession statement. (See : Kartar Singhs case (supra) page 683, para 264 of SCC). Judicial wisdom will surely prevail over irregularity, if any in the process of recording confessional statement. Therefore we are satisfied that the safeguards provided by the Act and under the law is adequate in the given circumstances and we dont think it is necessary to look more into this matter. Consequently we uphold the validity of Section 32.Section 49 mainly deals with procedure for obtaining bail for an accused under POTA.67. Petitioners main grievance about this Section is that under Section 49(7) a Court could grant bail only if it is satisfied that there are grounds for believing that an accused is not guilty of committing such offence, since such a satisfaction could be attained only after recording of evidence there is every chance that the accused will be granted bail only after minimum one year of detention; that the proviso to Section 49(7), which is not there under TADA, makes it clear that for one year from the date of detention no bail could be granted; that this Section has not incorporated the principles laid down by this Court in Sanjay Dutts case (supra) (at page 439 paraof SCC) wherein it is held that if a challan is not filed after expiry of 180 days or extended period, the indefeasible right of an accused to be released on bail is ensured, provided that the same is exercised before filing of challan; that the prosecution is curtailing even this right under POTA. Therefore, the petitioners want us to make the Section less stringent according to the settled principles of law. Learned Attorney General submitted that the provisions regarding bail are not onerous nor do they impose any excessive burden or restriction on the right of the accused; that similar provisions are found in Section 37 of the NDPS Act 1985 and in Section 10 of the UP Dacoity Affected Areas Act; that on a true construction of Section 49(6) and (7) it is not correct to conclude that the accused cannot apply for bail at all for a period of one year; that the right of the accused to apply for bail during the period of one year is not completely taken away; that the stringent provision of bail under Section 49(7) would apply only for the first one year of detention and after its expiry the normal bail provisions under Cr.P.C. would apply; that there is no dispute that the principle laid down by this Court in D.K Basu V. State of West Bengal, 1997 (1) SCC 416 , will apply; that in the light of effective safeguards provided in the Act and effective remedies against adverse orders there is no frailty in Section 49.68. Section 49 of the Act is similar to that of Section 20 of TADA, constitutional validity of which has been upheld by this Court in Kartar Singhs case (supra) (pagesof SCC). Challenge before us is limited to the interpretation of Section 49(6) and (7). By virtue of Section 49(8), the powers under Section 49 (6) and (7) pertaining to bail is in addition to and not in derogation to the powers under the Code or any other law for the time being in force on granting of bail. The offences under POTA are more complex than that of ordinary offences. Usually the overt and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with antinational elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49 (6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects, we don not think the unreasonableness attributed to Section 49(7) is fair. (See: Kartar Singhs case (supra) page 707, para0. It is contended that this proviso to Section 49(7) of POTA is read by some of the courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.71. Proviso to Section 49(7) provides that the condition enumerated in(6) will apply after the expiry ofThere appears to be an accidental omission or mistake of not including the word not after the word shall and before the word apply. Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Section 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49.72. There is no challenge to any other provisions of the Act.We have upheld the constitutional validity of Section 21 of POTA in the decision pronounced by us in Writ Petition (C) No. 389 of 2002 above and, therefore, the first question does not survive for consideration.77. So far as the second question is concerned, we have heard Shri F.S. Nariman and Shri Anil B. Divan, learned senior counsel appearing for the petitioner, apart from Shri Rajinder Sachhar and Shri B.S. Malik, the learned senior counsel appearing for the petitioner in connected matters, on the interpretation of Section 21 of POTA. Shri P.P. Rao, appearing for the State of Tamil Nadu, has made elaborate submissions and adverted to various affidavits filed by the Union of India. However, it is not necessary for us to examine any of these aspects in these proceedings. We have carefully considered the arguments advanced by the learned counsel and that of the learned Attorney General for India on this aspect of the matter. We think, the proper course that has to be adopted in a case of this nature where a criminal case has already been lodged and the same is pending consideration before the Special Court, it would not be appropriate for us to express our views on the question of facts arising in this case. We are sure that the Special Court will decide the matter in the light of decision pronounced by us in Writ Petition (C) No. 389 of 2002 above.

### 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: nor do they impose any excessive burden or restriction on the right of the accused; that similar provisions are found in Section 37 of the NDPS Act 1985 and in Section 10 of the UP Dacoity Affected Areas Act; that on a true construction of Section 49(6) and (7) it is not correct to conclude that the accused cannot apply for bail at all for a period of one year; that the right of the accused to apply for bail during the period of one year is not completely taken away; that the stringent provision of bail under Section 49(7) would apply only for the first one year of detention and after its expiry the normal bail provisions under Cr.P.C. would apply; that there is no dispute that the principle laid down by this Court in D.K Basu V. State of West Bengal, 1997 (1) SCC 416 , will apply; that in the light of effective safeguards provided in the Act and effective remedies against adverse orders there is no frailty in Section 49.68. Section 49 of the Act is similar to that of Section 20 of TADA, constitutional validity of which has been upheld by this Court in Kartar Singhs case (supra) (pages 691-710 of SCC). Challenge before us is limited to the interpretation of Section 49(6) and (7). By virtue of Section 49(8), the powers under Section 49 (6) and (7) pertaining to bail is in addition to and not in derogation to the powers under the Code or any other law for the time being in force on granting of bail. The offences under POTA are more complex than that of ordinary offences. Usually the overt and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with anti- national elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49 (6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects, we don not think the unreasonableness attributed to Section 49(7) is fair. (See: Kartar Singhs case (supra) page 707, para 349-352 of SCC). 69. Proviso to Section 49(7) reads as under: "Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (6) of this Section shall apply." 70. It is contended that this proviso to Section 49(7) of POTA is read by some of the courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.71. Proviso to Section 49(7) provides that the condition enumerated in sub-section (6) will apply after the expiry of one-year. There appears to be an accidental omission or mistake of not including the word not after the word shall and before the word apply. Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Section 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49.72. There is no challenge to any other provisions of the Act. ### Response: 0 ### Explanation: Section 20 of TADA, constitutional validity of which has been upheld by this Court in Kartar Singhs case (supra) (pagesof SCC). Challenge before us is limited to the interpretation of Section 49(6) and (7). By virtue of Section 49(8), the powers under Section 49 (6) and (7) pertaining to bail is in addition to and not in derogation to the powers under the Code or any other law for the time being in force on granting of bail. The offences under POTA are more complex than that of ordinary offences. Usually the overt and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with antinational elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49 (6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects, we don not think the unreasonableness attributed to Section 49(7) is fair. (See: Kartar Singhs case (supra) page 707, para0. It is contended that this proviso to Section 49(7) of POTA is read by some of the courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.71. Proviso to Section 49(7) provides that the condition enumerated in(6) will apply after the expiry ofThere appears to be an accidental omission or mistake of not including the word not after the word shall and before the word apply. Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Section 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49.72. There is no challenge to any other provisions of the Act.We have upheld the constitutional validity of Section 21 of POTA in the decision pronounced by us in Writ Petition (C) No. 389 of 2002 above and, therefore, the first question does not survive for consideration.77. So far as the second question is concerned, we have heard Shri F.S. Nariman and Shri Anil B. Divan, learned senior counsel appearing for the petitioner, apart from Shri Rajinder Sachhar and Shri B.S. Malik, the learned senior counsel appearing for the petitioner in connected matters, on the interpretation of Section 21 of POTA. Shri P.P. Rao, appearing for the State of Tamil Nadu, has made elaborate submissions and adverted to various affidavits filed by the Union of India. However, it is not necessary for us to examine any of these aspects in these proceedings. We have carefully considered the arguments advanced by the learned counsel and that of the learned Attorney General for India on this aspect of the matter. We think, the proper course that has to be adopted in a case of this nature where a criminal case has already been lodged and the same is pending consideration before the Special Court, it would not be appropriate for us to express our views on the question of facts arising in this case. We are sure that the Special Court will decide the matter in the light of decision pronounced by us in Writ Petition (C) No. 389 of 2002 above.

Sabarkantha Zilla Kharid Vechan Sangh Limited Vs. Commissioner of Income Tax

included in the gross total income of the assessee, then notwithstanding anything contained in that section for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provisions of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." * 17. Hence, the view taken by the Andhra Pradesh High Court on the scope of Section 80-P of the I.T. Act which had replaced Section 81 of the I.T. Act, fully supports the view we have already expressed on the income exemption of profits and gains of a business of a cooperative society as envisaged under Section 81 of the I.T. Act read in conjunction with Sections 66 and 110 thereof 18. The case of Distributors (Baroda) P. Ltd. is a decision of the Constitution Bench of this Court. There, this Court was concerned with the interpretation to be placed on Section 80-M of the I.T. Act. That section read thus "80-M. Deduction in respect of certain inter-corporate dividends. - (1) Where the gross total income of an assessee being a company includes any income by way of dividends received by it from a domestic company, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, deduction from such income by way of dividends of an amount equal to -(a) where the assessee is a foreign company -(i) in respect of such income by way of 80% of suchdividends received by it from an income;Indian company which is not such a companyas is referred to in Section 108 and whichis mainly engaged in a priority industry(ii) in respect of such income by way of 65% of suchdividends other than the dividends income;referred to in sub-clause (i)(b) where the assessee is a domestic company -in respect of any such income by way 60% of suchof dividends income." * 19. The requirement of the above sub-section (1) of Section 80-M of the I.T. Act, according to the Constitution Bench, was this : (SCC pp. 58-9, para 17) "... Sub-section (1) of Section 80-M provides that in computing the total income of the assessee, there shall be allowed a deduction from such income by way of dividends of an amount equal to the whole or a specified percentage of such income. Now, when in computing the total income of the assessee, a deduction has to be made from such income by way of dividends, it is elementary that such income by way of dividends from which deduction has to be made must be part of gross total income. It is difficult to see how the language of this part of sub-section (1) of Section 80-M can possibly fit in if such income by way of dividends were interpreted to mean the full amount of dividend received by the assessee. The full amount of dividend received by the assessee would not be included in the gross total income : what would be included would only be the amount of dividend as computed in accordance with the provisions of the Act. If that be so, it is difficult to appreciate how for the purpose of computing the total income from the gross total income, any deduction should be required to be made from the full amount of the dividend. The deduction required to be made for computing the total income from the gross total income can only be from the amount of dividend computed in accordance with the provisions of the Act which would be forming part of the gross total income. It is, therefore, clear that whatever might have been the interpretation placed on clause (iv) of sub-section (1) of Section 99 and Section 85-A, the correctness of which is not in issue before us, so far as sub-section (1) of Section 80-M is concerned, the deduction required to be allowed under that provision is liable to be calculated with reference to the amount of dividend computed in accordance with the provisions of the Act and forming part of the gross total income and not with reference to the full amount of dividend received by the assessee." * 20. If, what is stated above is the requirement of Section 80-M of the I.T. Act, regarded as a clarificatory provision on its plain language, the requirement of Section 81(i)(d) of the I.T. Act, on its plain language read in conjunction with Sections 66 and 110 of the I.T. Act, makes it manifest that the scheme of income tax exemption provided for under the I.T. Act for a cooperative society in relation to profits and gains of its business, is not in any way different. Thus the view we have taken as to the income tax exemption envisaged under Section 81(i)(d) of the I.T. Act receives full support from the decision of the Constitution Bench21. Then, coming to the question of actual amount to be deducted as income tax to which a cooperative society becomes entitled under Section 81(i)(d), Section 110 makes it clear that the deduction to which such cooperative society would be entitled from the amount of income tax with which it is chargeable on its total income, is an amount equal to the income tax calculated at the average rate of income tax on the amount on which no income tax is payable. Since the average rate of income tax is defined in Section 2(10) as meaning the rate arrived at by dividing the amount of income tax calculated on the total income, by such total income, the deduction in income tax to which a cooperative society doing the business envisaged under Section 81(i)(d) would be entitled, can only be the average rate of income tax on the amount on which no income tax is payable and nothing more

0[ds]10. When, we come to Section 66, it requires that in computing the total income of an assessee, there shall be included all income on which no income tax is payable under Chapter VII thereof. What needs to be noticed here is, that clause (45) of Section 2 defines total income as the total amount of income referred to in Section 5 computed in the manner laid down in the I.T. Act. Then comes Section 110. It provides for the mode of computing the tax in cases where the exempted income is include in the totalThus, when Section 66 of the I.T. Act, requires the computation of the total income of every person to be done by including all income on which no income tax is payable under Chapter VII, the income on which no income tax is payable by a cooperative society under Section 81(i)(d) falling in Chapter VII, has to be necessarily included in its total income. The above Section 110 is then attracted because of the very words of its opening clause. Hence, when the assesseecooperative societys income is included in its total income, it becomes entitled to a deduction from the amount of income tax chargeable on its total income. That means, the cooperative society concerned becomes entitled to deduction or exemption from income tax payable by it only on its net amount of profits and gains, i.e., on income of its business otherwise computable in accordance with the provisions of the I.T. Act for the purpose of charging income tax thereon and which is included in its total income, and not on the amount of its gross profits and gains of business12. Thus, the said provisions of the I.T. Act, in our view, clearly envisage a legislative scheme of giving income tax exemption to asociety carrying on its business contemplated in Section 81(i)(d) of the I.T. Act, not with respect to the amount of gross profits and gains of its business but only with respect to the amount of net profits and gains, i.e., income of its business otherwise computable according to the provisions of the I.T. Act for the purpose of charging income tax as a part of the total income of the assessee, as required under Section 110 of the I.T. Act13. Since the above view of ours on the income tax exemption allowed under Section 81(i)(d) of the I.T. Act is based on the applicability of the express provisions in the I.T. Act bearing thereon, it would be enough to refer to two decided casesone of the Andhra Pradesh High Court in CIT v. Anakapalli Cooperative Marketing Society and the other of this Court in Distributors (Baroda) P. Ltd. v. Union of India which directly bear on theHence, the view taken by the Andhra Pradesh High Court on the scope of Sectionof the I.T. Act which had replaced Section 81 of the I.T. Act, fully supports the view we have already expressed on the income exemption of profits and gains of a business of a cooperative society as envisaged under Section 81 of the I.T. Act read in conjunction with Sections 66 and 110If, what is stated above is the requirement of Sectionof the I.T. Act, regarded as a clarificatory provision on its plain language, the requirement of Section 81(i)(d) of the I.T. Act, on its plain language read in conjunction with Sections 66 and 110 of the I.T. Act, makes it manifest that the scheme of income tax exemption provided for under the I.T. Act for a cooperative society in relation to profits and gains of its business, is not in any way different. Thus the view we have taken as to the income tax exemption envisaged under Section 81(i)(d) of the I.T. Act receives full support from the decision of the Constitution Bench21. Then, coming to the question of actual amount to be deducted as income tax to which a cooperative society becomes entitled under Section 81(i)(d), Section 110 makes it clear that the deduction to which such cooperative society would be entitled from the amount of income tax with which it is chargeable on its total income, is an amount equal to the income tax calculated at the average rate of income tax on the amount on which no income tax is payable. Since the average rate of income tax is defined in Section 2(10) as meaning the rate arrived at by dividing the amount of income tax calculated on the total income, by such total income, the deduction in income tax to which a cooperative society doing the business envisaged under Section 81(i)(d) would be entitled, can only be the average rate of income tax on the amount on which no income tax is payable and nothing more

### 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: included in the gross total income of the assessee, then notwithstanding anything contained in that section for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provisions of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." * 17. Hence, the view taken by the Andhra Pradesh High Court on the scope of Section 80-P of the I.T. Act which had replaced Section 81 of the I.T. Act, fully supports the view we have already expressed on the income exemption of profits and gains of a business of a cooperative society as envisaged under Section 81 of the I.T. Act read in conjunction with Sections 66 and 110 thereof 18. The case of Distributors (Baroda) P. Ltd. is a decision of the Constitution Bench of this Court. There, this Court was concerned with the interpretation to be placed on Section 80-M of the I.T. Act. That section read thus "80-M. Deduction in respect of certain inter-corporate dividends. - (1) Where the gross total income of an assessee being a company includes any income by way of dividends received by it from a domestic company, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, deduction from such income by way of dividends of an amount equal to -(a) where the assessee is a foreign company -(i) in respect of such income by way of 80% of suchdividends received by it from an income;Indian company which is not such a companyas is referred to in Section 108 and whichis mainly engaged in a priority industry(ii) in respect of such income by way of 65% of suchdividends other than the dividends income;referred to in sub-clause (i)(b) where the assessee is a domestic company -in respect of any such income by way 60% of suchof dividends income." * 19. The requirement of the above sub-section (1) of Section 80-M of the I.T. Act, according to the Constitution Bench, was this : (SCC pp. 58-9, para 17) "... Sub-section (1) of Section 80-M provides that in computing the total income of the assessee, there shall be allowed a deduction from such income by way of dividends of an amount equal to the whole or a specified percentage of such income. Now, when in computing the total income of the assessee, a deduction has to be made from such income by way of dividends, it is elementary that such income by way of dividends from which deduction has to be made must be part of gross total income. It is difficult to see how the language of this part of sub-section (1) of Section 80-M can possibly fit in if such income by way of dividends were interpreted to mean the full amount of dividend received by the assessee. The full amount of dividend received by the assessee would not be included in the gross total income : what would be included would only be the amount of dividend as computed in accordance with the provisions of the Act. If that be so, it is difficult to appreciate how for the purpose of computing the total income from the gross total income, any deduction should be required to be made from the full amount of the dividend. The deduction required to be made for computing the total income from the gross total income can only be from the amount of dividend computed in accordance with the provisions of the Act which would be forming part of the gross total income. It is, therefore, clear that whatever might have been the interpretation placed on clause (iv) of sub-section (1) of Section 99 and Section 85-A, the correctness of which is not in issue before us, so far as sub-section (1) of Section 80-M is concerned, the deduction required to be allowed under that provision is liable to be calculated with reference to the amount of dividend computed in accordance with the provisions of the Act and forming part of the gross total income and not with reference to the full amount of dividend received by the assessee." * 20. If, what is stated above is the requirement of Section 80-M of the I.T. Act, regarded as a clarificatory provision on its plain language, the requirement of Section 81(i)(d) of the I.T. Act, on its plain language read in conjunction with Sections 66 and 110 of the I.T. Act, makes it manifest that the scheme of income tax exemption provided for under the I.T. Act for a cooperative society in relation to profits and gains of its business, is not in any way different. Thus the view we have taken as to the income tax exemption envisaged under Section 81(i)(d) of the I.T. Act receives full support from the decision of the Constitution Bench21. Then, coming to the question of actual amount to be deducted as income tax to which a cooperative society becomes entitled under Section 81(i)(d), Section 110 makes it clear that the deduction to which such cooperative society would be entitled from the amount of income tax with which it is chargeable on its total income, is an amount equal to the income tax calculated at the average rate of income tax on the amount on which no income tax is payable. Since the average rate of income tax is defined in Section 2(10) as meaning the rate arrived at by dividing the amount of income tax calculated on the total income, by such total income, the deduction in income tax to which a cooperative society doing the business envisaged under Section 81(i)(d) would be entitled, can only be the average rate of income tax on the amount on which no income tax is payable and nothing more ### Response: 0 ### Explanation: 10. When, we come to Section 66, it requires that in computing the total income of an assessee, there shall be included all income on which no income tax is payable under Chapter VII thereof. What needs to be noticed here is, that clause (45) of Section 2 defines total income as the total amount of income referred to in Section 5 computed in the manner laid down in the I.T. Act. Then comes Section 110. It provides for the mode of computing the tax in cases where the exempted income is include in the totalThus, when Section 66 of the I.T. Act, requires the computation of the total income of every person to be done by including all income on which no income tax is payable under Chapter VII, the income on which no income tax is payable by a cooperative society under Section 81(i)(d) falling in Chapter VII, has to be necessarily included in its total income. The above Section 110 is then attracted because of the very words of its opening clause. Hence, when the assesseecooperative societys income is included in its total income, it becomes entitled to a deduction from the amount of income tax chargeable on its total income. That means, the cooperative society concerned becomes entitled to deduction or exemption from income tax payable by it only on its net amount of profits and gains, i.e., on income of its business otherwise computable in accordance with the provisions of the I.T. Act for the purpose of charging income tax thereon and which is included in its total income, and not on the amount of its gross profits and gains of business12. Thus, the said provisions of the I.T. Act, in our view, clearly envisage a legislative scheme of giving income tax exemption to asociety carrying on its business contemplated in Section 81(i)(d) of the I.T. Act, not with respect to the amount of gross profits and gains of its business but only with respect to the amount of net profits and gains, i.e., income of its business otherwise computable according to the provisions of the I.T. Act for the purpose of charging income tax as a part of the total income of the assessee, as required under Section 110 of the I.T. Act13. Since the above view of ours on the income tax exemption allowed under Section 81(i)(d) of the I.T. Act is based on the applicability of the express provisions in the I.T. Act bearing thereon, it would be enough to refer to two decided casesone of the Andhra Pradesh High Court in CIT v. Anakapalli Cooperative Marketing Society and the other of this Court in Distributors (Baroda) P. Ltd. v. Union of India which directly bear on theHence, the view taken by the Andhra Pradesh High Court on the scope of Sectionof the I.T. Act which had replaced Section 81 of the I.T. Act, fully supports the view we have already expressed on the income exemption of profits and gains of a business of a cooperative society as envisaged under Section 81 of the I.T. Act read in conjunction with Sections 66 and 110If, what is stated above is the requirement of Sectionof the I.T. Act, regarded as a clarificatory provision on its plain language, the requirement of Section 81(i)(d) of the I.T. Act, on its plain language read in conjunction with Sections 66 and 110 of the I.T. Act, makes it manifest that the scheme of income tax exemption provided for under the I.T. Act for a cooperative society in relation to profits and gains of its business, is not in any way different. Thus the view we have taken as to the income tax exemption envisaged under Section 81(i)(d) of the I.T. Act receives full support from the decision of the Constitution Bench21. Then, coming to the question of actual amount to be deducted as income tax to which a cooperative society becomes entitled under Section 81(i)(d), Section 110 makes it clear that the deduction to which such cooperative society would be entitled from the amount of income tax with which it is chargeable on its total income, is an amount equal to the income tax calculated at the average rate of income tax on the amount on which no income tax is payable. Since the average rate of income tax is defined in Section 2(10) as meaning the rate arrived at by dividing the amount of income tax calculated on the total income, by such total income, the deduction in income tax to which a cooperative society doing the business envisaged under Section 81(i)(d) would be entitled, can only be the average rate of income tax on the amount on which no income tax is payable and nothing more

BABULAL VARDHARJI GURJAR Vs. VEER GURJAR ALUMINIUM INDUSTRIES PVT LTD & ANR.

of an application under Section 7 is to commence from the date of commencement of the Code itself. Similarly, nothing provided in the Limitation Act could be taken as the basis to support the proposition so stated by the Appellate Tribunal. In fact, such observations had been in the teeth of law declared by this Court in the case of B. K. Educational Services (supra). 36.1. It appears that at the given point of time, NCLAT had been readily adopting such a proposition in other cases too, so as to treat similar applications within limitation. This approach of NCLAT was specifically disapproved by this Court in Sagar Sharma (supra) where, after observing that in B. K. Educational Services (supra) it had already been made clear that the date of the Codes coming into force on 01.12.2016 was wholly irrelevant to the triggering of any limitation period for the purposes of the Code, this Court said,- 3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IB Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since applications are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications. 37. The other observations as made and the reasoning as adopted by the Appellate Tribunal in paragraphs 29 and 30 of the impugned order, that the property having been mortgaged, the claim is not barred by limitation because of the period of limitation of twelve years with regard to mortgaged property, had again been erroneous and do not stand in conformity with the dictum of this Court. 37.1. The Appellate Tribunal was conscious of the decision of this Court in B. K. Educational Services (supra) wherein it had been held in no uncertain terms that the limitation provided in Article 137 governs the application under Section 7 of the Code. When Article 137, being the residuary provision on the period of limitation for other applications is held applicable by this Court for the purpose of reckoning the period of limitation for an application under Section 7 of the Code, it remains rather inexplicable as to how the Appellate Tribunal could have applied any other Article of Limitation Act (and that too relating to suits) for the purpose of such an application? 37.2. In the totality of circumstances, we are also constrained to refer to paragraph 24 of the very same order wherein, the Appellate Tribunal has noticed its own decision in the case of Binani Industries, holding that the period of limitation prescribed in the First Division of the Schedule to the Limitation Act (providing limitation period for suits) is not applicable to the proceedings under the Code. However, the observations and findings in the later part of the impugned order are contrary even to those occurring in the said paragraph 24 of the very same order. 37.3 It again appears that in other cases too, similar reasoning prevailed with the Adjudicating Authorities as also the Appellate Tribunal, where the Articles of the Limitation Act relating to the suits concerning mortgaged property (and thereby the period of limitation of twelve years) were sought to be applied to hold that similar applications under Section 7 of the Code were not barred by limitation. Such propositions were specifically disapproved by a three-Judge Bench of this Court in the case of Gaurav Hargovindbhai Dave (supra) decided on 18.09.2019. As noticed hereinbefore, in Gaurav Hargovindbhai Dave (supra) this Court disapproved the approach of Adjudicating Authority in applying Article 62 of the Limitation Act to such an application under Section 7 of the Code with the observations that Article 62 is out of way, for it applies only to suits; and application under Section 7 falls within the ambit of residuary Article 137. In Sagar Sharma (supra), this Court again pointed out the fallacy in applying the period of limitation related to mortgage liability for the purpose of application under Section 7 of the Code. 37.4. In view of the above, there remains nothing to doubt that the Appellate Tribunal had been in error in applying the period of limitation provided for mortgage liability for the purpose of limitation applicable to the application in question. The observations and findings in paragraphs 29 and 30 of the impugned order are also required to be disapproved. Summation 38. The discussion foregoing leads to the inescapable conclusion that the application made by the respondent No. 2 under Section 7 of the Code in the month of March 2018, seeking initiation of CIRP in respect of the corporate debtor with specific assertion of the date of default as 08.07.2011, is clearly barred by limitation for having been filed much later than the period of three years from the date of default as stated in the application. The NCLT having not examined the question of limitation; the NCLAT having decided the question of limitation on entirely irrelevant considerations; and the attempt on the part of the respondents to save the limitation with reference to the principles of acknowledgment having been found unsustainable, the impugned orders deserve to be set aside and the application filed by the respondent No. 2 deserves to be rejected as being barred by limitation. Other proceedings not to be affected 39. Before concluding on this matter, we would hasten to observe that admittedly, at the time of moving of the application under Section 7 of the Code by the respondent No. 2, a petition under Section 19 of the Act of 1993 was pending before DRT against the corporate debtor. In view of admission of the application under Section 7 of the Code by NCLT, the said petition under Section 19 of the Act of 1993 (and any other pending matter against the corporate debtor) could not have proceeded during the period of moratorium in terms of Section 14 of the Code.

0[ds]19. The expositions abovementioned make it clear that the Insolvency and Bankruptcy Code, 2016 has been enacted to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons and other entrepreneurs in a time bound manner so as to ensure maximisation of value of assets of such persons and to balance the interest of all the stakeholders. As regards corporate debtor, the primary focus of the Code is to ensure its revival and continuation by protecting it from its own management and, as far as feasible, to save it from liquidation. As tersely put by this Court in Swiss Ribbons (supra), the Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors.19.1. When the Corporate Insolvency Resolution Process is understood on the anvil of the aforementioned fundamentals on the spirit and intent of IBC, it is also evident that such a process is not intended to be adversarial to the corporate debtor but is essentially to protect its interests.19.2. In relation to a financial creditor, the trigger for CIRP is default by the corporate debtor of rupees one lakh or more against the debt/s. When seeking initiation of CIRP qua a corporate debtor, the financial creditor is required to make the application in conformity with the requirements of Section 7 of the Code while divulging the necessary information and evidence, as required by the Rules of 2016. After completion of all other requirements, for admitting such an application of the financial creditor, the Adjudicating Authority has to be satisfied, as per sub-section (5) of Section 7 of the Code, that default has occurred and, in this process of consideration by the Adjudicating Authority, the corporate debtor is entitled to point out that default has not occurred in the sense that the debt, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. As observed by this Court, the legislative policy now is to move away from the concept of inability to pay debts to determination of default.20. Having taken note of the rudiments that the Code is a beneficial legislation intended to put the corporate debtor on its feet and it is not a mere money recovery legislation for the creditors; and having also noticed that CIRP is not intended to be adversarial to the corporate debtor but is essentially to protect its interests and that CIRP has its genesis in default on the part of the corporate debtor, we may now examine the operation of law of limitation over the proceedings under the Code.30. When Section 238-A of the Code is read with the above-noted consistent decisions of this Court in Innoventive Industries, B.K. Educational Services, Swiss Ribbons, K. Sashidhar, Jignesh Shah, Vashdeo R. Bhojwani, Gaurav Hargovindbhai Dave and Sagar Sharma respectively, the following basics undoubtedly come to the fore: (a) that the Code is a beneficial legislation intended to put the corporate debtor back on its feet and is not a mere money recovery legislation; (b) that CIRP is not intended to be adversarial to the corporate debtor but is aimed at protecting the interests of the corporate debtor; (c) that intention of the Code is not to give a new lease of life to debts which are time-barred; (d) that the period of limitation for an application seeking initiation of CIRP under Section 7 of the Code is governed by Article 137 of the Limitation Act and is, therefore, three years from the date when right to apply accrues; (e) that the trigger for initiation of CIRP by a financial creditor is default on the part of the corporate debtor, that is to say, that the right to apply under the Code accrues on the date when default occurs; (f) that default referred to in the Code is that of actual non-payment by the corporate debtor when a debt has become due and payable; and (g) that if default had occurred over three years prior to the date of filing of the application, the application would be time-barred save and except in those cases where, on facts, the delay in filing may be condoned; and (h) an application under Section 7 of the Code is not for enforcement of mortgage liability and Article 62 of the Limitation Act does not apply to this application.25.1 In order to comprehend the meaning and import of the referred observations in paragraph 21 of Jignesh Shah, the text thereof is required to be read in its context.25.3. Though with the aforesaid finding, the matter stood concluded that the petition filed by IL&FS was barred by limitation but thereafter, the Court also proceeded to examine another line of submissions of the parties as regards effect of the suit for recovery over the proceedings under Section 433 of the Companies Act, 1956, where it was argued on behalf of the appellants that existence of such a suit cannot be construed as having either revived the period of limitation or having extended it, insofar as concerning the proceeding for winding up. This Court accepted the said contention of the appellants and in that context, made the observations that are relied upon by the parties and read as under:-21. The aforesaid judgments correctly hold that a suit for recovery based upon a cause of action that is within limitation cannot in any manner impact the separate and independent remedy of a winding-up proceeding. In law, when time begins to run, it can only be extended in the manner provided in the Limitation Act. For example, an acknowledgment of liability under Section 18 of the Limitation Act would certainly extend the limitation period, but a suit for recovery, which is a separate and independent proceeding distinct from the remedy of winding up would, in no manner, impact the limitation within which the winding-up proceeding is to be filed, by somehow keeping the debt alive for the purpose of the winding-up proceeding.25.2. This Court accepted the contentions urged on behalf of the appellants and while reproducing the relevant passages from B.K. Educational Services, held that the bar of limitation was operating over the application filed by IL&FS in the following words:-12. This judgment clinches the issue in favour of the Petitioner/Appellant. With the introduction of Section 238A into the Code, the provisions of the Limitation Act apply to applications made under the Code. Winding up petitions filed before the Code came into force are now converted into petitions filed under the Code. What has, therefore, to be decided is whether the Winding up Petition, on the date that it was filed, is barred by lapse of time. If such petition is found to be time-barred, then Section 238A of the Code will not give a new lease of life to such a time-barred petition. On the facts of this case, it is clear that as the Winding up Petition was filed beyond three years from August, 2012 which is when, even according to IL & FS, default in repayment had occurred, it is barred by time.(emphasis in bold supplied)32. We have noticed all the relevant and material observations and enunciations in the case of Jignesh Shah hereinbefore. Prima facie, it appears that illustrative reference to Section 18 of the Limitation Act, in paragraph 21 of the decision in Jignesh Shah, had only been in relation to the suit or other proceedings, wherever it could apply and where the period of limitation could get extended because of acknowledgment of liability. Noticeably, in contradistinction to the proceeding of a suit, this Court observed that a suit for recovery, which is a separate and independent proceeding distinct from the remedy of winding up would, in no manner, impact the limitation within which the winding up proceeding is to be filed . It is difficult to read the observations in the aforesaid paragraph 21 of Jignesh Shah to mean that the ratio of B.K. Educational Services has, in any manner, been altered by this Court. As noticed, in B.K. Educational Services, it has clearly been held that the limitation period for application under Section 7 of the Code is three years as provided by Article 137 of the Limitation Act, which commences from the date of default and is extendable only by application of Section 5 of Limitation Act, if any case for condonation of delay is made out. The findings in paragraph 12 in Jignesh Shah makes it clear that the Court indeed applied the principles so stated in B.K. Educational Services, and held that the winding up petition filed beyond three years from the date of default was barred by time.32.1. Even in the later decisions, this Court has consistently applied the declaration of law in B.K. Educational Services (supra). As noticed, in the case of Vashdeo R. Bhojwani (supra), this Court rejected the contention suggesting continuing cause of action for the purpose of application under Section 7 of the Code while holding that the limitation started ticking from the date of issuance of recovery certificate dated 24.12.2001. Again, in the case of Gaurav Hargovindbhai Dave (supra), where the date of default was stated in the application under Section 7 of the Code to be the date of NPA i.e., 21.07.2011, this Court held that the limitation began to run from the date of NPA and hence, the application filed under Section 7 of the Code on 03.10.2017 was barred by limitation.32.2. In view of the above, we are not inclined to accept the arguments built up by the respondents with reference to one part of observations occurring in paragraph 21 of the decision in Jignesh Shah (supra).33. Apart from the above and even if it be assumed that the principles relating to acknowledgement as per Section 18 of the Limitation Act are applicable for extension of time for the purpose of the application under Section 7 of the Code, in our view, neither the said provision and principles come in operation in the present case nor they enure to the benefit of respondent No. 2 for the fundamental reason that in the application made before NCLT, the respondent No. 2 specifically stated the date of default as 8.7.2011 being the date of NPA. It remains indisputable that neither any other date of default has been stated in the application nor any suggestion about any acknowledgement has been made. As noticed, even in Part-V of the application, the respondent No. 2 was required to state the particulars of financial debt with documents and evidence on record. In the variety of descriptions which could have been given by the applicant in the said Part- V of the application and even in residuary Point No. 8 therein, nothing was at all stated at any place about the so called acknowledgment or any other date of default.33.1. Therefore, on the admitted fact situation of the present case, where only the date of default as 08.07.2011 has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgement or any other date of default, in our view, the submissions sought to be developed on behalf of the respondent No. 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case, the respondent No. 2 never came out with any pleading other than stating the date of default as 08.07.2011 in the application. That being the position, no case for extension of period of limitation is available to be examined. In other words, even if Section 18 of the Limitation Act and principles thereof were applicable, the same would not apply to the application under consideration in the present case, looking to the very averment regarding default therein and for want of any other averment in regard to acknowledgement. In this view of the matter, reliance on the decision in Mahaveer Cold Storage Pvt. Ltd. does not advance the cause of the respondent No. 2.34. The submissions made on behalf of respondents that the rules of limitation are not meant to destroy the rights of the parties and reference to the decision in N. Balakrishnan (supra) are also misplaced. Application of the rules of limitation to CIRP (by virtue of Section 238-A of the Code read with the above-referred consistent decisions of this Court) does not, in any manner, deal with any of the rights of respondent No. 2; it only bars recourse to the particular remedy of initiation of CIRP under the Code. Equally, the other submissions made on behalf of the respondents about any stringent application of the law of limitation which was introduced to the Code only after filing of the application by respondent No. 2; or about the so called prejudice likely to be caused to other banks and financial institutions are also of no substance, particularly in the light of the principles laid down and consistently followed by this Court right from the decision in B.K. Educational Services (supra). These contentions have only been noted to be rejected. Needless to add that when the application made by the respondent No. 2 for CIRP is barred by limitation, no proceedings undertaken therein after the order of admission could be of any effect. All such proceedings remain non-est and could only be annulled.35. The foregoing discussion practically concludes the principal part of contentions urged in this matter but, to put the record straight, we may also deal with the reasonings adopted by NCLAT in the impugned order dated 14.05.2019. As noticed hereinbefore, though NCLAT has referred to the pendency of the application under Section 19 of the Act of 1993 as also the fact that corporate debtor had made a prayer for OTS in the month of July, 2018 but, has not recorded any specific finding about the effect of these factors. Only two reasons essentially appear to have weighed with NCLAT to hold that the application in question is within limitation: One, that the right to apply under Section 7 of the Code accrued to the respondent financial creditor on 01.12.2016 when the Code came into force; and second, that the period of limitation for recovery of possession of the mortgaged property is twelve years. The reasonings so adopted by NCLAT do not stand in conformity with the law declared by this Court and could only be disapproved.36. The question as to whether date of enforcement of the Code (i.e., 01.12.2016) provides the starting point of limitation for an application under Section 7 of the Code and hence, the application in question, made in the year 2018, is within limitation, is not even worth devoting much time. A bare look at paragraph 21 of the impugned order leaves nothing to guess that such observations by the Appellate Tribunal had only been assumptive in nature without any foundation and without any basis. There is nothing in the Code to even remotely indicate if the period of limitation for the purpose of an application under Section 7 is to commence from the date of commencement of the Code itself. Similarly, nothing provided in the Limitation Act could be taken as the basis to support the proposition so stated by the Appellate Tribunal. In fact, such observations had been in the teeth of law declared by this Court in the case of B. K. Educational Services (supra).36.1. It appears that at the given point of time, NCLAT had been readily adopting such a proposition in other cases too, so as to treat similar applications within limitation. This approach of NCLAT was specifically disapproved by this Court in Sagar Sharma (supra) where, after observing that in B. K. Educational Services (supra) it had already been made clear that the date of the Codes coming into force on 01.12.2016 was wholly irrelevant to the triggering of any limitation period for the purposes of the Code, this Court said,-3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IB Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since applications are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications.37. The other observations as made and the reasoning as adopted by the Appellate Tribunal in paragraphs 29 and 30 of the impugned order, that the property having been mortgaged, the claim is not barred by limitation because of the period of limitation of twelve years with regard to mortgaged property, had again been erroneous and do not stand in conformity with the dictum of this Court.37.1. The Appellate Tribunal was conscious of the decision of this Court in B. K. Educational Services (supra) wherein it had been held in no uncertain terms that the limitation provided in Article 137 governs the application under Section 7 of the Code. When Article 137, being the residuary provision on the period of limitation for other applications is held applicable by this Court for the purpose of reckoning the period of limitation for an application under Section 7 of the Code, it remains rather inexplicable as to how the Appellate Tribunal could have applied any other Article of Limitation Act (and that too relating to suits) for the purpose of such an application?37.2. In the totality of circumstances, we are also constrained to refer to paragraph 24 of the very same order wherein, the Appellate Tribunal has noticed its own decision in the case of Binani Industries, holding that the period of limitation prescribed in the First Division of the Schedule to the Limitation Act (providing limitation period for suits) is not applicable to the proceedings under the Code. However, the observations and findings in the later part of the impugned order are contrary even to those occurring in the said paragraph 24 of the very same order.37.3 It again appears that in other cases too, similar reasoning prevailed with the Adjudicating Authorities as also the Appellate Tribunal, where the Articles of the Limitation Act relating to the suits concerning mortgaged property (and thereby the period of limitation of twelve years) were sought to be applied to hold that similar applications under Section 7 of the Code were not barred by limitation. Such propositions were specifically disapproved by a three-Judge Bench of this Court in the case of Gaurav Hargovindbhai Dave (supra) decided on 18.09.2019. As noticed hereinbefore, in Gaurav Hargovindbhai Dave (supra) this Court disapproved the approach of Adjudicating Authority in applying Article 62 of the Limitation Act to such an application under Section 7 of the Code with the observations that Article 62 is out of way, for it applies only to suits; and application under Section 7 falls within the ambit of residuary Article 137. In Sagar Sharma (supra), this Court again pointed out the fallacy in applying the period of limitation related to mortgage liability for the purpose of application under Section 7 of the Code.37.4. In view of the above, there remains nothing to doubt that the Appellate Tribunal had been in error in applying the period of limitation provided for mortgage liability for the purpose of limitation applicable to the application in question. The observations and findings in paragraphs 29 and 30 of the impugned order are also required to be disapproved.38. The discussion foregoing leads to the inescapable conclusion that the application made by the respondent No. 2 under Section 7 of the Code in the month of March 2018, seeking initiation of CIRP in respect of the corporate debtor with specific assertion of the date of default as 08.07.2011, is clearly barred by limitation for having been filed much later than the period of three years from the date of default as stated in the application. The NCLT having not examined the question of limitation; the NCLAT having decided the question of limitation on entirely irrelevant considerations; and the attempt on the part of the respondents to save the limitation with reference to the principles of acknowledgment having been found unsustainable, the impugned orders deserve to be set aside and the application filed by the respondent No. 2 deserves to be rejected as being barred by limitation.39. Before concluding on this matter, we would hasten to observe that admittedly, at the time of moving of the application under Section 7 of the Code by the respondent No. 2, a petition under Section 19 of the Act of 1993 was pending before DRT against the corporate debtor. In view of admission of the application under Section 7 of the Code by NCLT, the said petition under Section 19 of the Act of 1993 (and any other pending matter against the corporate debtor) could not have proceeded during the period of moratorium in terms of Section 14 of the Code.

### 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 an application under Section 7 is to commence from the date of commencement of the Code itself. Similarly, nothing provided in the Limitation Act could be taken as the basis to support the proposition so stated by the Appellate Tribunal. In fact, such observations had been in the teeth of law declared by this Court in the case of B. K. Educational Services (supra). 36.1. It appears that at the given point of time, NCLAT had been readily adopting such a proposition in other cases too, so as to treat similar applications within limitation. This approach of NCLAT was specifically disapproved by this Court in Sagar Sharma (supra) where, after observing that in B. K. Educational Services (supra) it had already been made clear that the date of the Codes coming into force on 01.12.2016 was wholly irrelevant to the triggering of any limitation period for the purposes of the Code, this Court said,- 3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IB Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since applications are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications. 37. The other observations as made and the reasoning as adopted by the Appellate Tribunal in paragraphs 29 and 30 of the impugned order, that the property having been mortgaged, the claim is not barred by limitation because of the period of limitation of twelve years with regard to mortgaged property, had again been erroneous and do not stand in conformity with the dictum of this Court. 37.1. The Appellate Tribunal was conscious of the decision of this Court in B. K. Educational Services (supra) wherein it had been held in no uncertain terms that the limitation provided in Article 137 governs the application under Section 7 of the Code. When Article 137, being the residuary provision on the period of limitation for other applications is held applicable by this Court for the purpose of reckoning the period of limitation for an application under Section 7 of the Code, it remains rather inexplicable as to how the Appellate Tribunal could have applied any other Article of Limitation Act (and that too relating to suits) for the purpose of such an application? 37.2. In the totality of circumstances, we are also constrained to refer to paragraph 24 of the very same order wherein, the Appellate Tribunal has noticed its own decision in the case of Binani Industries, holding that the period of limitation prescribed in the First Division of the Schedule to the Limitation Act (providing limitation period for suits) is not applicable to the proceedings under the Code. However, the observations and findings in the later part of the impugned order are contrary even to those occurring in the said paragraph 24 of the very same order. 37.3 It again appears that in other cases too, similar reasoning prevailed with the Adjudicating Authorities as also the Appellate Tribunal, where the Articles of the Limitation Act relating to the suits concerning mortgaged property (and thereby the period of limitation of twelve years) were sought to be applied to hold that similar applications under Section 7 of the Code were not barred by limitation. Such propositions were specifically disapproved by a three-Judge Bench of this Court in the case of Gaurav Hargovindbhai Dave (supra) decided on 18.09.2019. As noticed hereinbefore, in Gaurav Hargovindbhai Dave (supra) this Court disapproved the approach of Adjudicating Authority in applying Article 62 of the Limitation Act to such an application under Section 7 of the Code with the observations that Article 62 is out of way, for it applies only to suits; and application under Section 7 falls within the ambit of residuary Article 137. In Sagar Sharma (supra), this Court again pointed out the fallacy in applying the period of limitation related to mortgage liability for the purpose of application under Section 7 of the Code. 37.4. In view of the above, there remains nothing to doubt that the Appellate Tribunal had been in error in applying the period of limitation provided for mortgage liability for the purpose of limitation applicable to the application in question. The observations and findings in paragraphs 29 and 30 of the impugned order are also required to be disapproved. Summation 38. The discussion foregoing leads to the inescapable conclusion that the application made by the respondent No. 2 under Section 7 of the Code in the month of March 2018, seeking initiation of CIRP in respect of the corporate debtor with specific assertion of the date of default as 08.07.2011, is clearly barred by limitation for having been filed much later than the period of three years from the date of default as stated in the application. The NCLT having not examined the question of limitation; the NCLAT having decided the question of limitation on entirely irrelevant considerations; and the attempt on the part of the respondents to save the limitation with reference to the principles of acknowledgment having been found unsustainable, the impugned orders deserve to be set aside and the application filed by the respondent No. 2 deserves to be rejected as being barred by limitation. Other proceedings not to be affected 39. Before concluding on this matter, we would hasten to observe that admittedly, at the time of moving of the application under Section 7 of the Code by the respondent No. 2, a petition under Section 19 of the Act of 1993 was pending before DRT against the corporate debtor. In view of admission of the application under Section 7 of the Code by NCLT, the said petition under Section 19 of the Act of 1993 (and any other pending matter against the corporate debtor) could not have proceeded during the period of moratorium in terms of Section 14 of the Code. ### Response: 0 ### Explanation: nothing in the Code to even remotely indicate if the period of limitation for the purpose of an application under Section 7 is to commence from the date of commencement of the Code itself. Similarly, nothing provided in the Limitation Act could be taken as the basis to support the proposition so stated by the Appellate Tribunal. In fact, such observations had been in the teeth of law declared by this Court in the case of B. K. Educational Services (supra).36.1. It appears that at the given point of time, NCLAT had been readily adopting such a proposition in other cases too, so as to treat similar applications within limitation. This approach of NCLAT was specifically disapproved by this Court in Sagar Sharma (supra) where, after observing that in B. K. Educational Services (supra) it had already been made clear that the date of the Codes coming into force on 01.12.2016 was wholly irrelevant to the triggering of any limitation period for the purposes of the Code, this Court said,-3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IB Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since applications are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications.37. The other observations as made and the reasoning as adopted by the Appellate Tribunal in paragraphs 29 and 30 of the impugned order, that the property having been mortgaged, the claim is not barred by limitation because of the period of limitation of twelve years with regard to mortgaged property, had again been erroneous and do not stand in conformity with the dictum of this Court.37.1. The Appellate Tribunal was conscious of the decision of this Court in B. K. Educational Services (supra) wherein it had been held in no uncertain terms that the limitation provided in Article 137 governs the application under Section 7 of the Code. When Article 137, being the residuary provision on the period of limitation for other applications is held applicable by this Court for the purpose of reckoning the period of limitation for an application under Section 7 of the Code, it remains rather inexplicable as to how the Appellate Tribunal could have applied any other Article of Limitation Act (and that too relating to suits) for the purpose of such an application?37.2. In the totality of circumstances, we are also constrained to refer to paragraph 24 of the very same order wherein, the Appellate Tribunal has noticed its own decision in the case of Binani Industries, holding that the period of limitation prescribed in the First Division of the Schedule to the Limitation Act (providing limitation period for suits) is not applicable to the proceedings under the Code. However, the observations and findings in the later part of the impugned order are contrary even to those occurring in the said paragraph 24 of the very same order.37.3 It again appears that in other cases too, similar reasoning prevailed with the Adjudicating Authorities as also the Appellate Tribunal, where the Articles of the Limitation Act relating to the suits concerning mortgaged property (and thereby the period of limitation of twelve years) were sought to be applied to hold that similar applications under Section 7 of the Code were not barred by limitation. Such propositions were specifically disapproved by a three-Judge Bench of this Court in the case of Gaurav Hargovindbhai Dave (supra) decided on 18.09.2019. As noticed hereinbefore, in Gaurav Hargovindbhai Dave (supra) this Court disapproved the approach of Adjudicating Authority in applying Article 62 of the Limitation Act to such an application under Section 7 of the Code with the observations that Article 62 is out of way, for it applies only to suits; and application under Section 7 falls within the ambit of residuary Article 137. In Sagar Sharma (supra), this Court again pointed out the fallacy in applying the period of limitation related to mortgage liability for the purpose of application under Section 7 of the Code.37.4. In view of the above, there remains nothing to doubt that the Appellate Tribunal had been in error in applying the period of limitation provided for mortgage liability for the purpose of limitation applicable to the application in question. The observations and findings in paragraphs 29 and 30 of the impugned order are also required to be disapproved.38. The discussion foregoing leads to the inescapable conclusion that the application made by the respondent No. 2 under Section 7 of the Code in the month of March 2018, seeking initiation of CIRP in respect of the corporate debtor with specific assertion of the date of default as 08.07.2011, is clearly barred by limitation for having been filed much later than the period of three years from the date of default as stated in the application. The NCLT having not examined the question of limitation; the NCLAT having decided the question of limitation on entirely irrelevant considerations; and the attempt on the part of the respondents to save the limitation with reference to the principles of acknowledgment having been found unsustainable, the impugned orders deserve to be set aside and the application filed by the respondent No. 2 deserves to be rejected as being barred by limitation.39. Before concluding on this matter, we would hasten to observe that admittedly, at the time of moving of the application under Section 7 of the Code by the respondent No. 2, a petition under Section 19 of the Act of 1993 was pending before DRT against the corporate debtor. In view of admission of the application under Section 7 of the Code by NCLT, the said petition under Section 19 of the Act of 1993 (and any other pending matter against the corporate debtor) could not have proceeded during the period of moratorium in terms of Section 14 of the Code.

R. Chandran Vs. M.V. Marappan

to 26 refer to various disqualifications for membership which do not arise in this case. Under Section 30 the president shall be elected by the persons whose names appear in the electoral roll for the panchayat from among themselves.6. In (1955) 1 SCR 267 =(AIR 1954 SC 520 ) (supra) this Court observed :"In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part......It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself.......But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. "This was a case where "Vasant Rao was under 25 years of age and, therefore, not qualified under Art. 173 of the Constitution." In Ramaswamy v. Krishnamurthy, (1963) 3 SCR 479 = (AIR 1963 SC 458 ) this Court had to consider the case of an election to a Panchayat in the State of Mysore. There also the electoral roll was prepared on the basis of the electoral roll for the Assembly constituency in which the panchayat was included. Section 10 of the relevant Act provided that "every person whose name is in the list of voters of any panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member of the panchayat" which is more or less similar to Section 22 of the Madras Act. The name of the appellant in that case was admittedly included in the electoral roll of the Mysore Legislative Assembly but it was contended that the Electoral Registration Officer did not follow the procedure prescribed for such inclusion under the Representation of the People Act, 1950. This Court held that though this was not done, the inclusion of his name in the electoral roll was not a nullity and that the non-compliance with the procedure prescribed did not affect the jurisdiction of the electoral registration officer and it could not make the officers act non est. This Court further proceeded to point out :"The Act proceeds on the basis that the voters list is final for the purpose of election...... In view of S. 10 of the Act it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, he is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally." The laws of various States regarding the preparation of electoral rolls for various local bodies in the States proceed on the basis of the electoral rolls prepared for the concerned Legislative Assembly constituency. Therefore all the decisions of this Court regarding the finality of the electoral roll apply directly to the electoral rolls of the various local bodies."7. After the decision of this Court in Ramaswamys case, (1963) 3 SCR 479 =(AIR 1963 SC 458 ) there was no room for any further difference of opinion on the matter. It is, therefore, all the more surprising that the Andhra Pradesh High Court in AIR 1970 Andh Pra 56 (supra) and the Madras High Court in (1966) 2 Mad LJ 560=(AIR 1967 Mad 244 ) (supra) took a different view even after taking note of the decision of this Court. Both these decisions, as we have pointed out earlier, proceed on a wholly wrong assumption. Their attempt to distinguish the decision of this Court in Ramaswamys case is pointless. The provisions of Article 326 of the Constitution are not attracted in deciding upon the validity of the inclusion of a persons name in the electoral roll for a Panchayat merely because the Panchayats Act has adopted a part of the electoral roll for an Assembly constituency as the electoral roll for the Panchayat. And in any case all the decisions of this Court on the finality of the electoral roll and their not being liable to be questioned would equally apply to the electoral rolls of local bodies.For the reasons we have already given the view consistently taken by this Court that when once a name is found in the electoral roll its inclusion could not be questioned in any election petition must be followed. The decisions of the Madras, Andhra and Kerala High Courts, already referred to, should be held to be erroneous and that of the Gujarat High Court in Mahmadhusein v. O. Fidaali, AIR 1969 Guj 334 , Allahabad High Court in Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357 (FB), Bombay High Court in Jagannath v. Sukhdeo, AIR 1967 Bom 317 and Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh (supra) as correct.In this case, therefore, it was not open either for the Election Tribunal or for the High Court to go into the question regarding the appellants age. The latest decision of Kailasam, J. in P. Subramaniam v. S. Pachamuthu, (1972) 85 Mad LW 567 = (AIR 1973 Mad 366 ) is consistent with the view we have taken.

1[ds]The laws of various States regarding the preparation of electoral rolls for various local bodies in the States proceed on the basis of the electoral rolls prepared for the concerned Legislative Assembly constituency. Therefore all the decisions of this Court regarding the finality of the electoral roll apply directly to the electoral rolls of the various local bodies.After the decision of this Court in Ramaswamys case, (1963) 3 SCR 479 =(AIR 1963 SC 458 ) there was no room for any further difference of opinion on the matter. It is, therefore, all the more surprising that the Andhra Pradesh High Court in AIR 1970 Andh Pra 56 (supra) and the Madras High Court in (1966) 2 Mad LJ 560=(AIR 1967 Mad 244 ) (supra) took a different view even after taking note of the decision of this Court. Both these decisions, as we have pointed out earlier, proceed on a wholly wrong assumption. Their attempt to distinguish the decision of this Court in Ramaswamys case is pointless. The provisions of Article 326 of the Constitution are not attracted in deciding upon the validity of the inclusion of a persons name in the electoral roll for a Panchayat merely because the Panchayats Act has adopted a part of the electoral roll for an Assembly constituency as the electoral roll for the Panchayat. And in any case all the decisions of this Court on the finality of the electoral roll and their not being liable to be questioned would equally apply to the electoral rolls of local bodies.For the reasons we have already given the view consistently taken by this Court that when once a name is found in the electoral roll its inclusion could not be questioned in any election petition must be followed. The decisions of the Madras, Andhra and Kerala High Courts, already referred to, should be held to be erroneous and that of the Gujarat High Court in Mahmadhusein v. O. Fidaali, AIR 1969 Guj 334 , Allahabad High Court in Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357 (FB), Bombay High Court in Jagannath v. Sukhdeo, AIR 1967 Bom 317 and Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh (supra) as correct.In this case, therefore, it was not open either for the Election Tribunal or for the High Court to go into the question regarding the appellants age. The latest decision of Kailasam, J. in P. Subramaniam v. S. Pachamuthu, (1972) 85 Mad LW 567 = (AIR 1973 Mad 366 ) is consistent with the view we have taken.

### 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: to 26 refer to various disqualifications for membership which do not arise in this case. Under Section 30 the president shall be elected by the persons whose names appear in the electoral roll for the panchayat from among themselves.6. In (1955) 1 SCR 267 =(AIR 1954 SC 520 ) (supra) this Court observed :"In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part......It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself.......But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. "This was a case where "Vasant Rao was under 25 years of age and, therefore, not qualified under Art. 173 of the Constitution." In Ramaswamy v. Krishnamurthy, (1963) 3 SCR 479 = (AIR 1963 SC 458 ) this Court had to consider the case of an election to a Panchayat in the State of Mysore. There also the electoral roll was prepared on the basis of the electoral roll for the Assembly constituency in which the panchayat was included. Section 10 of the relevant Act provided that "every person whose name is in the list of voters of any panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member of the panchayat" which is more or less similar to Section 22 of the Madras Act. The name of the appellant in that case was admittedly included in the electoral roll of the Mysore Legislative Assembly but it was contended that the Electoral Registration Officer did not follow the procedure prescribed for such inclusion under the Representation of the People Act, 1950. This Court held that though this was not done, the inclusion of his name in the electoral roll was not a nullity and that the non-compliance with the procedure prescribed did not affect the jurisdiction of the electoral registration officer and it could not make the officers act non est. This Court further proceeded to point out :"The Act proceeds on the basis that the voters list is final for the purpose of election...... In view of S. 10 of the Act it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, he is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally." The laws of various States regarding the preparation of electoral rolls for various local bodies in the States proceed on the basis of the electoral rolls prepared for the concerned Legislative Assembly constituency. Therefore all the decisions of this Court regarding the finality of the electoral roll apply directly to the electoral rolls of the various local bodies."7. After the decision of this Court in Ramaswamys case, (1963) 3 SCR 479 =(AIR 1963 SC 458 ) there was no room for any further difference of opinion on the matter. It is, therefore, all the more surprising that the Andhra Pradesh High Court in AIR 1970 Andh Pra 56 (supra) and the Madras High Court in (1966) 2 Mad LJ 560=(AIR 1967 Mad 244 ) (supra) took a different view even after taking note of the decision of this Court. Both these decisions, as we have pointed out earlier, proceed on a wholly wrong assumption. Their attempt to distinguish the decision of this Court in Ramaswamys case is pointless. The provisions of Article 326 of the Constitution are not attracted in deciding upon the validity of the inclusion of a persons name in the electoral roll for a Panchayat merely because the Panchayats Act has adopted a part of the electoral roll for an Assembly constituency as the electoral roll for the Panchayat. And in any case all the decisions of this Court on the finality of the electoral roll and their not being liable to be questioned would equally apply to the electoral rolls of local bodies.For the reasons we have already given the view consistently taken by this Court that when once a name is found in the electoral roll its inclusion could not be questioned in any election petition must be followed. The decisions of the Madras, Andhra and Kerala High Courts, already referred to, should be held to be erroneous and that of the Gujarat High Court in Mahmadhusein v. O. Fidaali, AIR 1969 Guj 334 , Allahabad High Court in Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357 (FB), Bombay High Court in Jagannath v. Sukhdeo, AIR 1967 Bom 317 and Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh (supra) as correct.In this case, therefore, it was not open either for the Election Tribunal or for the High Court to go into the question regarding the appellants age. The latest decision of Kailasam, J. in P. Subramaniam v. S. Pachamuthu, (1972) 85 Mad LW 567 = (AIR 1973 Mad 366 ) is consistent with the view we have taken. ### Response: 1 ### Explanation: The laws of various States regarding the preparation of electoral rolls for various local bodies in the States proceed on the basis of the electoral rolls prepared for the concerned Legislative Assembly constituency. Therefore all the decisions of this Court regarding the finality of the electoral roll apply directly to the electoral rolls of the various local bodies.After the decision of this Court in Ramaswamys case, (1963) 3 SCR 479 =(AIR 1963 SC 458 ) there was no room for any further difference of opinion on the matter. It is, therefore, all the more surprising that the Andhra Pradesh High Court in AIR 1970 Andh Pra 56 (supra) and the Madras High Court in (1966) 2 Mad LJ 560=(AIR 1967 Mad 244 ) (supra) took a different view even after taking note of the decision of this Court. Both these decisions, as we have pointed out earlier, proceed on a wholly wrong assumption. Their attempt to distinguish the decision of this Court in Ramaswamys case is pointless. The provisions of Article 326 of the Constitution are not attracted in deciding upon the validity of the inclusion of a persons name in the electoral roll for a Panchayat merely because the Panchayats Act has adopted a part of the electoral roll for an Assembly constituency as the electoral roll for the Panchayat. And in any case all the decisions of this Court on the finality of the electoral roll and their not being liable to be questioned would equally apply to the electoral rolls of local bodies.For the reasons we have already given the view consistently taken by this Court that when once a name is found in the electoral roll its inclusion could not be questioned in any election petition must be followed. The decisions of the Madras, Andhra and Kerala High Courts, already referred to, should be held to be erroneous and that of the Gujarat High Court in Mahmadhusein v. O. Fidaali, AIR 1969 Guj 334 , Allahabad High Court in Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357 (FB), Bombay High Court in Jagannath v. Sukhdeo, AIR 1967 Bom 317 and Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh (supra) as correct.In this case, therefore, it was not open either for the Election Tribunal or for the High Court to go into the question regarding the appellants age. The latest decision of Kailasam, J. in P. Subramaniam v. S. Pachamuthu, (1972) 85 Mad LW 567 = (AIR 1973 Mad 366 ) is consistent with the view we have taken.

Kailash Kumar Sanwatia Vs. State Of Bihar

from the bank through the insurance company. 4. Ten witnesses were examined to substantiate the prosecution case. The Trial Court placing reliance on their evidence found that only respondent no. 2-Gautam Bose and Ganaori Sao were guilty of offences punishable under Section 409 IPC read with Section 34 IPC and were sentenced to undergo imprisonment for two years each. The said accused persons filed two appeals before the Additional Sessions Judge, Dhanbad, who in Crl. Appeal No. 145/1986 and Crl. Appeal No. 151/1986 held that accusations have not been brought home because there were many infirmities in evidence and there was doubt as regards the manner of entrustment for bringing in application of Section 409 IPC. The matter was carried in revision before the Patna High Court by the informant-appellant. By the impugned judgment, learned Single Judge held that though the money appears to have been handed over, it has not been established by credible and cogent evidence when the money were really missing. It, however, recorded that fact of handing over of Rs. 1,50,200/-, and missing of money from the cash counter. But it is not proved beyond reasonable doubt from the evidence on record that actually the cash was entrusted to Ganaori Sao at the instance of Head Cashier-Gautam Bose, though money was missing from bank premises and from the cash counter. It was held that the possibility of theft of the money cannot be ruled out. Since the informant had filed suit for recovery of the amount from the bank he could pursue it. Due to paucity of evidence on the point of entrustment, case under Section 409 was held to be not made out. Against the said judgment of the High Court, this appeal has been filed. 5. Learned counsel for the appellant stated that when it is admitted that money was missing from the cash counter of the bank at the bank premises, and information had been lodged by the Manager alleging theft of the amount and commission of offence under Section 380 IPC, the Trial Court, First Appellate Court and the High Court were not justified in holding that there was paucity of materi8al as regards the manner of entrustment with reference to Section 409 IPC. It was submitted that the language of the provisions made it clear that whatever be the manner of entrustment, if the factum of entrustment is established, nothing more is required to be further established. 6. In spite of notice, respondent no. 2 has not entered appearance. Learned counsel appearing for the State of Bihar submitted that the stand adopted by the appellant is adopted by it. 7. Section 409 IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. In order to bring in application of said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty bond to account for; and (2) the accused has committed criminal breach of trust. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are:- (1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so as to do in violation - (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove con-jointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matte of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. 10. In the instant case even if it was proved as contended by learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of prosecution that money which was given to the accused-Gautm Boase and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established. Unfortunately, the courts below have not looked at the issues from these vitally relevant angles. The inevitable conclusion is that accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy. 11.

0[ds]10. In the instant case even if it was proved as contended by learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of prosecution that money which was given to the accused-Gautm Boase and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established. Unfortunately, the courts below have not looked at the issues from these vitally relevant angles. The inevitable conclusion is that accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy

### 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: from the bank through the insurance company. 4. Ten witnesses were examined to substantiate the prosecution case. The Trial Court placing reliance on their evidence found that only respondent no. 2-Gautam Bose and Ganaori Sao were guilty of offences punishable under Section 409 IPC read with Section 34 IPC and were sentenced to undergo imprisonment for two years each. The said accused persons filed two appeals before the Additional Sessions Judge, Dhanbad, who in Crl. Appeal No. 145/1986 and Crl. Appeal No. 151/1986 held that accusations have not been brought home because there were many infirmities in evidence and there was doubt as regards the manner of entrustment for bringing in application of Section 409 IPC. The matter was carried in revision before the Patna High Court by the informant-appellant. By the impugned judgment, learned Single Judge held that though the money appears to have been handed over, it has not been established by credible and cogent evidence when the money were really missing. It, however, recorded that fact of handing over of Rs. 1,50,200/-, and missing of money from the cash counter. But it is not proved beyond reasonable doubt from the evidence on record that actually the cash was entrusted to Ganaori Sao at the instance of Head Cashier-Gautam Bose, though money was missing from bank premises and from the cash counter. It was held that the possibility of theft of the money cannot be ruled out. Since the informant had filed suit for recovery of the amount from the bank he could pursue it. Due to paucity of evidence on the point of entrustment, case under Section 409 was held to be not made out. Against the said judgment of the High Court, this appeal has been filed. 5. Learned counsel for the appellant stated that when it is admitted that money was missing from the cash counter of the bank at the bank premises, and information had been lodged by the Manager alleging theft of the amount and commission of offence under Section 380 IPC, the Trial Court, First Appellate Court and the High Court were not justified in holding that there was paucity of materi8al as regards the manner of entrustment with reference to Section 409 IPC. It was submitted that the language of the provisions made it clear that whatever be the manner of entrustment, if the factum of entrustment is established, nothing more is required to be further established. 6. In spite of notice, respondent no. 2 has not entered appearance. Learned counsel appearing for the State of Bihar submitted that the stand adopted by the appellant is adopted by it. 7. Section 409 IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. In order to bring in application of said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty bond to account for; and (2) the accused has committed criminal breach of trust. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are:- (1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so as to do in violation - (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove con-jointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matte of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. 10. In the instant case even if it was proved as contended by learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of prosecution that money which was given to the accused-Gautm Boase and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established. Unfortunately, the courts below have not looked at the issues from these vitally relevant angles. The inevitable conclusion is that accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy. 11. ### Response: 0 ### Explanation: 10. In the instant case even if it was proved as contended by learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of prosecution that money which was given to the accused-Gautm Boase and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established. Unfortunately, the courts below have not looked at the issues from these vitally relevant angles. The inevitable conclusion is that accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy

Gangadhar Madhavrao Bidwai Vs. Hanmantrao Vyankatrao Mungale

R.M. Sahai, J. 1. The only question that arises for consideration is whether the recital in a Deed of Dissolution of partnership, Ext. 48, that Survey Plot No. 699 was a partnership property was admissible in evidence. 2. Both the plaintiff-appellant and defendant-respondent were partners in Messers Maharashtra Metal Manufacturing Company. The partnership was formed in 1952 and it lasted till 1959. In 1955 the plot in dispute was purchased by the defendant. At the time of dissolution a Partition Deed, Ext. 46, was executed. A Deed of Dissolution, Ext. 47, was executed on 1st August, 1961 and another Deed, Ext. 48, was executed on 1st September, 1961. In all these Deeds, this plot was mentioned. In the last Deed the recital read as under :- We both have been carrying on the business of making and selling lotas (a) of copper in partnership for a long time in the name of Messers Maharashtra Metal Manufacturing Company Pune. We have duly recorded the deed of dissolution of partnership on the date 1-9- 1961. There were factories running at two places and belonging to the our partnership. Similarly there is a plot bearing Survey No. 699 of the ownership of our parruership, situated near Saibaba Temple, Satam Poona Road, Swargate and we both reside there. The places of both the factories are taken on rent and the same were also (included) in our partnership. In the schedule appended to the Partition Deed it was mentioned that the said property together with the structure standing thereon, the well and the motor fixed on the said well would be treated as joint or common property. Since in the Deed of Dissolution of 1st August, 1961 it was mentioned, Survey No. 699 has been purchased in the name of No. 1 Mungale. No. 1 Mungale should execute a sale deed of half share in this land in favour of No. 2 Bidwai at Bidwais expense. The appellant issued notice for execution of the sale deed. But when the defendant neglected to do so the appellant filed the suit for partition by metes and bounds. The suit was dismissed by the trial court. The two Deeds of Dissolution of pannership were held inadmissible for want of registration. The order was upheld in appeal. It was held that the recital in Exts. 46 and 47 with regard to terms of dissolution of partnership did not require registration. But so far as it sought to effect the interest of defendant in the non-partnership immoveable property the document being unregistered was inadmissible. In respect of Ext.48 the High Court held that the recital in the document that it was partnership property did not appear to be correct. 3. Sri Ashok Sen, the learned senior counsel urged that the law is settled that no registration was required of the partnership property as it did not result in transfer of any interest. Reliance was placed on S.V. Chandra Pandian & Ors. v. S.V. Sivalinga Nadar & Ors., 1993(1) SCC 589. The learned counsel urged that in any case Section 14 of the Partition Act indicated that any property acquired subsequently becomes partnership property. Sri Tarkunde, the learned senior counsel supported the findings recorded by the High Court. He submitted that the documents, Exts. 46, 47 and 48, did not establish that Plot No. 699 was partnership property. He urged that in Ext. 46 the mala (garden land) and the present suit property had been separately mentioned. Therefore, it was clear that it was not partnership property. Learned counsel urged that the High Court having found documentary evidence to be insufficient or inadmissible examined the oral evidence and held that the land was not partnership property as such it was not an appropriate case in which this Court should exercise its jurisdiction under Article 136 of the Constitution. The learned counsel argued that the respondent having proved that the land was purchased by him, it was for the appellant to prove that the property belonged to both. 4. The real question that arises for consideration is if the recital in the Deed of Dissolution dated 1.9.1961 showing that plot no. 699 was partnership property was inadmissible for want of registration. It was found by the High Court and could not be disputed by the respondent that if plot no. 699 was held to be a partnership property then it did not require registration. It is true that this plot was purchased in 1955 by the respondent alone, but he was not precluded in law from bringing it in the partnership. The circumstances and the three documents indicate that even though the land was purchased by the respondent, it appears both the parties have been treating this property as being in joint ownership .of both. This may have been due to good relations which existed between them prior to 1959 but there appears no reason to discard the recital in these documents which unequivocally establish that the properly at the time of dissolution was owned by the partnership. The recital in the Deed of Dissolution of partnership of September, 1961 that it was a partnership property, could not be ignored. Apart from it, the appellant had filed earlier suit in which the claim of the appellant that these documents were obtained under duress was not accepted. Even though the suit was dismissed on ground of limitation, but the genuineness of the documents was not doubted. If that be so, then the recital in the Dissolution Deed could not be ignored. The High Court was in absence of any challenge to Ext. 48 not justified in recording the finding that recital in the Deed did not carry out intention of executants. Sri Sen was correct in submitting that once it was held that Plot No. 699 was partnership property then there was no need for registration and the appellants suit was liable to be decreed.

1[ds]It was found by the High Court and could not be disputed by the respondent that if plot no. 699 was held to be a partnership property then it did not require registration. It is true that this plot was purchased in 1955 by the respondent alone, but he was not precluded in law from bringing it in the partnership. The circumstances and the three documents indicate that even though the land was purchased by the respondent, it appears both the parties have been treating this property as being in joint ownership .of both. This may have been due to good relations which existed between them prior to 1959 but there appears no reason to discard the recital in these documents which unequivocally establish that the properly at the time of dissolution was owned by the partnership. The recital in the Deed of Dissolution of partnership of September, 1961 that it was a partnership property, could not be ignored. Apart from it, the appellant had filed earlier suit in which the claim of the appellant that these documents were obtained under duress was not accepted. Even though the suit was dismissed on ground of limitation, but the genuineness of the documents was not doubted. If that be so, then the recital in the Dissolution Deed could not be ignored. The High Court was in absence of any challenge to Ext. 48 not justified in recording the finding that recital in the Deed did not carry out intention of executants. Sri Sen was correct in submitting that once it was held that Plot No. 699 was partnership property then there was no need for registration and the appellants suit was liable to be decreed.

### 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: R.M. Sahai, J. 1. The only question that arises for consideration is whether the recital in a Deed of Dissolution of partnership, Ext. 48, that Survey Plot No. 699 was a partnership property was admissible in evidence. 2. Both the plaintiff-appellant and defendant-respondent were partners in Messers Maharashtra Metal Manufacturing Company. The partnership was formed in 1952 and it lasted till 1959. In 1955 the plot in dispute was purchased by the defendant. At the time of dissolution a Partition Deed, Ext. 46, was executed. A Deed of Dissolution, Ext. 47, was executed on 1st August, 1961 and another Deed, Ext. 48, was executed on 1st September, 1961. In all these Deeds, this plot was mentioned. In the last Deed the recital read as under :- We both have been carrying on the business of making and selling lotas (a) of copper in partnership for a long time in the name of Messers Maharashtra Metal Manufacturing Company Pune. We have duly recorded the deed of dissolution of partnership on the date 1-9- 1961. There were factories running at two places and belonging to the our partnership. Similarly there is a plot bearing Survey No. 699 of the ownership of our parruership, situated near Saibaba Temple, Satam Poona Road, Swargate and we both reside there. The places of both the factories are taken on rent and the same were also (included) in our partnership. In the schedule appended to the Partition Deed it was mentioned that the said property together with the structure standing thereon, the well and the motor fixed on the said well would be treated as joint or common property. Since in the Deed of Dissolution of 1st August, 1961 it was mentioned, Survey No. 699 has been purchased in the name of No. 1 Mungale. No. 1 Mungale should execute a sale deed of half share in this land in favour of No. 2 Bidwai at Bidwais expense. The appellant issued notice for execution of the sale deed. But when the defendant neglected to do so the appellant filed the suit for partition by metes and bounds. The suit was dismissed by the trial court. The two Deeds of Dissolution of pannership were held inadmissible for want of registration. The order was upheld in appeal. It was held that the recital in Exts. 46 and 47 with regard to terms of dissolution of partnership did not require registration. But so far as it sought to effect the interest of defendant in the non-partnership immoveable property the document being unregistered was inadmissible. In respect of Ext.48 the High Court held that the recital in the document that it was partnership property did not appear to be correct. 3. Sri Ashok Sen, the learned senior counsel urged that the law is settled that no registration was required of the partnership property as it did not result in transfer of any interest. Reliance was placed on S.V. Chandra Pandian & Ors. v. S.V. Sivalinga Nadar & Ors., 1993(1) SCC 589. The learned counsel urged that in any case Section 14 of the Partition Act indicated that any property acquired subsequently becomes partnership property. Sri Tarkunde, the learned senior counsel supported the findings recorded by the High Court. He submitted that the documents, Exts. 46, 47 and 48, did not establish that Plot No. 699 was partnership property. He urged that in Ext. 46 the mala (garden land) and the present suit property had been separately mentioned. Therefore, it was clear that it was not partnership property. Learned counsel urged that the High Court having found documentary evidence to be insufficient or inadmissible examined the oral evidence and held that the land was not partnership property as such it was not an appropriate case in which this Court should exercise its jurisdiction under Article 136 of the Constitution. The learned counsel argued that the respondent having proved that the land was purchased by him, it was for the appellant to prove that the property belonged to both. 4. The real question that arises for consideration is if the recital in the Deed of Dissolution dated 1.9.1961 showing that plot no. 699 was partnership property was inadmissible for want of registration. It was found by the High Court and could not be disputed by the respondent that if plot no. 699 was held to be a partnership property then it did not require registration. It is true that this plot was purchased in 1955 by the respondent alone, but he was not precluded in law from bringing it in the partnership. The circumstances and the three documents indicate that even though the land was purchased by the respondent, it appears both the parties have been treating this property as being in joint ownership .of both. This may have been due to good relations which existed between them prior to 1959 but there appears no reason to discard the recital in these documents which unequivocally establish that the properly at the time of dissolution was owned by the partnership. The recital in the Deed of Dissolution of partnership of September, 1961 that it was a partnership property, could not be ignored. Apart from it, the appellant had filed earlier suit in which the claim of the appellant that these documents were obtained under duress was not accepted. Even though the suit was dismissed on ground of limitation, but the genuineness of the documents was not doubted. If that be so, then the recital in the Dissolution Deed could not be ignored. The High Court was in absence of any challenge to Ext. 48 not justified in recording the finding that recital in the Deed did not carry out intention of executants. Sri Sen was correct in submitting that once it was held that Plot No. 699 was partnership property then there was no need for registration and the appellants suit was liable to be decreed. ### Response: 1 ### Explanation: It was found by the High Court and could not be disputed by the respondent that if plot no. 699 was held to be a partnership property then it did not require registration. It is true that this plot was purchased in 1955 by the respondent alone, but he was not precluded in law from bringing it in the partnership. The circumstances and the three documents indicate that even though the land was purchased by the respondent, it appears both the parties have been treating this property as being in joint ownership .of both. This may have been due to good relations which existed between them prior to 1959 but there appears no reason to discard the recital in these documents which unequivocally establish that the properly at the time of dissolution was owned by the partnership. The recital in the Deed of Dissolution of partnership of September, 1961 that it was a partnership property, could not be ignored. Apart from it, the appellant had filed earlier suit in which the claim of the appellant that these documents were obtained under duress was not accepted. Even though the suit was dismissed on ground of limitation, but the genuineness of the documents was not doubted. If that be so, then the recital in the Dissolution Deed could not be ignored. The High Court was in absence of any challenge to Ext. 48 not justified in recording the finding that recital in the Deed did not carry out intention of executants. Sri Sen was correct in submitting that once it was held that Plot No. 699 was partnership property then there was no need for registration and the appellants suit was liable to be decreed.

BALBIR SINGH Vs. NEW INDIA ASSURANCE CO. LTD

1. Leave granted. 2. The appellant who was working as a driver in a truck owned by the second respondent met with an accident on 15th September, l982 at 11.30 a.m. on the Jaipur highway. While he was alighting from the truck which was being driven by him, he was hit by another truck which was coming from behind, which resulted in his suffering multiple fractures. It was submitted by the learned counsel for the appellant that he suffered 95% disability which resulted in the amputation of right leg. 3. The second respondent informed the first respondent-insurance Company about the accident as the claim of the appellant had to be settled by the first respondent. The appellant was completely bed ridden for a long time and, so, there was delay in approaching the State Consumer Disputes Redressal Commission, Delhi complaining about the inaction of the first respondent in settling his claim and also claiming compensation for the injuries suffered by him in the accident. The State Commission dismissed the claim petition filed by the appellant on the ground of delay. The order passed by the State Commission was affirmed by the National Commission by an Order dated 22nd May, 2002. Thereafter, the appellant approached the Motor Accidents Claims Tribunal on 27th May, 2003 seeking compensation for the injuries suffered by him, but the same was withdrawn by him on 16th December,2004. 4. Subsequently, the appellant filed an application under the Employees Compensation Act before the Commissioner, Workmens Compensation (hereinafter referred to as the Commission) on 17th December, 2004. By an order dated 7th July, 2006, the Commissioner while taking note of the disability of the appellant in not being able to move out of the bed for a long period of time and thereafter his approaching every fora for relief and the fact that there was no repudiation of the contract by the Insurance company held, that the claim made by the appellant was not barred by limitation. After examining the matter on merits, the Commissioner directed payment of Rs. 3,90,411/-. In addition, an amount of Rs. 1,95,206/- was directed to be paid towards penalty as contemplated under section 4A of the Employees Compensation Act. The first respondent filed an appeal before the Delhi High Court challenging the order passed by the Commissioner. The appeal was allowed by the Delhi High Court and the order passed by the Commissioner dated 7th July, 2006 was set aside. The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal.

1[ds]The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal.

### 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: 1. Leave granted. 2. The appellant who was working as a driver in a truck owned by the second respondent met with an accident on 15th September, l982 at 11.30 a.m. on the Jaipur highway. While he was alighting from the truck which was being driven by him, he was hit by another truck which was coming from behind, which resulted in his suffering multiple fractures. It was submitted by the learned counsel for the appellant that he suffered 95% disability which resulted in the amputation of right leg. 3. The second respondent informed the first respondent-insurance Company about the accident as the claim of the appellant had to be settled by the first respondent. The appellant was completely bed ridden for a long time and, so, there was delay in approaching the State Consumer Disputes Redressal Commission, Delhi complaining about the inaction of the first respondent in settling his claim and also claiming compensation for the injuries suffered by him in the accident. The State Commission dismissed the claim petition filed by the appellant on the ground of delay. The order passed by the State Commission was affirmed by the National Commission by an Order dated 22nd May, 2002. Thereafter, the appellant approached the Motor Accidents Claims Tribunal on 27th May, 2003 seeking compensation for the injuries suffered by him, but the same was withdrawn by him on 16th December,2004. 4. Subsequently, the appellant filed an application under the Employees Compensation Act before the Commissioner, Workmens Compensation (hereinafter referred to as the Commission) on 17th December, 2004. By an order dated 7th July, 2006, the Commissioner while taking note of the disability of the appellant in not being able to move out of the bed for a long period of time and thereafter his approaching every fora for relief and the fact that there was no repudiation of the contract by the Insurance company held, that the claim made by the appellant was not barred by limitation. After examining the matter on merits, the Commissioner directed payment of Rs. 3,90,411/-. In addition, an amount of Rs. 1,95,206/- was directed to be paid towards penalty as contemplated under section 4A of the Employees Compensation Act. The first respondent filed an appeal before the Delhi High Court challenging the order passed by the Commissioner. The appeal was allowed by the Delhi High Court and the order passed by the Commissioner dated 7th July, 2006 was set aside. The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal. ### Response: 1 ### Explanation: The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal.

Orient Weaving Mills (P) Ltd Vs. The Union Of India

petitioners, asking for a declaration that the levy of excise duty on the piece-goods produced by the petitioners be declared to be unconstitutional. It is one thing to attack the constitutionality of the provisions of the Act authorising the levy of the excise duty on the petitioners; it is quite a different thing to complain of the exemption granted in respect of the goods produced by the 5th respondent. As the vires of the Act itself has not been challenged, we need not say anything more on that aspect of a possible controversy which has not been actually raised in the petition.8. The petition is substantially based upon the contention that R. 8 suffers from the vice of excessive delegation of powers to the Central Government to exempt partly or wholly any excisable goods, and, secondly, that the power even if constitutional has been invalidly exercised in so far as the notifications aforesaid containing the exemption operating in favour of the 5th respondent have been made. In our opinion there is no substance in either of the two contentions. Rule 8 is as much a part of the statute as S. 37(2) cl. (xvii). It is always open to the State to tax certain classes of goods and not to tax others. The legislature is the best judge to decide as to the incidence of taxation as also to the amount of tax to be levied in respect of different classes of goods. The Act recognises and only gives effect to the well established principle that there must be a great deal of flexibility in the incidence of taxation of a particular kind. It must vary from time to time, as also in respect of goods produced by different processes and different agencies. The same principle has been recognised in S. 23 of the Sea Customs Act (VIII of 1878), which has been applied to excise duty also, by virtue of S. 12 of the Act. The latter section has authorised the Central Government to apply the provisions of the Sea Customs Act to excise duty imposed by the Act with such modifications and alterations as it may consider necessary or desirable to adapt them to circumstances. It is a function of the State, in order to raise revenue for State purposes to determine what kind of taxes shall be levied and in what manner. Its function, therefore, is to raise revenues for public purposes. The State naturally is interested in raising all the revenue necessary for public purposes, without sacrificing the legitimate interests of persons and groups, who deserve special treatment at the hands of the State for reasons, which the State may determine, entitling them to be placed in a special class. The Directive principles of the Constitution contained in Part IV lay down the policies and objectives to be achieved, for promoting the welfare of the people. In the context of the present controversy the following words of Art. 43 are particularly apposite:"- - - - - and in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas."It has rightly been pointed out in the affidavit filed on behalf of the respondents 1-4 that the exemption, granted by the impugned notifications is meant primarily for the protection of petty producers of cotton fabrics not owning more than four power looms from unreasonable competition by big producers, like the petitioner Company. The State has therefore, made a valid classification between goods produced in big establishments and similar goods produced by small power loom weavers in the mofussil who are usually ignorant, illiterate and poor and suffer from handicaps to which big establishments like the petitioner Company are not subject. It has also been pointed out that the exemption was available to individual weavers, who employed not more than five looms on their own account. The fact that they have banded together in a co-operative effort to increase their efficiency and to take advantage of State aid should not count against them. It must therefore, be held that there is no room for the contention that there has been excessive delegation of power to exempt.9. It was next contended that even if it were held that R. 8 is valid and constitutional, the notifications are bad in so far as they exempt certain classes of persons and not classes of goods from the excise duty. It is argued that the tax is a duty of excise on "any goods", and item 19 has reference to a particular variety of goods namely, cotton fabrics; the exemption if any could have been granted in respect of any particular specified variety of cotton fabrics and not with reference to the persons producing the same variety of those fabrics. There is apparently a fallacy in this argument. The tax is on the production of any goods, but it is payable by persons producing such goods, the exemption also is with reference to such goods as come within the description of excisable goods. The respondent No. 5 has been exempted from payment of excise duty in respect of goods produced by the weavers. It has not been exempted from the payment of a personal tax like Income Tax. The exemption must therefore, have reference to the same kind of tax which would otherwise have been leviable but for the exemption. From the notifications set out above, it is manifest that the Government has exempted cotton fabrics produced on power looms owned by a co-operative society, and in the present instance owned by the members of the Cooperative Society. It has not been contended before us that the conditions laid down for granting the exemption have not been fulfilled by the members of the Co-operative Society, the respondent No 5. Hence, the exemption granted is within the terms of the notifications aforesaid which have effect as if enacted as a part of the Statute. The vires of the Statute, as already indicated, has not been questioned.

0[ds]7. In pursuance of the powers conferred on the Central Government by sub-r. (1) of R. 8, the notifications referred to above were issued by the Central Government. By virtue of S. 38 of the Act, all rules made and notifications issued by the Central Government as aforesaid, are required to be published in the official Gazette, and thereupon those rules and notifications "shall have effect as if enacted in this Act". Thus, it is manifest that the notifications and the rule impugned in this case have been incorporated into the Act itself, and have become part of the taxing statute. It is also noteworthy that the petitioners have not challenged the vires of the Act. The petition is directed against R. 8 and the notifications aforesaid, exempting the goods produced by the cooperative societies, like the 5th respondent, from the payment of the excise duty. That being so, it is a little difficult to appreciate the first prayer of the petitioners, asking for a declaration that the levy of excise duty on the piece-goods produced by the petitioners be declared to be unconstitutional. It is one thing to attack the constitutionality of the provisions of the Act authorising the levy of the excise duty on the petitioners; it is quite a different thing to complain of the exemption granted in respect of the goods produced by the 5th respondent. As the vires of the Act itself has not been challenged, we need not say anything more on that aspect of a possible controversy which has not been actually raised in the petition.The petition is substantially based upon the contention that R. 8 suffers from the vice of excessive delegation of powers to the Central Government to exempt partly or wholly any excisable goods, and, secondly, that the power even if constitutional has been invalidly exercised in so far as the notifications aforesaid containing the exemption operating in favour of the 5th respondent have been made. In our opinion there is no substance in either of the two contentions. Rule 8 is as much a part of the statute as S. 37(2) cl. (xvii). It is always open to the State to tax certain classes of goods and not to tax others. The legislature is the best judge to decide as to the incidence of taxation as also to the amount of tax to be levied in respect of different classes of goods. The Act recognises and only gives effect to the well established principle that there must be a great deal of flexibility in the incidence of taxation of a particular kind. It must vary from time to time, as also in respect of goods produced by different processes and different agencies. The same principle has been recognised in S. 23 of the Sea Customs Act (VIII of 1878), which has been applied to excise duty also, by virtue of S. 12 of the Act. The latter section has authorised the Central Government to apply the provisions of the Sea Customs Act to excise duty imposed by the Act with such modifications and alterations as it may consider necessary or desirable to adapt them to circumstances. It is a function of the State, in order to raise revenue for State purposes to determine what kind of taxes shall be levied and in what manner. Its function, therefore, is to raise revenues for public purposes. The State naturally is interested in raising all the revenue necessary for public purposes, without sacrificing the legitimate interests of persons and groups, who deserve special treatment at the hands of the State for reasons, which the State may determine, entitling them to be placed in a specialhas rightly been pointed out in the affidavit filed on behalf of the respondents 1-4 that the exemption, granted by the impugned notifications is meant primarily for the protection of petty producers of cotton fabrics not owning more than four power looms from unreasonable competition by big producers, like the petitioner Company. The State has therefore, made a valid classification between goods produced in big establishments and similar goods produced by small power loom weavers in the mofussil who are usually ignorant, illiterate and poor and suffer from handicaps to which big establishments like the petitioner Company are not subject. It has also been pointed out that the exemption was available to individual weavers, who employed not more than five looms on their own account. The fact that they have banded together in a co-operative effort to increase their efficiency and to take advantage of State aid should not count against them. It must therefore, be held that there is no room for the contention that there has been excessive delegation of power to exempt.9. It was next contended that even if it were held that R. 8 is valid and constitutional, the notifications are bad in so far as they exempt certain classes of persons and not classes of goods from the excise duty. It is argued that the tax is a duty of excise on "any goods", and item 19 has reference to a particular variety of goods namely, cotton fabrics; the exemption if any could have been granted in respect of any particular specified variety of cotton fabrics and not with reference to the persons producing the same variety of those fabrics. There is apparently a fallacy in this argument. The tax is on the production of any goods, but it is payable by persons producing such goods, the exemption also is with reference to such goods as come within the description of excisable goods. The respondent No. 5 has been exempted from payment of excise duty in respect of goods produced by the weavers. It has not been exempted from the payment of a personal tax like Income Tax. The exemption must therefore, have reference to the same kind of tax which would otherwise have been leviable but for the exemption. From the notifications set out above, it is manifest that the Government has exempted cotton fabrics produced on power looms owned by a co-operative society, and in the present instance owned by the members of the Cooperative Society. It has not been contended before us that the conditions laid down for granting the exemption have not been fulfilled by the members of the Co-operative Society, the respondent No 5. Hence, the exemption granted is within the terms of the notifications aforesaid which have effect as if enacted as a part of the Statute. The vires of the Statute, as already indicated, has not been questioned.

### 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: petitioners, asking for a declaration that the levy of excise duty on the piece-goods produced by the petitioners be declared to be unconstitutional. It is one thing to attack the constitutionality of the provisions of the Act authorising the levy of the excise duty on the petitioners; it is quite a different thing to complain of the exemption granted in respect of the goods produced by the 5th respondent. As the vires of the Act itself has not been challenged, we need not say anything more on that aspect of a possible controversy which has not been actually raised in the petition.8. The petition is substantially based upon the contention that R. 8 suffers from the vice of excessive delegation of powers to the Central Government to exempt partly or wholly any excisable goods, and, secondly, that the power even if constitutional has been invalidly exercised in so far as the notifications aforesaid containing the exemption operating in favour of the 5th respondent have been made. In our opinion there is no substance in either of the two contentions. Rule 8 is as much a part of the statute as S. 37(2) cl. (xvii). It is always open to the State to tax certain classes of goods and not to tax others. The legislature is the best judge to decide as to the incidence of taxation as also to the amount of tax to be levied in respect of different classes of goods. The Act recognises and only gives effect to the well established principle that there must be a great deal of flexibility in the incidence of taxation of a particular kind. It must vary from time to time, as also in respect of goods produced by different processes and different agencies. The same principle has been recognised in S. 23 of the Sea Customs Act (VIII of 1878), which has been applied to excise duty also, by virtue of S. 12 of the Act. The latter section has authorised the Central Government to apply the provisions of the Sea Customs Act to excise duty imposed by the Act with such modifications and alterations as it may consider necessary or desirable to adapt them to circumstances. It is a function of the State, in order to raise revenue for State purposes to determine what kind of taxes shall be levied and in what manner. Its function, therefore, is to raise revenues for public purposes. The State naturally is interested in raising all the revenue necessary for public purposes, without sacrificing the legitimate interests of persons and groups, who deserve special treatment at the hands of the State for reasons, which the State may determine, entitling them to be placed in a special class. The Directive principles of the Constitution contained in Part IV lay down the policies and objectives to be achieved, for promoting the welfare of the people. In the context of the present controversy the following words of Art. 43 are particularly apposite:"- - - - - and in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas."It has rightly been pointed out in the affidavit filed on behalf of the respondents 1-4 that the exemption, granted by the impugned notifications is meant primarily for the protection of petty producers of cotton fabrics not owning more than four power looms from unreasonable competition by big producers, like the petitioner Company. The State has therefore, made a valid classification between goods produced in big establishments and similar goods produced by small power loom weavers in the mofussil who are usually ignorant, illiterate and poor and suffer from handicaps to which big establishments like the petitioner Company are not subject. It has also been pointed out that the exemption was available to individual weavers, who employed not more than five looms on their own account. The fact that they have banded together in a co-operative effort to increase their efficiency and to take advantage of State aid should not count against them. It must therefore, be held that there is no room for the contention that there has been excessive delegation of power to exempt.9. It was next contended that even if it were held that R. 8 is valid and constitutional, the notifications are bad in so far as they exempt certain classes of persons and not classes of goods from the excise duty. It is argued that the tax is a duty of excise on "any goods", and item 19 has reference to a particular variety of goods namely, cotton fabrics; the exemption if any could have been granted in respect of any particular specified variety of cotton fabrics and not with reference to the persons producing the same variety of those fabrics. There is apparently a fallacy in this argument. The tax is on the production of any goods, but it is payable by persons producing such goods, the exemption also is with reference to such goods as come within the description of excisable goods. The respondent No. 5 has been exempted from payment of excise duty in respect of goods produced by the weavers. It has not been exempted from the payment of a personal tax like Income Tax. The exemption must therefore, have reference to the same kind of tax which would otherwise have been leviable but for the exemption. From the notifications set out above, it is manifest that the Government has exempted cotton fabrics produced on power looms owned by a co-operative society, and in the present instance owned by the members of the Cooperative Society. It has not been contended before us that the conditions laid down for granting the exemption have not been fulfilled by the members of the Co-operative Society, the respondent No 5. Hence, the exemption granted is within the terms of the notifications aforesaid which have effect as if enacted as a part of the Statute. The vires of the Statute, as already indicated, has not been questioned. ### Response: 0 ### Explanation: itself, and have become part of the taxing statute. It is also noteworthy that the petitioners have not challenged the vires of the Act. The petition is directed against R. 8 and the notifications aforesaid, exempting the goods produced by the cooperative societies, like the 5th respondent, from the payment of the excise duty. That being so, it is a little difficult to appreciate the first prayer of the petitioners, asking for a declaration that the levy of excise duty on the piece-goods produced by the petitioners be declared to be unconstitutional. It is one thing to attack the constitutionality of the provisions of the Act authorising the levy of the excise duty on the petitioners; it is quite a different thing to complain of the exemption granted in respect of the goods produced by the 5th respondent. As the vires of the Act itself has not been challenged, we need not say anything more on that aspect of a possible controversy which has not been actually raised in the petition.The petition is substantially based upon the contention that R. 8 suffers from the vice of excessive delegation of powers to the Central Government to exempt partly or wholly any excisable goods, and, secondly, that the power even if constitutional has been invalidly exercised in so far as the notifications aforesaid containing the exemption operating in favour of the 5th respondent have been made. In our opinion there is no substance in either of the two contentions. Rule 8 is as much a part of the statute as S. 37(2) cl. (xvii). It is always open to the State to tax certain classes of goods and not to tax others. The legislature is the best judge to decide as to the incidence of taxation as also to the amount of tax to be levied in respect of different classes of goods. The Act recognises and only gives effect to the well established principle that there must be a great deal of flexibility in the incidence of taxation of a particular kind. It must vary from time to time, as also in respect of goods produced by different processes and different agencies. The same principle has been recognised in S. 23 of the Sea Customs Act (VIII of 1878), which has been applied to excise duty also, by virtue of S. 12 of the Act. The latter section has authorised the Central Government to apply the provisions of the Sea Customs Act to excise duty imposed by the Act with such modifications and alterations as it may consider necessary or desirable to adapt them to circumstances. It is a function of the State, in order to raise revenue for State purposes to determine what kind of taxes shall be levied and in what manner. Its function, therefore, is to raise revenues for public purposes. The State naturally is interested in raising all the revenue necessary for public purposes, without sacrificing the legitimate interests of persons and groups, who deserve special treatment at the hands of the State for reasons, which the State may determine, entitling them to be placed in a specialhas rightly been pointed out in the affidavit filed on behalf of the respondents 1-4 that the exemption, granted by the impugned notifications is meant primarily for the protection of petty producers of cotton fabrics not owning more than four power looms from unreasonable competition by big producers, like the petitioner Company. The State has therefore, made a valid classification between goods produced in big establishments and similar goods produced by small power loom weavers in the mofussil who are usually ignorant, illiterate and poor and suffer from handicaps to which big establishments like the petitioner Company are not subject. It has also been pointed out that the exemption was available to individual weavers, who employed not more than five looms on their own account. The fact that they have banded together in a co-operative effort to increase their efficiency and to take advantage of State aid should not count against them. It must therefore, be held that there is no room for the contention that there has been excessive delegation of power to exempt.9. It was next contended that even if it were held that R. 8 is valid and constitutional, the notifications are bad in so far as they exempt certain classes of persons and not classes of goods from the excise duty. It is argued that the tax is a duty of excise on "any goods", and item 19 has reference to a particular variety of goods namely, cotton fabrics; the exemption if any could have been granted in respect of any particular specified variety of cotton fabrics and not with reference to the persons producing the same variety of those fabrics. There is apparently a fallacy in this argument. The tax is on the production of any goods, but it is payable by persons producing such goods, the exemption also is with reference to such goods as come within the description of excisable goods. The respondent No. 5 has been exempted from payment of excise duty in respect of goods produced by the weavers. It has not been exempted from the payment of a personal tax like Income Tax. The exemption must therefore, have reference to the same kind of tax which would otherwise have been leviable but for the exemption. From the notifications set out above, it is manifest that the Government has exempted cotton fabrics produced on power looms owned by a co-operative society, and in the present instance owned by the members of the Cooperative Society. It has not been contended before us that the conditions laid down for granting the exemption have not been fulfilled by the members of the Co-operative Society, the respondent No 5. Hence, the exemption granted is within the terms of the notifications aforesaid which have effect as if enacted as a part of the Statute. The vires of the Statute, as already indicated, has not been questioned.

Mangu and Another Vs. State of Rajasthan

GOSWAMI, J.1. The two appellants along with four others were convicted by the Sessions Judge, Bhilwara, under Sections 147, 452/149 and 325/149 I.P.C. and sentenced to imprisonment and fine. The High Court on appeal acquitted four of them and maintained the conviction and sentence of the two appellants who were involved with several others. The appellants moved an application for a certificate praying for leave to appeal to this Court under Article 134 (1)(c) of the Constitution. Later on the leave application was withdrawn and on May 12, 1971, the High Court rejected the application as withdrawn. The appellants later obtained ex parte special leave on May 25, 1971. It was mentioned in para 5 of the special leave petition that their application for leave in the High Court was rejected "on merits, but not as being out of time".2. A preliminary objection has been raised on behalf of the respondent that the special leave granted in this case should be revoked as the appellants failed to comply with the requirements of Rule 2 of Order 21 of the Supreme Court Rules inasmuch as there was no order of the High Court refusing to grant the certificate.3. Under Order 21, Rule 2where an appeal lies to the Court on a certificate issued by the High Court no application to the Court for special leave to appeal small he entertained unless the High Court concerned has first been moved and it has refused to grant the certificate.Since the application foe leave was withdrawn by the appellants it could not be said that the High Court at all considered the matter and then refused to grant the certificate. Withdrawal of the application by the appellants would go to show that they had abandoned the idea of moving the Supreme Court against the judgment. The requirement of Rule 2 has not, therefore, been complied with.4. It is, however, submitted by Mr. Iyengar that Order 47 of the Supreme Court Rules confers power on this Court to dispense with any of the requirements of these Rules and to pass appropriate orders in exercise of inherent powers. Rule 1 of Order 47 provides thatthe Court may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these rules, and may give such directions in matters of practice and procedure as it may consider just and expedient.Rule 6 says thatnothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.Rule 2 of Order 47, however, requires an application to be made in the manner provided therein.5. Rule 2 of Order 21 is, by itself, mandatory. The fact that its compliance may be excused by the Court in appropriate cases does not affect the mandatory character of the rule.6. There is no application by the appellants showing sufficient cause for exempting them from compliance with the requirement of the rule. We are informed that an opportunity had been earlier given by the Court for making an appropriate application even at this stage. Even this opportunity was not availed of by the appellants.7. We are, therefore, of the opinion that this is a case which does not merit invoking of our inherent powers for dispensing with the requirements of the Rules particularly so when the appellants has made a definitely wrong statement in the special leave application with regard to their earlier application for leave in the High Court.8. Mr. Iyengar then submits that a perusal of the judgment of the High Court would clearly show that this is a fit case where we should intervene in the interest of justice by suo motu excusing the technical lapse of any procedure. Reluctantly enough we allowed to take us through the judgment of the High Court and we find that it is an appeal only for reappreciating the evidence and does not disclose any manifest grave error of law or miscarriage of justice.9. This is, therefore, a fit case in which the preliminary objection should prevail.

1[ds]5. Rule 2 of Order 21 is, by itself, mandatory. The fact that its compliance may be excused by the Court in appropriate cases does not affect the mandatory character of the rule.6. There is no application by the appellants showing sufficient cause for exempting them from compliance with the requirement of theenough we allowed to take us through the judgment of the High Court and we find that it is an appeal only for reappreciating the evidence and does not disclose any manifest grave error of law or miscarriage of justice.We are, therefore, of the opinion that this is a case which does not merit invoking of our inherent powers for dispensing with the requirements of the Rules particularly so when the appellants has made a definitely wrong statement in the special leave application with regard to their earlier application for leave in the High Court.This is, therefore, a fit case in which the preliminary objection should prevail.

### 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: GOSWAMI, J.1. The two appellants along with four others were convicted by the Sessions Judge, Bhilwara, under Sections 147, 452/149 and 325/149 I.P.C. and sentenced to imprisonment and fine. The High Court on appeal acquitted four of them and maintained the conviction and sentence of the two appellants who were involved with several others. The appellants moved an application for a certificate praying for leave to appeal to this Court under Article 134 (1)(c) of the Constitution. Later on the leave application was withdrawn and on May 12, 1971, the High Court rejected the application as withdrawn. The appellants later obtained ex parte special leave on May 25, 1971. It was mentioned in para 5 of the special leave petition that their application for leave in the High Court was rejected "on merits, but not as being out of time".2. A preliminary objection has been raised on behalf of the respondent that the special leave granted in this case should be revoked as the appellants failed to comply with the requirements of Rule 2 of Order 21 of the Supreme Court Rules inasmuch as there was no order of the High Court refusing to grant the certificate.3. Under Order 21, Rule 2where an appeal lies to the Court on a certificate issued by the High Court no application to the Court for special leave to appeal small he entertained unless the High Court concerned has first been moved and it has refused to grant the certificate.Since the application foe leave was withdrawn by the appellants it could not be said that the High Court at all considered the matter and then refused to grant the certificate. Withdrawal of the application by the appellants would go to show that they had abandoned the idea of moving the Supreme Court against the judgment. The requirement of Rule 2 has not, therefore, been complied with.4. It is, however, submitted by Mr. Iyengar that Order 47 of the Supreme Court Rules confers power on this Court to dispense with any of the requirements of these Rules and to pass appropriate orders in exercise of inherent powers. Rule 1 of Order 47 provides thatthe Court may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these rules, and may give such directions in matters of practice and procedure as it may consider just and expedient.Rule 6 says thatnothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.Rule 2 of Order 47, however, requires an application to be made in the manner provided therein.5. Rule 2 of Order 21 is, by itself, mandatory. The fact that its compliance may be excused by the Court in appropriate cases does not affect the mandatory character of the rule.6. There is no application by the appellants showing sufficient cause for exempting them from compliance with the requirement of the rule. We are informed that an opportunity had been earlier given by the Court for making an appropriate application even at this stage. Even this opportunity was not availed of by the appellants.7. We are, therefore, of the opinion that this is a case which does not merit invoking of our inherent powers for dispensing with the requirements of the Rules particularly so when the appellants has made a definitely wrong statement in the special leave application with regard to their earlier application for leave in the High Court.8. Mr. Iyengar then submits that a perusal of the judgment of the High Court would clearly show that this is a fit case where we should intervene in the interest of justice by suo motu excusing the technical lapse of any procedure. Reluctantly enough we allowed to take us through the judgment of the High Court and we find that it is an appeal only for reappreciating the evidence and does not disclose any manifest grave error of law or miscarriage of justice.9. This is, therefore, a fit case in which the preliminary objection should prevail. ### Response: 1 ### Explanation: 5. Rule 2 of Order 21 is, by itself, mandatory. The fact that its compliance may be excused by the Court in appropriate cases does not affect the mandatory character of the rule.6. There is no application by the appellants showing sufficient cause for exempting them from compliance with the requirement of theenough we allowed to take us through the judgment of the High Court and we find that it is an appeal only for reappreciating the evidence and does not disclose any manifest grave error of law or miscarriage of justice.We are, therefore, of the opinion that this is a case which does not merit invoking of our inherent powers for dispensing with the requirements of the Rules particularly so when the appellants has made a definitely wrong statement in the special leave application with regard to their earlier application for leave in the High Court.This is, therefore, a fit case in which the preliminary objection should prevail.

State Of Haryana Vs. Mohan Lal & Ors

When a committee is so superseded, the following consequences shall ensue:-(a) ............(b) all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed but such persons as the State Government may appointment in that behalf."7. Fresh elections of the Municipal Committee, Rohtak, were held in July, 1961, and the Municipal Committee reconstituted on January 10, 1962. On October 23, 1962, the Government informed the Deputy Commissioner, Rohtak Improvement Trust immediately and asked the Deputy Commissioner to recommend a panel or six names of suitable persons for appointment as trustees and the Government also asked him to call upon the Municipal Committee, Rohtak, to elect its representatives as trustees.8. This was not to the liking of the Municipal Committee and the Municipal Committee unanimously passed a resolution on November 9, 1962, strongly opposing the reconstitution of the Improvement Trust, Rohtak.9. The Government by notification dated 10, 1963, in exercise of powers conferred by sub-s. (2) of section 4 of the Act appointed one Major S. K. Mehta as Chairman, Rohtak Improvement Trust. The Municipal Committee was again requested to send two names of three members of the Municipal Committee to be appointed as trustees as required by cl. (b) of sub-s. (1) of section 4 of the Act. Thereupon 32 rate-payers filed the petition under Art 226 of the Constitution challenging the reconstitution of the Rohtak Improvement Trust.10. Coming to the first point decided by the High Court, it seems to us that section 4-A of the Act was not brought to its notice and if it had been brought to its notice the High Court may well have come to the contrary conclusion. Section 4-A, which was inserted by Punjab Act VIII of 1936, reads:"4-A. During the period of suppression of a Municipal Committee under section 238 of the Punjab Municipal Act, 1911, the three seats allotted to the Municipal Committee on the trust under clause (b) of sub-section (1) of section 4 shall be filled by the State Government by appointing any three person by notification in the Official Gazette. The term of office of every trustee so appointed shall be three years or until the Trust is dissolved, whichever period is less, provided that if the Municipal Committee is reconstituted three members of the Municipal Committee shall be elected or appointed in accordance with the provisions of section 4, and on their election or appointment the three trustees appointed by the State Government under this section shall cease to be members of the Trust."11. Reading section 1 (3) and section 4A of the Act, and section 238 of the Punjab Municipal Act, 1911, to- together it seems to us that the true meaning of the latter portion of sub-section 1 is that when the Government applies the section and Municipal Committee has been superseded before that date it is the Administrator who would exercise the powers given under the latter part of that sub-section; in other words, the Administrator would be competent to say to the Government that the Act shall not come into operation.The words of section 238 of the Punjab Municipal Act are very wide and it is difficult to limit the expression "all powers and duties of the Committee" in any manner.The Municipality exercised powers by resolution passed by majority and the fact that this particular resolution had to be by two-third majority does not to the conclusion that the power to opposethe application of the Act vesting in the Municipal Committee cannot be exercised by the Administrator under S. 238, Punjab Municipal Act.12. Section 4A of the Act clearly proceeds on the basis that while the Municipal Committee stands superseded the appointment of trustees which was originally to be made by the Municipal Committee would be made by the State Government. As the High Court did not have section 4-A before it had relied on the anomaly that where a Municipal Committee was suspended the Government could nominate some members of the suspended Committee as members of the Trust or otherwise fill these vacancies, and the High Court felt that it could not believe that it was the intention of the Legislature. Coming to the second point made by the High Court, it seems that the High Court has wrongly held that once the Act has been applied it is necessary that it should be applied again when the Municipal Committee is reconstituted. There is nothing in the words of sub-section (3) of section 1 to warrant this conclusion.Once the Act has come into operation in accordance with the provisions of sub-section (3) of section 1 there is no provision by which the Act can cease to apply.13. The only point that remains is: where a trust has been dissolved under Section 103 of the Act, can it be reconstituted under the Act? The only provisions under which a trust can be reconstituted under the Act are Section 3 and 4. Section 3 reads:"3. The duty of carrying out the provisions of this Act in any local area shall, subject to the conditions and limitations hereinafter contained, be vested in a board to be called "The (name of town) Improvement Trust" hereinafter referred to as the "The Trust"; and every such board shall be a body corporate and have perpetual succession and common seal, and shall by the said name sue and be sued."Section 4 reads:"4 (1) The trust shall consist of seven trustees, namely:-................"The other sub-sections of Section 4 provide how the trustees are to be appointed.14. It seems to us that if the trust could originally be created under sections 3 and 4, reading sections 3 and 4 and S. 12 of the General Clauses Act, the Government has the power to create a new trust or reconstitute a new trust.We may mention that section 12 of the General Clauses (Punjab) Act, 1898, provides that"where by any Punjab Act any power is conferred then that power may be exercised from time to time as occasion requires."

1[ds]10. Coming to the first point decided by the High Court, it seems to us that section 4-A of the Act was not brought to its notice and if it had been brought to its notice the High Court may well have come to the contrary1 (3) and section 4A of the Act, and section 238 of the Punjab Municipal Act,Section 4A of the Act clearly proceeds on the basis that while the Municipal Committee stands superseded the appointment of trustees which was originally to be made by the Municipal Committee would be made by the State Government. As the High Court did not have section 4-A before it had relied on the anomaly that where a Municipal Committee was suspended the Government could nominate some members of the suspended Committee as members of the Trust or otherwise fill these vacancies, and the High Court felt that it could not believe that it was the intention of the Legislature. Coming to the second point made by the High Court, it seems that the High Court has wrongly held that once the Act has been applied it is necessary that it should be applied again when the Municipal Committee is reconstituted. There is nothing in the words of sub-section (3) of section 1 to warrant this conclusion.Once the Act has come into operation in accordance with the provisions of sub-section (3) of section 1 there is no provision by which the Act can cease to apply.It seems to us that if the trust could originally be created under sections 3 and 4, reading sections 3 and 4 and S. 12 of the General Clauses Act, the Government has the power to create a new trust or reconstitute a new trust.We may mention that section 12 of the General Clauses (Punjab) Act, 1898, provides that"where by any Punjab Act any power is conferred then that power may be exercised from time to time as occasion requires."

### 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: When a committee is so superseded, the following consequences shall ensue:-(a) ............(b) all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed but such persons as the State Government may appointment in that behalf."7. Fresh elections of the Municipal Committee, Rohtak, were held in July, 1961, and the Municipal Committee reconstituted on January 10, 1962. On October 23, 1962, the Government informed the Deputy Commissioner, Rohtak Improvement Trust immediately and asked the Deputy Commissioner to recommend a panel or six names of suitable persons for appointment as trustees and the Government also asked him to call upon the Municipal Committee, Rohtak, to elect its representatives as trustees.8. This was not to the liking of the Municipal Committee and the Municipal Committee unanimously passed a resolution on November 9, 1962, strongly opposing the reconstitution of the Improvement Trust, Rohtak.9. The Government by notification dated 10, 1963, in exercise of powers conferred by sub-s. (2) of section 4 of the Act appointed one Major S. K. Mehta as Chairman, Rohtak Improvement Trust. The Municipal Committee was again requested to send two names of three members of the Municipal Committee to be appointed as trustees as required by cl. (b) of sub-s. (1) of section 4 of the Act. Thereupon 32 rate-payers filed the petition under Art 226 of the Constitution challenging the reconstitution of the Rohtak Improvement Trust.10. Coming to the first point decided by the High Court, it seems to us that section 4-A of the Act was not brought to its notice and if it had been brought to its notice the High Court may well have come to the contrary conclusion. Section 4-A, which was inserted by Punjab Act VIII of 1936, reads:"4-A. During the period of suppression of a Municipal Committee under section 238 of the Punjab Municipal Act, 1911, the three seats allotted to the Municipal Committee on the trust under clause (b) of sub-section (1) of section 4 shall be filled by the State Government by appointing any three person by notification in the Official Gazette. The term of office of every trustee so appointed shall be three years or until the Trust is dissolved, whichever period is less, provided that if the Municipal Committee is reconstituted three members of the Municipal Committee shall be elected or appointed in accordance with the provisions of section 4, and on their election or appointment the three trustees appointed by the State Government under this section shall cease to be members of the Trust."11. Reading section 1 (3) and section 4A of the Act, and section 238 of the Punjab Municipal Act, 1911, to- together it seems to us that the true meaning of the latter portion of sub-section 1 is that when the Government applies the section and Municipal Committee has been superseded before that date it is the Administrator who would exercise the powers given under the latter part of that sub-section; in other words, the Administrator would be competent to say to the Government that the Act shall not come into operation.The words of section 238 of the Punjab Municipal Act are very wide and it is difficult to limit the expression "all powers and duties of the Committee" in any manner.The Municipality exercised powers by resolution passed by majority and the fact that this particular resolution had to be by two-third majority does not to the conclusion that the power to opposethe application of the Act vesting in the Municipal Committee cannot be exercised by the Administrator under S. 238, Punjab Municipal Act.12. Section 4A of the Act clearly proceeds on the basis that while the Municipal Committee stands superseded the appointment of trustees which was originally to be made by the Municipal Committee would be made by the State Government. As the High Court did not have section 4-A before it had relied on the anomaly that where a Municipal Committee was suspended the Government could nominate some members of the suspended Committee as members of the Trust or otherwise fill these vacancies, and the High Court felt that it could not believe that it was the intention of the Legislature. Coming to the second point made by the High Court, it seems that the High Court has wrongly held that once the Act has been applied it is necessary that it should be applied again when the Municipal Committee is reconstituted. There is nothing in the words of sub-section (3) of section 1 to warrant this conclusion.Once the Act has come into operation in accordance with the provisions of sub-section (3) of section 1 there is no provision by which the Act can cease to apply.13. The only point that remains is: where a trust has been dissolved under Section 103 of the Act, can it be reconstituted under the Act? The only provisions under which a trust can be reconstituted under the Act are Section 3 and 4. Section 3 reads:"3. The duty of carrying out the provisions of this Act in any local area shall, subject to the conditions and limitations hereinafter contained, be vested in a board to be called "The (name of town) Improvement Trust" hereinafter referred to as the "The Trust"; and every such board shall be a body corporate and have perpetual succession and common seal, and shall by the said name sue and be sued."Section 4 reads:"4 (1) The trust shall consist of seven trustees, namely:-................"The other sub-sections of Section 4 provide how the trustees are to be appointed.14. It seems to us that if the trust could originally be created under sections 3 and 4, reading sections 3 and 4 and S. 12 of the General Clauses Act, the Government has the power to create a new trust or reconstitute a new trust.We may mention that section 12 of the General Clauses (Punjab) Act, 1898, provides that"where by any Punjab Act any power is conferred then that power may be exercised from time to time as occasion requires." ### Response: 1 ### Explanation: 10. Coming to the first point decided by the High Court, it seems to us that section 4-A of the Act was not brought to its notice and if it had been brought to its notice the High Court may well have come to the contrary1 (3) and section 4A of the Act, and section 238 of the Punjab Municipal Act,Section 4A of the Act clearly proceeds on the basis that while the Municipal Committee stands superseded the appointment of trustees which was originally to be made by the Municipal Committee would be made by the State Government. As the High Court did not have section 4-A before it had relied on the anomaly that where a Municipal Committee was suspended the Government could nominate some members of the suspended Committee as members of the Trust or otherwise fill these vacancies, and the High Court felt that it could not believe that it was the intention of the Legislature. Coming to the second point made by the High Court, it seems that the High Court has wrongly held that once the Act has been applied it is necessary that it should be applied again when the Municipal Committee is reconstituted. There is nothing in the words of sub-section (3) of section 1 to warrant this conclusion.Once the Act has come into operation in accordance with the provisions of sub-section (3) of section 1 there is no provision by which the Act can cease to apply.It seems to us that if the trust could originally be created under sections 3 and 4, reading sections 3 and 4 and S. 12 of the General Clauses Act, the Government has the power to create a new trust or reconstitute a new trust.We may mention that section 12 of the General Clauses (Punjab) Act, 1898, provides that"where by any Punjab Act any power is conferred then that power may be exercised from time to time as occasion requires."

Nanchand Gangaram Shetji Vs. Mallappa Mahalingappa Sadalge

1953, on which the plaintiffs cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.39. Mr. Datar next contends that even if the joint status of the family stood disrupted from November, 1945, then also, on the principle of Section 45, Partnership Act, the acknowledgments made by defendants Nos. 1 and 2, representing themselves, jointly or severally, as karta of the joint Hindu trading family, would, in the absence of public notice to the traders in general or particular notice to the plaintiff, be binding on all the erstwhile members of the joint family. Reliance for this contention has been placed on a Single Bench judgment of the Bombay High Court in Kashiram Bhagshet Shete v. Bhaga Bhanshet Reddi (AIR 1945 Bom 511 : ILR 1945 Bom 976 : 47 Bom LR 470).40. As against this, Mr. Desai submitted that Kashirams case does not, lay down the law correctly. Counsel maintains that the contrary view taken by the other High Courts in these cases is sound Pramod Kumar Pati v. Damodar Sahu (AIR 1953 Ori 179 : ILR 1953 Cut 221); Rengaswami Ayyangar v. Sivprakasam Pillai (AIR 1941 Mad 925 : ILR 1942 Mad 251 : (1941) 2 MLJ 383 (FB); Muthyala Ramachandrappa v. Muthyala Narayanappa (AIR 1940 Mad 339 : 1939 MWN 927).41. Kashirams case decided by an eminent Single Judge certainly supports the proposition propounded by Mr. Datar. Applying the principle of Section 45 of the Partnership Act, 1932 therein the learned Judge held that unless intimation of the severance of joint status between the members of the joint family is given to the outside creditors who had dealings with the joint family through its karta either by public notice or individual notice in that behalf, the karta would be deemed to continue to represent the family and to have power to incur debts for family necessity and to make acknowledgments or part payments in respect of the same so as to extend the period of limitation. With great respect to the learned Judge, we do not think that this is a correct enunciation of the law on the point. Firstly the legislature has, in its wisdom, excluded joint Hindu trading families from the operation of the Partnership Act Section 4 of that Act defines partnership asthe relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.Section 5 further makes it clear that this Act governs only that relation of partnership which arises from contract and not from status such as the one obtaining among the members of a joint Hindu family trading partnership. Secondly, the question whether an acknowledgment made by the karta of an erstwhile joint Hindu family after its severance, would extend limitation against all the former members of that family, turns primarily on an interpretation of clause (b) of sub-section (3) of Section 21, read with Section 19 of the Limitation Act, 1908. Clause (b) of Section 21(3) provides :"Where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgment or payment made by or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family."42. The key words in this clause are the manager of the family for the time being. These words unerringly indicate that at the time when the acknowledgment is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family. If at the relevant time the joint Hindu family as such was no longer in existence because of division or disruption of its joint status, any acknowledgment made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being conterminous with the joint status of the family.43. Explanation II to Section 19 lays down that for the purpose of this Section "signed" means signed either personally or by an agent duly authorised in this behalf. Section 21(1) provides that the expression "agent duly authorised in this behalf" in Sections 19 and 20 shall in the case of a person under disability include his lawful guardian or manager of an agent duly authorised in this behalf. It is well settled that coparceners do not derive their title through the karta of the coparcenary. Defendants Nos. 1 and 2 do not fulfil the requirements of this sub-section.44. It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgment still holds his representative capacity as karta of the family. The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgment, he does so at his own peril. Disruption of the joint family status as already noticed puts an end to the representative capacity of the karta and any acknowledgment of a debt made by him after such disruption, cannot save the creditors claim from becoming time barred against the other members.45. The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rengaswami Ayyangar v. Sivprakasam Pillai (supra) and by a Division Bench, consisting of Varadachariar and Abdur Rahman, JJ. in Muthyala Ramachandrappa v. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra).46. We approve of the law enunciated on the point by the High Courts in these cases.

0[ds]33. In our opinion, it was not unreasonable to hold that the recital in this resolution with regard to defendant No. 2 being the authorised manager of the joint family, was made as a matter of expediency, did not discount the case of defendant No. 4 that the joint family had disrupted on November 4, 1945.In view of all that has been said above, we are of opinion that the concurrent finding of the courts below to the effect, that the joint Hindu family of the defendants had disrupted on November 4, 1945, does not suffer from any legal infirmity or gross error which would justify our interference in this appeal by special leave. We therefore take it that no joint Hindu family of the defendants, nor any joint business of such a family was in existence either on October 15, 1949 when the last dealing (vide Ex. 394) of the plaintiff with defendants Nos. 1 and 2 took place, or when on April 15, 1953 the accounts were stated and admitted. Indeed, on the date, April 15, 1953, on which the plaintiffs cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgment still holds his representative capacity as karta of the family. The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgment, he does so at his own peril. Disruption of the joint family status as already noticed puts an end to the representative capacity of the karta and any acknowledgment of a debt made by him after such disruption, cannot save the creditors claim from becoming time barred against the other members.45. The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rengaswami Ayyangar v. Sivprakasam Pillai (supra) and by a Division Bench, consisting of Varadachariar and Abdur Rahman, JJ. in Muthyala Ramachandrappa v. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra).46. We approve of the law enunciated on the point by the High Courts in these cases.

### 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: 1953, on which the plaintiffs cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.39. Mr. Datar next contends that even if the joint status of the family stood disrupted from November, 1945, then also, on the principle of Section 45, Partnership Act, the acknowledgments made by defendants Nos. 1 and 2, representing themselves, jointly or severally, as karta of the joint Hindu trading family, would, in the absence of public notice to the traders in general or particular notice to the plaintiff, be binding on all the erstwhile members of the joint family. Reliance for this contention has been placed on a Single Bench judgment of the Bombay High Court in Kashiram Bhagshet Shete v. Bhaga Bhanshet Reddi (AIR 1945 Bom 511 : ILR 1945 Bom 976 : 47 Bom LR 470).40. As against this, Mr. Desai submitted that Kashirams case does not, lay down the law correctly. Counsel maintains that the contrary view taken by the other High Courts in these cases is sound Pramod Kumar Pati v. Damodar Sahu (AIR 1953 Ori 179 : ILR 1953 Cut 221); Rengaswami Ayyangar v. Sivprakasam Pillai (AIR 1941 Mad 925 : ILR 1942 Mad 251 : (1941) 2 MLJ 383 (FB); Muthyala Ramachandrappa v. Muthyala Narayanappa (AIR 1940 Mad 339 : 1939 MWN 927).41. Kashirams case decided by an eminent Single Judge certainly supports the proposition propounded by Mr. Datar. Applying the principle of Section 45 of the Partnership Act, 1932 therein the learned Judge held that unless intimation of the severance of joint status between the members of the joint family is given to the outside creditors who had dealings with the joint family through its karta either by public notice or individual notice in that behalf, the karta would be deemed to continue to represent the family and to have power to incur debts for family necessity and to make acknowledgments or part payments in respect of the same so as to extend the period of limitation. With great respect to the learned Judge, we do not think that this is a correct enunciation of the law on the point. Firstly the legislature has, in its wisdom, excluded joint Hindu trading families from the operation of the Partnership Act Section 4 of that Act defines partnership asthe relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.Section 5 further makes it clear that this Act governs only that relation of partnership which arises from contract and not from status such as the one obtaining among the members of a joint Hindu family trading partnership. Secondly, the question whether an acknowledgment made by the karta of an erstwhile joint Hindu family after its severance, would extend limitation against all the former members of that family, turns primarily on an interpretation of clause (b) of sub-section (3) of Section 21, read with Section 19 of the Limitation Act, 1908. Clause (b) of Section 21(3) provides :"Where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgment or payment made by or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family."42. The key words in this clause are the manager of the family for the time being. These words unerringly indicate that at the time when the acknowledgment is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family. If at the relevant time the joint Hindu family as such was no longer in existence because of division or disruption of its joint status, any acknowledgment made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being conterminous with the joint status of the family.43. Explanation II to Section 19 lays down that for the purpose of this Section "signed" means signed either personally or by an agent duly authorised in this behalf. Section 21(1) provides that the expression "agent duly authorised in this behalf" in Sections 19 and 20 shall in the case of a person under disability include his lawful guardian or manager of an agent duly authorised in this behalf. It is well settled that coparceners do not derive their title through the karta of the coparcenary. Defendants Nos. 1 and 2 do not fulfil the requirements of this sub-section.44. It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgment still holds his representative capacity as karta of the family. The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgment, he does so at his own peril. Disruption of the joint family status as already noticed puts an end to the representative capacity of the karta and any acknowledgment of a debt made by him after such disruption, cannot save the creditors claim from becoming time barred against the other members.45. The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rengaswami Ayyangar v. Sivprakasam Pillai (supra) and by a Division Bench, consisting of Varadachariar and Abdur Rahman, JJ. in Muthyala Ramachandrappa v. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra).46. We approve of the law enunciated on the point by the High Courts in these cases. ### Response: 0 ### Explanation: 33. In our opinion, it was not unreasonable to hold that the recital in this resolution with regard to defendant No. 2 being the authorised manager of the joint family, was made as a matter of expediency, did not discount the case of defendant No. 4 that the joint family had disrupted on November 4, 1945.In view of all that has been said above, we are of opinion that the concurrent finding of the courts below to the effect, that the joint Hindu family of the defendants had disrupted on November 4, 1945, does not suffer from any legal infirmity or gross error which would justify our interference in this appeal by special leave. We therefore take it that no joint Hindu family of the defendants, nor any joint business of such a family was in existence either on October 15, 1949 when the last dealing (vide Ex. 394) of the plaintiff with defendants Nos. 1 and 2 took place, or when on April 15, 1953 the accounts were stated and admitted. Indeed, on the date, April 15, 1953, on which the plaintiffs cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgment still holds his representative capacity as karta of the family. The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgment, he does so at his own peril. Disruption of the joint family status as already noticed puts an end to the representative capacity of the karta and any acknowledgment of a debt made by him after such disruption, cannot save the creditors claim from becoming time barred against the other members.45. The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rengaswami Ayyangar v. Sivprakasam Pillai (supra) and by a Division Bench, consisting of Varadachariar and Abdur Rahman, JJ. in Muthyala Ramachandrappa v. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra).46. We approve of the law enunciated on the point by the High Courts in these cases.

Sobhraj Odharmal Vs. State Of Rajasthan

question whether any fundamental right of the petitioner in the writ petition, to carry on business was infringed by the State Transport Undertaking plying its vehicles without obtaining permits under Section 42(1). The scheme was by order dated March 23, 1962 of the Legal Remembrancer who was invested with authority to hear objections thereto, duly approved. The scheme so approved by the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that permits of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and the Regional Transport Authority in exercise of the powers conferred under Section 68F(2) and in pursuance of the scheme ordered that those permits be cancelled. 13. Sub-sections (1) and (2) of Section 68F deal with different matters; exercise of the powers under clause (2)is not dependent upon the grant of any permits to the State Transport Undertaking. By sub-section (1) a statutory duty is imposed upon the Regional Transport Authority to grant permits to the State Transport Undertaking, if application is made in that behalf pursuant to an approved scheme. To such an application the provisions contained in Ch. IV such as Sections 47, 48, 57 and allied Sections will not apply. It was observed by this Court in Abdul Gafoor v. State of Mysore, AIR 1961 SC 1556 ,"In order that the approved scheme may be implemented the State Transport Undertaking which is to run and operate the Transport Service under the scheme must have a permit from the Regional Transport Authority, Section 68-F(1) provides that the State Transport Undertaking will have to apply for a permit (i) in pursuance of the approved scheme and (ii) in the manner specified in Chapter IV. Once that is done, the sub-section proceeds to say "A Regional Transport Authority shall issue such permit to the State Transport Undertakings", and this "notwithstanding anything to the contrary contained in Chapter IV". It appears clear to us that the provisions of Section 57(3) have nothing to do with these matters dealt with by Section 68-F(i). x x x x Under Section 68-F(i) as already mentioned the Regional Transport Authority has no option to refuse the grant of the permit provided it has been made in pursuance of the approved scheme and in the manner mentioned in Chapter IV. The duty of the Regional Transport Authority on receipt of the application from the State Transport Undertaking for a permit is therefore to examine the application for itself to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Chapter IV. This is a duty which the Regional Transport Authority has to perform for itself and there is no question of its asking for assistance from the public or existing permit holders for Transport Services on the route. Neither the public in general nor the permit holders has any part to play in this matter." 14. Sub-section (2) authorises the Regional Transport Authority to take action or to make orders to effectuate the scheme and to implement its directions. In Samarth Transport Co. (p) Ltd. v. Regional Transport Authority Nagpur, AIR 1961 SC 93 , dealing with the conditions under which the power under Section 68-F(2)(a) may be exercised it was observed that "this power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the authority that there is an approved scheme, and to give effect, to it, application for renewal cannot be entertained." 15. In Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183 , it was held that an order passed by the Regional Transport Authority under Section 68-F(2) pursuant to a direction under a scheme duly approved and published is purely consequential upon the scheme, and is not open to challenge. In considering the effect of clause (2) of Section 68F it was observed in that case that"the Regional Transport Authority was by the terms of the scheme left no discretion in the matter. It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles." 16.It was further observed that"if the right of the appellant to ply his buses is lawfully extinguished he is not entitled to maintain an appeal challenging the right of the State Transport Undertaking to ply their buses with or without permits. Nor is any fundamental right of the appellant infringed by the State Transport Undertaking plying its buses without permits, and a petition under Art. 32 of the Constitution can not be maintained unless a fundamental right of the applicant is infringed." 17. It was therefore held in that case that if a valid scheme contains a direction for cancellation of outstanding permits and the permits are in fact cancelled by order of the Regional Transport Authority, it is not open to the operator whose permits are cancelled to claim that the State Authority which commenced to operate its vehicles without obtaining permits under Section 42 of the Motor Vehicles Act infringes the right of the operator to carry on his business. The right of the operator having been lawfully extinguished protanto by the scheme and the consequential order under Section 68-F(2), he is not entitled to have resort to this Court under Art. 32 of the Constitution for protection of his alleged right. 18. The scheme was duly published and the permits issued in favour of fifty-five operators whose names are set out in the order dated May 3/4, 1962 were lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which could be infringed by the State Government plying its vehicles with or without permits issued by the Regional Transport Authority under Section 42(1) of the Motor Vehicles Act. 19.

0[ds]The High Court, without issuing rule upon the State and the Transport Authorities, dismissed the petition, holding that Rule 7 (4) was not ultra vires the Motor Vehicles Act, and that it was difficult, on the material placed before the Court, to hold that the Legal Remembrancer had not in fact determined the question of regularity of service of notice upon the objectors before he commenced hearing the objectionsThe scheme was by order dated March 23, 1962 of the Legal Remembrancer who was invested with authority to hear objections thereto, duly approved. The scheme so approved by the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that permits of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and the Regional Transport Authority in exercise of the powers conferred under Section) and in pursuance of the scheme ordered that those permits be cancelledIt was therefore held in that case that if a valid scheme contains a direction for cancellation of outstanding permits and the permits are in fact cancelled by order of the Regional Transport Authority, it is not open to the operator whose permits are cancelled to claim that the State Authority which commenced to operate its vehicles without obtaining permits under Section 42 of the Motor Vehicles Act infringes the right of the operator to carry on his business. The right of the operator having been lawfully extinguished protanto by the scheme and the consequential order under Section, he is not entitled to have resort to this Court under Art. 32 of the Constitution for protection of his alleged rightThe scheme was duly published and the permits issued in favour ofe operators whose names are set out in the order dated May 3/4, 1962 were lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which could be infringed by the State Government plying its vehicles with or without permits issued by the Regional Transport Authority under Section 42(1) of the Motor Vehicles Act.

### 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: question whether any fundamental right of the petitioner in the writ petition, to carry on business was infringed by the State Transport Undertaking plying its vehicles without obtaining permits under Section 42(1). The scheme was by order dated March 23, 1962 of the Legal Remembrancer who was invested with authority to hear objections thereto, duly approved. The scheme so approved by the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that permits of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and the Regional Transport Authority in exercise of the powers conferred under Section 68F(2) and in pursuance of the scheme ordered that those permits be cancelled. 13. Sub-sections (1) and (2) of Section 68F deal with different matters; exercise of the powers under clause (2)is not dependent upon the grant of any permits to the State Transport Undertaking. By sub-section (1) a statutory duty is imposed upon the Regional Transport Authority to grant permits to the State Transport Undertaking, if application is made in that behalf pursuant to an approved scheme. To such an application the provisions contained in Ch. IV such as Sections 47, 48, 57 and allied Sections will not apply. It was observed by this Court in Abdul Gafoor v. State of Mysore, AIR 1961 SC 1556 ,"In order that the approved scheme may be implemented the State Transport Undertaking which is to run and operate the Transport Service under the scheme must have a permit from the Regional Transport Authority, Section 68-F(1) provides that the State Transport Undertaking will have to apply for a permit (i) in pursuance of the approved scheme and (ii) in the manner specified in Chapter IV. Once that is done, the sub-section proceeds to say "A Regional Transport Authority shall issue such permit to the State Transport Undertakings", and this "notwithstanding anything to the contrary contained in Chapter IV". It appears clear to us that the provisions of Section 57(3) have nothing to do with these matters dealt with by Section 68-F(i). x x x x Under Section 68-F(i) as already mentioned the Regional Transport Authority has no option to refuse the grant of the permit provided it has been made in pursuance of the approved scheme and in the manner mentioned in Chapter IV. The duty of the Regional Transport Authority on receipt of the application from the State Transport Undertaking for a permit is therefore to examine the application for itself to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Chapter IV. This is a duty which the Regional Transport Authority has to perform for itself and there is no question of its asking for assistance from the public or existing permit holders for Transport Services on the route. Neither the public in general nor the permit holders has any part to play in this matter." 14. Sub-section (2) authorises the Regional Transport Authority to take action or to make orders to effectuate the scheme and to implement its directions. In Samarth Transport Co. (p) Ltd. v. Regional Transport Authority Nagpur, AIR 1961 SC 93 , dealing with the conditions under which the power under Section 68-F(2)(a) may be exercised it was observed that "this power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the authority that there is an approved scheme, and to give effect, to it, application for renewal cannot be entertained." 15. In Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183 , it was held that an order passed by the Regional Transport Authority under Section 68-F(2) pursuant to a direction under a scheme duly approved and published is purely consequential upon the scheme, and is not open to challenge. In considering the effect of clause (2) of Section 68F it was observed in that case that"the Regional Transport Authority was by the terms of the scheme left no discretion in the matter. It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles." 16.It was further observed that"if the right of the appellant to ply his buses is lawfully extinguished he is not entitled to maintain an appeal challenging the right of the State Transport Undertaking to ply their buses with or without permits. Nor is any fundamental right of the appellant infringed by the State Transport Undertaking plying its buses without permits, and a petition under Art. 32 of the Constitution can not be maintained unless a fundamental right of the applicant is infringed." 17. It was therefore held in that case that if a valid scheme contains a direction for cancellation of outstanding permits and the permits are in fact cancelled by order of the Regional Transport Authority, it is not open to the operator whose permits are cancelled to claim that the State Authority which commenced to operate its vehicles without obtaining permits under Section 42 of the Motor Vehicles Act infringes the right of the operator to carry on his business. The right of the operator having been lawfully extinguished protanto by the scheme and the consequential order under Section 68-F(2), he is not entitled to have resort to this Court under Art. 32 of the Constitution for protection of his alleged right. 18. The scheme was duly published and the permits issued in favour of fifty-five operators whose names are set out in the order dated May 3/4, 1962 were lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which could be infringed by the State Government plying its vehicles with or without permits issued by the Regional Transport Authority under Section 42(1) of the Motor Vehicles Act. 19. ### Response: 0 ### Explanation: The High Court, without issuing rule upon the State and the Transport Authorities, dismissed the petition, holding that Rule 7 (4) was not ultra vires the Motor Vehicles Act, and that it was difficult, on the material placed before the Court, to hold that the Legal Remembrancer had not in fact determined the question of regularity of service of notice upon the objectors before he commenced hearing the objectionsThe scheme was by order dated March 23, 1962 of the Legal Remembrancer who was invested with authority to hear objections thereto, duly approved. The scheme so approved by the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that permits of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and the Regional Transport Authority in exercise of the powers conferred under Section) and in pursuance of the scheme ordered that those permits be cancelledIt was therefore held in that case that if a valid scheme contains a direction for cancellation of outstanding permits and the permits are in fact cancelled by order of the Regional Transport Authority, it is not open to the operator whose permits are cancelled to claim that the State Authority which commenced to operate its vehicles without obtaining permits under Section 42 of the Motor Vehicles Act infringes the right of the operator to carry on his business. The right of the operator having been lawfully extinguished protanto by the scheme and the consequential order under Section, he is not entitled to have resort to this Court under Art. 32 of the Constitution for protection of his alleged rightThe scheme was duly published and the permits issued in favour ofe operators whose names are set out in the order dated May 3/4, 1962 were lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which could be infringed by the State Government plying its vehicles with or without permits issued by the Regional Transport Authority under Section 42(1) of the Motor Vehicles Act.

Zohrabi Vs. Arjuna and Others

Gupta, J. This appeal arises out of a proceeding for ejectment under the Hyderabad Tenancy and Agricultural Lands Act, 1950. The only question for consideration is whether the proviso to sub-section (1) of Section 28 of the Act as amended in 1960 would apply to this case. Section 28(1) of the Act reads : Where a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder files any proceeding to eject the tenant, the Tahsildar shall call upon the tenant to tender to the landholder the rent in arrears together with the cost of proceeding within ninety days from the date of the order, and if the tenant complies with such order, the Tahsildar shall, in lieu of making an order of ejectment, pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated. There was a proviso to this sub-section as follows : Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (i) of clause (a) of sub-section (2) of Section 19. This proviso was amended by Section 7 of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1960. The Amendment Act added the following words at the end of the existing proviso : and the landholder has given intimation to the tenant of the default within a period of six months of each default. The Amendment Act received the assent of the President on December 18, 1960 and was published in the Maharashtra Government Gazette, Extraordinary, on December 29, 1960. 2. The appellant was the owner of agricultural land measuring about 18 acres 13 gts. situated in a village in district Aurangabad. The predecessor-in-interest of the respondents was a tenant of the said land. On January 3, 1961 the appellant issued a notice under Section 19(2) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 terminating the tenancy on the ground of non-payment of rent. The notice of termination was served on the tenant on January 11, 1961. The appellant applied for possession on October 30, 1961. The original tenant having died during the pendency of the proceeding, his heirs and legal representatives were substituted in his place. The Naib Tahsildar allowed the application for possession. From his order the tenants took an appeal to the Deputy Collector, Land Reforms, Aurangabad which also failed. The tenants then preferred a revision before the Maharashtra Revenue Tribunal, Aurangabad. The Tribunal allowed the revision petition holding that the landlord not having given intimation to the tenant of the default within a period of six months of each default as required by the amended Section 28 of the Act, could not succeed. The appellant before us question the propriety of the order passed by the Revenue Tribunal. 3. The only point urged on behalf of the appellant is that the amended Section 28 requiring the landholder to give notice to the tenant within a period of six months of each default was not applicable to the case because the tenant having defaulted in payment of rent for three years before the amended proviso to Section 28(1) came into force on December 29, 1960, the landlord had acquired a right to institute a proceeding for the eviction of the tenants that could not be taken away by the amendment which was not given a retrospective operation either by express words or by necessary implication. We are unable to agree. It has been held ever since Abbot v. Minister for Lands (1895 AC 425) that a mere right to take advantage of the provisions of an Act is not an accrued right. Abbot case (1895 AC 425) was followed by this Court in a number of cases : Sakharam v. Manikchand Motichand Shah ((1962) 2 SCR 59 : AIR 1963 SC 354 : (1962) 1 SCJ 396 ); Hungerford Investment Trust Limited v. Haridas Mundhra ((1972) 3 SCR 690 : (1972) 3 SCC 684 ) and Lalji Raja & Sons v. Hansraj Nathuram ((1971) 3 SCR 815 : (1971) 1 SCC 721 ).

0[ds]3. The only point urged on behalf of the appellant is that the amended Section 28 requiring the landholder to give notice to the tenant within a period of six months of each default was not applicable to the case because the tenant having defaulted in payment of rent for three years before the amended proviso to Section 28(1) came into force on December 29, 1960, the landlord had acquired a right to institute a proceeding for the eviction of the tenants that could not be taken away by the amendment which was not given a retrospective operation either by express words or by necessary implication. We are unable to agree. It has been held ever since Abbot v. Minister for Lands (1895 AC 425) that a mere right to take advantage of the provisions of an Act is not an accrued right. Abbot case (1895 AC 425) was followed by this Court in a number of cases : Sakharam v. Manikchand Motichand Shah ((1962) 2 SCR 59 : AIR 1963 SC 354 : (1962) 1 SCJ 396 ); Hungerford Investment Trust Limited v. Haridas Mundhra ((1972) 3 SCR 690 : (1972) 3 SCC 684 ) and Lalji RajaSons v. Hansraj Nathuram ((1971) 3 SCR 815 : (1971) 1 SCC 721 ).

### 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: Gupta, J. This appeal arises out of a proceeding for ejectment under the Hyderabad Tenancy and Agricultural Lands Act, 1950. The only question for consideration is whether the proviso to sub-section (1) of Section 28 of the Act as amended in 1960 would apply to this case. Section 28(1) of the Act reads : Where a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder files any proceeding to eject the tenant, the Tahsildar shall call upon the tenant to tender to the landholder the rent in arrears together with the cost of proceeding within ninety days from the date of the order, and if the tenant complies with such order, the Tahsildar shall, in lieu of making an order of ejectment, pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated. There was a proviso to this sub-section as follows : Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (i) of clause (a) of sub-section (2) of Section 19. This proviso was amended by Section 7 of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1960. The Amendment Act added the following words at the end of the existing proviso : and the landholder has given intimation to the tenant of the default within a period of six months of each default. The Amendment Act received the assent of the President on December 18, 1960 and was published in the Maharashtra Government Gazette, Extraordinary, on December 29, 1960. 2. The appellant was the owner of agricultural land measuring about 18 acres 13 gts. situated in a village in district Aurangabad. The predecessor-in-interest of the respondents was a tenant of the said land. On January 3, 1961 the appellant issued a notice under Section 19(2) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 terminating the tenancy on the ground of non-payment of rent. The notice of termination was served on the tenant on January 11, 1961. The appellant applied for possession on October 30, 1961. The original tenant having died during the pendency of the proceeding, his heirs and legal representatives were substituted in his place. The Naib Tahsildar allowed the application for possession. From his order the tenants took an appeal to the Deputy Collector, Land Reforms, Aurangabad which also failed. The tenants then preferred a revision before the Maharashtra Revenue Tribunal, Aurangabad. The Tribunal allowed the revision petition holding that the landlord not having given intimation to the tenant of the default within a period of six months of each default as required by the amended Section 28 of the Act, could not succeed. The appellant before us question the propriety of the order passed by the Revenue Tribunal. 3. The only point urged on behalf of the appellant is that the amended Section 28 requiring the landholder to give notice to the tenant within a period of six months of each default was not applicable to the case because the tenant having defaulted in payment of rent for three years before the amended proviso to Section 28(1) came into force on December 29, 1960, the landlord had acquired a right to institute a proceeding for the eviction of the tenants that could not be taken away by the amendment which was not given a retrospective operation either by express words or by necessary implication. We are unable to agree. It has been held ever since Abbot v. Minister for Lands (1895 AC 425) that a mere right to take advantage of the provisions of an Act is not an accrued right. Abbot case (1895 AC 425) was followed by this Court in a number of cases : Sakharam v. Manikchand Motichand Shah ((1962) 2 SCR 59 : AIR 1963 SC 354 : (1962) 1 SCJ 396 ); Hungerford Investment Trust Limited v. Haridas Mundhra ((1972) 3 SCR 690 : (1972) 3 SCC 684 ) and Lalji Raja & Sons v. Hansraj Nathuram ((1971) 3 SCR 815 : (1971) 1 SCC 721 ). ### Response: 0 ### Explanation: 3. The only point urged on behalf of the appellant is that the amended Section 28 requiring the landholder to give notice to the tenant within a period of six months of each default was not applicable to the case because the tenant having defaulted in payment of rent for three years before the amended proviso to Section 28(1) came into force on December 29, 1960, the landlord had acquired a right to institute a proceeding for the eviction of the tenants that could not be taken away by the amendment which was not given a retrospective operation either by express words or by necessary implication. We are unable to agree. It has been held ever since Abbot v. Minister for Lands (1895 AC 425) that a mere right to take advantage of the provisions of an Act is not an accrued right. Abbot case (1895 AC 425) was followed by this Court in a number of cases : Sakharam v. Manikchand Motichand Shah ((1962) 2 SCR 59 : AIR 1963 SC 354 : (1962) 1 SCJ 396 ); Hungerford Investment Trust Limited v. Haridas Mundhra ((1972) 3 SCR 690 : (1972) 3 SCC 684 ) and Lalji RajaSons v. Hansraj Nathuram ((1971) 3 SCR 815 : (1971) 1 SCC 721 ).

Delhi Cloth & General Mills Co. Ltd Vs. State Of M.P. And Others

filing a revision before the Sessions Court and also in the High Court. He was unsuccessful before both the courts below. Thus, this appeal by special leave 4. Learned counsel for the appellant candidly admitted that on 24-3-1964, i.e., the date on which the sample of the adulterated article of food was sold, the appellant-company could also be prosecuted for alleged adulteration of the article of food. But his contention is that during the course of the trial, it could not be proceeded against it. His emphasis is that the Magistrate has power, on the date when the complaint was lodged before him, to issue summons to the manufacturer, but the Magistrate could not proceed during the trial on the premise that the accused Laxmi Narain is only a dealer of the appellant and that there is no material that Laxmi Narain is a vendee on behalf of the appellant vendor; and as the latter is not a vendor, he could not be jointly tried. We find no force in this contention 5. The punishing Section 16(1) postulates that subject to the provisions of sub-section (1-A), if any person - "(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food -(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees : ...." * 6. Section 20-A empowers the Court to implead the manufacturer etc. and provides as under "20-A Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20." * 7. A reading of Section 20-A clearly indicates that during the course of the trial for any of the offences under the Act alleged to have been committed by any person, if the evidence adduced before the court discloses that the manufacturer, distributor or dealer is also concerned with that offence, then the court has been empowered, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure (for short, the Code) to treat as if the manufacturer, distributor or the dealer is being proceeded against under Section 20 of the Act, as originally instituted thereunder. The concept of vendor and vendee is known to civil law and passing of the title in the goods is alien to the prosecution for an offense under the Act. It cannot, therefore, be introduced in a trial for the offence under the Act. The Act advisedly made a person who sells adulterated article of food liable to be prosecuted for the offence of adulteration of the article of food. During the trial when it comes to the notice of the Magistrate, from the evidence adduced, that the manufacturer, distributor or dealer of that article of food, which is the subject-matter of adulteration, is also concerned with the offence, then the court has been empowered to proceed against such manufacturer, distributor or dealer as if prosecution has initially been instituted against him under Section 20 of the Act. In fact, for general offences, Section 319(1) of the Code empowers the court where during the course of enquiry or trial of an offence, if it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, to proceed against such person for the offence which he appears to have committed. In view of the language of Section 20-A of the Act, whatever is contained in sub-section (3) of Section 319 of the Code, would not stand in the way of the Magistrate to proceed at a trial against any person, i.e., the original accused and against others mentioned in Section 20-A. In other words, joint trial for the same offence is permitted. The object appears to be that in a case where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which the prosecution was launched against a person from whom the article of food was purchased, to avoid multiplicity of prosecution and also keeping in view the doctrine of autrefois acquit the Legislature introduced Section 20-A to have joint trial8. The further contention that Laxmi Narain being a dealer of the appellant, Section 20-A has no application, as it speaks of trial of a person not being, inter alia, a dealer, has no merit, as the section has mentioned about trial of commission of the offence by any person; and, if that person be not the manufacturer, distributor or dealer, Section 20-A permits trial of such manufacturer, distributor or dealer also, along with the person already before the court. So, the fact that the person being tried is a dealer would not make the section non-operational9. In these circumstances, we are of the view that there was no embargo on the Magistrate during the trial of the offence to issue notice to the appellant-manufacturer for holding joint trial

0[ds]7. A reading of Section 20-A clearly indicates that during the course of the trial for any of the offences under the Act alleged to have been committed by any person, if the evidence adduced before the court discloses that the manufacturer, distributor or dealer is also concerned with that offence, then the court has been empowered, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure (for short, the Code) to treat as if the manufacturer, distributor or the dealer is being proceeded against under Section 20 of the Act, as originally instituted thereunder. The concept of vendor and vendee is known to civil law and passing of the title in the goods is alien to the prosecution for an offense under the Act. It cannot, therefore, be introduced in a trial for the offence under the Act. The Act advisedly made a person who sells adulterated article of food liable to be prosecuted for the offence of adulteration of the article of food. During the trial when it comes to the notice of the Magistrate, from the evidence adduced, that the manufacturer, distributor or dealer of that article of food, which is the subject-matter of adulteration, is also concerned with the offence, then the court has been empowered to proceed against such manufacturer, distributor or dealer as if prosecution has initially been instituted against him under Section 20 of the Act. In fact, for general offences, Section 319(1) of the Code empowers the court where during the course of enquiry or trial of an offence, if it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, to proceed against such person for the offence which he appears to have committed. In view of the language of Section 20-A of the Act, whatever is contained in sub-section (3) of Section 319 of the Code, would not stand in the way of the Magistrate to proceed at a trial against any person, i.e., the original accused and against others mentioned in Section 20-A. In other words, joint trial for the same offence is permitted. The object appears to be that in a case where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which the prosecution was launched against a person from whom the article of food was purchased, to avoid multiplicity of prosecution and also keeping in view the doctrine of autrefois acquit the Legislature introduced Section 20-A to have joint trial8. The further contention that Laxmi Narain being a dealer of the appellant, Section 20-A has no application, as it speaks of trial of a person not being, inter alia, a dealer, has no merit, as the section has mentioned about trial of commission of the offence by any person; and, if that person be not the manufacturer, distributor or dealer, Section 20-A permits trial of such manufacturer, distributor or dealer also, along with the person already before the court. So, the fact that the person being tried is a dealer would not make the section non-operational9. In these circumstances, we are of the view that there was no embargo on the Magistrate during the trial of the offence to issue notice to the appellant-manufacturer for holding joint trial

### 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: filing a revision before the Sessions Court and also in the High Court. He was unsuccessful before both the courts below. Thus, this appeal by special leave 4. Learned counsel for the appellant candidly admitted that on 24-3-1964, i.e., the date on which the sample of the adulterated article of food was sold, the appellant-company could also be prosecuted for alleged adulteration of the article of food. But his contention is that during the course of the trial, it could not be proceeded against it. His emphasis is that the Magistrate has power, on the date when the complaint was lodged before him, to issue summons to the manufacturer, but the Magistrate could not proceed during the trial on the premise that the accused Laxmi Narain is only a dealer of the appellant and that there is no material that Laxmi Narain is a vendee on behalf of the appellant vendor; and as the latter is not a vendor, he could not be jointly tried. We find no force in this contention 5. The punishing Section 16(1) postulates that subject to the provisions of sub-section (1-A), if any person - "(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food -(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees : ...." * 6. Section 20-A empowers the Court to implead the manufacturer etc. and provides as under "20-A Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20." * 7. A reading of Section 20-A clearly indicates that during the course of the trial for any of the offences under the Act alleged to have been committed by any person, if the evidence adduced before the court discloses that the manufacturer, distributor or dealer is also concerned with that offence, then the court has been empowered, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure (for short, the Code) to treat as if the manufacturer, distributor or the dealer is being proceeded against under Section 20 of the Act, as originally instituted thereunder. The concept of vendor and vendee is known to civil law and passing of the title in the goods is alien to the prosecution for an offense under the Act. It cannot, therefore, be introduced in a trial for the offence under the Act. The Act advisedly made a person who sells adulterated article of food liable to be prosecuted for the offence of adulteration of the article of food. During the trial when it comes to the notice of the Magistrate, from the evidence adduced, that the manufacturer, distributor or dealer of that article of food, which is the subject-matter of adulteration, is also concerned with the offence, then the court has been empowered to proceed against such manufacturer, distributor or dealer as if prosecution has initially been instituted against him under Section 20 of the Act. In fact, for general offences, Section 319(1) of the Code empowers the court where during the course of enquiry or trial of an offence, if it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, to proceed against such person for the offence which he appears to have committed. In view of the language of Section 20-A of the Act, whatever is contained in sub-section (3) of Section 319 of the Code, would not stand in the way of the Magistrate to proceed at a trial against any person, i.e., the original accused and against others mentioned in Section 20-A. In other words, joint trial for the same offence is permitted. The object appears to be that in a case where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which the prosecution was launched against a person from whom the article of food was purchased, to avoid multiplicity of prosecution and also keeping in view the doctrine of autrefois acquit the Legislature introduced Section 20-A to have joint trial8. The further contention that Laxmi Narain being a dealer of the appellant, Section 20-A has no application, as it speaks of trial of a person not being, inter alia, a dealer, has no merit, as the section has mentioned about trial of commission of the offence by any person; and, if that person be not the manufacturer, distributor or dealer, Section 20-A permits trial of such manufacturer, distributor or dealer also, along with the person already before the court. So, the fact that the person being tried is a dealer would not make the section non-operational9. In these circumstances, we are of the view that there was no embargo on the Magistrate during the trial of the offence to issue notice to the appellant-manufacturer for holding joint trial ### Response: 0 ### Explanation: 7. A reading of Section 20-A clearly indicates that during the course of the trial for any of the offences under the Act alleged to have been committed by any person, if the evidence adduced before the court discloses that the manufacturer, distributor or dealer is also concerned with that offence, then the court has been empowered, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure (for short, the Code) to treat as if the manufacturer, distributor or the dealer is being proceeded against under Section 20 of the Act, as originally instituted thereunder. The concept of vendor and vendee is known to civil law and passing of the title in the goods is alien to the prosecution for an offense under the Act. It cannot, therefore, be introduced in a trial for the offence under the Act. The Act advisedly made a person who sells adulterated article of food liable to be prosecuted for the offence of adulteration of the article of food. During the trial when it comes to the notice of the Magistrate, from the evidence adduced, that the manufacturer, distributor or dealer of that article of food, which is the subject-matter of adulteration, is also concerned with the offence, then the court has been empowered to proceed against such manufacturer, distributor or dealer as if prosecution has initially been instituted against him under Section 20 of the Act. In fact, for general offences, Section 319(1) of the Code empowers the court where during the course of enquiry or trial of an offence, if it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, to proceed against such person for the offence which he appears to have committed. In view of the language of Section 20-A of the Act, whatever is contained in sub-section (3) of Section 319 of the Code, would not stand in the way of the Magistrate to proceed at a trial against any person, i.e., the original accused and against others mentioned in Section 20-A. In other words, joint trial for the same offence is permitted. The object appears to be that in a case where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which the prosecution was launched against a person from whom the article of food was purchased, to avoid multiplicity of prosecution and also keeping in view the doctrine of autrefois acquit the Legislature introduced Section 20-A to have joint trial8. The further contention that Laxmi Narain being a dealer of the appellant, Section 20-A has no application, as it speaks of trial of a person not being, inter alia, a dealer, has no merit, as the section has mentioned about trial of commission of the offence by any person; and, if that person be not the manufacturer, distributor or dealer, Section 20-A permits trial of such manufacturer, distributor or dealer also, along with the person already before the court. So, the fact that the person being tried is a dealer would not make the section non-operational9. In these circumstances, we are of the view that there was no embargo on the Magistrate during the trial of the offence to issue notice to the appellant-manufacturer for holding joint trial

Triveni Engg. & Inds. Ltd Vs. Commr. Of Central Excise

by a foundation at the site of the sugar factory and it was not capable of being sold as it is, without anything more. Bharucha, J. speaking for the Court, observed : "The erection and installation of a plant is not excisable and to so hold would, impermissibly, bring into the net of excise duty all manner of plants and installations."The case of Narne Tuleman Manufacturers (P) Ltd. (supra) was distinguished on the ground that in that case the contention that weighbridge was not `goods within the meaning of the Act, was not raised and no evidence in that behalf was brought on record. It was observed : "We cannot assume that weighbridges stand on the same footing as mono vertical cyrstallisers in that regard and hold that because weighbridges were hold to be exigible to excise duty so must mono vertical crystallisers". 18. Here, the decision of this Court in Sirpur Paper Mills Ltd. v. Collector of Central Excise, Hyderabad, 1998(1) SCC 400, which is relied on by the learned counsel for the Revenue, needs to be referred to. In that case, the question was whether paper-making machine which was assembled and erected by the appellant by using duty paid components and by fabricating certain parts in their factory, was liable to excise duty. The CEGAT recorded the finding that the whole purpose behind attaching the machine to a concrete base was to prevent wobbing of the machine and to secure maximum operational efficiency and also for safety. This Court held that in view of those findings it was not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The test, it was noted, would be whether the paper-making machine could be sold in the market and as the Tribunal had found as a fact that it could be sold, so the machine was held to be not a part of immovable property of the company. 19. It appears that the aforementioned two cases - Mittal Engineering Works (P) Ltd. and Quality Steel Tubes (P) Ltd. (supra), - were not referred to in Sirpur Paper Mills Ltds case. 20. Further, in the instant case, it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the names of its components in the market. The Tribunal recorded the finding that fixing of steam turbine and the alternator is necessitated by the need to make them functionally effective to reduce vibration and to minimise disturbance to the coupling arrangements and other connections with the related equipments. It also noted that removal of the machinery does not involve any dismantling of the turbine and alternator in the sense of pulling them down or taking them to pieces but only undoing the foundation bolts arrangement by which they are fixed to the platform and uncoupling of the two units and, therefore, the turbo alternator did not answer the test of permanency laid down by this Court in the case of Municipal Corporation of Greater Bombay (supra). In our view, the findings recorded do not justify the conclusion of the Tribunal inasmuch as on removal a turbo alternator gets dismantled into its components - steam turbine and alternator. It appears that the Tribunal did not keep in mind the distinction between a turbo alternator and its components. Thus, in our view, the test of permanency fails.21. The marketability test requires that the goods as such should be in a position to be taken to the market and sold and from the above findings it follows that to take it to the market the turbo alternator has to be separated into its components - turbine and the other alternator - but then it would not remain turbo alternator, therefore, the test is incorrectly applied. Though, there is no finding that without fixing to the platform such turbo alternator would not be functional, it is obvious that when without fixing, it does not come into being, it can hardly be functional.22. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HDN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft, 1995(3) SCC 454, which explained the scope of Heading 85.02 as under : ".......Generating sets consisting of the generator and its prime mover which are mounted (or designed to be mounted) together as one unit or on a common base (see the General Explanatory Note to Section XVI), are classified here provided they are presented together (even if packed separately for convenience of transport)."The Explanatory Note further contained :"Floors, concrete bases, walls, partitions, ceilings, etc., even if specially fitted out to accommodate machines or appliances, should not be regarded as a common base joining such machines or appliances to form a whole." 23. From a perusal of the above Explanatory Notes, it is clear that when generating sets consisting of the generator and its prime base mover are mounted together as one unit on a common base they are classified under the Heading 85.02; in this connection floors, concrete bases, walls, partitions, ceilings etc., even if specially fitted out to accommodate machines or appliances, cannot be regarded as a common base joining such machines or appliances to form a whole. On a combined reading of the Explanatory Notes, extracted above, there can be no difficulty in inferring that installation or erection of turbo alternator on the concrete base specially constructed on the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be `excisable goods falling within the meaning of Heading 85.02.

1[ds]20. Further, in the instant case, it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the names of its components in the market. The Tribunal recorded the finding that fixing of steam turbine and the alternator is necessitated by the need to make them functionally effective to reduce vibration and to minimise disturbance to the coupling arrangements and other connections with the related equipments. It also noted that removal of the machinery does not involve any dismantling of the turbine and alternator in the sense of pulling them down or taking them to pieces but only undoing the foundation bolts arrangement by which they are fixed to the platform and uncoupling of the two units and, therefore, the turbo alternator did not answer the test of permanency laid down by this Court in the case of Municipal Corporation of Greater Bombay (supra). In our view, the findings recorded do not justify the conclusion of the Tribunal inasmuch as on removal a turbo alternator gets dismantled into its componentssteam turbine and alternator. It appears that the Tribunal did not keep in mind the distinction between a turbo alternator and its components. Thus, in our view, the test of permanency fails.21. The marketability test requires that the goods as such should be in a position to be taken to the market and sold and from the above findings it follows that to take it to the market the turbo alternator has to be separated into its componentsturbine and the other alternatorbut then it would not remain turbo alternator, therefore, the test is incorrectly applied. Though, there is no finding that without fixing to the platform such turbo alternator would not be functional, it is obvious that when without fixing, it does not come into being, it can hardly be functional.22. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HDN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft, 1995(3) SCC 454, which explained the scope of Heading 85.02 as undersets consisting of the generator and its prime mover which are mounted (or designed to be mounted) together as one unit or on a common base (see the General Explanatory Note to Section XVI), are classified here provided they are presented together (even if packed separately for convenience of transport)."The Explanatory Note further contained :"Floors, concrete bases, walls, partitions, ceilings, etc., even if specially fitted out to accommodate machines or appliances, should not be regarded as a common base joining such machines or appliances to form a whole.From a perusal of the above Explanatory Notes, it is clear that when generating sets consisting of the generator and its prime base mover are mounted together as one unit on a common base they are classified under the Heading 85.02; in this connection floors, concrete bases, walls, partitions, ceilings etc., even if specially fitted out to accommodate machines or appliances, cannot be regarded as a common base joining such machines or appliances to form a whole. On a combined reading of the Explanatory Notes, extracted above, there can be no difficulty in inferring that installation or erection of turbo alternator on the concrete base specially constructed on the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be `excisable goods falling within the meaning of Heading 85.02.

### 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: by a foundation at the site of the sugar factory and it was not capable of being sold as it is, without anything more. Bharucha, J. speaking for the Court, observed : "The erection and installation of a plant is not excisable and to so hold would, impermissibly, bring into the net of excise duty all manner of plants and installations."The case of Narne Tuleman Manufacturers (P) Ltd. (supra) was distinguished on the ground that in that case the contention that weighbridge was not `goods within the meaning of the Act, was not raised and no evidence in that behalf was brought on record. It was observed : "We cannot assume that weighbridges stand on the same footing as mono vertical cyrstallisers in that regard and hold that because weighbridges were hold to be exigible to excise duty so must mono vertical crystallisers". 18. Here, the decision of this Court in Sirpur Paper Mills Ltd. v. Collector of Central Excise, Hyderabad, 1998(1) SCC 400, which is relied on by the learned counsel for the Revenue, needs to be referred to. In that case, the question was whether paper-making machine which was assembled and erected by the appellant by using duty paid components and by fabricating certain parts in their factory, was liable to excise duty. The CEGAT recorded the finding that the whole purpose behind attaching the machine to a concrete base was to prevent wobbing of the machine and to secure maximum operational efficiency and also for safety. This Court held that in view of those findings it was not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The test, it was noted, would be whether the paper-making machine could be sold in the market and as the Tribunal had found as a fact that it could be sold, so the machine was held to be not a part of immovable property of the company. 19. It appears that the aforementioned two cases - Mittal Engineering Works (P) Ltd. and Quality Steel Tubes (P) Ltd. (supra), - were not referred to in Sirpur Paper Mills Ltds case. 20. Further, in the instant case, it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the names of its components in the market. The Tribunal recorded the finding that fixing of steam turbine and the alternator is necessitated by the need to make them functionally effective to reduce vibration and to minimise disturbance to the coupling arrangements and other connections with the related equipments. It also noted that removal of the machinery does not involve any dismantling of the turbine and alternator in the sense of pulling them down or taking them to pieces but only undoing the foundation bolts arrangement by which they are fixed to the platform and uncoupling of the two units and, therefore, the turbo alternator did not answer the test of permanency laid down by this Court in the case of Municipal Corporation of Greater Bombay (supra). In our view, the findings recorded do not justify the conclusion of the Tribunal inasmuch as on removal a turbo alternator gets dismantled into its components - steam turbine and alternator. It appears that the Tribunal did not keep in mind the distinction between a turbo alternator and its components. Thus, in our view, the test of permanency fails.21. The marketability test requires that the goods as such should be in a position to be taken to the market and sold and from the above findings it follows that to take it to the market the turbo alternator has to be separated into its components - turbine and the other alternator - but then it would not remain turbo alternator, therefore, the test is incorrectly applied. Though, there is no finding that without fixing to the platform such turbo alternator would not be functional, it is obvious that when without fixing, it does not come into being, it can hardly be functional.22. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HDN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft, 1995(3) SCC 454, which explained the scope of Heading 85.02 as under : ".......Generating sets consisting of the generator and its prime mover which are mounted (or designed to be mounted) together as one unit or on a common base (see the General Explanatory Note to Section XVI), are classified here provided they are presented together (even if packed separately for convenience of transport)."The Explanatory Note further contained :"Floors, concrete bases, walls, partitions, ceilings, etc., even if specially fitted out to accommodate machines or appliances, should not be regarded as a common base joining such machines or appliances to form a whole." 23. From a perusal of the above Explanatory Notes, it is clear that when generating sets consisting of the generator and its prime base mover are mounted together as one unit on a common base they are classified under the Heading 85.02; in this connection floors, concrete bases, walls, partitions, ceilings etc., even if specially fitted out to accommodate machines or appliances, cannot be regarded as a common base joining such machines or appliances to form a whole. On a combined reading of the Explanatory Notes, extracted above, there can be no difficulty in inferring that installation or erection of turbo alternator on the concrete base specially constructed on the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be `excisable goods falling within the meaning of Heading 85.02. ### Response: 1 ### Explanation: 20. Further, in the instant case, it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the names of its components in the market. The Tribunal recorded the finding that fixing of steam turbine and the alternator is necessitated by the need to make them functionally effective to reduce vibration and to minimise disturbance to the coupling arrangements and other connections with the related equipments. It also noted that removal of the machinery does not involve any dismantling of the turbine and alternator in the sense of pulling them down or taking them to pieces but only undoing the foundation bolts arrangement by which they are fixed to the platform and uncoupling of the two units and, therefore, the turbo alternator did not answer the test of permanency laid down by this Court in the case of Municipal Corporation of Greater Bombay (supra). In our view, the findings recorded do not justify the conclusion of the Tribunal inasmuch as on removal a turbo alternator gets dismantled into its componentssteam turbine and alternator. It appears that the Tribunal did not keep in mind the distinction between a turbo alternator and its components. Thus, in our view, the test of permanency fails.21. The marketability test requires that the goods as such should be in a position to be taken to the market and sold and from the above findings it follows that to take it to the market the turbo alternator has to be separated into its componentsturbine and the other alternatorbut then it would not remain turbo alternator, therefore, the test is incorrectly applied. Though, there is no finding that without fixing to the platform such turbo alternator would not be functional, it is obvious that when without fixing, it does not come into being, it can hardly be functional.22. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HDN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft, 1995(3) SCC 454, which explained the scope of Heading 85.02 as undersets consisting of the generator and its prime mover which are mounted (or designed to be mounted) together as one unit or on a common base (see the General Explanatory Note to Section XVI), are classified here provided they are presented together (even if packed separately for convenience of transport)."The Explanatory Note further contained :"Floors, concrete bases, walls, partitions, ceilings, etc., even if specially fitted out to accommodate machines or appliances, should not be regarded as a common base joining such machines or appliances to form a whole.From a perusal of the above Explanatory Notes, it is clear that when generating sets consisting of the generator and its prime base mover are mounted together as one unit on a common base they are classified under the Heading 85.02; in this connection floors, concrete bases, walls, partitions, ceilings etc., even if specially fitted out to accommodate machines or appliances, cannot be regarded as a common base joining such machines or appliances to form a whole. On a combined reading of the Explanatory Notes, extracted above, there can be no difficulty in inferring that installation or erection of turbo alternator on the concrete base specially constructed on the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be `excisable goods falling within the meaning of Heading 85.02.

Suba Singh Vs. Mahendra Singh & Others

the U. P. Land Revenue Act 1901, shall be final and conclusive. Of course, if the allottee is not able to take possession, the assistant consolidation officer is empowered to deliver such Then there is a comprehensive provision. Section 49, which bars the civil courts jurisdiction and runs as follows:"49. No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.The anxiety of the legislature that the civil courts shall not unsettle what has been painstakingly settled by the consolidation authorities is understandable.5. The whole question in the present appeal turns on the ambit and limit of the Civil Courts jurisdiction in the light of Section 49. It is well-settled that the exclusion of the jurisdiction of the civil court cannot be easily inferred and any provision which takes it away must be construed strictly. We must have this principle in mind when interpreting Section 49. Analytically examined, it is clear that the two inhibitory clauses of Section 49, are not identical in their scope and effect.The first clause is confirmed to matters "arising out of consolidation proceedings under the act, while the second clause is limited to matters "in regard to which a suit or application could be filed under the provisions of this Act.6. In the present case, the question that had arisen was as to who were the heirs of Jagram. This question was not covered by the first clause, for two reasons: Firstly, it was not a matter arising out of consolidation proceedings but one arising from a vis major i.e. the death of Jagram. The words "out of in clause 1, must be given their full restrictive effect. They cannot be loosely interpreted and equated with "during. The Legislature appears to have advisedly used these words to restrict the operation of this clause to those matters which are directly connected with the consolidation proceedings and which, but for such proceedings, would not have arisen. Secondly, the question of inheritance to the estate of Jagram arose after the consolidation operations had been substantively completed.7. It is submitted that Jagram was alive when the proposal under Section 23 was finalised. Jagram was held to be a bhoomidar as per the scheme which was confirmed on 29-2-1956. In fact, he dies only in March that year. It is seen from the records that the possession of the various holdings was to be given to the bhoomidars and Jagram was to have taken possession on 26-2-1956 (vide annexure C. Form 23, which discloses that the date had been fixed by the District Magistrate for transferring possession as 29-2-1956 and that all the cultivators were told "that from today the cultivators are declared as agriculturists of the fields mentioned in form No. 25.This contained in annexure C dated 29-2-1956 itself.) it is thus plain that possession also had been given to Jagram and nothing substantial remained to be done in the shape of consolidation operations so far as his parcel of land was concerned. Title, conglomeration, allotment and occupation - practically the whole gamut of consolidation stages was thus covered.8. There is no provision in the Act for any dispute of title which arises sub-sequent to confirmation of the statement under Section 23 to be decided by way of arbitration or otherwise.9. Now let us examine whether the matter falls within the exclusionary ambit of clause (2) of S. 49. The question further resolves itself into, whether the consolidation authorities had the jurisdiction to determine finally this complicated question of title when the cause of action had arisen subsequently to the finalisation, publication and even implementation of the consolidation scheme so far as Jagram was concerned. In our opinion the answer to this question must be in the negative. Section 27(1) requires the Director of Consolidation to cause soon after the consolidation scheme has come into force, the preparation of the record of rights and other revenue records, but this, in terms of that sub-section, is to be done in accordance with the provisions of the U. P. Land Revenue Act, 190l. According to Section 27(3), after the records have been so prepared, their further maintenance will be the responsibility of the Collector, and this, too, is to be done under Section 33 of the U. P. Land revenue Act, 1901.It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of bar of the civil courts jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance. Nothing done in consolidation proceedings is undone by that suit. To urge that the formal notification under Section 52 not having been published the court had no jurisdiction is to misread Section 49 and to exalt a ritual into a legal reality.10. We may mention here that the Allahabad High Court has consistently taken this view, See Smt. Natho v. Board of Revenue, U. P. Allahabad, 1966 All LJ 563 where this position has been explained. But more clinchingly has this matter been dealt within a recent judgment of that Court in Smt. Bhuri v. Sunder, 1973 All LJ 352. We approve of the reasoning therein, in so far as it is in accord with the above observations and hold that there is no merit in this appeal and dismiss it but with no order as to costs in this Court having regard to the totality of circumstances in the case.

0[ds]9. Now let us examine whether the matter falls within the exclusionary ambit of clause (2) of S. 49. The question further resolves itself into, whether the consolidation authorities had the jurisdiction to determine finally this complicated question of title when the cause of action had arisen subsequently to the finalisation, publication and even implementation of the consolidation scheme so far as Jagram was concerned. In our opinion the answer to this question must be in the negative. Section 27(1) requires the Director of Consolidation to cause soon after the consolidation scheme has come into force, the preparation of the record of rights and other revenue records, but this, in terms of thatis to be done in accordance with the provisions of the U. P. Land Revenue Act, 190l. According to Section 27(3), after the records have been so prepared, their further maintenance will be the responsibility of the Collector, and this, too, is to be done under Section 33 of the U. P. Land revenue Act, 1901.It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of bar of the civil courts jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance. Nothing done in consolidation proceedings is undone by that suit. To urge that the formal notification under Section 52 not having been published the court had no jurisdiction is to misread Section 49 and to exalt a ritual into a legal reality.10. We may mention here that the Allahabad High Court has consistently taken this view, See Smt. Natho v. Board of Revenue, U. P. Allahabad, 1966 All LJ 563 where this position has been explained. But more clinchingly has this matter been dealt within a recent judgment of that Court in Smt. Bhuri v. Sunder, 1973 All LJ 352. We approve of the reasoning therein, in so far as it is in accord with the above observations and hold that there is no merit in this appeal and dismiss it but with no order as to costs in this Court having regard to the totality of circumstances in the case.

### 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: the U. P. Land Revenue Act 1901, shall be final and conclusive. Of course, if the allottee is not able to take possession, the assistant consolidation officer is empowered to deliver such Then there is a comprehensive provision. Section 49, which bars the civil courts jurisdiction and runs as follows:"49. No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.The anxiety of the legislature that the civil courts shall not unsettle what has been painstakingly settled by the consolidation authorities is understandable.5. The whole question in the present appeal turns on the ambit and limit of the Civil Courts jurisdiction in the light of Section 49. It is well-settled that the exclusion of the jurisdiction of the civil court cannot be easily inferred and any provision which takes it away must be construed strictly. We must have this principle in mind when interpreting Section 49. Analytically examined, it is clear that the two inhibitory clauses of Section 49, are not identical in their scope and effect.The first clause is confirmed to matters "arising out of consolidation proceedings under the act, while the second clause is limited to matters "in regard to which a suit or application could be filed under the provisions of this Act.6. In the present case, the question that had arisen was as to who were the heirs of Jagram. This question was not covered by the first clause, for two reasons: Firstly, it was not a matter arising out of consolidation proceedings but one arising from a vis major i.e. the death of Jagram. The words "out of in clause 1, must be given their full restrictive effect. They cannot be loosely interpreted and equated with "during. The Legislature appears to have advisedly used these words to restrict the operation of this clause to those matters which are directly connected with the consolidation proceedings and which, but for such proceedings, would not have arisen. Secondly, the question of inheritance to the estate of Jagram arose after the consolidation operations had been substantively completed.7. It is submitted that Jagram was alive when the proposal under Section 23 was finalised. Jagram was held to be a bhoomidar as per the scheme which was confirmed on 29-2-1956. In fact, he dies only in March that year. It is seen from the records that the possession of the various holdings was to be given to the bhoomidars and Jagram was to have taken possession on 26-2-1956 (vide annexure C. Form 23, which discloses that the date had been fixed by the District Magistrate for transferring possession as 29-2-1956 and that all the cultivators were told "that from today the cultivators are declared as agriculturists of the fields mentioned in form No. 25.This contained in annexure C dated 29-2-1956 itself.) it is thus plain that possession also had been given to Jagram and nothing substantial remained to be done in the shape of consolidation operations so far as his parcel of land was concerned. Title, conglomeration, allotment and occupation - practically the whole gamut of consolidation stages was thus covered.8. There is no provision in the Act for any dispute of title which arises sub-sequent to confirmation of the statement under Section 23 to be decided by way of arbitration or otherwise.9. Now let us examine whether the matter falls within the exclusionary ambit of clause (2) of S. 49. The question further resolves itself into, whether the consolidation authorities had the jurisdiction to determine finally this complicated question of title when the cause of action had arisen subsequently to the finalisation, publication and even implementation of the consolidation scheme so far as Jagram was concerned. In our opinion the answer to this question must be in the negative. Section 27(1) requires the Director of Consolidation to cause soon after the consolidation scheme has come into force, the preparation of the record of rights and other revenue records, but this, in terms of that sub-section, is to be done in accordance with the provisions of the U. P. Land Revenue Act, 190l. According to Section 27(3), after the records have been so prepared, their further maintenance will be the responsibility of the Collector, and this, too, is to be done under Section 33 of the U. P. Land revenue Act, 1901.It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of bar of the civil courts jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance. Nothing done in consolidation proceedings is undone by that suit. To urge that the formal notification under Section 52 not having been published the court had no jurisdiction is to misread Section 49 and to exalt a ritual into a legal reality.10. We may mention here that the Allahabad High Court has consistently taken this view, See Smt. Natho v. Board of Revenue, U. P. Allahabad, 1966 All LJ 563 where this position has been explained. But more clinchingly has this matter been dealt within a recent judgment of that Court in Smt. Bhuri v. Sunder, 1973 All LJ 352. We approve of the reasoning therein, in so far as it is in accord with the above observations and hold that there is no merit in this appeal and dismiss it but with no order as to costs in this Court having regard to the totality of circumstances in the case. ### Response: 0 ### Explanation: 9. Now let us examine whether the matter falls within the exclusionary ambit of clause (2) of S. 49. The question further resolves itself into, whether the consolidation authorities had the jurisdiction to determine finally this complicated question of title when the cause of action had arisen subsequently to the finalisation, publication and even implementation of the consolidation scheme so far as Jagram was concerned. In our opinion the answer to this question must be in the negative. Section 27(1) requires the Director of Consolidation to cause soon after the consolidation scheme has come into force, the preparation of the record of rights and other revenue records, but this, in terms of thatis to be done in accordance with the provisions of the U. P. Land Revenue Act, 190l. According to Section 27(3), after the records have been so prepared, their further maintenance will be the responsibility of the Collector, and this, too, is to be done under Section 33 of the U. P. Land revenue Act, 1901.It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of bar of the civil courts jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance. Nothing done in consolidation proceedings is undone by that suit. To urge that the formal notification under Section 52 not having been published the court had no jurisdiction is to misread Section 49 and to exalt a ritual into a legal reality.10. We may mention here that the Allahabad High Court has consistently taken this view, See Smt. Natho v. Board of Revenue, U. P. Allahabad, 1966 All LJ 563 where this position has been explained. But more clinchingly has this matter been dealt within a recent judgment of that Court in Smt. Bhuri v. Sunder, 1973 All LJ 352. We approve of the reasoning therein, in so far as it is in accord with the above observations and hold that there is no merit in this appeal and dismiss it but with no order as to costs in this Court having regard to the totality of circumstances in the case.

Sri Rameshwar Yadav & Others Vs. The State of Bihar & Another

his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.” 7. The Magistrate has rejected the application filed under Section 205 Cr.P.C. on different grounds as noticed above. The High Court took entirely new grounds for dismissing the application filed under Section 482 Cr.P.C. without adverting to the grounds which were taken by the Magistrate for declining the prayer. 8. We first take up the grounds given by the High Court for rejecting the application. The High Court has observed that prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused and once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C. at a subsequent stage, such an application would not be maintainable. 9. The High Court has noticed that the accused had already appeared after obtaining the order of pre-arrest bail and furnishing bond and sureties to the satisfaction of the court. The pre-arrest bail was granted to the accused by the District and Sessions Judge by order dated 21.06.2013 and thereafter the accused appeared before the court as has been noticed in paragraph 8 of the judgment of the High court itself. 10. The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205 Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining the pre-arrest bail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the High Court’s order cannot be sustained.11. The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court. Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance.12. Now, we advert to the reasons given by the Magistrate for rejecting the application. As noticed above, first reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable.13. With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar whose pre-arrest bail was already rejected. The present appellants, thus, were not pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205 sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides.

1[ds]10. The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205 Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining thebail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the Highorder cannot be sustained.11. The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court. Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance.12. Now, we advert to the reasons given by the Magistrate for rejecting the application. As noticed above, first reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable.13. With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar whosebail was already rejected. The present appellants, thus, were not pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205(2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides.

### 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: his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.” 7. The Magistrate has rejected the application filed under Section 205 Cr.P.C. on different grounds as noticed above. The High Court took entirely new grounds for dismissing the application filed under Section 482 Cr.P.C. without adverting to the grounds which were taken by the Magistrate for declining the prayer. 8. We first take up the grounds given by the High Court for rejecting the application. The High Court has observed that prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused and once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C. at a subsequent stage, such an application would not be maintainable. 9. The High Court has noticed that the accused had already appeared after obtaining the order of pre-arrest bail and furnishing bond and sureties to the satisfaction of the court. The pre-arrest bail was granted to the accused by the District and Sessions Judge by order dated 21.06.2013 and thereafter the accused appeared before the court as has been noticed in paragraph 8 of the judgment of the High court itself. 10. The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205 Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining the pre-arrest bail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the High Court’s order cannot be sustained.11. The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court. Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance.12. Now, we advert to the reasons given by the Magistrate for rejecting the application. As noticed above, first reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable.13. With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar whose pre-arrest bail was already rejected. The present appellants, thus, were not pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205 sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides. ### Response: 1 ### Explanation: 10. The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205 Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining thebail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the Highorder cannot be sustained.11. The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court. Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance.12. Now, we advert to the reasons given by the Magistrate for rejecting the application. As noticed above, first reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable.13. With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar whosebail was already rejected. The present appellants, thus, were not pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205(2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides.

Damji Valji Shah And Another Vs. Life Insurance Corporation Of India & Ors

effective particulars of every policy under which there is a liability either actual or contingent have been furnished to the actuary for the purpose of investigation.29. Section 15 requires the submission of the aforesaid abstract to the Controller within the specified period. Part II of the Fourth Schedule requires that every extract prepared in accordance with the requirements of that part of the Schedule will have the statement of a consolidated revenue account in Form G. a summary and valuation in Form H, a valuation balance sheet in Form 1 and a statement in Form DDD as set forth in Part II of the Third Schedule annexed to it. The valuation balance sheet in Form I requires the noting of a surplus, if any, of the balance of the life insurance fund as compared to the net liability in the business as shown in the summary and valuation of policies. It is the surplus noted in this Form I which is really the valuation surplus. It was not out of such surplus that the company resolved that the advance of Rs.1,10,000 and Rs.32,000 could be paid to the General Department by the Life Department. No such actuarial valuation was made by the actuary prior to the transfer of Rs.82,000 to the General Fund by the resolution, dated January 6, 1956.30. Reliance in this connection is placed on behalf of the appellants on the letter of the actuary, dated July 25, 1955. The actuary states."On the above basis the valuation shows a policy liability of Rs.20,20,421. The Life Insurancer Fund is Rs.21,32,455. Thus there is surplus of Rs.1,12,033. The surplus includes Rs.53,300 being the amount of appreciation on investments taken into account by you in the past two years.Thus the net working surplus is Rs. 58,733.The post of Bonus at the rate of Rs. 10 per thousand is approximately Rs. 18,000.Thus the surplus is sufficient to enable a bonus declaration at the above rate even after excluding the appreciation amount or setting it apart as an additional reserve for future use.Conclusion: The result is satisfactory. Continuing the same method of working as you have followed the statutory valuation as on 31st December, 55 will surely enable you to declare a higher bonus".Firstly, it does not appear that the actuary had really conducted an investigation and submitted the valuation report as required by S. 13 of the Insurance Act. There is nothing on the record to show that any abstract in Form I, Fourth Schedule was prepared and submitted to the Controller. Further, the letter shows that the net working surplus was only Rs. 58,733 as the ostensible surplus of Rs.1,12,033 included Rs.53,300 by which certain investments of the company had appreciated in that period. When the net working surplus was much less than Rs. 82,000 which were transferred from the Life Department to the General Department, the transfer of Rs.82,000 cannot be said to have been in accordance with the terms on which the alleged loan was made to the Life Department from the General Department. When the Life Department had not Rs.82,000 with itself, there could not have been any necessity to pay that amount to the General Department. In fact, the alleged loan could be paid only when there would have been a valuation surplus in the accounts of the Life Department but this does not mean that the Life Department was bound to pay back the amount the moment it had any valuation surplus. its liability to pay the alleged loan could arise only when there was a valuation surplus. Its paying the amount actually would depend upon the circumstances prevailing at the time.31. In the circumstances, we cannot resist the conclusion that the Directors passed a resolution for the transfer of this amount on January 6, 1956 in anticipation of some law depriving the company of its life insurance business. It may be that it was a close secret that an Ordinance would be issued on January 19. But all the same, possibly persons in the insurance world could have had an inkling of the trend of events.32. The content of the resolution passed on January 6, indicates that the directors had no clear idea at the time as to how much the Life Department, according to them owed to the General Department. The resolution speaks not only of the transfer of Rs. 82,000 to the General Department but also refers to the balance of Rs.60,000 due to the General Department by the Life Department Revenue Account. The amount had been written off in 1950 and could not have thereafter been considered to be a loan advanced to the Life Department Revenue Account from the General Department. It seems that the resolution was passed in some hurry and the Directors could not definitely decide as to how any further amount upto Rs.60,000 could be taken back to the General Department from the Life Department Revenue Account. Any way, such a resolution of the Directors indicates that any entries with respect to the alleged loans were made for the purpose of accounting and the necessities of the business. Money in the Life Fund had to be augmented in 1948 and 1952 in order to make the Life Fund exceed the net liabilities of the Company on account of the life insurance policies.33. We are, however, of opinion that the Tribunal took a correct view about the nature of the transfer of Rs. 1,10,000 in 1948 and Rs. 32,000 in 1952 to the Life Insurance Fund and rightly held that the transfer of Rs. 82,000 to the General Department by resolution dated January 6, 1956, was not in accordance with the provisions of the Insurance Act and that consequently that amount continued to form part of the assets of the life insurance business of the company upto September 1, 1956 and that as such vested in the Corporation which could recover it from the company and the directors responsible for the transfer of the amount in the General Department.

0[ds]22. We are, therefore, of opinion that the Tribunal had jurisdiction to continue the proceedings after November 9, 1959 when the company was ordered to be wound up and that the provisions of S. 446. Companies Act, or S. 11 (a), L. I. C. Act, do not in any way affect its jurisdiction to continue the proceedings.23. We now come to the third point raised for the appellants. We agree with the Tribunal that the amount of Rs. 1,10,000 and Rs. 32,000 were not lent to the Life Department as such by the General Department. No question of lending money by one department of the company to the other can be ordinarily contemplated. The assets of the company really constitute one entity, even though the company maintains separate accounts with respect to its various insurance businesses. It carried on other types of insurance business also. We have already shown how the provisions of the Insurance Act require the company to keep a separate account for the insurance business and to have a separate fund known as the Life Insurance Fund and to which were to be credited all receipts due in respect of the life business and the amount deposited by the insurer in respect of life insurance business. Such a deposit is to be made in view of S. 7 (1) of the Insurance Act. This requires the insurer to deposit and keep deposited with the Reserve Bank of India for and on behalf of the Central Government either in each or in approved securities or partly in cash and partly in approved securities the sums specified in the various clauses in regard to the different types of life insurance businesses. Clause (a) requires a deposit of Rs.2,00,000 where the business done or to be done is life insurance only. Clause (e) requires a deposit of Rs.3,00,000 where the business done or to be done is life insurance and any one of the three-classes of business mentioned in Cls. (b) to (d). Clause (e) further provides that out of the deposit o Rs.3,00,000, Rs.2,00,000 shall be the deposit for life insurance business. Section 7 lays down a statutory amount which the insurer has to deposit. It does not, however, restrict the insurer to deposit a larger amount in respect of life insurance business. Section 8 (1) places certain restrictions about the use to be made of the deposits under S. 7. Section 8 (2), however, deals with any deposit and provides that where a deposit is made in respect of life insurance business, the deposit made in respect thereof shall not be available for the discharge of any liability of the insurer other than liabilities arising out of policies of life insurance issued by the insurer. This means that when an insurer puts certain money in the funds pertaining to the life insurance business and especially to a life insurance fund, such an amount can be used only for the discharge of liabilities of the insurer arising out of life insurance policies issued by him.In the circumstances, we cannot resist the conclusion that the Directors passed a resolution for the transfer of this amount on January 6, 1956 in anticipation of some law depriving the company of its life insurance business. It may be that it was a close secret that an Ordinance would be issued on January 19. But all the same, possibly persons in the insurance world could have had an inkling of the trend of events.32. The content of the resolution passed on January 6, indicates that the directors had no clear idea at the time as to how much the Life Department, according to them owed to the General Department. The resolution speaks not only of the transfer of Rs. 82,000 to the General Department but also refers to the balance of Rs.60,000 due to the General Department by the Life Department Revenue Account. The amount had been written off in 1950 and could not have thereafter been considered to be a loan advanced to the Life Department Revenue Account from the General Department. It seems that the resolution was passed in some hurry and the Directors could not definitely decide as to how any further amount upto Rs.60,000 could be taken back to the General Department from the Life Department Revenue Account. Any way, such a resolution of the Directors indicates that any entries with respect to the alleged loans were made for the purpose of accounting and the necessities of the business. Money in the Life Fund had to be augmented in 1948 and 1952 in order to make the Life Fund exceed the net liabilities of the Company on account of the life insurance policies.33. We are, however, of opinion that the Tribunal took a correct view about the nature of the transfer of Rs. 1,10,000 in 1948 and Rs. 32,000 in 1952 to the Life Insurance Fund and rightly held that the transfer of Rs. 82,000 to the General Department by resolution dated January 6, 1956, was not in accordance with the provisions of the Insurance Act and that consequently that amount continued to form part of the assets of the life insurance business of the company upto September 1, 1956 and that as such vested in the Corporation which could recover it from the company and the directors responsible for the transfer of the amount in the Generalcontention was not raised before the Tribunal during the arguments and was therefore considered by it to have been abandoned. We did not therefore allow it to be raised before us.The word insurer is defined in Cl. (6) of S. 2 of the L.I.C. Act and means an insurer as defined in the Insurance Act who carries on life insurance business in India and includes the Government and a provident society as defined in S. 65 of the Insurance Act. On November 9, 1959, when the company was ordered to be wound up it was not an insurer within the meaning of the definition as the company did not carry on life insurance business in India on that date. Its life insurance business had been taken over by the Corporation on the appointed day and it ceased to carry on that business thereafter. It follows, therefore, that the company was not an insurer on November 9, 1959 and cannot take advantage of the provisions of Cl. (a) of S. 44 of the L. I. C.it does not appear that the actuary had really conducted an investigation and submitted the valuation report as required by S. 13 of the Insurance Act. There is nothing on the record to show that any abstract in Form I, Fourth Schedule was prepared and submitted to the Controller. Further, the letter shows that the net working surplus was only Rs. 58,733 as the ostensible surplus of Rs.1,12,033 included Rs.53,300 by which certain investments of the company had appreciated in that period. When the net working surplus was much less than Rs. 82,000 which were transferred from the Life Department to the General Department, the transfer of Rs.82,000 cannot be said to have been in accordance with the terms on which the alleged loan was made to the Life Department from the General Department. When the Life Department had not Rs.82,000 with itself, there could not have been any necessity to pay that amount to the General Department. In fact, the alleged loan could be paid only when there would have been a valuation surplus in the accounts of the Life Department but this does not mean that the Life Department was bound to pay back the amount the moment it had any valuation surplus. its liability to pay the alleged loan could arise only when there was a valuation surplus. Its paying the amount actually would depend upon the circumstances prevailing at the time.

### 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: effective particulars of every policy under which there is a liability either actual or contingent have been furnished to the actuary for the purpose of investigation.29. Section 15 requires the submission of the aforesaid abstract to the Controller within the specified period. Part II of the Fourth Schedule requires that every extract prepared in accordance with the requirements of that part of the Schedule will have the statement of a consolidated revenue account in Form G. a summary and valuation in Form H, a valuation balance sheet in Form 1 and a statement in Form DDD as set forth in Part II of the Third Schedule annexed to it. The valuation balance sheet in Form I requires the noting of a surplus, if any, of the balance of the life insurance fund as compared to the net liability in the business as shown in the summary and valuation of policies. It is the surplus noted in this Form I which is really the valuation surplus. It was not out of such surplus that the company resolved that the advance of Rs.1,10,000 and Rs.32,000 could be paid to the General Department by the Life Department. No such actuarial valuation was made by the actuary prior to the transfer of Rs.82,000 to the General Fund by the resolution, dated January 6, 1956.30. Reliance in this connection is placed on behalf of the appellants on the letter of the actuary, dated July 25, 1955. The actuary states."On the above basis the valuation shows a policy liability of Rs.20,20,421. The Life Insurancer Fund is Rs.21,32,455. Thus there is surplus of Rs.1,12,033. The surplus includes Rs.53,300 being the amount of appreciation on investments taken into account by you in the past two years.Thus the net working surplus is Rs. 58,733.The post of Bonus at the rate of Rs. 10 per thousand is approximately Rs. 18,000.Thus the surplus is sufficient to enable a bonus declaration at the above rate even after excluding the appreciation amount or setting it apart as an additional reserve for future use.Conclusion: The result is satisfactory. Continuing the same method of working as you have followed the statutory valuation as on 31st December, 55 will surely enable you to declare a higher bonus".Firstly, it does not appear that the actuary had really conducted an investigation and submitted the valuation report as required by S. 13 of the Insurance Act. There is nothing on the record to show that any abstract in Form I, Fourth Schedule was prepared and submitted to the Controller. Further, the letter shows that the net working surplus was only Rs. 58,733 as the ostensible surplus of Rs.1,12,033 included Rs.53,300 by which certain investments of the company had appreciated in that period. When the net working surplus was much less than Rs. 82,000 which were transferred from the Life Department to the General Department, the transfer of Rs.82,000 cannot be said to have been in accordance with the terms on which the alleged loan was made to the Life Department from the General Department. When the Life Department had not Rs.82,000 with itself, there could not have been any necessity to pay that amount to the General Department. In fact, the alleged loan could be paid only when there would have been a valuation surplus in the accounts of the Life Department but this does not mean that the Life Department was bound to pay back the amount the moment it had any valuation surplus. its liability to pay the alleged loan could arise only when there was a valuation surplus. Its paying the amount actually would depend upon the circumstances prevailing at the time.31. In the circumstances, we cannot resist the conclusion that the Directors passed a resolution for the transfer of this amount on January 6, 1956 in anticipation of some law depriving the company of its life insurance business. It may be that it was a close secret that an Ordinance would be issued on January 19. But all the same, possibly persons in the insurance world could have had an inkling of the trend of events.32. The content of the resolution passed on January 6, indicates that the directors had no clear idea at the time as to how much the Life Department, according to them owed to the General Department. The resolution speaks not only of the transfer of Rs. 82,000 to the General Department but also refers to the balance of Rs.60,000 due to the General Department by the Life Department Revenue Account. The amount had been written off in 1950 and could not have thereafter been considered to be a loan advanced to the Life Department Revenue Account from the General Department. It seems that the resolution was passed in some hurry and the Directors could not definitely decide as to how any further amount upto Rs.60,000 could be taken back to the General Department from the Life Department Revenue Account. Any way, such a resolution of the Directors indicates that any entries with respect to the alleged loans were made for the purpose of accounting and the necessities of the business. Money in the Life Fund had to be augmented in 1948 and 1952 in order to make the Life Fund exceed the net liabilities of the Company on account of the life insurance policies.33. We are, however, of opinion that the Tribunal took a correct view about the nature of the transfer of Rs. 1,10,000 in 1948 and Rs. 32,000 in 1952 to the Life Insurance Fund and rightly held that the transfer of Rs. 82,000 to the General Department by resolution dated January 6, 1956, was not in accordance with the provisions of the Insurance Act and that consequently that amount continued to form part of the assets of the life insurance business of the company upto September 1, 1956 and that as such vested in the Corporation which could recover it from the company and the directors responsible for the transfer of the amount in the General Department. ### Response: 0 ### Explanation: of Rs.3,00,000 where the business done or to be done is life insurance and any one of the three-classes of business mentioned in Cls. (b) to (d). Clause (e) further provides that out of the deposit o Rs.3,00,000, Rs.2,00,000 shall be the deposit for life insurance business. Section 7 lays down a statutory amount which the insurer has to deposit. It does not, however, restrict the insurer to deposit a larger amount in respect of life insurance business. Section 8 (1) places certain restrictions about the use to be made of the deposits under S. 7. Section 8 (2), however, deals with any deposit and provides that where a deposit is made in respect of life insurance business, the deposit made in respect thereof shall not be available for the discharge of any liability of the insurer other than liabilities arising out of policies of life insurance issued by the insurer. This means that when an insurer puts certain money in the funds pertaining to the life insurance business and especially to a life insurance fund, such an amount can be used only for the discharge of liabilities of the insurer arising out of life insurance policies issued by him.In the circumstances, we cannot resist the conclusion that the Directors passed a resolution for the transfer of this amount on January 6, 1956 in anticipation of some law depriving the company of its life insurance business. It may be that it was a close secret that an Ordinance would be issued on January 19. But all the same, possibly persons in the insurance world could have had an inkling of the trend of events.32. The content of the resolution passed on January 6, indicates that the directors had no clear idea at the time as to how much the Life Department, according to them owed to the General Department. The resolution speaks not only of the transfer of Rs. 82,000 to the General Department but also refers to the balance of Rs.60,000 due to the General Department by the Life Department Revenue Account. The amount had been written off in 1950 and could not have thereafter been considered to be a loan advanced to the Life Department Revenue Account from the General Department. It seems that the resolution was passed in some hurry and the Directors could not definitely decide as to how any further amount upto Rs.60,000 could be taken back to the General Department from the Life Department Revenue Account. Any way, such a resolution of the Directors indicates that any entries with respect to the alleged loans were made for the purpose of accounting and the necessities of the business. Money in the Life Fund had to be augmented in 1948 and 1952 in order to make the Life Fund exceed the net liabilities of the Company on account of the life insurance policies.33. We are, however, of opinion that the Tribunal took a correct view about the nature of the transfer of Rs. 1,10,000 in 1948 and Rs. 32,000 in 1952 to the Life Insurance Fund and rightly held that the transfer of Rs. 82,000 to the General Department by resolution dated January 6, 1956, was not in accordance with the provisions of the Insurance Act and that consequently that amount continued to form part of the assets of the life insurance business of the company upto September 1, 1956 and that as such vested in the Corporation which could recover it from the company and the directors responsible for the transfer of the amount in the Generalcontention was not raised before the Tribunal during the arguments and was therefore considered by it to have been abandoned. We did not therefore allow it to be raised before us.The word insurer is defined in Cl. (6) of S. 2 of the L.I.C. Act and means an insurer as defined in the Insurance Act who carries on life insurance business in India and includes the Government and a provident society as defined in S. 65 of the Insurance Act. On November 9, 1959, when the company was ordered to be wound up it was not an insurer within the meaning of the definition as the company did not carry on life insurance business in India on that date. Its life insurance business had been taken over by the Corporation on the appointed day and it ceased to carry on that business thereafter. It follows, therefore, that the company was not an insurer on November 9, 1959 and cannot take advantage of the provisions of Cl. (a) of S. 44 of the L. I. C.it does not appear that the actuary had really conducted an investigation and submitted the valuation report as required by S. 13 of the Insurance Act. There is nothing on the record to show that any abstract in Form I, Fourth Schedule was prepared and submitted to the Controller. Further, the letter shows that the net working surplus was only Rs. 58,733 as the ostensible surplus of Rs.1,12,033 included Rs.53,300 by which certain investments of the company had appreciated in that period. When the net working surplus was much less than Rs. 82,000 which were transferred from the Life Department to the General Department, the transfer of Rs.82,000 cannot be said to have been in accordance with the terms on which the alleged loan was made to the Life Department from the General Department. When the Life Department had not Rs.82,000 with itself, there could not have been any necessity to pay that amount to the General Department. In fact, the alleged loan could be paid only when there would have been a valuation surplus in the accounts of the Life Department but this does not mean that the Life Department was bound to pay back the amount the moment it had any valuation surplus. its liability to pay the alleged loan could arise only when there was a valuation surplus. Its paying the amount actually would depend upon the circumstances prevailing at the time.

Kuchiyan Govinda Swami Vs. Kalliani Amma Lekshmi Amma And Ors

ground that he was a Kuzhikanamdar or alternatively, the holder of a kudiyiruppu, and, therefore, a tenant within the meaning of S. 2 (50) (i) (e) read with S. 2 (22) and S. (50) (i)(j) read with S. 2 (21) of Act IV of 1961. The High Court negatived this contention, and dismissed the appeal. the appellant now appeals to this Court by special leave. During the pendency of this appeal, Act IV of 1961 was repealed and the Kerala Land Reforms Act, 1963 (Act 1 of 1964) came into force. The appellant now claims fixity of tenure and protection from eviction on the ground that he is a Kuzhikanamdar within the meaning of S. 2 (57) (d) read with S. 2 (28), or alternatively, the holder of a kudiyiruppu within the meaning of S. 2 (57) (h) read with S. 2 (26) of Act 1 of 1964. In the High Court, the appellant also claimed protection from eviction on the ground that he was a Kudikidapukaran, but this contention was negatived by the High Court and is no longer pressed.2. Section 13 of Act I of 1964 gives to every tenant fixity of tenure in respect of his holding, and forbids resumption of the holding except as provided in Ss. 14 to 22. Section 2 (57) defines tenant By Section 2 (57) (d) and (h), a tenant includes a kuzhikanamdar and the holder of a kudiviruppu. The appellant does not contend that he is a tenant as defined in the main part of S. 2 (57). He, however, contends that he is a tenant as defined in S. 2 (57) (d) and S. 2 (57) (h).3. The deed of 1921 was styled otti kuzhikanam deed. In Malabar, the word "otti" in the context of the deed designates a possessory mortgage. According to Wilsons Glossary of Judicial and Revenue Terms, "Kurikanam" means "compensation allowed for the value of tress planted, or other improvements made by the tenant or mortgagee on relinquishing possession a lease or mortgage on such conditions." Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit-bearing trees thereon and to claim compensation for the value of the trees planted on relinquishing possession. Had there been no special definition of the expression "kuzhikanam" in Act I of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar But S. 2 (28) of Act I of 1964 provides that in this Act unless the context otherwise requires, "kuzhikanam" means and includes a transfer of garden land or of other lands or of both, with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-hearing trees thereon, but shall not include a usufructuary mortgage as defined in the transfer of Property Act, 1882. This definition of kuzhikanam is both inclusive and exhaustive. Unless the context requires otherwise, the expression "kuzhikanam" in the Act can have only the meaning given in S 2 (28) . There is nothing in the context of S. 2 (57) and S. 13, which requires a different meaning for this expression. "Kuzhikanam" as defined in S. 2 (28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit-bearing trees, if any standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit-bearing trees thereon. It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882, but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgage. Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit-bearing trees then standing on the land and did not transfer those trees to the grantee. On behalf of the appellant, it was argued that the words "with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees are not essential parts of the definition of kuzhikanam in S. 2 (28),and that we should hold that a transfer of land for the purpose of planting fruit-bearing trees thereon is kuzhikanam, though there is no transfer of the fruit-bearing trees standing on the land at the time of the transfer and though the transfer is not for the enjoyment of those trees.We are unable to accept this contention. We think that a transfer of land without the fruit-bearing trees then standing on it and not carrying with it the right to enjoy those trees is not a kuzhikanam as defined in S. 2 (28). The force of the words "if any" in the definition is that if there are any fruit-bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee. The contention that the deed of 1921 granted kuzhikanam rights as defined in S. 2 (28) of Act I of 1964 is rejected.4. The appellant next contends that he is the holder of kudiyiruppu Section 2 (26) of Act I of 1964 which defines kudiyiruppu reads:"Kudiyiruppu" means a holding or part of a holding consisting of the site of any residential building, the site or sites of other building appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu.There is no material on the record to show that the building on the land a is a residential building. Moreover, it does not appear that the land is necessary for the convenient enjoyment of the building. The contention that the appellant is the holder of kudiyiruppu is rejected.

0[ds]3. The deed of 1921 was styled otti kuzhikanam deed. In Malabar, the word "otti" in the context of the deed designates a possessory mortgage. According to Wilsons Glossary of Judicial and Revenue Terms, "Kurikanam" means "compensation allowed for the value of tress planted, or other improvements made by the tenant or mortgagee on relinquishing possession a lease or mortgage on such conditions." Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit-bearing trees thereon and to claim compensation for the value of the trees planted on relinquishing possession. Had there been no special definition of the expression "kuzhikanam" in Act I of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar But S. 2 (28) of Act I of 1964 provides that in this Act unless the context otherwise requires, "kuzhikanam" means and includes a transfer of garden land or of other lands or of both, with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-hearing trees thereon, but shall not include a usufructuary mortgage as defined in the transfer of Property Act, 1882. This definition of kuzhikanam is both inclusive and exhaustive. Unless the context requires otherwise, the expression "kuzhikanam" in the Act can have only the meaning given in S 2 (28) . There is nothing in the context of S. 2 (57) and S. 13, which requires a different meaning for this expression. "Kuzhikanam" as defined in S. 2 (28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit-bearing trees, if any standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit-bearing trees thereon. It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882, but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgage. Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit-bearing trees then standing on the land and did not transfer those trees to thethink that a transfer of land without the fruit-bearing trees then standing on it and not carrying with it the right to enjoy those trees is not a kuzhikanam as defined in S. 2 (28). The force of the words "if any" in the definition is that if there are any fruit-bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee. The contention that the deed of 1921 granted kuzhikanam rights as defined in S. 2 (28) of Act I of 1964 isis no material on the record to show that the building on the land a is a residential building. Moreover, it does not appear that the land is necessary for the convenient enjoyment of the building. The contention that the appellant is the holder of kudiyiruppu is rejected.

### 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: ground that he was a Kuzhikanamdar or alternatively, the holder of a kudiyiruppu, and, therefore, a tenant within the meaning of S. 2 (50) (i) (e) read with S. 2 (22) and S. (50) (i)(j) read with S. 2 (21) of Act IV of 1961. The High Court negatived this contention, and dismissed the appeal. the appellant now appeals to this Court by special leave. During the pendency of this appeal, Act IV of 1961 was repealed and the Kerala Land Reforms Act, 1963 (Act 1 of 1964) came into force. The appellant now claims fixity of tenure and protection from eviction on the ground that he is a Kuzhikanamdar within the meaning of S. 2 (57) (d) read with S. 2 (28), or alternatively, the holder of a kudiyiruppu within the meaning of S. 2 (57) (h) read with S. 2 (26) of Act 1 of 1964. In the High Court, the appellant also claimed protection from eviction on the ground that he was a Kudikidapukaran, but this contention was negatived by the High Court and is no longer pressed.2. Section 13 of Act I of 1964 gives to every tenant fixity of tenure in respect of his holding, and forbids resumption of the holding except as provided in Ss. 14 to 22. Section 2 (57) defines tenant By Section 2 (57) (d) and (h), a tenant includes a kuzhikanamdar and the holder of a kudiviruppu. The appellant does not contend that he is a tenant as defined in the main part of S. 2 (57). He, however, contends that he is a tenant as defined in S. 2 (57) (d) and S. 2 (57) (h).3. The deed of 1921 was styled otti kuzhikanam deed. In Malabar, the word "otti" in the context of the deed designates a possessory mortgage. According to Wilsons Glossary of Judicial and Revenue Terms, "Kurikanam" means "compensation allowed for the value of tress planted, or other improvements made by the tenant or mortgagee on relinquishing possession a lease or mortgage on such conditions." Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit-bearing trees thereon and to claim compensation for the value of the trees planted on relinquishing possession. Had there been no special definition of the expression "kuzhikanam" in Act I of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar But S. 2 (28) of Act I of 1964 provides that in this Act unless the context otherwise requires, "kuzhikanam" means and includes a transfer of garden land or of other lands or of both, with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-hearing trees thereon, but shall not include a usufructuary mortgage as defined in the transfer of Property Act, 1882. This definition of kuzhikanam is both inclusive and exhaustive. Unless the context requires otherwise, the expression "kuzhikanam" in the Act can have only the meaning given in S 2 (28) . There is nothing in the context of S. 2 (57) and S. 13, which requires a different meaning for this expression. "Kuzhikanam" as defined in S. 2 (28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit-bearing trees, if any standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit-bearing trees thereon. It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882, but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgage. Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit-bearing trees then standing on the land and did not transfer those trees to the grantee. On behalf of the appellant, it was argued that the words "with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees are not essential parts of the definition of kuzhikanam in S. 2 (28),and that we should hold that a transfer of land for the purpose of planting fruit-bearing trees thereon is kuzhikanam, though there is no transfer of the fruit-bearing trees standing on the land at the time of the transfer and though the transfer is not for the enjoyment of those trees.We are unable to accept this contention. We think that a transfer of land without the fruit-bearing trees then standing on it and not carrying with it the right to enjoy those trees is not a kuzhikanam as defined in S. 2 (28). The force of the words "if any" in the definition is that if there are any fruit-bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee. The contention that the deed of 1921 granted kuzhikanam rights as defined in S. 2 (28) of Act I of 1964 is rejected.4. The appellant next contends that he is the holder of kudiyiruppu Section 2 (26) of Act I of 1964 which defines kudiyiruppu reads:"Kudiyiruppu" means a holding or part of a holding consisting of the site of any residential building, the site or sites of other building appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu.There is no material on the record to show that the building on the land a is a residential building. Moreover, it does not appear that the land is necessary for the convenient enjoyment of the building. The contention that the appellant is the holder of kudiyiruppu is rejected. ### Response: 0 ### Explanation: 3. The deed of 1921 was styled otti kuzhikanam deed. In Malabar, the word "otti" in the context of the deed designates a possessory mortgage. According to Wilsons Glossary of Judicial and Revenue Terms, "Kurikanam" means "compensation allowed for the value of tress planted, or other improvements made by the tenant or mortgagee on relinquishing possession a lease or mortgage on such conditions." Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit-bearing trees thereon and to claim compensation for the value of the trees planted on relinquishing possession. Had there been no special definition of the expression "kuzhikanam" in Act I of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar But S. 2 (28) of Act I of 1964 provides that in this Act unless the context otherwise requires, "kuzhikanam" means and includes a transfer of garden land or of other lands or of both, with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-hearing trees thereon, but shall not include a usufructuary mortgage as defined in the transfer of Property Act, 1882. This definition of kuzhikanam is both inclusive and exhaustive. Unless the context requires otherwise, the expression "kuzhikanam" in the Act can have only the meaning given in S 2 (28) . There is nothing in the context of S. 2 (57) and S. 13, which requires a different meaning for this expression. "Kuzhikanam" as defined in S. 2 (28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit-bearing trees, if any standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit-bearing trees thereon. It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882, but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgage. Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit-bearing trees then standing on the land and did not transfer those trees to thethink that a transfer of land without the fruit-bearing trees then standing on it and not carrying with it the right to enjoy those trees is not a kuzhikanam as defined in S. 2 (28). The force of the words "if any" in the definition is that if there are any fruit-bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee. The contention that the deed of 1921 granted kuzhikanam rights as defined in S. 2 (28) of Act I of 1964 isis no material on the record to show that the building on the land a is a residential building. Moreover, it does not appear that the land is necessary for the convenient enjoyment of the building. The contention that the appellant is the holder of kudiyiruppu is rejected.