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K.K. Baskaran Vs. State Rep By Its Secretary,Tamilnadu&Ors

by the companies. On the other hand, the aim and object of the Tamil Nadu Act is totally different. 34. The Tamil Nadu Act was enacted to ameliorate the conditions of thousands of depositors who had fallen into the clutches of fraudulent financial establishments who had raised hopes of high rate of interest and thus duped the depositors. Thus the Tamil Nadu Act is not focused on the transaction of banking or the acceptance of deposit, but is focused on remedying the situation of the depositors who were deceived by the fraudulent financial establishments. The impugned Tamil Nadu Act was intended to deal with neither the banks which do the business or banking and are governed by the Reserve Bank of India Act and Banking Regulation Act, nor the non-banking financial companies enacted under the Companies Act, 1956. 35. The Reserve Bank of India Act, the Banking Regulation Act and the Companies Act do not occupy the field which the impugned Tamil Nadu Act occupies, though the latter may incidentally trench upon the former. The main object of the Tamil Nadu Act is to provide a solution to wipe out the tears of several lakhs of depositors to realize their dues effectively and speedily from the fraudulent financial establishments which duped them or their vendees, without dragging them in a legal battle from pillar to post. Hence, the decision of this Court in Delhi Cloth Mills (supra) has no bearing on the constitutional validity of the Tamil Nadu Act. 36. In the case of the Tamil Nadu Act, the attachment of properties is intended to provide an effective and speedy remedy to the aggrieved depositors for the realization of their dues. The offences dealt with in the impugned Act are unique and have been enacted to deal with the economic and social disorder in society, caused by the fraudulent activities of such financial establishments. 37. Under Section 3 & 4 of the Tamil Nadu Act, certain properties can be attached, and there is also provision for interim orders for attachment after which a post decisional hearing is provided for. In our opinion this is valid in view of the prevailing realities. 38. The Court should interpret the constitutional provisions against the social setting of the country and not in the abstract. The Court must take into consideration the economic realities and aspirations of the people and must further the social interest which is the purpose of legislation, as held by Justices Holmes, Brandeis and Frankfurter of the U.S. Supreme Court in a series of decisions. Hence the Courts cannot function in a vacuum. It is for this reason that Courts presume in favour of constitutionality of the statute because there is always a presumption that the legislature understands and correctly appreciates the needs of its own people, vide Govt. of Andhra Pradesh vs. P. Laxmi Devi (2008) 4 SCC 720 . 39. We fail to see how there is any violation of Article 14, 19(1)(g) or 21 of the Constitution. The Act is a salutary measure to remedy a great social evil. A systematic conspiracy was effected by certain fraudulent financial establishments which not only committed fraud on the depositor, but also siphoned off or diverted the depositors funds mala fide. We are of the opinion that the act of the financers in exploiting the depositors is a notorious abuse of faith of the depositors who innocently deposited their money with the former for higher rate of interest. These depositors were often given a small pass book as a token of acknowledgment of their deposit, which they considered as a passport of their children for higher education or wedding of their daughters or as a policy of medical insurance in the case of most of the aged depositors, but in reality in all cases it was an unsecured promise executed on a waste paper. The senior citizens above 80 years, senior citizens between 60 and 80 years, widows, handicapped, driven out by wards, retired government servants and pensioners, and persons living below the poverty line constituted the bulk of the depositors. Without the aid of the impugned Act, it would have been impossible to recover their deposits and interest thereon. 40. The conventional legal proceedings incurring huge expenses of court fees, advocates fees, apart from other inconveniences involved and the long delay in disposal of cases due to docket explosion in Courts, would not have made it possible for the depositors to recover their money, leave alone the interest thereon. Hence, in our opinion the impugned Act has rightly been enacted to enable the depositors to recover their money speedily by taking strong steps in this connection. 41. The State being the custodian of the welfare of the citizens as parens patriae cannot be a silent spectator without finding a solution for this malady. The financial swindlers, who are nothing but cheats and charlatans having no social responsibility, but only a lust for easy money by making false promise of attractive returns for the gullible investors, had to be dealt with strongly. 42. The small amounts collected from a substantial number of individual depositors culminated into huge amounts of money. These collections were diverted in the name of third parties and finally one day the fraudulent financers closed their financial establishments leaving the innocent depositors in the lurch. 43. Learned counsel for the appellant submitted that the appellant was only a bona fide purchaser of some plots of land from one Arun Kumar and Smt. Sulochana, and not from any financial establishment. We are not going into this question as it can be raised in appropriate proceedings. In this case we are only concerned with the constitutional validity of the Tamil Nadu Act. 44. We are of the opinion that there is no merit in this petition. The impugned Tamil Nadu Act is constitutionally valid. In fact, it is a salutary measure which was long overdue to deal with these scamsters who have been thriving like locusts in the country.

0[ds]9. We are of the opinion that none of these submissions have any merit10. A perusal of the Statement of Objects as well as the relevant provisions of the Tamil Nadu Act shows that its object was to ameliorate the situation of thousands of depositors from the clutches of financial establishments who had duped the investor public by offering high rates of interest on deposits and committed deliberate fraud in repayment of the principal and interest after maturity of such deposits. The Act provides for measures for attachment of the properties of the financial establishments as well as mala fide transferees and to bring these properties for sale for realization of the dues payable to the depositors speedily18. Learned counsel for the appellant relied on the Full Bench decision of the Bombay High Court in Vijay C. Punjals case (supra) in support of his contention that the Tamil Nadu Act, like the Maharasthra Act, was unconstitutional being beyond the legislative competence of the State Legislature. We do not agree21. The Bombay High Court has taken the view that the Maharashtra Act transgressed into the field reserved for Parliament. We do not agree. It is true that Section 58A of the Companies Act has been upheld by this Court in Delhi Cloth Mills Ltd vs. Union of India (1983) 4 SCC 166 and the provisions of Chapter IIIC of the Reserve Bank of India Act, 1934 was upheld by this Court in T. Velayndhan Achari vs. Union of India (1993) 2 SCC 582 . However, we are not in agreement with the Full Bench decision of the Bombay High Court that the subject matter covered by the said Act falls squarely within the subject matter of Section 58A and 58AA of the Companies Act22. We are of the opinion that the impugned Tamil Nadu Act enacted by the State Legislature is not in pith and substance referable to the legislative heads contained in List I of the Seventh Schedule to the Constitution though there may be some overlapping. In our opinion, in pith and substance the said Act comes under the entries in List II (the State List) of the Seventh Schedule23. It often happens that a legislation overlaps both Lists I as well as List II of the Seventh Schedule. In such circumstances, the doctrine of pith and substance is applied. We are of the opinion that in pith and substance the impugned State Act is referable to Entries 1, 30 and 31 of List II of the Seventh Schedule and not Entries 43, 44 and 45 of List I of the Seventh Schedule24. It is well-settled that incidental trenching in exercise of ancillary powers into a forbidden legislative territory is permissible vide Constitution Bench decision of this court in State of West Bengal etc. vs. Kesoram Industries Ltd & Ors etc. (2004) 10 SCC 201 (vide paras 31(4), (5) and (6) and 129 (5). Sharp and distinct lines of demarcation are not always possible and it is often impossible to prevent a certain amount of overlapping vide ITC Ltd. vs. State of Karnataka, 1985 (Supp) SCC 476 (para 17). We have to look at the legislation as a whole and there is a presumption that the legislature does not exceed its constitutional limits26. The doctrine of pith and substance means that an enactment which substantially falls within the powers expressly conferred by the Constitution upon a Legislature which enacted it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. The Court must consider what constitutes in pith and substance the true subject matter of the legislation. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid even though it incidentally trenches on matters beyond its legislative competence37. Under Section 3 & 4 of the Tamil Nadu Act, certain properties can be attached, and there is also provision for interim orders for attachment after which a post decisional hearing is provided for. In our opinion this is valid in view of the prevailing realities44. We are of the opinion that there is no merit in this petition. The impugned Tamil Nadu Act is constitutionally valid. In fact, it is a salutary measure which was long overdue to deal with these scamsters who have been thriving like locusts in the country

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: by the companies. On the other hand, the aim and object of the Tamil Nadu Act is totally different. 34. The Tamil Nadu Act was enacted to ameliorate the conditions of thousands of depositors who had fallen into the clutches of fraudulent financial establishments who had raised hopes of high rate of interest and thus duped the depositors. Thus the Tamil Nadu Act is not focused on the transaction of banking or the acceptance of deposit, but is focused on remedying the situation of the depositors who were deceived by the fraudulent financial establishments. The impugned Tamil Nadu Act was intended to deal with neither the banks which do the business or banking and are governed by the Reserve Bank of India Act and Banking Regulation Act, nor the non-banking financial companies enacted under the Companies Act, 1956. 35. The Reserve Bank of India Act, the Banking Regulation Act and the Companies Act do not occupy the field which the impugned Tamil Nadu Act occupies, though the latter may incidentally trench upon the former. The main object of the Tamil Nadu Act is to provide a solution to wipe out the tears of several lakhs of depositors to realize their dues effectively and speedily from the fraudulent financial establishments which duped them or their vendees, without dragging them in a legal battle from pillar to post. Hence, the decision of this Court in Delhi Cloth Mills (supra) has no bearing on the constitutional validity of the Tamil Nadu Act. 36. In the case of the Tamil Nadu Act, the attachment of properties is intended to provide an effective and speedy remedy to the aggrieved depositors for the realization of their dues. The offences dealt with in the impugned Act are unique and have been enacted to deal with the economic and social disorder in society, caused by the fraudulent activities of such financial establishments. 37. Under Section 3 & 4 of the Tamil Nadu Act, certain properties can be attached, and there is also provision for interim orders for attachment after which a post decisional hearing is provided for. In our opinion this is valid in view of the prevailing realities. 38. The Court should interpret the constitutional provisions against the social setting of the country and not in the abstract. The Court must take into consideration the economic realities and aspirations of the people and must further the social interest which is the purpose of legislation, as held by Justices Holmes, Brandeis and Frankfurter of the U.S. Supreme Court in a series of decisions. Hence the Courts cannot function in a vacuum. It is for this reason that Courts presume in favour of constitutionality of the statute because there is always a presumption that the legislature understands and correctly appreciates the needs of its own people, vide Govt. of Andhra Pradesh vs. P. Laxmi Devi (2008) 4 SCC 720 . 39. We fail to see how there is any violation of Article 14, 19(1)(g) or 21 of the Constitution. The Act is a salutary measure to remedy a great social evil. A systematic conspiracy was effected by certain fraudulent financial establishments which not only committed fraud on the depositor, but also siphoned off or diverted the depositors funds mala fide. We are of the opinion that the act of the financers in exploiting the depositors is a notorious abuse of faith of the depositors who innocently deposited their money with the former for higher rate of interest. These depositors were often given a small pass book as a token of acknowledgment of their deposit, which they considered as a passport of their children for higher education or wedding of their daughters or as a policy of medical insurance in the case of most of the aged depositors, but in reality in all cases it was an unsecured promise executed on a waste paper. The senior citizens above 80 years, senior citizens between 60 and 80 years, widows, handicapped, driven out by wards, retired government servants and pensioners, and persons living below the poverty line constituted the bulk of the depositors. Without the aid of the impugned Act, it would have been impossible to recover their deposits and interest thereon. 40. The conventional legal proceedings incurring huge expenses of court fees, advocates fees, apart from other inconveniences involved and the long delay in disposal of cases due to docket explosion in Courts, would not have made it possible for the depositors to recover their money, leave alone the interest thereon. Hence, in our opinion the impugned Act has rightly been enacted to enable the depositors to recover their money speedily by taking strong steps in this connection. 41. The State being the custodian of the welfare of the citizens as parens patriae cannot be a silent spectator without finding a solution for this malady. The financial swindlers, who are nothing but cheats and charlatans having no social responsibility, but only a lust for easy money by making false promise of attractive returns for the gullible investors, had to be dealt with strongly. 42. The small amounts collected from a substantial number of individual depositors culminated into huge amounts of money. These collections were diverted in the name of third parties and finally one day the fraudulent financers closed their financial establishments leaving the innocent depositors in the lurch. 43. Learned counsel for the appellant submitted that the appellant was only a bona fide purchaser of some plots of land from one Arun Kumar and Smt. Sulochana, and not from any financial establishment. We are not going into this question as it can be raised in appropriate proceedings. In this case we are only concerned with the constitutional validity of the Tamil Nadu Act. 44. We are of the opinion that there is no merit in this petition. The impugned Tamil Nadu Act is constitutionally valid. In fact, it is a salutary measure which was long overdue to deal with these scamsters who have been thriving like locusts in the country. ### Response: 0 ### Explanation: 9. We are of the opinion that none of these submissions have any merit10. A perusal of the Statement of Objects as well as the relevant provisions of the Tamil Nadu Act shows that its object was to ameliorate the situation of thousands of depositors from the clutches of financial establishments who had duped the investor public by offering high rates of interest on deposits and committed deliberate fraud in repayment of the principal and interest after maturity of such deposits. The Act provides for measures for attachment of the properties of the financial establishments as well as mala fide transferees and to bring these properties for sale for realization of the dues payable to the depositors speedily18. Learned counsel for the appellant relied on the Full Bench decision of the Bombay High Court in Vijay C. Punjals case (supra) in support of his contention that the Tamil Nadu Act, like the Maharasthra Act, was unconstitutional being beyond the legislative competence of the State Legislature. We do not agree21. The Bombay High Court has taken the view that the Maharashtra Act transgressed into the field reserved for Parliament. We do not agree. It is true that Section 58A of the Companies Act has been upheld by this Court in Delhi Cloth Mills Ltd vs. Union of India (1983) 4 SCC 166 and the provisions of Chapter IIIC of the Reserve Bank of India Act, 1934 was upheld by this Court in T. Velayndhan Achari vs. Union of India (1993) 2 SCC 582 . However, we are not in agreement with the Full Bench decision of the Bombay High Court that the subject matter covered by the said Act falls squarely within the subject matter of Section 58A and 58AA of the Companies Act22. We are of the opinion that the impugned Tamil Nadu Act enacted by the State Legislature is not in pith and substance referable to the legislative heads contained in List I of the Seventh Schedule to the Constitution though there may be some overlapping. In our opinion, in pith and substance the said Act comes under the entries in List II (the State List) of the Seventh Schedule23. It often happens that a legislation overlaps both Lists I as well as List II of the Seventh Schedule. In such circumstances, the doctrine of pith and substance is applied. We are of the opinion that in pith and substance the impugned State Act is referable to Entries 1, 30 and 31 of List II of the Seventh Schedule and not Entries 43, 44 and 45 of List I of the Seventh Schedule24. It is well-settled that incidental trenching in exercise of ancillary powers into a forbidden legislative territory is permissible vide Constitution Bench decision of this court in State of West Bengal etc. vs. Kesoram Industries Ltd & Ors etc. (2004) 10 SCC 201 (vide paras 31(4), (5) and (6) and 129 (5). Sharp and distinct lines of demarcation are not always possible and it is often impossible to prevent a certain amount of overlapping vide ITC Ltd. vs. State of Karnataka, 1985 (Supp) SCC 476 (para 17). We have to look at the legislation as a whole and there is a presumption that the legislature does not exceed its constitutional limits26. The doctrine of pith and substance means that an enactment which substantially falls within the powers expressly conferred by the Constitution upon a Legislature which enacted it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. The Court must consider what constitutes in pith and substance the true subject matter of the legislation. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid even though it incidentally trenches on matters beyond its legislative competence37. Under Section 3 & 4 of the Tamil Nadu Act, certain properties can be attached, and there is also provision for interim orders for attachment after which a post decisional hearing is provided for. In our opinion this is valid in view of the prevailing realities44. We are of the opinion that there is no merit in this petition. The impugned Tamil Nadu Act is constitutionally valid. In fact, it is a salutary measure which was long overdue to deal with these scamsters who have been thriving like locusts in the country

H.S. Ramchandra Rao Vs. Commissioner of Income Tax and Ors

1. Heard learned Counsel for the parties. 2. The issue involved in this appeal is essentially questioning the finding of fact recorded by the authorities below whether the amount received by the Appellant in the sum of Rs. 37,54,266 (Rupees thirty seven lakh fifty four thousand two hundred sixty six only) is capital receipt or revenue receipt in the hands of the Appellant. 3. The authorities below have concurrently found that going by the admission of the Appellant, the amount received by the Appellant cannot be treated as capital receipt but only as revenue receipt. For that, the authorities have relied on the statement given by the Appellant dt. 14th July, 2000 as also the ground No. 3 articulated by the Appellant in the appeal filed before the first appellate authority. 4. The substance of the admission is that the Appellant was holding the post of secretary of the institution [Paramahamsa Foundation (R) Trust] until 1996 but he left the institution after new members were elected as the managing committee. That being the case, the question of Appellant invoking the principle of capital asset does not arise. It may have been a different matter if it was a case of life time appointment of the Appellant as secretary of the concerned institution. No such evidence was produced by the Appellant before the AO or before us.

0[ds]That being the case, the question of Appellant invoking the principle of capital asset does not arise. It may have been a different matter if it was a case of life time appointment of the Appellant as secretary of the concerned institution. No such evidence was produced by the Appellant before the AO or before us.

### 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: 1. Heard learned Counsel for the parties. 2. The issue involved in this appeal is essentially questioning the finding of fact recorded by the authorities below whether the amount received by the Appellant in the sum of Rs. 37,54,266 (Rupees thirty seven lakh fifty four thousand two hundred sixty six only) is capital receipt or revenue receipt in the hands of the Appellant. 3. The authorities below have concurrently found that going by the admission of the Appellant, the amount received by the Appellant cannot be treated as capital receipt but only as revenue receipt. For that, the authorities have relied on the statement given by the Appellant dt. 14th July, 2000 as also the ground No. 3 articulated by the Appellant in the appeal filed before the first appellate authority. 4. The substance of the admission is that the Appellant was holding the post of secretary of the institution [Paramahamsa Foundation (R) Trust] until 1996 but he left the institution after new members were elected as the managing committee. That being the case, the question of Appellant invoking the principle of capital asset does not arise. It may have been a different matter if it was a case of life time appointment of the Appellant as secretary of the concerned institution. No such evidence was produced by the Appellant before the AO or before us. ### Response: 0 ### Explanation: That being the case, the question of Appellant invoking the principle of capital asset does not arise. It may have been a different matter if it was a case of life time appointment of the Appellant as secretary of the concerned institution. No such evidence was produced by the Appellant before the AO or before us.

Glass Chatons Importers & Users Vs. Union Of India

in Para 6(h) S. 3 itself is bad. In view of these submission the learned counsel was permitted to urge his contentions against the validity of Para 6(h) of the Imports (Control) Order, 1955 and also his limited attack against the validity of S. 3 of the Imports and Exports (Control) Act, 1947.4. The requirement as regards any goods that they cannot be imported except and in accordance with a licence is undoubtedly a restriction on the right to carry on trade in such goods and also on the right to acquire property. Learned counsel does not however contend that by itself this requirement of S. 3 of the Imports and Exports (Control) Act is an unreasonable restriction. His attack is only against the further restriction which follows from the provisions in Para 6(h) of the Order that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licences - "if the licensing authority decides to canalise imports and the distribution thereof through special or specialised agencies or channels". The argument is that the further restriction on the right to carry on trade and the right to acquire property that results from this provision is totally unreasonable.5. It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision. If therefore a canalization of imports is in the interest of the general public the refusal of import licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the general public. The real question therefore is : Is the canalization through special or specialized agencies or channels in the interests of the general public.6. A policy as regards imports forms an integral part of the general economic policy of the country which is to have due regard not only to its impact on the internal or international trade of the country but also on monetary policy, the development of agriculture and industries and even on the political policies of the country involving questions of friendship, neutrality or hostility with other countries. It may be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public. Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports - whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels - is in the general interests of the public. In this state of things the burden on the person challenging that the Government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its imports should be by a selected channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary is clearly shown. Consequently, we are unable to accept argument that a decision that imports shall be canalised, is per se not a reasonable restriction in the interests of the general public. We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge, the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be challenged on the ground that it infringes Art. 14 of the Constitution or some other fundamental rights. No such question has, however, been raised in the present case. The attack on the validity of Para 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that S. 3 of the Imports and Exports (Control) Act, 1947, is bad to the extent that it permits the Government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails.7. The attack on this provision in Para. 6(h) of the Order that it contravenes Art. 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. What happens if a licence is refused to an applicant under Para. 6(h) is that the applicant can no longer carry on trade in these goods. When licence is granted to the agencies or channels through which imports have been decided to be canalised, these agencies or channels can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had. Article 31 of the Constitution has, therefore, no application.8. It was next urged that the grant of licences to the third respondent, the State Trading Corporation of India while none has been granted to the second and the third petitioners has resulted in a denial of equal protection of law guaranteed by Art. 14 of the Constitution. If these petitioners had applied for licences under the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is no scope therefore for the argument that they have been discriminated against.

0[ds]2. It has to be mentioned at once that the period of the import permit "already granted" as referred to in the petition has already expired and consequently, the last two prayers mentioned above cannot possibly be granted. There was no application at all by the second and the third applicants, or any of the merchants who form the association, the 1st appellant (applicant?) for the issue of any import licences; there can be no question, therefore, of respondents 1 and 2 being given any preference over the petitioners in the grant of permits. Nor is there, as far as can be made out, any scheme to issue fresh licences in favour of the State Trading Corporation so that apart from what has already happened there is no question of any future action "to create a monopoly in favour of the State Trading Corporation". Therefore, the petitioners cannot be given any relief on the present application.It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision. If therefore a canalization of imports is in the interest of the general public the refusal of import licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the generalmay be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public. Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports - whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels - is in the general interests of the public. In this state of things the burden on the person challenging that the Government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its imports should be by a selected channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary is clearly shown. Consequently, we are unable to accept argument that a decision that imports shall be canalised, is per se not a reasonable restriction in the interests of the general public. We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge, the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be challenged on the ground that it infringes Art. 14 of the Constitution or some other fundamental rights. No such question has, however, been raised in the present case. The attack on the validity of Para 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that S. 3 of the Imports and Exports (Control) Act, 1947, is bad to the extent that it permits the Government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails.7. The attack on this provision in Para. 6(h) of the Order that it contravenes Art. 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. What happens if a licence is refused to an applicant under Para. 6(h) is that the applicant can no longer carry on trade in these goods. When licence is granted to the agencies or channels through which imports have been decided to be canalised, these agencies or channels can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had. Article 31 of the Constitution has, therefore, nothese petitioners had applied for licences under the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is no scope therefore for the argument that they have been discriminated against.

### 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: in Para 6(h) S. 3 itself is bad. In view of these submission the learned counsel was permitted to urge his contentions against the validity of Para 6(h) of the Imports (Control) Order, 1955 and also his limited attack against the validity of S. 3 of the Imports and Exports (Control) Act, 1947.4. The requirement as regards any goods that they cannot be imported except and in accordance with a licence is undoubtedly a restriction on the right to carry on trade in such goods and also on the right to acquire property. Learned counsel does not however contend that by itself this requirement of S. 3 of the Imports and Exports (Control) Act is an unreasonable restriction. His attack is only against the further restriction which follows from the provisions in Para 6(h) of the Order that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licences - "if the licensing authority decides to canalise imports and the distribution thereof through special or specialised agencies or channels". The argument is that the further restriction on the right to carry on trade and the right to acquire property that results from this provision is totally unreasonable.5. It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision. If therefore a canalization of imports is in the interest of the general public the refusal of import licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the general public. The real question therefore is : Is the canalization through special or specialized agencies or channels in the interests of the general public.6. A policy as regards imports forms an integral part of the general economic policy of the country which is to have due regard not only to its impact on the internal or international trade of the country but also on monetary policy, the development of agriculture and industries and even on the political policies of the country involving questions of friendship, neutrality or hostility with other countries. It may be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public. Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports - whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels - is in the general interests of the public. In this state of things the burden on the person challenging that the Government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its imports should be by a selected channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary is clearly shown. Consequently, we are unable to accept argument that a decision that imports shall be canalised, is per se not a reasonable restriction in the interests of the general public. We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge, the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be challenged on the ground that it infringes Art. 14 of the Constitution or some other fundamental rights. No such question has, however, been raised in the present case. The attack on the validity of Para 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that S. 3 of the Imports and Exports (Control) Act, 1947, is bad to the extent that it permits the Government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails.7. The attack on this provision in Para. 6(h) of the Order that it contravenes Art. 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. What happens if a licence is refused to an applicant under Para. 6(h) is that the applicant can no longer carry on trade in these goods. When licence is granted to the agencies or channels through which imports have been decided to be canalised, these agencies or channels can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had. Article 31 of the Constitution has, therefore, no application.8. It was next urged that the grant of licences to the third respondent, the State Trading Corporation of India while none has been granted to the second and the third petitioners has resulted in a denial of equal protection of law guaranteed by Art. 14 of the Constitution. If these petitioners had applied for licences under the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is no scope therefore for the argument that they have been discriminated against. ### Response: 0 ### Explanation: 2. It has to be mentioned at once that the period of the import permit "already granted" as referred to in the petition has already expired and consequently, the last two prayers mentioned above cannot possibly be granted. There was no application at all by the second and the third applicants, or any of the merchants who form the association, the 1st appellant (applicant?) for the issue of any import licences; there can be no question, therefore, of respondents 1 and 2 being given any preference over the petitioners in the grant of permits. Nor is there, as far as can be made out, any scheme to issue fresh licences in favour of the State Trading Corporation so that apart from what has already happened there is no question of any future action "to create a monopoly in favour of the State Trading Corporation". Therefore, the petitioners cannot be given any relief on the present application.It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision. If therefore a canalization of imports is in the interest of the general public the refusal of import licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the generalmay be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public. Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports - whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels - is in the general interests of the public. In this state of things the burden on the person challenging that the Government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its imports should be by a selected channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary is clearly shown. Consequently, we are unable to accept argument that a decision that imports shall be canalised, is per se not a reasonable restriction in the interests of the general public. We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge, the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be challenged on the ground that it infringes Art. 14 of the Constitution or some other fundamental rights. No such question has, however, been raised in the present case. The attack on the validity of Para 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that S. 3 of the Imports and Exports (Control) Act, 1947, is bad to the extent that it permits the Government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails.7. The attack on this provision in Para. 6(h) of the Order that it contravenes Art. 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. What happens if a licence is refused to an applicant under Para. 6(h) is that the applicant can no longer carry on trade in these goods. When licence is granted to the agencies or channels through which imports have been decided to be canalised, these agencies or channels can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had. Article 31 of the Constitution has, therefore, nothese petitioners had applied for licences under the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is no scope therefore for the argument that they have been discriminated against.

M/s. Bennet Coleman & Co. Ltd Vs. State of Bihar & Others

found due by the Labour Court may be recovered in the manner provided in sub-section(1)" 17. There is also a provision for penalty under Section 18 of the Working Journalists Act, which reads as follows:- "18. Penalty.- (1) If any employer contravenes any of the provisions of this Act or any rule or order made thereunder, he shall be punishable with fine which may extend to two hundred rupees. "(1A) Whoever, having been convicted of any offence under this Act, is again convicted of an offence involving the contravention of the same provision, shall be punishable with fine which may extend to five hundred rupees. (1B) Where an offence has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this section if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (1C) Notwithstanding anything contained in sub-section (1B), where an offence under this section has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to, any gross negligence on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. (1D) For the purposes of this section. - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this section. (3) No court shall take cognizance of an offence under this section, unless the complaint thereof is made within six months of the date on which the offence is alleged to have been committed." 18. Having regard to the scheme of the Working Journalists Act and having regard to the provisions of the I.D. Act, as incorporated by Section 3 of the Working Journalists Act, prosecution for unfair labour practice is maintainable only under Section 25U. Section 25U provides for penalty for committing unfair labour practice and Section 29 provides for penalty for breach of settlement or award. Section 2(ra) of the I.D. Act defines unfair labour practice. Settlement is defined under Section 2(p) to be a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and the workmen otherwise than in the course of conciliation proceedings. The recommendations of the Wage Board is thus neither an award nor a settlement in terms of the provisions under the I.D. Act. It is not passed by the Labour Court or Industrial Tribunal or National Industrial Tribunal and it is not an Arbitration Award in terms of Section 10A of the I.D. Act. It is not a settlement in terms of Section 2(b) of the I.D. Act. It is not an agreement between the parties. Its enforceability, being a recommendation, depends on the order passed by the Central Government. The Central Government has passed that order by issuing Annexure P1 notification. If the same is not complied with, as we have already referred to above, the remedies lie under Section 17 for recovery or under Section 18 for penalty and not under the provisions of the I.D. Act. 19. During the course of hearing, we are informed that the Employees Union have already taken recourse to the remedy under Section 17(2) of the Working Journalists Act with regard to the amounts due in terms of the notification issued by the Central Government under Section 12 and the same is pending before the Labour Court, Patna (Case Reference No.7/2013). If the Labour Court passes an appropriate award and in case the same is not implemented then alone there arises a question of prosecution under Section 25U read with Serial No.13 of the Fifth Schedule of the I.D. Act "Failure to implement award, settlement or agreement". 20. Learned counsel for the respondents has also made a submission that in terms of Section 11 of the Working Journalists Act, the Wage Board may exercise all powers of the Industrial Tribunal under I.D. Act to the extent relevant. Section 11(1) reads as follows:- "11. Powers and procedure of the Board.-(1) Subject to the provisions contained in sub-section (2), the Board may exercise all or any of the powers which an Industrial Tribunal constituted under the Industrial Disputes Act, 1947 (14 of 1947), exercises for the adjudication of an industrial dispute referred to it and shall, subject to the provisions contained in this Act, and the rules, if any, made thereunder have power to regulate its own procedure. " 21. A bare reading of the provision would show that the same provides for exercise of the powers of the Tribunal by the Wage Board in the process of making its recommendations in regulating its procedure. The provision does not make Wage Board a Tribunal. The Tribunal under the I.D. Act does not make recommendations, it passes award; whereas the Wage Board under the Working Journalists Act is competent only to make a recommendation in terms of Section 10 and after the notification of the recommendations by the Central Government if there is any dispute regarding any amount due under the notification, a dispute is raised under Section 17(2) of the Working Journalists Act and thereafter an award is passed by the Labour Court.

1[ds]18. Having regard to the scheme of the Working Journalists Act and having regard to the provisions of the I.D. Act, as incorporated by Section 3 of the Working Journalists Act, prosecution for unfair labour practice is maintainable only under Section 25U. Section 25U provides for penalty for committing unfair labour practice and Section 29 provides for penalty for breach of settlement or award. Section 2(ra) of the I.D. Act defines unfair labour practice. Settlement is defined under Section 2(p) to be a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and the workmen otherwise than in the course of conciliation proceedings. The recommendations of the Wage Board is thus neither an award nor a settlement in terms of the provisions under the I.D. Act. It is not passed by the Labour Court or Industrial Tribunal or National Industrial Tribunal and it is not an Arbitration Award in terms of Section 10A of the I.D. Act. It is not a settlement in terms of Section 2(b) of the I.D. Act. It is not an agreement between the parties. Its enforceability, being a recommendation, depends on the order passed by the Central Government. The Central Government has passed that order by issuing Annexure P1 notification. If the same is not complied with, as we have already referred to above, the remedies lie under Section 17 for recovery or under Section 18 for penalty and not under the provisions of the I.D. Act19. During the course of hearing, we are informed that the Employees Union have already taken recourse to the remedy under Section 17(2) of the Working Journalists Act with regard to the amounts due in terms of the notification issued by the Central Government under Section 12 and the same is pending before the Labour Court, Patna (Case Reference No.7/2013). If the Labour Court passes an appropriate award and in case the same is not implemented then alone there arises a question of prosecution under Section 25U read with Serial No.13 of the Fifth Schedule of the I.D. Act "Failure to implement award, settlement or agreement"21. A bare reading of the provision would show that the same provides for exercise of the powers of the Tribunal by the Wage Board in the process of making its recommendations in regulating its procedure. The provision does not make Wage Board a Tribunal. The Tribunal under the I.D. Act does not make recommendations, it passes award; whereas the Wage Board under the Working Journalists Act is competent only to make a recommendation in terms of Section 10 and after the notification of the recommendations by the Central Government if there is any dispute regarding any amount due under the notification, a dispute is raised under Section 17(2) of the Working Journalists Act and thereafter an award is passed by the Labour Court.

### 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: found due by the Labour Court may be recovered in the manner provided in sub-section(1)" 17. There is also a provision for penalty under Section 18 of the Working Journalists Act, which reads as follows:- "18. Penalty.- (1) If any employer contravenes any of the provisions of this Act or any rule or order made thereunder, he shall be punishable with fine which may extend to two hundred rupees. "(1A) Whoever, having been convicted of any offence under this Act, is again convicted of an offence involving the contravention of the same provision, shall be punishable with fine which may extend to five hundred rupees. (1B) Where an offence has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this section if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (1C) Notwithstanding anything contained in sub-section (1B), where an offence under this section has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to, any gross negligence on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. (1D) For the purposes of this section. - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this section. (3) No court shall take cognizance of an offence under this section, unless the complaint thereof is made within six months of the date on which the offence is alleged to have been committed." 18. Having regard to the scheme of the Working Journalists Act and having regard to the provisions of the I.D. Act, as incorporated by Section 3 of the Working Journalists Act, prosecution for unfair labour practice is maintainable only under Section 25U. Section 25U provides for penalty for committing unfair labour practice and Section 29 provides for penalty for breach of settlement or award. Section 2(ra) of the I.D. Act defines unfair labour practice. Settlement is defined under Section 2(p) to be a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and the workmen otherwise than in the course of conciliation proceedings. The recommendations of the Wage Board is thus neither an award nor a settlement in terms of the provisions under the I.D. Act. It is not passed by the Labour Court or Industrial Tribunal or National Industrial Tribunal and it is not an Arbitration Award in terms of Section 10A of the I.D. Act. It is not a settlement in terms of Section 2(b) of the I.D. Act. It is not an agreement between the parties. Its enforceability, being a recommendation, depends on the order passed by the Central Government. The Central Government has passed that order by issuing Annexure P1 notification. If the same is not complied with, as we have already referred to above, the remedies lie under Section 17 for recovery or under Section 18 for penalty and not under the provisions of the I.D. Act. 19. During the course of hearing, we are informed that the Employees Union have already taken recourse to the remedy under Section 17(2) of the Working Journalists Act with regard to the amounts due in terms of the notification issued by the Central Government under Section 12 and the same is pending before the Labour Court, Patna (Case Reference No.7/2013). If the Labour Court passes an appropriate award and in case the same is not implemented then alone there arises a question of prosecution under Section 25U read with Serial No.13 of the Fifth Schedule of the I.D. Act "Failure to implement award, settlement or agreement". 20. Learned counsel for the respondents has also made a submission that in terms of Section 11 of the Working Journalists Act, the Wage Board may exercise all powers of the Industrial Tribunal under I.D. Act to the extent relevant. Section 11(1) reads as follows:- "11. Powers and procedure of the Board.-(1) Subject to the provisions contained in sub-section (2), the Board may exercise all or any of the powers which an Industrial Tribunal constituted under the Industrial Disputes Act, 1947 (14 of 1947), exercises for the adjudication of an industrial dispute referred to it and shall, subject to the provisions contained in this Act, and the rules, if any, made thereunder have power to regulate its own procedure. " 21. A bare reading of the provision would show that the same provides for exercise of the powers of the Tribunal by the Wage Board in the process of making its recommendations in regulating its procedure. The provision does not make Wage Board a Tribunal. The Tribunal under the I.D. Act does not make recommendations, it passes award; whereas the Wage Board under the Working Journalists Act is competent only to make a recommendation in terms of Section 10 and after the notification of the recommendations by the Central Government if there is any dispute regarding any amount due under the notification, a dispute is raised under Section 17(2) of the Working Journalists Act and thereafter an award is passed by the Labour Court. ### Response: 1 ### Explanation: 18. Having regard to the scheme of the Working Journalists Act and having regard to the provisions of the I.D. Act, as incorporated by Section 3 of the Working Journalists Act, prosecution for unfair labour practice is maintainable only under Section 25U. Section 25U provides for penalty for committing unfair labour practice and Section 29 provides for penalty for breach of settlement or award. Section 2(ra) of the I.D. Act defines unfair labour practice. Settlement is defined under Section 2(p) to be a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and the workmen otherwise than in the course of conciliation proceedings. The recommendations of the Wage Board is thus neither an award nor a settlement in terms of the provisions under the I.D. Act. It is not passed by the Labour Court or Industrial Tribunal or National Industrial Tribunal and it is not an Arbitration Award in terms of Section 10A of the I.D. Act. It is not a settlement in terms of Section 2(b) of the I.D. Act. It is not an agreement between the parties. Its enforceability, being a recommendation, depends on the order passed by the Central Government. The Central Government has passed that order by issuing Annexure P1 notification. If the same is not complied with, as we have already referred to above, the remedies lie under Section 17 for recovery or under Section 18 for penalty and not under the provisions of the I.D. Act19. During the course of hearing, we are informed that the Employees Union have already taken recourse to the remedy under Section 17(2) of the Working Journalists Act with regard to the amounts due in terms of the notification issued by the Central Government under Section 12 and the same is pending before the Labour Court, Patna (Case Reference No.7/2013). If the Labour Court passes an appropriate award and in case the same is not implemented then alone there arises a question of prosecution under Section 25U read with Serial No.13 of the Fifth Schedule of the I.D. Act "Failure to implement award, settlement or agreement"21. A bare reading of the provision would show that the same provides for exercise of the powers of the Tribunal by the Wage Board in the process of making its recommendations in regulating its procedure. The provision does not make Wage Board a Tribunal. The Tribunal under the I.D. Act does not make recommendations, it passes award; whereas the Wage Board under the Working Journalists Act is competent only to make a recommendation in terms of Section 10 and after the notification of the recommendations by the Central Government if there is any dispute regarding any amount due under the notification, a dispute is raised under Section 17(2) of the Working Journalists Act and thereafter an award is passed by the Labour Court.

S. Satnam Singh Vs. Surnder Kaur

that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility." The said principle was reiterated in Mool Chand & Ors. v. Dy. Director, Consolidation & Ors. [AIR 1995 SC 2493 ], stating: "The definition of ‘decree contained in Section 2 (2) read with the provisions contained in Order 20, Rule 18(2) as also Order 26, Rule 14 of the Code indicate that a preliminary decree has first to be passed in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in question are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the Court and the suit is treated to have come to an end for all practical purposes." 19. Mr. Chaudhary, however, has placed strong reliance in Venkata Reddy & Ors. v. Pethi Reddy [AIR 1963 SC 992 ], wherein it was held : "A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." 20. Indisputably, Section 97 of the Code of Civil Procedure provides for an appeal against preliminary decree but the said provision, in our opinion, would not be a bar to file an application for amendment of a decree. 21. The court may not have a suo motu power to amend a decree but the same would not mean that the court cannot rectify a mistake. If a property was subject matter of pleadings and the court did not frame an issue which it ought to have done, it can, at a later stage, when pointed out, may amend the decree. 22. The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it has committed. 23. The issues were not correctly framed. An additional written statement was permitted to be filed. A replication thereto also was allowed. It was in that situation, the question as to whether the business transaction of Bombay Cycle Company could be a subject matter of the suit for partition or not was required to be determined on its own merits. 24. The Trial Court felt that it had committed a mistake. In such a situation, the court, in our opinion, committed no infirmity in directing rectification of its mistake. 25. For the reasons aforementioned, the

1[ds]The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it hasissues were not correctly framed. An additional written statement was permitted to be filed. A replication thereto also was allowed. It was in that situation, the question as to whether the business transaction of Bombay Cycle Company could be a subject matter of the suit for partition or not was required to be determined on its ownTrial Court felt that it had committed a mistake. In such a situation, the court, in our opinion, committed no infirmity in directing rectification of its mistake.

### 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: that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility." The said principle was reiterated in Mool Chand & Ors. v. Dy. Director, Consolidation & Ors. [AIR 1995 SC 2493 ], stating: "The definition of ‘decree contained in Section 2 (2) read with the provisions contained in Order 20, Rule 18(2) as also Order 26, Rule 14 of the Code indicate that a preliminary decree has first to be passed in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in question are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the Court and the suit is treated to have come to an end for all practical purposes." 19. Mr. Chaudhary, however, has placed strong reliance in Venkata Reddy & Ors. v. Pethi Reddy [AIR 1963 SC 992 ], wherein it was held : "A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." 20. Indisputably, Section 97 of the Code of Civil Procedure provides for an appeal against preliminary decree but the said provision, in our opinion, would not be a bar to file an application for amendment of a decree. 21. The court may not have a suo motu power to amend a decree but the same would not mean that the court cannot rectify a mistake. If a property was subject matter of pleadings and the court did not frame an issue which it ought to have done, it can, at a later stage, when pointed out, may amend the decree. 22. The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it has committed. 23. The issues were not correctly framed. An additional written statement was permitted to be filed. A replication thereto also was allowed. It was in that situation, the question as to whether the business transaction of Bombay Cycle Company could be a subject matter of the suit for partition or not was required to be determined on its own merits. 24. The Trial Court felt that it had committed a mistake. In such a situation, the court, in our opinion, committed no infirmity in directing rectification of its mistake. 25. For the reasons aforementioned, the ### Response: 1 ### Explanation: The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it hasissues were not correctly framed. An additional written statement was permitted to be filed. A replication thereto also was allowed. It was in that situation, the question as to whether the business transaction of Bombay Cycle Company could be a subject matter of the suit for partition or not was required to be determined on its ownTrial Court felt that it had committed a mistake. In such a situation, the court, in our opinion, committed no infirmity in directing rectification of its mistake.

Kerala State Electricity Board Vs. Hitech. Elect.& Hydro Power Ltd.

literal interpretation to the incentive scheme of the Government, as adopted by the Electricity Board. In this context this Court considered documents on record which were produced before the Court and reached the conclusion that the respondent had been communicating with the Board seeking power connection at an early date so that it could start commercial production by December 31, 1996. It had also brought to the notice of the Board that it had made all other arrangements to commence commercial production but there was inaction on the part of the Electricity Board in providing electrical energy to the respondent. This Court also noticed the contents of a letter of the respondent on which considerable reliance was placed by the Electricity Board which contended that having regard to the contents of the aforesaid letter, it was apparent that the respondent could not possibly commence commercial production by December 31, 1996. This contention was rejected by this Court. In the given circumstances this Court held that the respondent was alteast entitled to concessional tariff for a period of 3 years instead of 5 years as indicated in the Industrial Policy as that would meet the ends of justice. 7. Mr. T.L. Viswanatha Iyer, learned senior counsel appearing on behalf of the Kerala State Electricity Board has taken us through several letters which were on record and argued before us that having regard to the correspondence exchanged between the parties it is apparent that there was no material before this Court to hold that the respondent was ready in all respects to receive electrical energy before the specified date. This Court was, therefore, not right in granting relief on equitable consideration since the respondent did not fulfil the condition precedent for claiming benefit under the Industrial Policy. On the other hand Dr. A.M. Singhvi, learned senior counsel appearing on behalf of the respondent submitted that there is correspondence on record which would establish that the respondent was ready for commissioning of its plant and going into commercial production, but on account of delay and latches as well as inaction on the part of the Electricity Board it could not do so. This Court was, therefore, justified in granting limited relief on equitable consideration.8. It was also urged on behalf of the Electricity Board that learned counsel appearing on behalf of the Board made a concession which he had no authority to make. The respondent on the other hand contended that the learned counsel appearing on behalf of the Board did not make any concession and vehemently contested the matter before this Court. The submission made by him regarding grant of relief on equitable consideration was only in the alternative i.e. in case his contention on merit did not find favour with this Court. He also relied upon several decisions of this Court holding that a review petition cannot be treated as an appeal in disguise. 9. Having heard them at length, we are of the considered view that this review petition must be rejected. While it is true that a forceful argument has been advanced by the Electricity Board on the basis of the correspondence exchanged between the parties, at the same time learned counsel for the respondent has also brought to our notice some other letters which formed part of the correspondence between the parties, which tend to support his plea that the respondent was ready and prepared to accept the supply of electrical energy but the same was not given promptly by the Electricity Board.10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commercial production by December 31, 1996. This is a finding of fact recorded by this Court on the basis of the appreciation of evidence produced before the Court. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the Court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.11. We are also of the view that learned counsel appearing for the Board made no concession before this Court. A mere perusal of the judgment of this Court discloses that he urged all submissions on behalf of the Board with great vehemence. There is an observation in the judgment which is as follows :- "Mr. Rohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant". 12. This observation cannot be read in isolation because we find that thereafter this Court proceeded to examine the Industrial Policy of the Government and came to its conclusions on the basis of its analysis of the policy and the evidence on record. We do not find that the judgment of this Court proceeds on any concession made by learned counsel appearing on behalf of the Electricity Board.

0[ds]9. Having heard them at length, we are of the considered view that this review petition must be rejected. While it is true that a forceful argument has been advanced by the Electricity Board on the basis of the correspondence exchanged between the parties, at the same time learned counsel for the respondent has also brought to our notice some other letters which formed part of the correspondence between the parties, which tend to support his plea that the respondent was ready and prepared to accept the supply of electrical energy but the same was not given promptly by the Electricity Board.10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commercial production by December 31, 1996. This is a finding of fact recorded by this Court on the basis of the appreciation of evidence produced before the Court. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the Court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.11. We are also of the view that learned counsel appearing for the Board made no concession before this Court. A mere perusal of the judgment of this Court discloses that he urged all submissions on behalf of the Board with great vehemence. There is an observation in the judgment which is as followsRohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant".This observation cannot be read in isolation because we find that thereafter this Court proceeded to examine the Industrial Policy of the Government and came to its conclusions on the basis of its analysis of the policy and the evidence on record. We do not find that the judgment of this Court proceeds on any concession made by learned counsel appearing on behalf of the Electricity Board.

### 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: literal interpretation to the incentive scheme of the Government, as adopted by the Electricity Board. In this context this Court considered documents on record which were produced before the Court and reached the conclusion that the respondent had been communicating with the Board seeking power connection at an early date so that it could start commercial production by December 31, 1996. It had also brought to the notice of the Board that it had made all other arrangements to commence commercial production but there was inaction on the part of the Electricity Board in providing electrical energy to the respondent. This Court also noticed the contents of a letter of the respondent on which considerable reliance was placed by the Electricity Board which contended that having regard to the contents of the aforesaid letter, it was apparent that the respondent could not possibly commence commercial production by December 31, 1996. This contention was rejected by this Court. In the given circumstances this Court held that the respondent was alteast entitled to concessional tariff for a period of 3 years instead of 5 years as indicated in the Industrial Policy as that would meet the ends of justice. 7. Mr. T.L. Viswanatha Iyer, learned senior counsel appearing on behalf of the Kerala State Electricity Board has taken us through several letters which were on record and argued before us that having regard to the correspondence exchanged between the parties it is apparent that there was no material before this Court to hold that the respondent was ready in all respects to receive electrical energy before the specified date. This Court was, therefore, not right in granting relief on equitable consideration since the respondent did not fulfil the condition precedent for claiming benefit under the Industrial Policy. On the other hand Dr. A.M. Singhvi, learned senior counsel appearing on behalf of the respondent submitted that there is correspondence on record which would establish that the respondent was ready for commissioning of its plant and going into commercial production, but on account of delay and latches as well as inaction on the part of the Electricity Board it could not do so. This Court was, therefore, justified in granting limited relief on equitable consideration.8. It was also urged on behalf of the Electricity Board that learned counsel appearing on behalf of the Board made a concession which he had no authority to make. The respondent on the other hand contended that the learned counsel appearing on behalf of the Board did not make any concession and vehemently contested the matter before this Court. The submission made by him regarding grant of relief on equitable consideration was only in the alternative i.e. in case his contention on merit did not find favour with this Court. He also relied upon several decisions of this Court holding that a review petition cannot be treated as an appeal in disguise. 9. Having heard them at length, we are of the considered view that this review petition must be rejected. While it is true that a forceful argument has been advanced by the Electricity Board on the basis of the correspondence exchanged between the parties, at the same time learned counsel for the respondent has also brought to our notice some other letters which formed part of the correspondence between the parties, which tend to support his plea that the respondent was ready and prepared to accept the supply of electrical energy but the same was not given promptly by the Electricity Board.10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commercial production by December 31, 1996. This is a finding of fact recorded by this Court on the basis of the appreciation of evidence produced before the Court. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the Court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.11. We are also of the view that learned counsel appearing for the Board made no concession before this Court. A mere perusal of the judgment of this Court discloses that he urged all submissions on behalf of the Board with great vehemence. There is an observation in the judgment which is as follows :- "Mr. Rohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant". 12. This observation cannot be read in isolation because we find that thereafter this Court proceeded to examine the Industrial Policy of the Government and came to its conclusions on the basis of its analysis of the policy and the evidence on record. We do not find that the judgment of this Court proceeds on any concession made by learned counsel appearing on behalf of the Electricity Board. ### Response: 0 ### Explanation: 9. Having heard them at length, we are of the considered view that this review petition must be rejected. While it is true that a forceful argument has been advanced by the Electricity Board on the basis of the correspondence exchanged between the parties, at the same time learned counsel for the respondent has also brought to our notice some other letters which formed part of the correspondence between the parties, which tend to support his plea that the respondent was ready and prepared to accept the supply of electrical energy but the same was not given promptly by the Electricity Board.10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commercial production by December 31, 1996. This is a finding of fact recorded by this Court on the basis of the appreciation of evidence produced before the Court. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the Court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.11. We are also of the view that learned counsel appearing for the Board made no concession before this Court. A mere perusal of the judgment of this Court discloses that he urged all submissions on behalf of the Board with great vehemence. There is an observation in the judgment which is as followsRohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant".This observation cannot be read in isolation because we find that thereafter this Court proceeded to examine the Industrial Policy of the Government and came to its conclusions on the basis of its analysis of the policy and the evidence on record. We do not find that the judgment of this Court proceeds on any concession made by learned counsel appearing on behalf of the Electricity Board.

Suneet Gupta Vs. Anil Triloknath Sharma

of the fact that even the complainant had informed the principal that there was dispute between the partners of M/s K.M. Agencies and hence no payment should be made to M/s Mangla Agencies till the dispute was finally resolved between the parties. That, however, does not give rise to criminal liability and entitle the complainant to initiate criminal proceedings, particularly when M/s Johnson & Johnson Ltd. substituted in the Company record name of M/s Mangla Agencies in place of M/s K.M. Agencies. The resultant effect of substitution of name was that whatever sums were due to M/s K.M. Agencies were considered to be due to M/s Mangla Agencies. 14. The High Court, in the circumstances, observed as under; "This is really a case of one partner trying to drag the principal company into a criminal litigation to recover dues which the principal had paid to the other partner. The dispute and the relationship inter se has become a tripartite one. Suneet Gupta had a dispute with Shashi Kant Mangla but instead of tackling him he got lodged F.I.R. No. 266 dated September 16, 2003 registered at Police Station Sarabha Nagar, Ludhiana, under Sections 468/406/120-BIPC to pressurize the petitioners to settle the matter. It is not a clear cut and direct case in which any contractual relationship between Suneet Gupta with the company has been breached. Indeed Suneet Gupta had no direct relationship with the company. It was M/s K.M. Aencies of which he was one of the partners which had developed contractual relationship and later in June/July, 2001, M/s Mangla Agencies got substituted in place of M/s K.M. Agencies. Suneet Gupta either ignored this development or remained oblivious of it for nearly 2 years. The first notice was issued after passage of long time on March 4, 2003. This notice was clearly to drag the company into the inter se dispute between two partners." 15. The Court proceeded to state; "The complaint of Suneet Gupta and the steps taken by the police have clearly converted a tri-partite civil dispute into a criminal one and have involved the managers of the principals in a dispute between the partners of the firm." 16. The High Court, therefore, concluded that the steps taken by the complainant Suneet Gupta were in clear abuse of process of law and accordingly allowed both the petitions.17. By passing the impugned order and quashing criminal proceedings, in our opinion, the High Court has neither committed any error of law nor of jurisdiction which deserves interference in exercise of power under Article 136 of the Constitution.18. Our attention has been invited by the learned counsel for the accused to several decisions of this Court. In our opinion, however, it is not necessary to refer to those decisions since we are of the view that the High Court was right in quashing criminal proceedings. 19. We may, however, refer to one aspect. Learned Counsel for the appellant strenuously relied upon an order of this Court in State of Punjab v. Dharam Vir Singh Jethi, 1994 SCC (Cri) 500. In that case, charge-sheet was submitted by Police and thereafter FIR was quashed by the High Court. 20. In the light of the said fact, this Court observed; "Heard learned counsel for the State as well as the contesting respondent. We are afraid that the High Court was not right in quashing the First Information Report on the plea that the said respondent had no role to play and was never the custodian of the paddy in question. In fact it was averred in the counter-affidavit filed in the High Court that the said respondent had acted in collusion with Kashmira Singh resulting in the latter misappropriating the paddy in question. At the relevant point of time the respondent concerned, it is alleged, was in overall charge of the Government Seed Farm, Trehan. This allegation forms the basis of the involvement of the respondent concerned. The High Court was, therefore, wrong in saying that the respondent concerned had no role to play. A specific role is assigned to him, it may be proved or may fail. In any case, pursuant to the First Information Report the investigation was undertaken and a charge-sheet or a police report under Section 173(2) of the Code of Criminal Procedure was filed in the court. If the investigation papers annexed to the charge-sheet do not disclose the commission of any crime by the respondent concerned, it would be open to the court to refuse to frame a charge, but quashing of the First Information Report was not permissible." 21. In our opinion, however, the ratio laid down in the above case will not apply to the facts of the case. As already indicated in the earlier part of the judgment, FIR was lodged by the complainant on September 16, 2003 and immediately within less than a month, the accused invoked the jurisdiction of the High Court under Section 482 of the Code by filing petitions on October 12, 2003. At that time, challan was not filed in the Court. It was after a substantial period of about seven months that on May 13, 2004, charge-sheet was filed by the police authorities. Moreover, in Dharam Vir Singh, the accused was shown to be in possession of property and later on misappropriated it. The High Court, however, quashed the proceedings inter alia observing that the accused was never the custodian of paddy and was not in charge of the Government Seed Farm which was factually incorrect. In the light of factual scenario, this Court set aside the order of the High Court quashing criminal proceedings.22. In the case on hand, the High Court was right in coming to the conclusion that a civil dispute - pure and simple - between the parties was sought to be converted into a criminal offence only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and has been rightly prevented by the High Court.

0[ds]12. Having heard the learned counsel for the parties and having considered the rival contentions, in our opinion, it cannot be said that the High Court was wrong in quashing criminal proceedings. It is clear from the case put forward by the appellant himself that virtually the proceedings were civil in nature. There were two partnership firms, one M/s K.M. Agencies, consisting of appellant and Shashi Kant Mangla and the other of M/s Mangla Agencies wherein Ravi Kant Mangla (one of the partners of M/s K.M. Agencies) was a partner. It was the case of Shashi Kant Mangla that M/s K.M. Agencies was no more in existence and it had changed its name from M/s K.M. Agencies to M/s Mangla Agencies and all the transactions of M/s K.M. Agencies would thereafter be dealt with by M/s Mangla Agencies. Obviously, therefore, payments which were to be made to M/s K.M. Agencies should be made to M/s Mangla Agencies. It also appears that M/s Johnson & Johnson Ltd. was informed which changed the Code from M/s K.M. Agencies to M/s Mangla Agencies. It is further clear that though payments were made in June-July, 2001 by M/s Johnson & Johnson Ltd. to M/s Mangla Agencies, a notice through an advocate was issued by the complainant only on March 4, 2003, i.e. after substantial period about two years. A complaint was made to Director General of Police, Chandigarh by the complainant in May, 2003. The record further reveals, as stated by respondent Nos. 1, 2 and 3 in the counter-affidavit, that it was contended by the accused that the matter was civil in nature and based on commercial transactions and there was a dispute between the parties and as such there was no element of mens rea. It was also submitted by the accused that the complainant, with an ulterior motive and mala fide intention, used pressure tactics and was harassing them in connivance with local police and filed a complaint on May 2, 2003. The police authorities were convinced about the nature of dispute and after seeking legal opinion from District Attorney closed the proceedings. Subsequently, however, the complainant after making cosmetic changes in the earlier complaint and using undue influence filed FIR No. 266 of 2003 on September 16, 2003 for commission of offences punishable under Sections 468, 406 read with 120B, IPC. According to the accused, it was motivated and the police authorities obliged the complainant by helping him.13. The High Court, in our opinion, rightly considered the facts in their proper perspective and observed that the dispute related to settlement of accounts between principal and its agent; the principal being M/s Johnson & Johnson Ltd. and the agent being M/s K.M. Agencies (earlier) and M/s Mangla Agencies (later). The High Court also noted that it was M/s K.M. Agencies which informed the principal i.e. M/s Johnson & Johnson Ltd. that M/s K.M. Agencies had closed its business and the business was thereafter continued by M/s Mangla Agencies and all drafts be issued in favour of M/s Mangla Agencies. The High Court took note of the fact that even the complainant had informed the principal that there was dispute between the partners of M/s K.M. Agencies and hence no payment should be made to M/s Mangla Agencies till the dispute was finally resolved between the parties. That, however, does not give rise to criminal liability and entitle the complainant to initiate criminal proceedings, particularly when M/s Johnson & Johnson Ltd. substituted in the Company record name of M/s Mangla Agencies in place of M/s K.M. Agencies. The resultant effect of substitution of name was that whatever sums were due to M/s K.M. Agencies were considered to be due to M/s Mangla Agencies.The High Court, therefore, concluded that the steps taken by the complainant Suneet Gupta were in clear abuse of process of law and accordingly allowed both the petitions.17. By passing the impugned order and quashing criminal proceedings, in our opinion, the High Court has neither committed any error of law nor of jurisdiction which deserves interference in exercise of power under Article 136 of the Constitution.18. Our attention has been invited by the learned counsel for the accused to several decisions of this Court. In our opinion, however, it is not necessary to refer to those decisions since we are of the view that the High Court was right in quashing criminal proceedings.proceedings.22. In the case on hand, the High Court was right in coming to the conclusion that a civil dispute - pure and simple - between the parties was sought to be converted into a criminal offence only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and has been rightly prevented by the High 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: of the fact that even the complainant had informed the principal that there was dispute between the partners of M/s K.M. Agencies and hence no payment should be made to M/s Mangla Agencies till the dispute was finally resolved between the parties. That, however, does not give rise to criminal liability and entitle the complainant to initiate criminal proceedings, particularly when M/s Johnson & Johnson Ltd. substituted in the Company record name of M/s Mangla Agencies in place of M/s K.M. Agencies. The resultant effect of substitution of name was that whatever sums were due to M/s K.M. Agencies were considered to be due to M/s Mangla Agencies. 14. The High Court, in the circumstances, observed as under; "This is really a case of one partner trying to drag the principal company into a criminal litigation to recover dues which the principal had paid to the other partner. The dispute and the relationship inter se has become a tripartite one. Suneet Gupta had a dispute with Shashi Kant Mangla but instead of tackling him he got lodged F.I.R. No. 266 dated September 16, 2003 registered at Police Station Sarabha Nagar, Ludhiana, under Sections 468/406/120-BIPC to pressurize the petitioners to settle the matter. It is not a clear cut and direct case in which any contractual relationship between Suneet Gupta with the company has been breached. Indeed Suneet Gupta had no direct relationship with the company. It was M/s K.M. Aencies of which he was one of the partners which had developed contractual relationship and later in June/July, 2001, M/s Mangla Agencies got substituted in place of M/s K.M. Agencies. Suneet Gupta either ignored this development or remained oblivious of it for nearly 2 years. The first notice was issued after passage of long time on March 4, 2003. This notice was clearly to drag the company into the inter se dispute between two partners." 15. The Court proceeded to state; "The complaint of Suneet Gupta and the steps taken by the police have clearly converted a tri-partite civil dispute into a criminal one and have involved the managers of the principals in a dispute between the partners of the firm." 16. The High Court, therefore, concluded that the steps taken by the complainant Suneet Gupta were in clear abuse of process of law and accordingly allowed both the petitions.17. By passing the impugned order and quashing criminal proceedings, in our opinion, the High Court has neither committed any error of law nor of jurisdiction which deserves interference in exercise of power under Article 136 of the Constitution.18. Our attention has been invited by the learned counsel for the accused to several decisions of this Court. In our opinion, however, it is not necessary to refer to those decisions since we are of the view that the High Court was right in quashing criminal proceedings. 19. We may, however, refer to one aspect. Learned Counsel for the appellant strenuously relied upon an order of this Court in State of Punjab v. Dharam Vir Singh Jethi, 1994 SCC (Cri) 500. In that case, charge-sheet was submitted by Police and thereafter FIR was quashed by the High Court. 20. In the light of the said fact, this Court observed; "Heard learned counsel for the State as well as the contesting respondent. We are afraid that the High Court was not right in quashing the First Information Report on the plea that the said respondent had no role to play and was never the custodian of the paddy in question. In fact it was averred in the counter-affidavit filed in the High Court that the said respondent had acted in collusion with Kashmira Singh resulting in the latter misappropriating the paddy in question. At the relevant point of time the respondent concerned, it is alleged, was in overall charge of the Government Seed Farm, Trehan. This allegation forms the basis of the involvement of the respondent concerned. The High Court was, therefore, wrong in saying that the respondent concerned had no role to play. A specific role is assigned to him, it may be proved or may fail. In any case, pursuant to the First Information Report the investigation was undertaken and a charge-sheet or a police report under Section 173(2) of the Code of Criminal Procedure was filed in the court. If the investigation papers annexed to the charge-sheet do not disclose the commission of any crime by the respondent concerned, it would be open to the court to refuse to frame a charge, but quashing of the First Information Report was not permissible." 21. In our opinion, however, the ratio laid down in the above case will not apply to the facts of the case. As already indicated in the earlier part of the judgment, FIR was lodged by the complainant on September 16, 2003 and immediately within less than a month, the accused invoked the jurisdiction of the High Court under Section 482 of the Code by filing petitions on October 12, 2003. At that time, challan was not filed in the Court. It was after a substantial period of about seven months that on May 13, 2004, charge-sheet was filed by the police authorities. Moreover, in Dharam Vir Singh, the accused was shown to be in possession of property and later on misappropriated it. The High Court, however, quashed the proceedings inter alia observing that the accused was never the custodian of paddy and was not in charge of the Government Seed Farm which was factually incorrect. In the light of factual scenario, this Court set aside the order of the High Court quashing criminal proceedings.22. In the case on hand, the High Court was right in coming to the conclusion that a civil dispute - pure and simple - between the parties was sought to be converted into a criminal offence only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and has been rightly prevented by the High Court. ### Response: 0 ### Explanation: 12. Having heard the learned counsel for the parties and having considered the rival contentions, in our opinion, it cannot be said that the High Court was wrong in quashing criminal proceedings. It is clear from the case put forward by the appellant himself that virtually the proceedings were civil in nature. There were two partnership firms, one M/s K.M. Agencies, consisting of appellant and Shashi Kant Mangla and the other of M/s Mangla Agencies wherein Ravi Kant Mangla (one of the partners of M/s K.M. Agencies) was a partner. It was the case of Shashi Kant Mangla that M/s K.M. Agencies was no more in existence and it had changed its name from M/s K.M. Agencies to M/s Mangla Agencies and all the transactions of M/s K.M. Agencies would thereafter be dealt with by M/s Mangla Agencies. Obviously, therefore, payments which were to be made to M/s K.M. Agencies should be made to M/s Mangla Agencies. It also appears that M/s Johnson & Johnson Ltd. was informed which changed the Code from M/s K.M. Agencies to M/s Mangla Agencies. It is further clear that though payments were made in June-July, 2001 by M/s Johnson & Johnson Ltd. to M/s Mangla Agencies, a notice through an advocate was issued by the complainant only on March 4, 2003, i.e. after substantial period about two years. A complaint was made to Director General of Police, Chandigarh by the complainant in May, 2003. The record further reveals, as stated by respondent Nos. 1, 2 and 3 in the counter-affidavit, that it was contended by the accused that the matter was civil in nature and based on commercial transactions and there was a dispute between the parties and as such there was no element of mens rea. It was also submitted by the accused that the complainant, with an ulterior motive and mala fide intention, used pressure tactics and was harassing them in connivance with local police and filed a complaint on May 2, 2003. The police authorities were convinced about the nature of dispute and after seeking legal opinion from District Attorney closed the proceedings. Subsequently, however, the complainant after making cosmetic changes in the earlier complaint and using undue influence filed FIR No. 266 of 2003 on September 16, 2003 for commission of offences punishable under Sections 468, 406 read with 120B, IPC. According to the accused, it was motivated and the police authorities obliged the complainant by helping him.13. The High Court, in our opinion, rightly considered the facts in their proper perspective and observed that the dispute related to settlement of accounts between principal and its agent; the principal being M/s Johnson & Johnson Ltd. and the agent being M/s K.M. Agencies (earlier) and M/s Mangla Agencies (later). The High Court also noted that it was M/s K.M. Agencies which informed the principal i.e. M/s Johnson & Johnson Ltd. that M/s K.M. Agencies had closed its business and the business was thereafter continued by M/s Mangla Agencies and all drafts be issued in favour of M/s Mangla Agencies. The High Court took note of the fact that even the complainant had informed the principal that there was dispute between the partners of M/s K.M. Agencies and hence no payment should be made to M/s Mangla Agencies till the dispute was finally resolved between the parties. That, however, does not give rise to criminal liability and entitle the complainant to initiate criminal proceedings, particularly when M/s Johnson & Johnson Ltd. substituted in the Company record name of M/s Mangla Agencies in place of M/s K.M. Agencies. The resultant effect of substitution of name was that whatever sums were due to M/s K.M. Agencies were considered to be due to M/s Mangla Agencies.The High Court, therefore, concluded that the steps taken by the complainant Suneet Gupta were in clear abuse of process of law and accordingly allowed both the petitions.17. By passing the impugned order and quashing criminal proceedings, in our opinion, the High Court has neither committed any error of law nor of jurisdiction which deserves interference in exercise of power under Article 136 of the Constitution.18. Our attention has been invited by the learned counsel for the accused to several decisions of this Court. In our opinion, however, it is not necessary to refer to those decisions since we are of the view that the High Court was right in quashing criminal proceedings.proceedings.22. In the case on hand, the High Court was right in coming to the conclusion that a civil dispute - pure and simple - between the parties was sought to be converted into a criminal offence only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and has been rightly prevented by the High Court.

Kabushiki Kaisha Toshiba Vs. Tosiba Appliances Co.

that it had been maintaining service centres in India in respect of washing machines, stating: "Thus, to summarize:(a) TOSHIBA has several joint venture agreements in India, for various products including VCRS, colour picture tubes, batteries. etc.(b) TOSHIBA has technical collaboration agreements for manufacture of various products in India including body scanners, ultra sound equipments, PIP televisions etc.(c) TOSHIBA has several service centres in India in the cities of New Delhi, Bombay, Madras, Calcutta, Baroda, Bhopal, Cochin, Kerala and Bangalore for repairing various electronic and electrical products including televisions, VCRS, ovens, music systems, washing machines etc.(d) TOSHIBA has sold several goods in India under the trade mark TOSHIBA including electric motors and accessories, generators, fax machine, whole body C.T. scanners & ultrasound equipment, circuit breakers, transistors, integrated circuits, colour TV sets, engineering, samples and spare parts for televisions, VCRs, cassette recorders, microwave equipment and various other goods to actual users and authorized service centres." The learned Single Judge also noticed the said contention in the following terms: "I come now to the two limbs of Section 46(1)(a). I propose to take up first the limb regarding use of the mark in relation to washing machines and spin dryers upto a date when one month prior to the rectification application. The only evidence of use of the mark, produced by the appellant, if use it can be called is at page 190 of the paper-book which is an advertisement of a freezer and a washing machine of Toshiba published on the 27th August 1985 in the Indian Express, New Delhi, also mentioning therein certain service centres. Now, this is no use of the mark in relation to the goods within the meaning of the Trade Marks Act." The Division Bench also did so, stating: "On the merits the learned Judge also found and this has not been disputed in appeal that the only evidence of the use of the registered mark produced by the appellant is an advertisement of a freezer and washing machine of Toshiba published on 27th August, 1985 in the Indian Express, New Delhi and in that advertisement there was mention of five service centres. The learned Judge also found that such a solitary advertisement is not use of the mark in relation to the goods within the meaning of Section 2(2)(b) of the Act. The learned Judge found that when there are no goods at all in physical existence, there can be no use of the mark in relation to those goods. The learned Judge also found that however, big or famous the establishment of the appellant may be, the use of the mark must be made in India and not abroad and that mere use of the mark for one advertisement is insufficient as use otherwise such a use may amount to trafficking in trade mark." 54. Appellant had to maintain the service centres because although they were not in a position to manufacture washing machines or spin dryers or market the same because of the ban imposed by the Central Government, but it had been rendering the services to those who had been importing the said machines. On the one hand, appellant had not been using its registered trade mark effectively but on the other hand there was a finding that it did not intend to abandon the said right. It intended to enforce its right under the Act as against the respondent, suit was filed by it as far back as in the year 1990. Mr. Gupta commented that the very fact that the appellant did not obtain any order of injunction as against the respondent for more than 17 years itself indicates that it was not serious in pursuing its case before the High Court.55. This is one side of the picture. The other side is that there has been no injunction as against the respondent. It was free to market its products in the name of TOSIBA. It had also, however, not been manufacturing washing machine and spin dryers. A finding of fact has been arrived at by the learned Single Judge, which has not been overturned by the Division Bench that the respondent never had any intention to manufacture the said goods.The balancing act between the user of registered trade mark and non-user should be such which leads to the possibility of neither of the parties being injured. The learned Single Judge has also held: "The mark of the appellant `TOSHIBA and the status of the said word as a registrable mark is beyond dispute. It is almost admittedly an invented word, a hybrid between the name of the city Tokyo and the name of the company of origin Shibaura. It is also in my opinion beyond dispute that the mark `TOSIBA is so similar to the mark ‘TOSHIBA as to give the appellant an indisputable right to call upon the respondent to cease to use that mark in relation to goods for which the appellant is registered, in case such registration can be maintained by the appellant on the register." 56. There was delay on the part of the respondent in filing the application under Section 46 of the Act. The delay, if any, on the part of the appellant did not cause any harm to the respondent. It had been using the word TOSIBA for such a long time without in any way being obstructed to do so by reason of an order of the Court or otherwise. 57. In the matter of The Trade Mark No.70,078 of Wright, Crossley, and Co. [1898) 15 RPC 131], it was stated: "I think, notwithstanding what was said in that case, and has been said in other cases dealing with Trade Marks, that an applicant in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the Trade Mark is allowed to stand; and by ‘possible I mean possible in a practical sense, and not merely in a fantastic view."

1[ds]The basis of the said submission, thus, appear to be two-fold:(1) As there is no evidence that the appellant had any intention to abandon the use of the said trademark, as a logical corollary thereof, the High Court ought to have held that the appellant had the intention of bona fide use of the trade mark not only at a point of time when an application for registration was filed but also continuously thereafter;(2) The provisions of clauses (a) and (b), if read in the aforementioned context, sub-section (3) of Section 46 would also come into play particularly when the words `non-use therein and clause (a) of sub-section (1) are identical, namely `not to have any intention to abandon or not to use the trade mark in relation to the goods to which the application relates and save and except in clause (a), the word ‘bona fide has been added.We do not find any force in the aforementioned submission. Clauses (a) and (b) operate in different fields. Sub-section (3) covers a case falling within clause (b) and not the clause (a) thereof. Had the intention of the Parliament been that sub-section (3) covers cases falling both under clause (b) and clause (a), having regard to the similarity of the expressions used, there was no reason as to why it could not be stated so explicitly.36. If the submission of Mr. Nariman is to be accepted, the result thereof would be that for all intent and purport, no distinction would exist in the situations covered by clause (b) and clause (a) except that whereas in the former no period is mentioned, in the latter a specific period is provided.37. There may be a case where owing to certain special circumstances, a continuous use is not possible. The trade mark for which registration is obtained is used intermittently. Such non-user for a temporary period may be due to any exigency including a bar under a statute, or a policy decision of the Government or any action taken against the registrant.The intention to use a trade mark sought to be registered must be genuine and real. When a trade mark is registered, it confers a valuable right. It seeks to prevent trafficking in trade marks. It seeks to distinguish the goods made by one person from those made by another. The person, therefore, who does not have any bona fide intention to use the trade mark, is not expected to get his product registered so as to prevent any other person from using the same. In that way trafficking in trade mark is sought to be restricted.A situation of this nature has not been considered in any of the precedents. The original application filed by the respondent was maintainable on three counts:1. Application of Section 46, both under clauses (a) and (b);2. Application of Section 56; and3. The common law principle that he had been served with a legal notice by the appellant desisting from using the word TOSIBA.50. It is difficult to hold that only because respondent had not been able to prove one of the grounds, namely, applicability of Section 56 of the Act, it loses its locus also. It would continue to be a person aggrieved even within the purview of Section 46 of the Act as it was slapped with a notice of action and it had a cause of action. It had a remedy. It invoked the jurisdiction of the Registrar on a large number of grounds. One of it was accepted, others were not.51. The petition, therefore, which was maintainable, did not cease to be so particularly when the respondent not only faced with a legal action but, in fact, later on a suit has also been filed by the appellant against it. We would leave the question at that.Appellant had to maintain the service centres because although they were not in a position to manufacture washing machines or spin dryers or market the same because of the ban imposed by the Central Government, but it had been rendering the services to those who had been importing the said machines. On the one hand, appellant had not been using its registered trade mark effectively but on the other hand there was a finding that it did not intend to abandon the said right. It intended to enforce its right under the Act as against the respondent, suit was filed by it as far back as in the year 1990. Mr. Gupta commented that the very fact that the appellant did not obtain any order of injunction as against the respondent for more than 17 years itself indicates that it was not serious in pursuing its case before the High Court.55. This is one side of the picture. The other side is that there has been no injunction as against the respondent. It was free to market its products in the name of TOSIBA. It had also, however, not been manufacturing washing machine and spin dryers. A finding of fact has been arrived at by the learned Single Judge, which has not been overturned by the Division Bench that the respondent never had any intention to manufacture the said goods.The balancing act between the user of registered trade mark and non-user should be such which leads to the possibility of neither of the parties being injured. The learned Single Judge has alsomark of the appellant `TOSHIBA and the status of the said word as a registrable mark is beyond dispute. It is almost admittedly an invented word, a hybrid between the name of the city Tokyo and the name of the company of origin Shibaura. It is also in my opinion beyond dispute that the mark `TOSIBA is so similar to the mark ‘TOSHIBA as to give the appellant an indisputable right to call upon the respondent to cease to use that mark in relation to goods for which the appellant is registered, in case such registration can be maintained by the appellant on the register.There was delay on the part of the respondent in filing the application under Section 46 of the Act. The delay, if any, on the part of the appellant did not cause any harm to the respondent. It had been using the word TOSIBA for such a long time without in any way being obstructed to do so by reason of an order of the Court or otherwise.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: that it had been maintaining service centres in India in respect of washing machines, stating: "Thus, to summarize:(a) TOSHIBA has several joint venture agreements in India, for various products including VCRS, colour picture tubes, batteries. etc.(b) TOSHIBA has technical collaboration agreements for manufacture of various products in India including body scanners, ultra sound equipments, PIP televisions etc.(c) TOSHIBA has several service centres in India in the cities of New Delhi, Bombay, Madras, Calcutta, Baroda, Bhopal, Cochin, Kerala and Bangalore for repairing various electronic and electrical products including televisions, VCRS, ovens, music systems, washing machines etc.(d) TOSHIBA has sold several goods in India under the trade mark TOSHIBA including electric motors and accessories, generators, fax machine, whole body C.T. scanners & ultrasound equipment, circuit breakers, transistors, integrated circuits, colour TV sets, engineering, samples and spare parts for televisions, VCRs, cassette recorders, microwave equipment and various other goods to actual users and authorized service centres." The learned Single Judge also noticed the said contention in the following terms: "I come now to the two limbs of Section 46(1)(a). I propose to take up first the limb regarding use of the mark in relation to washing machines and spin dryers upto a date when one month prior to the rectification application. The only evidence of use of the mark, produced by the appellant, if use it can be called is at page 190 of the paper-book which is an advertisement of a freezer and a washing machine of Toshiba published on the 27th August 1985 in the Indian Express, New Delhi, also mentioning therein certain service centres. Now, this is no use of the mark in relation to the goods within the meaning of the Trade Marks Act." The Division Bench also did so, stating: "On the merits the learned Judge also found and this has not been disputed in appeal that the only evidence of the use of the registered mark produced by the appellant is an advertisement of a freezer and washing machine of Toshiba published on 27th August, 1985 in the Indian Express, New Delhi and in that advertisement there was mention of five service centres. The learned Judge also found that such a solitary advertisement is not use of the mark in relation to the goods within the meaning of Section 2(2)(b) of the Act. The learned Judge found that when there are no goods at all in physical existence, there can be no use of the mark in relation to those goods. The learned Judge also found that however, big or famous the establishment of the appellant may be, the use of the mark must be made in India and not abroad and that mere use of the mark for one advertisement is insufficient as use otherwise such a use may amount to trafficking in trade mark." 54. Appellant had to maintain the service centres because although they were not in a position to manufacture washing machines or spin dryers or market the same because of the ban imposed by the Central Government, but it had been rendering the services to those who had been importing the said machines. On the one hand, appellant had not been using its registered trade mark effectively but on the other hand there was a finding that it did not intend to abandon the said right. It intended to enforce its right under the Act as against the respondent, suit was filed by it as far back as in the year 1990. Mr. Gupta commented that the very fact that the appellant did not obtain any order of injunction as against the respondent for more than 17 years itself indicates that it was not serious in pursuing its case before the High Court.55. This is one side of the picture. The other side is that there has been no injunction as against the respondent. It was free to market its products in the name of TOSIBA. It had also, however, not been manufacturing washing machine and spin dryers. A finding of fact has been arrived at by the learned Single Judge, which has not been overturned by the Division Bench that the respondent never had any intention to manufacture the said goods.The balancing act between the user of registered trade mark and non-user should be such which leads to the possibility of neither of the parties being injured. The learned Single Judge has also held: "The mark of the appellant `TOSHIBA and the status of the said word as a registrable mark is beyond dispute. It is almost admittedly an invented word, a hybrid between the name of the city Tokyo and the name of the company of origin Shibaura. It is also in my opinion beyond dispute that the mark `TOSIBA is so similar to the mark ‘TOSHIBA as to give the appellant an indisputable right to call upon the respondent to cease to use that mark in relation to goods for which the appellant is registered, in case such registration can be maintained by the appellant on the register." 56. There was delay on the part of the respondent in filing the application under Section 46 of the Act. The delay, if any, on the part of the appellant did not cause any harm to the respondent. It had been using the word TOSIBA for such a long time without in any way being obstructed to do so by reason of an order of the Court or otherwise. 57. In the matter of The Trade Mark No.70,078 of Wright, Crossley, and Co. [1898) 15 RPC 131], it was stated: "I think, notwithstanding what was said in that case, and has been said in other cases dealing with Trade Marks, that an applicant in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the Trade Mark is allowed to stand; and by ‘possible I mean possible in a practical sense, and not merely in a fantastic view." ### Response: 1 ### Explanation: application for registration was filed but also continuously thereafter;(2) The provisions of clauses (a) and (b), if read in the aforementioned context, sub-section (3) of Section 46 would also come into play particularly when the words `non-use therein and clause (a) of sub-section (1) are identical, namely `not to have any intention to abandon or not to use the trade mark in relation to the goods to which the application relates and save and except in clause (a), the word ‘bona fide has been added.We do not find any force in the aforementioned submission. Clauses (a) and (b) operate in different fields. Sub-section (3) covers a case falling within clause (b) and not the clause (a) thereof. Had the intention of the Parliament been that sub-section (3) covers cases falling both under clause (b) and clause (a), having regard to the similarity of the expressions used, there was no reason as to why it could not be stated so explicitly.36. If the submission of Mr. Nariman is to be accepted, the result thereof would be that for all intent and purport, no distinction would exist in the situations covered by clause (b) and clause (a) except that whereas in the former no period is mentioned, in the latter a specific period is provided.37. There may be a case where owing to certain special circumstances, a continuous use is not possible. The trade mark for which registration is obtained is used intermittently. Such non-user for a temporary period may be due to any exigency including a bar under a statute, or a policy decision of the Government or any action taken against the registrant.The intention to use a trade mark sought to be registered must be genuine and real. When a trade mark is registered, it confers a valuable right. It seeks to prevent trafficking in trade marks. It seeks to distinguish the goods made by one person from those made by another. The person, therefore, who does not have any bona fide intention to use the trade mark, is not expected to get his product registered so as to prevent any other person from using the same. In that way trafficking in trade mark is sought to be restricted.A situation of this nature has not been considered in any of the precedents. The original application filed by the respondent was maintainable on three counts:1. Application of Section 46, both under clauses (a) and (b);2. Application of Section 56; and3. The common law principle that he had been served with a legal notice by the appellant desisting from using the word TOSIBA.50. It is difficult to hold that only because respondent had not been able to prove one of the grounds, namely, applicability of Section 56 of the Act, it loses its locus also. It would continue to be a person aggrieved even within the purview of Section 46 of the Act as it was slapped with a notice of action and it had a cause of action. It had a remedy. It invoked the jurisdiction of the Registrar on a large number of grounds. One of it was accepted, others were not.51. The petition, therefore, which was maintainable, did not cease to be so particularly when the respondent not only faced with a legal action but, in fact, later on a suit has also been filed by the appellant against it. We would leave the question at that.Appellant had to maintain the service centres because although they were not in a position to manufacture washing machines or spin dryers or market the same because of the ban imposed by the Central Government, but it had been rendering the services to those who had been importing the said machines. On the one hand, appellant had not been using its registered trade mark effectively but on the other hand there was a finding that it did not intend to abandon the said right. It intended to enforce its right under the Act as against the respondent, suit was filed by it as far back as in the year 1990. Mr. Gupta commented that the very fact that the appellant did not obtain any order of injunction as against the respondent for more than 17 years itself indicates that it was not serious in pursuing its case before the High Court.55. This is one side of the picture. The other side is that there has been no injunction as against the respondent. It was free to market its products in the name of TOSIBA. It had also, however, not been manufacturing washing machine and spin dryers. A finding of fact has been arrived at by the learned Single Judge, which has not been overturned by the Division Bench that the respondent never had any intention to manufacture the said goods.The balancing act between the user of registered trade mark and non-user should be such which leads to the possibility of neither of the parties being injured. The learned Single Judge has alsomark of the appellant `TOSHIBA and the status of the said word as a registrable mark is beyond dispute. It is almost admittedly an invented word, a hybrid between the name of the city Tokyo and the name of the company of origin Shibaura. It is also in my opinion beyond dispute that the mark `TOSIBA is so similar to the mark ‘TOSHIBA as to give the appellant an indisputable right to call upon the respondent to cease to use that mark in relation to goods for which the appellant is registered, in case such registration can be maintained by the appellant on the register.There was delay on the part of the respondent in filing the application under Section 46 of the Act. The delay, if any, on the part of the appellant did not cause any harm to the respondent. It had been using the word TOSIBA for such a long time without in any way being obstructed to do so by reason of an order of the Court or otherwise.

P BANDOPADHYA Vs. UNION OF INDIA

Bombay High Court in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79]. 8.6. It has been rightly contended that the earlier Writ Petition No. 5374 of 2002 was filed in a representative capacity. Petitioner No. 3 in the said Writ Petition was the Federation of the VSNL Employees Union, a collective body of VSNL employees. The Federation was espousing the collective interest of the Appellants, and other similarly situated persons before the Division Bench. The prayers in Writ Petition No. 5374 of 2002, was recorded by the High Court in the following words: ?3. In the second petition, i.e., Writ Petition No. 5374 of 2002, a prayer is made for declaring that the action of the respondents in not giving the petitioners and similarly situated employees, who had not completed ten years of service with the Government of India, the right to exercise option for retaining Government pensionary benefits on their absorption with VSNL is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. It was, therefore, prayed that appropriate direction be issued to the Government of India that the Petitioners and similarly situated employees, who had not completed ten years of service on their date of absorption in VSNL, are entitled to exercise option for retaining Government pensionary benefits by counting their service in Government of India along with their service with VSNL for such benefits.? (emphasis supplied) The Division Bench dismissed the Writ Petitions, and held as follows: ?26. Regarding the contention that employees, who had not completed ten years, were not allowed to exercise the option with regard to pensionary benefits, it may be stated that even when they were in the Government service, when VSNL was a Government Company, they were not entitled to such benefits. Reading the memorandum also, it becomes abundantly clear that the persons, who had not completed ten years of service with the Government, were not entitled to pensionary benefits. The option, which was allowed by the Government, and to be exercised by the employees, was in respect of those employees who had completed ten years or more of service and quasi-permanent employees and temporary employees, who would be entitled to such benefits after they would be confirmed in the Public Sector or Autonomous Bodies. Since the petitioners and similarly situated persons, who had not completed ten years of service, were not entitled to such benefits even under the Government, they cannot make grievance for pensionary benefits.? (emphasis supplied) The afore¬said findings of the Division Bench squarely cover the present case of the Appellants. 8.7. The decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of res judicata. Reference can be made to the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers? Association v. State of Maharashtra & Ors.(1990) 2 SCC 715 : AIR 1990 SC 1607 . wherein Sharma, J., on behalf of the five¬judge bench, held: ?35…It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court?s judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v. State of UP (1962) 1 SCR 574 : AIR 1961 SC 1457 . held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32…? (emphasis supplied) Albeit the decision of the Constitution Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater force to bar a Writ Petition filed under Article 226, like the one filed by the present Appellants, by the operation of the principle of res judicata. 8.8. The Appellants were not entitled to receive pensionary benefits either under the CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of the Office Memorandum. The case of the Appellants being Government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of the Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to the Provident Fund contribution for the period of their service under the Government, upto the date of their permanent absorption along with Simple Interest at 6% per annum as the opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body.

0[ds]8.2. It is the admitted position that the Appellants had not completed 10 years of service on the date of their absorption into VSNL, i.e. when they were deemed to have retired from the service of the Centralreceive pensionary benefits from the Government, a Government servant is required to put in a minimum ‘qualifying service? as defined by Rule 3(q) of the CCS (Pension) Rules, 1972. According to Rule 3(q), ‘qualifying service? means the service rendered while on duty or otherwise which shall be taken into account for the purpose of Pensions and Gratuities admissible under the CCS (Pension) Rules,conjoint reading of the statutory rules, i.e. Rule 37 with Rule 49 of the CCS (Pension) Rules, 1972, would make it abundantly clear that the Appellants were not entitled to pensionary benefits since admittedly they did not have the minimum qualifying service of 10 years, to make their service pensionable with the Central Government. On absorption in VSNL on January 2, 1990 there was a severance of their service with the Central Government. The Appellants would be entitled to the retiral benefits underThe Office Memorandum dated July 5, 1989 was issued by the Department of Pension and Pension Welfare, Government of India to settle the pensionary terms and conditions applicable in cases of en masse transfer of employees on the conversion of a Government Department into a Central Public Sector Undertaking/AutonomousClause (a) of the Office Memorandum provided an option to Government servants (permanent, quasi¬permanent and temporary) to either retain the pensionary benefits available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body. Under Clause (b), Government servants who opt to retain pensionary benefits were entitled to receive pension at the time of their retirement ?in accordance with Central Government rules in force at thatA conjoint reading of Clauses (a) and (b) would indicate that the option of retaining pensionary benefits was available only to those Government servants who were, in the first place, entitled to receive pension at the time of their retirement. This is evident from Clause (a) which provides the option to ?retain? pensionary benefits available under the relevant Government rules. Clauses (a) and (b) pre-suppose that the Government servants who opt to retain pensionary benefits, should be entitled to receive pensionary benefits under the Central Government rules, in the firstRule 37 read with Rule 49 of the CCS (Pension) Rules, 1972 indicates that the Appellants were not entitled to receive Pension under the CCS (Pension) Rules, 1972, since they had not completed 10 years of qualifying service. There was, therefore, no question of the Appellants availing of the option of ‘retaining? the benefits under ClauseThe Division Bench has rightly held that Clause (b) of the Office Memorandum cannot be read in isolation, and is required to be read in conjunction with Clause (a). The entitlement to Pension under Clause (b) is qualified by the phrase ?in accordance with the Central Government rules in force at thatFurther, Paragraph I (1) (ii) of the document titled ?Clarificatory Information to Facilitate Exercise of Option? clearly stated that the eligibility to retain pensionary benefits under the Central Government was subject to the condition of putting in a minimum of 10 years as qualifyingIt has been rightly contended that the earlier Writ Petition No. 5374 of 2002 was filed in a representative capacity. Petitioner No. 3 in the said Writ Petition was the Federation of the VSNL Employees Union, a collective body of VSNL employees. The Federation was espousing the collective interest of the Appellants, and other similarly situated persons before the Division Bench.The decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of resThe Appellants were not entitled to receive pensionary benefits either under the CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of the Officecase of the Appellants being Government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of the Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to the Provident Fund contribution for the period of their service under the Government, upto the date of their permanent absorption along with Simple Interest at 6% per annum as the opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body.

### 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: Bombay High Court in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79]. 8.6. It has been rightly contended that the earlier Writ Petition No. 5374 of 2002 was filed in a representative capacity. Petitioner No. 3 in the said Writ Petition was the Federation of the VSNL Employees Union, a collective body of VSNL employees. The Federation was espousing the collective interest of the Appellants, and other similarly situated persons before the Division Bench. The prayers in Writ Petition No. 5374 of 2002, was recorded by the High Court in the following words: ?3. In the second petition, i.e., Writ Petition No. 5374 of 2002, a prayer is made for declaring that the action of the respondents in not giving the petitioners and similarly situated employees, who had not completed ten years of service with the Government of India, the right to exercise option for retaining Government pensionary benefits on their absorption with VSNL is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. It was, therefore, prayed that appropriate direction be issued to the Government of India that the Petitioners and similarly situated employees, who had not completed ten years of service on their date of absorption in VSNL, are entitled to exercise option for retaining Government pensionary benefits by counting their service in Government of India along with their service with VSNL for such benefits.? (emphasis supplied) The Division Bench dismissed the Writ Petitions, and held as follows: ?26. Regarding the contention that employees, who had not completed ten years, were not allowed to exercise the option with regard to pensionary benefits, it may be stated that even when they were in the Government service, when VSNL was a Government Company, they were not entitled to such benefits. Reading the memorandum also, it becomes abundantly clear that the persons, who had not completed ten years of service with the Government, were not entitled to pensionary benefits. The option, which was allowed by the Government, and to be exercised by the employees, was in respect of those employees who had completed ten years or more of service and quasi-permanent employees and temporary employees, who would be entitled to such benefits after they would be confirmed in the Public Sector or Autonomous Bodies. Since the petitioners and similarly situated persons, who had not completed ten years of service, were not entitled to such benefits even under the Government, they cannot make grievance for pensionary benefits.? (emphasis supplied) The afore¬said findings of the Division Bench squarely cover the present case of the Appellants. 8.7. The decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of res judicata. Reference can be made to the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers? Association v. State of Maharashtra & Ors.(1990) 2 SCC 715 : AIR 1990 SC 1607 . wherein Sharma, J., on behalf of the five¬judge bench, held: ?35…It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court?s judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v. State of UP (1962) 1 SCR 574 : AIR 1961 SC 1457 . held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32…? (emphasis supplied) Albeit the decision of the Constitution Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater force to bar a Writ Petition filed under Article 226, like the one filed by the present Appellants, by the operation of the principle of res judicata. 8.8. The Appellants were not entitled to receive pensionary benefits either under the CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of the Office Memorandum. The case of the Appellants being Government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of the Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to the Provident Fund contribution for the period of their service under the Government, upto the date of their permanent absorption along with Simple Interest at 6% per annum as the opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body. ### Response: 0 ### Explanation: 8.2. It is the admitted position that the Appellants had not completed 10 years of service on the date of their absorption into VSNL, i.e. when they were deemed to have retired from the service of the Centralreceive pensionary benefits from the Government, a Government servant is required to put in a minimum ‘qualifying service? as defined by Rule 3(q) of the CCS (Pension) Rules, 1972. According to Rule 3(q), ‘qualifying service? means the service rendered while on duty or otherwise which shall be taken into account for the purpose of Pensions and Gratuities admissible under the CCS (Pension) Rules,conjoint reading of the statutory rules, i.e. Rule 37 with Rule 49 of the CCS (Pension) Rules, 1972, would make it abundantly clear that the Appellants were not entitled to pensionary benefits since admittedly they did not have the minimum qualifying service of 10 years, to make their service pensionable with the Central Government. On absorption in VSNL on January 2, 1990 there was a severance of their service with the Central Government. The Appellants would be entitled to the retiral benefits underThe Office Memorandum dated July 5, 1989 was issued by the Department of Pension and Pension Welfare, Government of India to settle the pensionary terms and conditions applicable in cases of en masse transfer of employees on the conversion of a Government Department into a Central Public Sector Undertaking/AutonomousClause (a) of the Office Memorandum provided an option to Government servants (permanent, quasi¬permanent and temporary) to either retain the pensionary benefits available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body. Under Clause (b), Government servants who opt to retain pensionary benefits were entitled to receive pension at the time of their retirement ?in accordance with Central Government rules in force at thatA conjoint reading of Clauses (a) and (b) would indicate that the option of retaining pensionary benefits was available only to those Government servants who were, in the first place, entitled to receive pension at the time of their retirement. This is evident from Clause (a) which provides the option to ?retain? pensionary benefits available under the relevant Government rules. Clauses (a) and (b) pre-suppose that the Government servants who opt to retain pensionary benefits, should be entitled to receive pensionary benefits under the Central Government rules, in the firstRule 37 read with Rule 49 of the CCS (Pension) Rules, 1972 indicates that the Appellants were not entitled to receive Pension under the CCS (Pension) Rules, 1972, since they had not completed 10 years of qualifying service. There was, therefore, no question of the Appellants availing of the option of ‘retaining? the benefits under ClauseThe Division Bench has rightly held that Clause (b) of the Office Memorandum cannot be read in isolation, and is required to be read in conjunction with Clause (a). The entitlement to Pension under Clause (b) is qualified by the phrase ?in accordance with the Central Government rules in force at thatFurther, Paragraph I (1) (ii) of the document titled ?Clarificatory Information to Facilitate Exercise of Option? clearly stated that the eligibility to retain pensionary benefits under the Central Government was subject to the condition of putting in a minimum of 10 years as qualifyingIt has been rightly contended that the earlier Writ Petition No. 5374 of 2002 was filed in a representative capacity. Petitioner No. 3 in the said Writ Petition was the Federation of the VSNL Employees Union, a collective body of VSNL employees. The Federation was espousing the collective interest of the Appellants, and other similarly situated persons before the Division Bench.The decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of resThe Appellants were not entitled to receive pensionary benefits either under the CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of the Officecase of the Appellants being Government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of the Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to the Provident Fund contribution for the period of their service under the Government, upto the date of their permanent absorption along with Simple Interest at 6% per annum as the opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body.

Union Of India Vs. Hindu Undivided Family Business Known As Ramlal Mansukhra

of which any process is ordinarily carried on with the aid of power," and so is liable to excise duty under Item 12 of the First Schedule. The Court examined the process of manufacture of Vanaspati and found that vegetable non-essential oils as obtained by crushing containing the impurities were first produced as raw vegetable non-essential oils. They had then to undergo the process of refining which consisted of adding an aqueous solution of an alkali which will combine with the free fatty acids to form a soap and settle down with it a large amount of suspended and mucilaginous matter; after settling the clear supernatant layer is drawn off and treated with an appropriate quantity of bleaching earth and carbon is then filtered. In this process, the colouring matter is removed and the moisture that was originally present in the neutralised oil will also be removed. At this stage, the oil is a refined oil and is suitable for hydrogenation into vegetable product. What was sought to be taxed was the refined oil at this stage; but that contention was rejected, because the Court held that the oil produced at that stage is not known as refined oil to the consumers in the commercial community and can be described as refined oil only after deodorization. Since the process of deodorization is not carried out before that stage, no refined oil had come into existence and, consequently, the oil could not be taxed as such. That case has no applicability to the case before us where the tax is to be imposed on circles in any form. When the rolling mills have rolled the billets, what comes into existence are circles known as such, even though they are in uncut form. The product at that stage fully satisfies the description contained in Item 26-A (2).6. Similarly, the decision in (1968) 3 SCR 21 = (AIR 1968 SC 922 ) (supra) is of no help on this point, because, again, the gas, which was subjected to excise duty, was held by the Court not to be carbon dioxide, while only carbon dioxide was liable to duty. It was held that the product that came into existence was a mixture of gases containing only a percentage of carbon dioxide and could not, therefore, be held to be carbon dioxide alone which could be subjected to excise duty under Item 14-H of the First Schedule.7. Dr. Barlingay, relying on these two decisions of this Court, urged a further point that, when the billets were rolled into circles, no process of manufacture was carded out and, consequently, excise duty could not be charged under Item 26-A which imposes the liability only when goods like circles are manufactured. Reliance was placed on the interpretation of the word "manufacture" given in both the cases where it was indicated that manufacture implies the bringing into existence of a new substance known to the market. According to the respondents, the conversion of billets into circles did not bring any new substance into existence, nor did it bring into existence any completed product, so that there was no process of manufacture which alone could render the circles liable to excise duty. This argument again appears to be based on a misunderstanding of the law. There is, first, the circumstance that, in Item 26-A itself, the legislature has laid down that excise duty shall be leviable on billets at a lower rate and on manufactures of circles at a higher rate. This provision itself makes it clear that the legislature was aware that billets are converted into circles, and it was decided that excise duty should be leviable at both stages. When the legislature used the word "manufacture" in connection with circles, after having taken account of the fact that billets were already subjected to excise duty, it is obvious that the process, by which the billets were converted into circles, was held by the legislature to amount to manufacture. The word "manufacture" is defined in Sec. 2 (f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In the present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26-A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never held to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles was described by the legislature itself as manufacture of circles.8. A second aspect is that, so far as the respondents are concerned, they start the process of manufacture of utensils by initially taking metals in crude form as raw materials. Two different kinds of metals in each case are mixed together to prepare alloys of kansi and brass. These alloys are then brought into the form of billets and, later on, the billets are rolled into circles. It cannot be contended that the whole of this process cannot be described as manufacture of circles. In this process of manufacture of circles, there are two stages. At the first stage, billets are produced and, at the second stage, circles. In any case, it has to be held that the circles thus prepared are the result of the process of manufacture. The end-result of this process of manufacture is the production of circles in some form which is envisaged as the goods to be subjected to excise duty. The excise duty was, therefore, correctly levied by the appellant.

1[ds]7. Dr. Barlingay, relying on these two decisions of this Court, urged a further point that, when the billets were rolled into circles, no process of manufacture was carded out and, consequently, excise duty could not be charged under Item 26-A which imposes the liability only when goods like circles are manufactured. Reliance was placed on the interpretation of the word "manufacture" given in both the cases where it was indicated that manufacture implies the bringing into existence of a new substance known to the market. According to the respondents, the conversion of billets into circles did not bring any new substance into existence, nor did it bring into existence any completed product, so that there was no process of manufacture which alone could render the circles liable to excise duty. This argument again appears to be based on a misunderstanding of the law. There is, first, the circumstance that, in Item 26-A itself, the legislature has laid down that excise duty shall be leviable on billets at a lower rate and on manufactures of circles at a higher rate. This provision itself makes it clear that the legislature was aware that billets are converted into circles, and it was decided that excise duty should be leviable at both stages. When the legislature used the word "manufacture" in connection with circles, after having taken account of the fact that billets were already subjected to excise duty, it is obvious that the process, by which the billets were converted into circles, was held by the legislature to amount to manufacture. The word "manufacture" is defined in Sec. 2 (f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In the present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26-A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never held to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles was described by the legislature itself as manufacture of circles.8. A second aspect is that, so far as the respondents are concerned, they start the process of manufacture of utensils by initially taking metals in crude form as raw materials. Two different kinds of metals in each case are mixed together to prepare alloys of kansi and brass. These alloys are then brought into the form of billets and, later on, the billets are rolled into circles. It cannot be contended that the whole of this process cannot be described as manufacture of circles. In this process of manufacture of circles, there are two stages. At the first stage, billets are produced and, at the second stage, circles. In any case, it has to be held that the circles thus prepared are the result of the process of manufacture. The end-result of this process of manufacture is the production of circles in some form which is envisaged as the goods to be subjected to excise duty. The excise duty was, therefore, correctly levied by the appellant.

### 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: of which any process is ordinarily carried on with the aid of power," and so is liable to excise duty under Item 12 of the First Schedule. The Court examined the process of manufacture of Vanaspati and found that vegetable non-essential oils as obtained by crushing containing the impurities were first produced as raw vegetable non-essential oils. They had then to undergo the process of refining which consisted of adding an aqueous solution of an alkali which will combine with the free fatty acids to form a soap and settle down with it a large amount of suspended and mucilaginous matter; after settling the clear supernatant layer is drawn off and treated with an appropriate quantity of bleaching earth and carbon is then filtered. In this process, the colouring matter is removed and the moisture that was originally present in the neutralised oil will also be removed. At this stage, the oil is a refined oil and is suitable for hydrogenation into vegetable product. What was sought to be taxed was the refined oil at this stage; but that contention was rejected, because the Court held that the oil produced at that stage is not known as refined oil to the consumers in the commercial community and can be described as refined oil only after deodorization. Since the process of deodorization is not carried out before that stage, no refined oil had come into existence and, consequently, the oil could not be taxed as such. That case has no applicability to the case before us where the tax is to be imposed on circles in any form. When the rolling mills have rolled the billets, what comes into existence are circles known as such, even though they are in uncut form. The product at that stage fully satisfies the description contained in Item 26-A (2).6. Similarly, the decision in (1968) 3 SCR 21 = (AIR 1968 SC 922 ) (supra) is of no help on this point, because, again, the gas, which was subjected to excise duty, was held by the Court not to be carbon dioxide, while only carbon dioxide was liable to duty. It was held that the product that came into existence was a mixture of gases containing only a percentage of carbon dioxide and could not, therefore, be held to be carbon dioxide alone which could be subjected to excise duty under Item 14-H of the First Schedule.7. Dr. Barlingay, relying on these two decisions of this Court, urged a further point that, when the billets were rolled into circles, no process of manufacture was carded out and, consequently, excise duty could not be charged under Item 26-A which imposes the liability only when goods like circles are manufactured. Reliance was placed on the interpretation of the word "manufacture" given in both the cases where it was indicated that manufacture implies the bringing into existence of a new substance known to the market. According to the respondents, the conversion of billets into circles did not bring any new substance into existence, nor did it bring into existence any completed product, so that there was no process of manufacture which alone could render the circles liable to excise duty. This argument again appears to be based on a misunderstanding of the law. There is, first, the circumstance that, in Item 26-A itself, the legislature has laid down that excise duty shall be leviable on billets at a lower rate and on manufactures of circles at a higher rate. This provision itself makes it clear that the legislature was aware that billets are converted into circles, and it was decided that excise duty should be leviable at both stages. When the legislature used the word "manufacture" in connection with circles, after having taken account of the fact that billets were already subjected to excise duty, it is obvious that the process, by which the billets were converted into circles, was held by the legislature to amount to manufacture. The word "manufacture" is defined in Sec. 2 (f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In the present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26-A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never held to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles was described by the legislature itself as manufacture of circles.8. A second aspect is that, so far as the respondents are concerned, they start the process of manufacture of utensils by initially taking metals in crude form as raw materials. Two different kinds of metals in each case are mixed together to prepare alloys of kansi and brass. These alloys are then brought into the form of billets and, later on, the billets are rolled into circles. It cannot be contended that the whole of this process cannot be described as manufacture of circles. In this process of manufacture of circles, there are two stages. At the first stage, billets are produced and, at the second stage, circles. In any case, it has to be held that the circles thus prepared are the result of the process of manufacture. The end-result of this process of manufacture is the production of circles in some form which is envisaged as the goods to be subjected to excise duty. The excise duty was, therefore, correctly levied by the appellant. ### Response: 1 ### Explanation: 7. Dr. Barlingay, relying on these two decisions of this Court, urged a further point that, when the billets were rolled into circles, no process of manufacture was carded out and, consequently, excise duty could not be charged under Item 26-A which imposes the liability only when goods like circles are manufactured. Reliance was placed on the interpretation of the word "manufacture" given in both the cases where it was indicated that manufacture implies the bringing into existence of a new substance known to the market. According to the respondents, the conversion of billets into circles did not bring any new substance into existence, nor did it bring into existence any completed product, so that there was no process of manufacture which alone could render the circles liable to excise duty. This argument again appears to be based on a misunderstanding of the law. There is, first, the circumstance that, in Item 26-A itself, the legislature has laid down that excise duty shall be leviable on billets at a lower rate and on manufactures of circles at a higher rate. This provision itself makes it clear that the legislature was aware that billets are converted into circles, and it was decided that excise duty should be leviable at both stages. When the legislature used the word "manufacture" in connection with circles, after having taken account of the fact that billets were already subjected to excise duty, it is obvious that the process, by which the billets were converted into circles, was held by the legislature to amount to manufacture. The word "manufacture" is defined in Sec. 2 (f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In the present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26-A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never held to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles was described by the legislature itself as manufacture of circles.8. A second aspect is that, so far as the respondents are concerned, they start the process of manufacture of utensils by initially taking metals in crude form as raw materials. Two different kinds of metals in each case are mixed together to prepare alloys of kansi and brass. These alloys are then brought into the form of billets and, later on, the billets are rolled into circles. It cannot be contended that the whole of this process cannot be described as manufacture of circles. In this process of manufacture of circles, there are two stages. At the first stage, billets are produced and, at the second stage, circles. In any case, it has to be held that the circles thus prepared are the result of the process of manufacture. The end-result of this process of manufacture is the production of circles in some form which is envisaged as the goods to be subjected to excise duty. The excise duty was, therefore, correctly levied by the appellant.

Jessore Industries (India) Limited and Ors Vs. Regional Provident Fund Commissioner and Ors

in view of the provisions of Section 16(1)(d) of the Act it was entitled to the benefit of infancy as a newly set up establishment launched on 1.7.1993 when it started providing employment to the workers. The Provident Fund Organization did not accept the aforesaid contention and directed the Appellant to comply with the provisions of the Act with effect from July, 1993 as a going concern. The order passed by the Provident Fund Organization came to be confirmed; by the learned Single Judge. It further came to be confirmed by the Division Bench of the High Court by the impugned judgment and order. Hence, the original writ, Petitioner is before this Court claiming the exemption Under Section 16(1)(d) of the Act on the ground that it was a; new establishment and the same cannot be said to be a going concern; 3. The learned Counsel appearing on behalf of the Appellant has vehemently submitted that, in the facts and circumstances of the case, the High Court has materially erred in treating the Appellant establishment as a going concern and not considering the Appellant as a new establishment. It is submitted that therefore the High Court has, committed a grave error in holding that the Appellant shall not be entitled to exemption Under Section 16(1)(d) of the Act as a hew establishment. 3.1. The learned Counsel, appearing on behalf of the, Appellant has vehemently submitted that considering the fact that the company (in liquidation) came to be closed in the year 1986 and thereafter the Appellant purchased the scrapped machinery and thereafter installed altogether a new machinery and came out with a altogether new production, the Appellant establishment can be said to a new establishment and, therefore, entitled to the exemption Under Section 16(1)(d) of the Act. It is submitted that, in the aforesaid facts and circumstances of the case, it cannot be said that the Appellant can be said to be a running establishment/factory. 3.2. It is further submitted by the learned Counsel appearing on behalf of the Appellant that therefore, in the facts and circumstances of the case, the High Court has materially erred in relying upon the decision of this Court in the case of Sayaji Mills Ltd. v. Regional Provident Fund Commissioner 1984 (supp) SCC 610 . 3.3. It is further submitted by the learned Counsel appearing on behalf of the Appellant that even as per the agreement entered into between the purchaser and the employees union dated 14.06.1992, the purchaser was required to absorb maximum 150 willing and physically fit persons and that too as fresh employees. It is. submitted that, therefore also, the Appellant establishment cannot be said to be a running establishment. It is submitted that, therefore, the High Court has materially erred in rejecting the claim of the Appellant establishment claiming the exemption Under Section 16(1)(d) of the Act as a new establishment. 4. The learned Counsel appearing on behalf of the Respondents has opposed the present appeal and has supported the impugned judgment and order passed by the Division Bench of the High Court. It is vehemently submitted that there are concurrent findings of fact recorded by the Assessing Authority, the learned Single Judge and the Division Bench of the High Court that the Appellant cannot said to be. a new establishment and it can be said to be a running establishment. 5. Heard learned Counsel appearing on behalf of the respective parties at length. The short question posed for consideration of this Court is whether, in the facts and circumstances of the case, the Appellant is entitled to the exemption claimed Under Section 16(1)(d) of the Act as a new establishment? 6. At the outset, it is required to be noted that, as such, there are concurrent findings of fact recorded by the Assessing Authority, the learned Single Judge and the Division Bench of the High Court holding that the Appellant establishment is a running establishment and cannot be said to be a new establishment. 7. Even otherwise, even on merits and considering the decision of this Court in the case of Sayaji Mills (supra), it cannot be said that the High Court has committed any error in holding that the Appellant establishment is a running establishment and in not, treating and/or considering the Appellant establishment as a new establishment. It is required to be noted that as per the sale notice issued by the Officer Liquidator what was sold in the Court sale was the assets of the company (in liquidation) and not the scrapped machinery. As per the condition imposed by the State Government while leasing out the land in favour of the purchaser, the purchaser/Appellant was required to maintain the position of the factory as it is. The purchaser was under an obligation to employ a maximum 150 employees. Nothing is on record that in fact the entire plant and machinery was scrapped and altogether new machineries were installed. On the contrary, it appears that after some renovation and by installing some additional machinery, the Appellant purchase went ahead with the production. As rightly observed and even as per the decision of this Court in the case of Sayaji Mills (supra), merely because the purchaser went ahead with a new product, by this itself, it cannot be said to be a new establishment. The decision of this Court in the case of Sayaji Mills (supra) would be squarely applicable to the facts of the case on hand: Applying the law laid down by this Court in the case of Sayaji Mills (supra) to the facts of the case on hand, it cannot be said that the High Court has committed any error in not accepting the case of the Appellant as a new establishment. The, High Court has rightly observed and held that the Appellant shall not be entitled to the benefit of exemption Under Section 16(1)(d) of the Act. We are in complete agreement with the view taken by the Division Bench of the High Court.

0[ds]6. At the outset, it is required to be noted that, as such, there are concurrent findings of fact recorded by the Assessing Authority, the learned Single Judge and the Division Bench of the High Court holding that the Appellant establishment is a running establishment and cannot be said to be a new establishment.7. Even otherwise, even on merits and considering the decision of this Court in the case of Sayaji Mills (supra), it cannot be said that the High Court has committed any error in holding that the Appellant establishment is a running establishment and in not, treating and/or considering the Appellant establishment as a new establishment. It is required to be noted that as per the sale notice issued by the Officer Liquidator what was sold in the Court sale was the assets of the company (in liquidation) and not the scrapped machinery. As per the condition imposed by the State Government while leasing out the land in favour of the purchaser, the purchaser/Appellant was required to maintain the position of the factory as it is. The purchaser was under an obligation to employ a maximum 150 employees. Nothing is on record that in fact the entire plant and machinery was scrapped and altogether new machineries were installed. On the contrary, it appears that after some renovation and by installing some additional machinery, the Appellant purchase went ahead with the production. As rightly observed and even as per the decision of this Court in the case of Sayaji Mills (supra), merely because the purchaser went ahead with a new product, by this itself, it cannot be said to be a new establishment. The decision of this Court in the case of Sayaji Mills (supra) would be squarely applicable to the facts of the case on hand: Applying the law laid down by this Court in the case of Sayaji Mills (supra) to the facts of the case on hand, it cannot be said that the High Court has committed any error in not accepting the case of the Appellant as a new establishment. The, High Court has rightly observed and held that the Appellant shall not be entitled to the benefit of exemption Under Section 16(1)(d) of the Act. We are in complete agreement with the view taken by the Division Bench of 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: in view of the provisions of Section 16(1)(d) of the Act it was entitled to the benefit of infancy as a newly set up establishment launched on 1.7.1993 when it started providing employment to the workers. The Provident Fund Organization did not accept the aforesaid contention and directed the Appellant to comply with the provisions of the Act with effect from July, 1993 as a going concern. The order passed by the Provident Fund Organization came to be confirmed; by the learned Single Judge. It further came to be confirmed by the Division Bench of the High Court by the impugned judgment and order. Hence, the original writ, Petitioner is before this Court claiming the exemption Under Section 16(1)(d) of the Act on the ground that it was a; new establishment and the same cannot be said to be a going concern; 3. The learned Counsel appearing on behalf of the Appellant has vehemently submitted that, in the facts and circumstances of the case, the High Court has materially erred in treating the Appellant establishment as a going concern and not considering the Appellant as a new establishment. It is submitted that therefore the High Court has, committed a grave error in holding that the Appellant shall not be entitled to exemption Under Section 16(1)(d) of the Act as a hew establishment. 3.1. The learned Counsel, appearing on behalf of the, Appellant has vehemently submitted that considering the fact that the company (in liquidation) came to be closed in the year 1986 and thereafter the Appellant purchased the scrapped machinery and thereafter installed altogether a new machinery and came out with a altogether new production, the Appellant establishment can be said to a new establishment and, therefore, entitled to the exemption Under Section 16(1)(d) of the Act. It is submitted that, in the aforesaid facts and circumstances of the case, it cannot be said that the Appellant can be said to be a running establishment/factory. 3.2. It is further submitted by the learned Counsel appearing on behalf of the Appellant that therefore, in the facts and circumstances of the case, the High Court has materially erred in relying upon the decision of this Court in the case of Sayaji Mills Ltd. v. Regional Provident Fund Commissioner 1984 (supp) SCC 610 . 3.3. It is further submitted by the learned Counsel appearing on behalf of the Appellant that even as per the agreement entered into between the purchaser and the employees union dated 14.06.1992, the purchaser was required to absorb maximum 150 willing and physically fit persons and that too as fresh employees. It is. submitted that, therefore also, the Appellant establishment cannot be said to be a running establishment. It is submitted that, therefore, the High Court has materially erred in rejecting the claim of the Appellant establishment claiming the exemption Under Section 16(1)(d) of the Act as a new establishment. 4. The learned Counsel appearing on behalf of the Respondents has opposed the present appeal and has supported the impugned judgment and order passed by the Division Bench of the High Court. It is vehemently submitted that there are concurrent findings of fact recorded by the Assessing Authority, the learned Single Judge and the Division Bench of the High Court that the Appellant cannot said to be. a new establishment and it can be said to be a running establishment. 5. Heard learned Counsel appearing on behalf of the respective parties at length. The short question posed for consideration of this Court is whether, in the facts and circumstances of the case, the Appellant is entitled to the exemption claimed Under Section 16(1)(d) of the Act as a new establishment? 6. At the outset, it is required to be noted that, as such, there are concurrent findings of fact recorded by the Assessing Authority, the learned Single Judge and the Division Bench of the High Court holding that the Appellant establishment is a running establishment and cannot be said to be a new establishment. 7. Even otherwise, even on merits and considering the decision of this Court in the case of Sayaji Mills (supra), it cannot be said that the High Court has committed any error in holding that the Appellant establishment is a running establishment and in not, treating and/or considering the Appellant establishment as a new establishment. It is required to be noted that as per the sale notice issued by the Officer Liquidator what was sold in the Court sale was the assets of the company (in liquidation) and not the scrapped machinery. As per the condition imposed by the State Government while leasing out the land in favour of the purchaser, the purchaser/Appellant was required to maintain the position of the factory as it is. The purchaser was under an obligation to employ a maximum 150 employees. Nothing is on record that in fact the entire plant and machinery was scrapped and altogether new machineries were installed. On the contrary, it appears that after some renovation and by installing some additional machinery, the Appellant purchase went ahead with the production. As rightly observed and even as per the decision of this Court in the case of Sayaji Mills (supra), merely because the purchaser went ahead with a new product, by this itself, it cannot be said to be a new establishment. The decision of this Court in the case of Sayaji Mills (supra) would be squarely applicable to the facts of the case on hand: Applying the law laid down by this Court in the case of Sayaji Mills (supra) to the facts of the case on hand, it cannot be said that the High Court has committed any error in not accepting the case of the Appellant as a new establishment. The, High Court has rightly observed and held that the Appellant shall not be entitled to the benefit of exemption Under Section 16(1)(d) of the Act. We are in complete agreement with the view taken by the Division Bench of the High Court. ### Response: 0 ### Explanation: 6. At the outset, it is required to be noted that, as such, there are concurrent findings of fact recorded by the Assessing Authority, the learned Single Judge and the Division Bench of the High Court holding that the Appellant establishment is a running establishment and cannot be said to be a new establishment.7. Even otherwise, even on merits and considering the decision of this Court in the case of Sayaji Mills (supra), it cannot be said that the High Court has committed any error in holding that the Appellant establishment is a running establishment and in not, treating and/or considering the Appellant establishment as a new establishment. It is required to be noted that as per the sale notice issued by the Officer Liquidator what was sold in the Court sale was the assets of the company (in liquidation) and not the scrapped machinery. As per the condition imposed by the State Government while leasing out the land in favour of the purchaser, the purchaser/Appellant was required to maintain the position of the factory as it is. The purchaser was under an obligation to employ a maximum 150 employees. Nothing is on record that in fact the entire plant and machinery was scrapped and altogether new machineries were installed. On the contrary, it appears that after some renovation and by installing some additional machinery, the Appellant purchase went ahead with the production. As rightly observed and even as per the decision of this Court in the case of Sayaji Mills (supra), merely because the purchaser went ahead with a new product, by this itself, it cannot be said to be a new establishment. The decision of this Court in the case of Sayaji Mills (supra) would be squarely applicable to the facts of the case on hand: Applying the law laid down by this Court in the case of Sayaji Mills (supra) to the facts of the case on hand, it cannot be said that the High Court has committed any error in not accepting the case of the Appellant as a new establishment. The, High Court has rightly observed and held that the Appellant shall not be entitled to the benefit of exemption Under Section 16(1)(d) of the Act. We are in complete agreement with the view taken by the Division Bench of the High Court.

Muhammed A.A. & Ors Vs. State of Kerala & Ors

have themselves cited the judgment of this Court in RBI v. Peerless General Finance & Investment Co. Ltd. (supra) to contend the word deviation has to be interpreted by following the principle laid down in the said judgment which is as follows: - 33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Courts construction. Therefore, by applying the above principle to this case, reliance placed on the interpretation of Court in the cases of Glynn v. Margetson & Co. (supra) and M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) for interpretation of Regulation 116 of the Safety Regulations is misplaced. 22. In the facts of the present case, we are not in agreement with the Appellants that granting exemption to the erstwhile employees of the KSEB from possessing the qualifications provided in Regulations 6 and 7 is an impermissible exercise of power under Regulation 116 of the Safety Regulations. Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government were empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act. A perusal of the order dated 13.02.2019 would demonstrate that the State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations. Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. In other words, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word deviation as having lesser scope than exemption. Deviation from the Regulations would amount to either exemption or relaxation. Therefore, we are in agreement with the Division Bench that the order dated 13.02.2019 cannot be said to have been issued beyond the power conferred by Regulation 116 of 2010 Regulations. 23. The next question that requires to be examined is regarding the exercise of powers by the Government of Kerala in issuing order dated 13.02.2019. Drawing from the interpretation of the relevant provisions as discussed above, promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Section 131 and 133(2) of the Electricity Act in conjunction with the transfer scheme and the tripartite agreement. The explanation to Section 133 makes it clear that officers and employees referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013. By no stretch of imagination can this protection be extended to the employees who were engaged by KSEBL after 31.10.2013. The High Court was right in setting aside the order dated 13.02.2019 which permitted deviation from Regulations 6 and 7 to all appointments made till the date of issuance of order dated 13.02.2019, even after the transfer scheme dated 31.10.2013. By the impugned judgment, the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013. 24. Safety is an important issue which the Central Electricity Authority has dealt with in the Safety Regulations enacted in 2010. Mr. P.V. Dinesh, learned counsel for the KSEBL submitted that the track record of the personnel working in the Board has been exemplary and their support was even sought by the States of Orrisa and Tamil Nadu in the past. He submitted a chart to bolster his submission that the electrical accidents are much less in Kerala compared to the other States. Mr. Dinesh further stated that efforts would be made to appoint eligible and qualified personnel in the generating stations, electrical plants and key positions in transmission and distribution lines. As the exercise of power by the State Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions. Therefore, we approve the findings recorded by the Division Bench of the High Court of Kerala.

0[ds]It is clear from the above discussion that the service conditions of the erstwhile employees of KSEB are protected by the proviso to Section 133 of the Electricity Act. After the transfer scheme was formulated, the erstwhile employees were entitled to claim that the conditions of their service cannot be altered to their detriment in view of the tripartite agreement dated 01.08.2014.19. The principal contention of the Appellants which found favour with the learned Single Judge of the High Court is that Regulation 116 is ultra vires the Electricity Act, 2003. The Division Bench reversed such findings of the Single Judge. As the learned counsel appearing for the Appellants have not made any submission relating to the said point, it is not necessary for us to adjudicate on the issue of the validity of Regulation 116.Glynn v. Margetson & Co. (supra) which is a judgment of the House of Lords in which a clause in the bill of lading mentioning the term deviation was to be interpreted.The dispute in the said case was in relation to the damage caused to perishable goods loaded in a ship headed towards Liverpool. Compensation was sought on the ground that the vessel proceeded to the port in the north east of Spain and not west-ward in the direction of Liverpool. The House of Lords was of the opinion that the primary intent and object of bill of lading must be considered and the general / printed words therein must be construed so as to not conflict with that intent and object. We are afraid that this judgment is of no assistance to this Court in interpreting the import of the word deviation as the House of Lords has specifically interpreted the term / clause in context of the object and intention of the bill of lading.M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra).The question that fell for consideration in this case pertains to the interpretation of the words exemption and permission used in Section 5 and 21 of the Foreign Exchange Regulation Act, 1973. In context of the dispute that arose in the said case, this Court was of the opinion that the word exemption shows that a person is put beyond the application of law while permission shows that he is granted leave to act in a particular way. This Court further held that the word permission is a word of wide import as it means leave to do some act while exemption is just one way of giving leave. The ratio of this judgment cannot be of any help to the Appellants in this case. The point raised by the Appellant in this Appeal is that the term deviation used in Regulation 116 of the Safety Regulations cannot be construed in a manner that it would include exemption within its ambit. The context and the analysis of this Court in M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) with respect to the specific terms in the background of that context cannot be applied by this Court in the case at hand. The Appellants have themselves cited the judgment of this Court in RBI v. Peerless General Finance & Investment Co. Ltd. (supra) to contend the word deviation has to be interpreted by following the principle laid down in the said judgment which is as follows: -33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Courts construction.Therefore, by applying the above principle to this case, reliance placed on the interpretation of Court in the cases of Glynn v. Margetson & Co. (supra) and M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) for interpretation of Regulation 116 of the Safety Regulations is misplaced.22. In the facts of the present case, we are not in agreement with the Appellants that granting exemption to the erstwhile employees of the KSEB from possessing the qualifications provided in Regulations 6 and 7 is an impermissible exercise of power under Regulation 116 of the Safety Regulations. Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government were empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act. A perusal of the order dated 13.02.2019 would demonstrate that the State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations. Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. In other words, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word deviation as having lesser scope than exemption. Deviation from the Regulations would amount to either exemption or relaxation. Therefore, we are in agreement with the Division Bench that the order dated 13.02.2019 cannot be said to have been issued beyond the power conferred by Regulation 116 of 2010 Regulations.Drawing from the interpretation of the relevant provisions as discussed above, promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Section 131 and 133(2) of the Electricity Act in conjunction with the transfer scheme and the tripartite agreement. The explanation to Section 133 makes it clear that officers and employees referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013. By no stretch of imagination can this protection be extended to the employees who were engaged by KSEBL after 31.10.2013. The High Court was right in setting aside the order dated 13.02.2019 which permitted deviation from Regulations 6 and 7 to all appointments made till the date of issuance of order dated 13.02.2019, even after the transfer scheme dated 31.10.2013. By the impugned judgment, the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013.As the exercise of power by the State Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions. Therefore, we approve the findings recorded by the Division Bench of the High Court of Kerala.

### 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: have themselves cited the judgment of this Court in RBI v. Peerless General Finance & Investment Co. Ltd. (supra) to contend the word deviation has to be interpreted by following the principle laid down in the said judgment which is as follows: - 33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Courts construction. Therefore, by applying the above principle to this case, reliance placed on the interpretation of Court in the cases of Glynn v. Margetson & Co. (supra) and M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) for interpretation of Regulation 116 of the Safety Regulations is misplaced. 22. In the facts of the present case, we are not in agreement with the Appellants that granting exemption to the erstwhile employees of the KSEB from possessing the qualifications provided in Regulations 6 and 7 is an impermissible exercise of power under Regulation 116 of the Safety Regulations. Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government were empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act. A perusal of the order dated 13.02.2019 would demonstrate that the State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations. Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. In other words, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word deviation as having lesser scope than exemption. Deviation from the Regulations would amount to either exemption or relaxation. Therefore, we are in agreement with the Division Bench that the order dated 13.02.2019 cannot be said to have been issued beyond the power conferred by Regulation 116 of 2010 Regulations. 23. The next question that requires to be examined is regarding the exercise of powers by the Government of Kerala in issuing order dated 13.02.2019. Drawing from the interpretation of the relevant provisions as discussed above, promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Section 131 and 133(2) of the Electricity Act in conjunction with the transfer scheme and the tripartite agreement. The explanation to Section 133 makes it clear that officers and employees referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013. By no stretch of imagination can this protection be extended to the employees who were engaged by KSEBL after 31.10.2013. The High Court was right in setting aside the order dated 13.02.2019 which permitted deviation from Regulations 6 and 7 to all appointments made till the date of issuance of order dated 13.02.2019, even after the transfer scheme dated 31.10.2013. By the impugned judgment, the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013. 24. Safety is an important issue which the Central Electricity Authority has dealt with in the Safety Regulations enacted in 2010. Mr. P.V. Dinesh, learned counsel for the KSEBL submitted that the track record of the personnel working in the Board has been exemplary and their support was even sought by the States of Orrisa and Tamil Nadu in the past. He submitted a chart to bolster his submission that the electrical accidents are much less in Kerala compared to the other States. Mr. Dinesh further stated that efforts would be made to appoint eligible and qualified personnel in the generating stations, electrical plants and key positions in transmission and distribution lines. As the exercise of power by the State Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions. Therefore, we approve the findings recorded by the Division Bench of the High Court of Kerala. ### Response: 0 ### Explanation: law while permission shows that he is granted leave to act in a particular way. This Court further held that the word permission is a word of wide import as it means leave to do some act while exemption is just one way of giving leave. The ratio of this judgment cannot be of any help to the Appellants in this case. The point raised by the Appellant in this Appeal is that the term deviation used in Regulation 116 of the Safety Regulations cannot be construed in a manner that it would include exemption within its ambit. The context and the analysis of this Court in M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) with respect to the specific terms in the background of that context cannot be applied by this Court in the case at hand. The Appellants have themselves cited the judgment of this Court in RBI v. Peerless General Finance & Investment Co. Ltd. (supra) to contend the word deviation has to be interpreted by following the principle laid down in the said judgment which is as follows: -33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Courts construction.Therefore, by applying the above principle to this case, reliance placed on the interpretation of Court in the cases of Glynn v. Margetson & Co. (supra) and M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas & Co. (supra) for interpretation of Regulation 116 of the Safety Regulations is misplaced.22. In the facts of the present case, we are not in agreement with the Appellants that granting exemption to the erstwhile employees of the KSEB from possessing the qualifications provided in Regulations 6 and 7 is an impermissible exercise of power under Regulation 116 of the Safety Regulations. Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government were empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act. A perusal of the order dated 13.02.2019 would demonstrate that the State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations. Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. In other words, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word deviation as having lesser scope than exemption. Deviation from the Regulations would amount to either exemption or relaxation. Therefore, we are in agreement with the Division Bench that the order dated 13.02.2019 cannot be said to have been issued beyond the power conferred by Regulation 116 of 2010 Regulations.Drawing from the interpretation of the relevant provisions as discussed above, promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Section 131 and 133(2) of the Electricity Act in conjunction with the transfer scheme and the tripartite agreement. The explanation to Section 133 makes it clear that officers and employees referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013. By no stretch of imagination can this protection be extended to the employees who were engaged by KSEBL after 31.10.2013. The High Court was right in setting aside the order dated 13.02.2019 which permitted deviation from Regulations 6 and 7 to all appointments made till the date of issuance of order dated 13.02.2019, even after the transfer scheme dated 31.10.2013. By the impugned judgment, the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013.As the exercise of power by the State Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions. Therefore, we approve the findings recorded by the Division Bench of the High Court of Kerala.

Rashtriya Ispat Nigam Ltd Vs. M/S Dewan Chand Ram Saran

service tax. Though the appellant became the assessee due to amendment of 2000, his position is exactly the same as in respect of Sales Tax, where the seller is the assessee, and is liable to pay Sales Tax to the tax authorities, but it is open to the seller, under his contract with the buyer, to recover the Sales Tax from the buyer, and to pass on the tax burden to him. Therefore, though there is no difficulty in accepting that after the amendment of 2000 the liability to pay the service tax is on the appellant as the assessee, the liability arose out of the services rendered by the respondent to the appellant, and that too prior to this amendment when the liability was on the service provider. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between two of them. There was nothing in law to prevent the appellant from entering into an agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent. 27. If this clause was to be read as meaning that the respondent would be liable only to honour his own tax liabilities, and not the liabilities arising out of the obligations under the contract, there was no need to make such a provision in a bilateral commercial document executed by the parties, since the respondent would be otherwise also liable for the same. In Bank of India (supra) one party viz. the bank was responsible for the formulation of the Voluntary Retirement Scheme, and the employees had only to decide whether to opt for it or not, and the principle of contra proferentem was applied. Unlike the VRS scheme, in the present case we are concerned with a clause in a commercial contract which is a bilateral document mutually agreed upon, and hence this principle can have no application. Therefore, clause 9.3 will have to be read as incorporated only with a view to provide for contractor’s acceptance of the tax liability arising out of his obligations under the contract. 28. It was pointed out on behalf of the appellant that it is conventional and accepted commercial practice to shift such liability to the contractor. A similar clause was considered by this Court in the case of Numaligarh Refinery Ltd. vs. Daelim Industrial Co. Ltd., reported in [2007 (8) SCC 466 ]. In that matter, the question was as to whether the contractor was liable to pay and bear the countervailing duty on the imports though this duty came into force subsequent to the relevant contract. The relevant clause 2(b) read as follows: “2(b) All taxes and duties in respect of job mentioned in the aforesaid contracts shall be the entire responsibility of the contractor…” Reading this clause and the connected documents, this Court held that they leave no manner of doubt that all the taxes and levies shall be borne by the contractor including this countervailing duty. 29. In any case, assuming that clause 9.3 was capable of two interpretations, the view taken by the arbitrator was clearly a possible if not a plausible one. It is not possible to say that the arbitrator had travelled outside his jurisdiction, or that the view taken by him was against the terms of contract. That being the position, the High Court had no reason to interfere with the award and substitute its view in place of the interpretation accepted by the arbitrator. The legal position in this behalf has been summarized in paragaph 18 of the judgment of this court in SAIL vs. Gupta Brother Steel Tubes Ltd. (supra) and which has been referred to above. Similar view has been taken later in Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. reported in [2010 (11) SCC 296 ] to which one of us (Gokhale J.) was a party. The observations in paragraph 43 thereof are instructive in this behalf. This paragraph 43 reads as follows: “43. ………The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of Clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute ones own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Mfg. Corpn. v. Central Warehousing Corpn ([2009 (5) SCC 142 ]). The Court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding.” 30. In view of what is stated above, the respondent as the contractor had to bear the service tax under clause 9.3 as the liability in connection with the discharge of his obligations under the contract. The appellant could not be faulted for deducting the service tax from the bills of the respondent under clause 9.3, and there was no reason for the High Court to interfere in the view taken by the arbitrator which was based, in any case on a possible interpretation of clause 9.3. The learned single Judge as well as the Division Bench clearly erred in interfering with the award rendered by the arbitrator. Both those judgments will, therefore, have to be set-aside.

1[ds]respondent as the contractor had to bear the service tax under clause 9.3 as the liabilityin connection withdischarge of hisobligations under the contract. The appellant could not be faulted for deducting the service tax from the bills of the respondent under clause 9.3, and there was no reason for the High Court to interfere in the view taken by the arbitrator which was based, in any case on a possible interpretation of clause 9.3. The learned single Judge as well as the Division Bench clearly erred in interfering with the award rendered by the arbitrator. Both those judgments will, therefore, have to be

### 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: service tax. Though the appellant became the assessee due to amendment of 2000, his position is exactly the same as in respect of Sales Tax, where the seller is the assessee, and is liable to pay Sales Tax to the tax authorities, but it is open to the seller, under his contract with the buyer, to recover the Sales Tax from the buyer, and to pass on the tax burden to him. Therefore, though there is no difficulty in accepting that after the amendment of 2000 the liability to pay the service tax is on the appellant as the assessee, the liability arose out of the services rendered by the respondent to the appellant, and that too prior to this amendment when the liability was on the service provider. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between two of them. There was nothing in law to prevent the appellant from entering into an agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent. 27. If this clause was to be read as meaning that the respondent would be liable only to honour his own tax liabilities, and not the liabilities arising out of the obligations under the contract, there was no need to make such a provision in a bilateral commercial document executed by the parties, since the respondent would be otherwise also liable for the same. In Bank of India (supra) one party viz. the bank was responsible for the formulation of the Voluntary Retirement Scheme, and the employees had only to decide whether to opt for it or not, and the principle of contra proferentem was applied. Unlike the VRS scheme, in the present case we are concerned with a clause in a commercial contract which is a bilateral document mutually agreed upon, and hence this principle can have no application. Therefore, clause 9.3 will have to be read as incorporated only with a view to provide for contractor’s acceptance of the tax liability arising out of his obligations under the contract. 28. It was pointed out on behalf of the appellant that it is conventional and accepted commercial practice to shift such liability to the contractor. A similar clause was considered by this Court in the case of Numaligarh Refinery Ltd. vs. Daelim Industrial Co. Ltd., reported in [2007 (8) SCC 466 ]. In that matter, the question was as to whether the contractor was liable to pay and bear the countervailing duty on the imports though this duty came into force subsequent to the relevant contract. The relevant clause 2(b) read as follows: “2(b) All taxes and duties in respect of job mentioned in the aforesaid contracts shall be the entire responsibility of the contractor…” Reading this clause and the connected documents, this Court held that they leave no manner of doubt that all the taxes and levies shall be borne by the contractor including this countervailing duty. 29. In any case, assuming that clause 9.3 was capable of two interpretations, the view taken by the arbitrator was clearly a possible if not a plausible one. It is not possible to say that the arbitrator had travelled outside his jurisdiction, or that the view taken by him was against the terms of contract. That being the position, the High Court had no reason to interfere with the award and substitute its view in place of the interpretation accepted by the arbitrator. The legal position in this behalf has been summarized in paragaph 18 of the judgment of this court in SAIL vs. Gupta Brother Steel Tubes Ltd. (supra) and which has been referred to above. Similar view has been taken later in Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. reported in [2010 (11) SCC 296 ] to which one of us (Gokhale J.) was a party. The observations in paragraph 43 thereof are instructive in this behalf. This paragraph 43 reads as follows: “43. ………The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of Clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute ones own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Mfg. Corpn. v. Central Warehousing Corpn ([2009 (5) SCC 142 ]). The Court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding.” 30. In view of what is stated above, the respondent as the contractor had to bear the service tax under clause 9.3 as the liability in connection with the discharge of his obligations under the contract. The appellant could not be faulted for deducting the service tax from the bills of the respondent under clause 9.3, and there was no reason for the High Court to interfere in the view taken by the arbitrator which was based, in any case on a possible interpretation of clause 9.3. The learned single Judge as well as the Division Bench clearly erred in interfering with the award rendered by the arbitrator. Both those judgments will, therefore, have to be set-aside. ### Response: 1 ### Explanation: respondent as the contractor had to bear the service tax under clause 9.3 as the liabilityin connection withdischarge of hisobligations under the contract. The appellant could not be faulted for deducting the service tax from the bills of the respondent under clause 9.3, and there was no reason for the High Court to interfere in the view taken by the arbitrator which was based, in any case on a possible interpretation of clause 9.3. The learned single Judge as well as the Division Bench clearly erred in interfering with the award rendered by the arbitrator. Both those judgments will, therefore, have to be

State Of W.B. Vs. Md. Khalil

and also to impose penalty, in the prescribed manner, not exceeding ten times the tax assessed by it on the dealer. The first proviso says that the assessment of the tax has to be after inspection and verification of such goods. It also provides for what can be termed as the "best judgment assessment" when such goods are not available for inspection and examination for the reason that either they have been disposed of or concealed or mixed with any other goods. The second proviso requires that the dealer be given a reasonable opportunity of being heard before the imposition of penaltyA plain reading of sub-section (6) shows that it empowers the prescribed authority to require any dealer to produce before it any accounts, register or document for examination and to furnish any information relating to the stock of goods or purchases, sales or deliveries of goods by the dealer or relating to any other matter, as may be deemed necessary, for the purpose of Section 14 of the Entry Tax Act. The prescribed authority is also empowered to require any person who has in his possession, custody or control any specified goods or through whom the specified goods are suspected by the prescribed authority to have passed, to produce before it any register, accounts or document for examination with a view to ascertaining whether any tax leviable under this Act is being or has been assessed or duly paid 14. It may be noticed here that the liability to pay the tax under sub-section (1) and the tax penalty under sub-sections (2) and (3) is on the dealer. It is only in a case falling under clause (b) of sub-section (6) of Section 14, that a person other than a dealer is dealt with and a duty is cast on him to produce documents, accounts register etc. when he is required to do so by the prescribed authority. The dealer is the person required to deliver the statutory declaration and is also answerable for the tax as well as for the penalty imposed under the Entry Tax Act. Therefore, the first thing we have to see is whether the respondent is a "dealer" within the meaning of that term. We have extracted above the definition of the term "dealer" and noted four categories of persons who fall within the meaning of that term. A person who is in possession of the specified goods does not fall within the meaning of that term. It follows that the respondent is not a "dealer" within the meaning of the Entry Tax ActIn the instant case, notice was issued to the respondent under Section 14(3) of the Entry Tax Act. It has been held that he is not a "dealer". That apart, for purposes of assessment of specified goods, sub-section (1) of Section 14 of the Entry Tax Act provides for assessment of specified goods on the basis of the declaration of the dealer, albeit after making such verification of the specified goods as the prescribed authority may consider necessary. Sub-section (2) of Section 14 of the Entry Tax Act provides for assessment on inspection and examination of specified goods where the dealer has failed or omitted to make the declaration as required by Section 13 of the Act. For assessing entry tax under sub-section (3) of Section 14 of the Entry Tax Act, it has to be shown (i) the specified goods have been brought into the Calcutta Metropolitan Area; (ii) such goods have been brought without payment of tax leviable thereon under the Act; (iii) such goods are found in possession of the respondent 15. It must be borne in mind that before the tax could be imposed under sub-section (3) of Section 14 of the Entry Tax Act, the authority will have to be satisfied of the requirements noted above. Without there being any material to show that the specified goods in the possession of the respondent have been brought into the Calcutta Metropolitan Area and that they were brought without payment of any tax leviable thereon, no tax can be levied under sub-section (3) of Section 14 even on a dealer. It cannot be lost sight of that the tax under the Entry Tax Act is a tax on the entry of the specified goods into the Calcutta Metropolitan Area and not on possession of the specified goods within the Calcutta Metropolitan Area 16. However, the contention of Mr. Chakravarty is that when specified goods are found in possession of a person and when he, on being required to produce before the authority any accounts, register or document under sub-section (6) of Section 14, has failed to do so, a presumption arises that the specified goods have been brought by him into the Calcutta Metropolitan Area without payment of tax. We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption, as submitted by Mr. Chakravarty, there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts, register or document on being required to do so, has imported the goods into the Calcutta Metropolitan Area without payment of tax. On the facts and circumstances of the case, it is impossible for a court to infer that the respondent has imported the goods into the Calcutta Metropolitan Area without payment of taxIn the light of the above discussion, we cannot but uphold the impugned judgments of the Tribunal. 17.

0[ds]We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption, as submitted by Mr. Chakravarty, there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts, register or document on being required to do so, has imported the goods into the Calcutta Metropolitan Area without payment of tax. On the facts and circumstances of the case, it is impossible for a court to infer that the respondent has imported the goods into the Calcutta Metropolitan Area without payment of taxIn the light of the above discussion, we cannot but uphold the impugned judgments of the Tribunal.

### 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: and also to impose penalty, in the prescribed manner, not exceeding ten times the tax assessed by it on the dealer. The first proviso says that the assessment of the tax has to be after inspection and verification of such goods. It also provides for what can be termed as the "best judgment assessment" when such goods are not available for inspection and examination for the reason that either they have been disposed of or concealed or mixed with any other goods. The second proviso requires that the dealer be given a reasonable opportunity of being heard before the imposition of penaltyA plain reading of sub-section (6) shows that it empowers the prescribed authority to require any dealer to produce before it any accounts, register or document for examination and to furnish any information relating to the stock of goods or purchases, sales or deliveries of goods by the dealer or relating to any other matter, as may be deemed necessary, for the purpose of Section 14 of the Entry Tax Act. The prescribed authority is also empowered to require any person who has in his possession, custody or control any specified goods or through whom the specified goods are suspected by the prescribed authority to have passed, to produce before it any register, accounts or document for examination with a view to ascertaining whether any tax leviable under this Act is being or has been assessed or duly paid 14. It may be noticed here that the liability to pay the tax under sub-section (1) and the tax penalty under sub-sections (2) and (3) is on the dealer. It is only in a case falling under clause (b) of sub-section (6) of Section 14, that a person other than a dealer is dealt with and a duty is cast on him to produce documents, accounts register etc. when he is required to do so by the prescribed authority. The dealer is the person required to deliver the statutory declaration and is also answerable for the tax as well as for the penalty imposed under the Entry Tax Act. Therefore, the first thing we have to see is whether the respondent is a "dealer" within the meaning of that term. We have extracted above the definition of the term "dealer" and noted four categories of persons who fall within the meaning of that term. A person who is in possession of the specified goods does not fall within the meaning of that term. It follows that the respondent is not a "dealer" within the meaning of the Entry Tax ActIn the instant case, notice was issued to the respondent under Section 14(3) of the Entry Tax Act. It has been held that he is not a "dealer". That apart, for purposes of assessment of specified goods, sub-section (1) of Section 14 of the Entry Tax Act provides for assessment of specified goods on the basis of the declaration of the dealer, albeit after making such verification of the specified goods as the prescribed authority may consider necessary. Sub-section (2) of Section 14 of the Entry Tax Act provides for assessment on inspection and examination of specified goods where the dealer has failed or omitted to make the declaration as required by Section 13 of the Act. For assessing entry tax under sub-section (3) of Section 14 of the Entry Tax Act, it has to be shown (i) the specified goods have been brought into the Calcutta Metropolitan Area; (ii) such goods have been brought without payment of tax leviable thereon under the Act; (iii) such goods are found in possession of the respondent 15. It must be borne in mind that before the tax could be imposed under sub-section (3) of Section 14 of the Entry Tax Act, the authority will have to be satisfied of the requirements noted above. Without there being any material to show that the specified goods in the possession of the respondent have been brought into the Calcutta Metropolitan Area and that they were brought without payment of any tax leviable thereon, no tax can be levied under sub-section (3) of Section 14 even on a dealer. It cannot be lost sight of that the tax under the Entry Tax Act is a tax on the entry of the specified goods into the Calcutta Metropolitan Area and not on possession of the specified goods within the Calcutta Metropolitan Area 16. However, the contention of Mr. Chakravarty is that when specified goods are found in possession of a person and when he, on being required to produce before the authority any accounts, register or document under sub-section (6) of Section 14, has failed to do so, a presumption arises that the specified goods have been brought by him into the Calcutta Metropolitan Area without payment of tax. We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption, as submitted by Mr. Chakravarty, there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts, register or document on being required to do so, has imported the goods into the Calcutta Metropolitan Area without payment of tax. On the facts and circumstances of the case, it is impossible for a court to infer that the respondent has imported the goods into the Calcutta Metropolitan Area without payment of taxIn the light of the above discussion, we cannot but uphold the impugned judgments of the Tribunal. 17. ### Response: 0 ### Explanation: We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption, as submitted by Mr. Chakravarty, there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts, register or document on being required to do so, has imported the goods into the Calcutta Metropolitan Area without payment of tax. On the facts and circumstances of the case, it is impossible for a court to infer that the respondent has imported the goods into the Calcutta Metropolitan Area without payment of taxIn the light of the above discussion, we cannot but uphold the impugned judgments of the Tribunal.

Gaurav Pradhan & Others Vs. State of Rajasthan & Others

marks of the TET ranging from 10% to 20% was allowed to different reserved categories. After availing such relaxation the reserved category candidates were selected as having obtained more marks than the last general category candidate and were included in the general category candidates. Different circulars issued by the State of Rajasthan including circulars dated 17.06.1996, 04.03.2002 and 11.05.2011 were noticed by this Court. The general category candidates contended that since relaxation was obtained prior to issuance of circular dated 11.05.2011, circular dated 11.05.2011 is not applicable and as per earlier circulars reserved category candidates having obtained relaxation in marks were not eligible to be included into general category candidates. This Court after noticing the above arguments, ultimately held that the relaxation given in the marks in TET examination is not part of recruitment process. In paragraph 80 of the judgment this Court reached on following conclusion:"80.....Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET."44. This Court having come to the conclusion that relaxation given in TET was not part of recruitment process, the Circulars issued by the State of Rajasthan as noted above were held not to be applicable. Thus, in the above case although somewhat similar issues were raised but this Court has held that relaxation in TET marks was not part of recruitment process. The said judgment does not help either of the parties.45. The Division Bench as well as learned counsel appearing for the State of Rajasthan has relied on circular dated 11.05.2011. The Division Bench has observed that circular dated 11.05.2011 did not change the rules of game. Following observation has been made with regard to circular dated 11.05.2011:"In the instant case, State Government in supersession of its earlier policy decision regarding treatment to be given to the candidates belonging to reserved category who are selected against unreserved category vacancies, issued directives for guidance to the appointing authorities vide Circular dated 11/5/2011 that neither changed the eligibility criteria seeking employment nor manner & method of selection of suitable candidates and in our considered view, circular dated 11/05/2011 did not change Rules of the game after the game is played or process of selection is initiated as observed by the learned Single Judge but such policy decisions are always within realm of judicial review and this what the Court considered & examined policy decision of the Government impugned."46. As noticed above Rule 7(1) of 1989 Rules expressly provides that "reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion".(underlined by us). The circular of the Government shall be treated to be in force for the purpose of reservation which is in force at the time of recruitment. Recruitment commenced by the advertisement dated 7.10.2010 and 25.10.2010 at that time only circular dated 24.06.2008 was in force, hence, subsequent circular dated 11.05.2011 cannot be applied in the present recruitment. There cannot be any dispute that the policy of reservation can always be changed by the State Government and the State Government can change the manner and methodology of implementing the reservation and criteria of reservation of the reserved category candidates and general category candidates. It is also relevant to note that both learned Single Judge and Division Bench have not approved circular dated 11.05.2011 in toto. Both the Courts have held that apart from age relaxation, if the candidate has taken any other relaxation circular dated 11.05.2011 cannot help him in migrating into general category candidate.47. We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.49. On the question of existence of vacancies, although learned counsel for the appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned counsel for the State of Rajasthan. However, neither appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies.

1[ds]In the present case we are only concerned with the question of migration of reserved category candidate into general/open category candidate. Hence, it is sufficient to note the relevant orders issued by the Government in the abovethe present case there is no issue pertaining to the extent of reservation provided by the State Government to the SC, ST and OBC candidates. The issue involved in the present case is as to whetherthe reserved category candidates can be allowed to be migrated into general category candidates.The reservation is wide enough to include exemption, concession etc. The exemption, concession etc. are allowable to the reserved category candidates to effectuate and to give effect to the object behind Article 16 subclause (4) of the Constitution of India. The State is fully empowered to lay down the criteria for grant of exemption, concession and reservation and the manner and methodology to effectuate such reservation. The migration of reserved candidates into general category candidates is also part and parcel of larger concept of reservation and the Government orders issued on 17.06.1996, 04.03.2002 and 24.06.2008 were the Government orders providing for methodology for migration of reserved category candidates into general category candidates which was well within the power of State. Neither before us nor even before the High Court the aforesaid Government orders, last being 24.06.2008, were under challenge.It is relevant to note that in the case before us circular dated 24.06.2008 was not under challenge. The State has come up with circular dated 11.05.2011 which was issued during process of recruitment. The Division Bench has already recorded a finding that recruitment process had begun prior to circular dated 11.05.2011. The State clearly provided that candidates belonging to reserved category irrespective of having availed any of the special concessions secure bench mark prescribed for general/open category candidates if selected, such a reserved category candidate shall be counted against unreserved/open category candidates.31. We are of the view that judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and circular dated 25.03.1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by circular dated 24.06.2008.The contents of the above circular which speaks age relaxation and makes reserved category candidates ineligible to be treated into general category candidates is same as in para 6.2 of circular dated 24.06.2008 as noted above which is applicable in the present case. Case of Jitendra Kumar Singh is distinguishable with the present case as has been distinguished by this Court in Deepa E.V. case.Circular dated 26.07.2017 is the reiteration of earlier position as was provided by circular dated 24.06.2008 quoted above. Thus, the position is now well accepted even by State of Rajasthan that those candidates belonging to SC/ST/BC who have obtained concession of age are not eligible to be migrated to the unreserved vacancies. Circular dated 24.06.2008 being very much in existence, law laid down by this Court in Deepa E.V. holds the field and the State of Rajasthan was obliged to not migrate those SC/ST/BC category candidates who are in unreserved category, who have taken concession of age.In the event, the submission of learned counsel for respondent Nos.6 to 9 is accepted the above two parts of paragraph 6.2 shall become clearly contradictory. Since, in the beginning it is clearly stated that candidates of SC/ST/OBC shall be counted against unreserved vacancies whereas if second part read as contended by the learned counsel for the private respondents, the first part of paragraph becomes redundant and unnecessary. The scheme of circular dated 24.06.2008 is not so as contended by the learned counsel for the private respondents. The part on which reliance has been placed by the learned counsel for respondent Nos.6 to 9 is a part which deals with the case of women, persons with disabilities, sports persons, inservicemen or nongazetted employees and exservicemen, for those categories it is provided that if they have obtained marks more than the last person of the open competition category, they will be adjusted against unreserved candidates. Thus, the above submission of learned counsel for the private respondents cannot be accepted.We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.49. On the question of existence of vacancies, although learned counsel for the appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned counsel for the State of Rajasthan. However, neither appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies.

### 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: marks of the TET ranging from 10% to 20% was allowed to different reserved categories. After availing such relaxation the reserved category candidates were selected as having obtained more marks than the last general category candidate and were included in the general category candidates. Different circulars issued by the State of Rajasthan including circulars dated 17.06.1996, 04.03.2002 and 11.05.2011 were noticed by this Court. The general category candidates contended that since relaxation was obtained prior to issuance of circular dated 11.05.2011, circular dated 11.05.2011 is not applicable and as per earlier circulars reserved category candidates having obtained relaxation in marks were not eligible to be included into general category candidates. This Court after noticing the above arguments, ultimately held that the relaxation given in the marks in TET examination is not part of recruitment process. In paragraph 80 of the judgment this Court reached on following conclusion:"80.....Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET."44. This Court having come to the conclusion that relaxation given in TET was not part of recruitment process, the Circulars issued by the State of Rajasthan as noted above were held not to be applicable. Thus, in the above case although somewhat similar issues were raised but this Court has held that relaxation in TET marks was not part of recruitment process. The said judgment does not help either of the parties.45. The Division Bench as well as learned counsel appearing for the State of Rajasthan has relied on circular dated 11.05.2011. The Division Bench has observed that circular dated 11.05.2011 did not change the rules of game. Following observation has been made with regard to circular dated 11.05.2011:"In the instant case, State Government in supersession of its earlier policy decision regarding treatment to be given to the candidates belonging to reserved category who are selected against unreserved category vacancies, issued directives for guidance to the appointing authorities vide Circular dated 11/5/2011 that neither changed the eligibility criteria seeking employment nor manner & method of selection of suitable candidates and in our considered view, circular dated 11/05/2011 did not change Rules of the game after the game is played or process of selection is initiated as observed by the learned Single Judge but such policy decisions are always within realm of judicial review and this what the Court considered & examined policy decision of the Government impugned."46. As noticed above Rule 7(1) of 1989 Rules expressly provides that "reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion".(underlined by us). The circular of the Government shall be treated to be in force for the purpose of reservation which is in force at the time of recruitment. Recruitment commenced by the advertisement dated 7.10.2010 and 25.10.2010 at that time only circular dated 24.06.2008 was in force, hence, subsequent circular dated 11.05.2011 cannot be applied in the present recruitment. There cannot be any dispute that the policy of reservation can always be changed by the State Government and the State Government can change the manner and methodology of implementing the reservation and criteria of reservation of the reserved category candidates and general category candidates. It is also relevant to note that both learned Single Judge and Division Bench have not approved circular dated 11.05.2011 in toto. Both the Courts have held that apart from age relaxation, if the candidate has taken any other relaxation circular dated 11.05.2011 cannot help him in migrating into general category candidate.47. We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.49. On the question of existence of vacancies, although learned counsel for the appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned counsel for the State of Rajasthan. However, neither appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies. ### Response: 1 ### Explanation: wide enough to include exemption, concession etc. The exemption, concession etc. are allowable to the reserved category candidates to effectuate and to give effect to the object behind Article 16 subclause (4) of the Constitution of India. The State is fully empowered to lay down the criteria for grant of exemption, concession and reservation and the manner and methodology to effectuate such reservation. The migration of reserved candidates into general category candidates is also part and parcel of larger concept of reservation and the Government orders issued on 17.06.1996, 04.03.2002 and 24.06.2008 were the Government orders providing for methodology for migration of reserved category candidates into general category candidates which was well within the power of State. Neither before us nor even before the High Court the aforesaid Government orders, last being 24.06.2008, were under challenge.It is relevant to note that in the case before us circular dated 24.06.2008 was not under challenge. The State has come up with circular dated 11.05.2011 which was issued during process of recruitment. The Division Bench has already recorded a finding that recruitment process had begun prior to circular dated 11.05.2011. The State clearly provided that candidates belonging to reserved category irrespective of having availed any of the special concessions secure bench mark prescribed for general/open category candidates if selected, such a reserved category candidate shall be counted against unreserved/open category candidates.31. We are of the view that judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and circular dated 25.03.1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by circular dated 24.06.2008.The contents of the above circular which speaks age relaxation and makes reserved category candidates ineligible to be treated into general category candidates is same as in para 6.2 of circular dated 24.06.2008 as noted above which is applicable in the present case. Case of Jitendra Kumar Singh is distinguishable with the present case as has been distinguished by this Court in Deepa E.V. case.Circular dated 26.07.2017 is the reiteration of earlier position as was provided by circular dated 24.06.2008 quoted above. Thus, the position is now well accepted even by State of Rajasthan that those candidates belonging to SC/ST/BC who have obtained concession of age are not eligible to be migrated to the unreserved vacancies. Circular dated 24.06.2008 being very much in existence, law laid down by this Court in Deepa E.V. holds the field and the State of Rajasthan was obliged to not migrate those SC/ST/BC category candidates who are in unreserved category, who have taken concession of age.In the event, the submission of learned counsel for respondent Nos.6 to 9 is accepted the above two parts of paragraph 6.2 shall become clearly contradictory. Since, in the beginning it is clearly stated that candidates of SC/ST/OBC shall be counted against unreserved vacancies whereas if second part read as contended by the learned counsel for the private respondents, the first part of paragraph becomes redundant and unnecessary. The scheme of circular dated 24.06.2008 is not so as contended by the learned counsel for the private respondents. The part on which reliance has been placed by the learned counsel for respondent Nos.6 to 9 is a part which deals with the case of women, persons with disabilities, sports persons, inservicemen or nongazetted employees and exservicemen, for those categories it is provided that if they have obtained marks more than the last person of the open competition category, they will be adjusted against unreserved candidates. Thus, the above submission of learned counsel for the private respondents cannot be accepted.We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.49. On the question of existence of vacancies, although learned counsel for the appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned counsel for the State of Rajasthan. However, neither appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies.

Nookala Setharamaiah Vs. Kotaiah Naidu & Ors

of receipt of the application, the State Government ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receipt. The expression "deemed to be a refusal" in Rule 57 (2) is only for the purpose of a review application to be filed before the Central Government, and it is not a part of R. 28 tabindex = 1>28 (1-A). In this view of the matter the legality of the order passed by the State Government granting a mining lease to respondent No.2 cannot be challenged on the above ground." 22. We think that these observations are not correct. If it is otherwise, even when a review petition is pending before the Central Government under Rule 57, the State Government can make an order on the application made and thus compel the parties to file another review petition. Further, if the Central Government gives one direction in the review petition and the State Government passes an inconsistent order in the original petition, there is bound to be confusion.If we read Rule 28 tabindex = 1>28 (1-A) and Rule57 (2) together, there is hardly any doubt that after the period prescribed, the State Government is incompetent to deal with the applications pending before it. According to rule 57 (2), where a State Government has failed to dispose of an application for the grant of a mining lease within the period prescribed therefor in the rules, such failure shall for the purpose of the rules be deemed to be refusal to grant the lease. The rules referred therein include Rule 28 tabindex = 1>28 as well. This deemed refusal, if read with the mandate given to the State Government under Rule 28 tabindex = 1>28 (1-A) requiring it to dispose of the applications within 9 months of the receipt of those applications, there can be hardly any doubt that if the State Government does not dispose of the applications with in the time prescribed, it is deemed to have refused those applications for the purpose of Rule 28 tabindex = 1>28 as well as Rule 57. The High Court was wrong in thinking that in the absence of a provision providing for deemed rejection in Rule 28 tabindex = 1>28 (1-A) the contravention of that rule does not take away the jurisdiction of the State Government. That conclusion ignores the words in Rule 57 (2) that deemed rejection is for the purpose of these rules. In view of those words in Rule 57 (2), it was unnecessary for the rule-making authority to prescribe in Rule 28 tabindex = 1>28 (1-A) the consequences of the failure on the part of the State Government to implement the mandate of Rule 28 tabindex = 1>28 (1-A).Hence, in our opinion, the Central Governments decision that the application made by the appellant, the 1st respondent and others for mining lease should be deemed to have been refused on March 1, 1958 is correct. Therefore the High Court was wrong in quashing the order of the Central Government on that ground. 23. The High Court was also wrong in opining that in view of the representations made by the learned Government Pleader before Bhimasankaran, J., on August 25, 1959, in Writ Petition No. 1237 of 1957, the State Government is estopped from contending that the application made by the 1st respondent on September 15, 1953, must be deemed to have been refused.There can be no estoppel against a statute. Rule 28 tabindex = 1>28 (1-A) and Rule 57 (2) are statutory rules. They bind the Government as much as they bind others. The requirement of those rules cannot be waived by the State Governments. Therefore the fact that the learned Government Pleader represented to the Court that the petition filed by the 1st respondent on September 15, 1953 was still pending disposal cannot change the legal position nor could it confer on the State Government any power to act in contravention of those rules. 24. Yet another ground relied on by the High Court is that in view of the writ issued by Basi Reddy, J., in Writ Petition No. 888 of 1957, the State Government was bound to consider the application of the 1st respondent and therefore the decision of the State Government taken him obedience to the order of the High Court could not have been set aside by the Central Government. It is true that as far as the State Government is concerned the writ issued was binding whether the decision rendered by the Court was correct in law or not; but then that decision will not bind either the appellant herein or the Central Government who were not parties to that writ petition. It is not a judgment in rem. In obedience to the writ issued by the Court, the State Government did consider the application of the 1st respondent. It granted him the lease asked for by him. Therefore the State Government has complied with the direction issued to it by the High Court.The Central Government had been constituted as the revisional authority under Rule 57. That authority is a quasi-judicial body created by statutory rules. It is bound by law to discharge the duties imposed on it by Rule 57. Therefore it had to obey the mandate of Rule 57. In so doing, it cannot be said that it had infringed the mandamus issued by the High Court in Writ Petition No. 888 of 1957 to which, as pointed out before, the appellant was not a party and the order made in which could not be binding either on the Central Government or the appellant. 25. For the reasons mentioned above, we allow Civil Appeal no. 2121 of 1969 and set aside the order of the High Court and dismiss the Writ petition No. 464 of 1965 but in the circumstances of the case, we make no order as to costs in these appeals. ORDER

1[ds]19. So far as Civil Appeal No. 2122 of 1969 is concerned there is no merit in the same. No ground in support of that appeal was urged before us. Hence it fails and it is dismissedWe shall now proceed to consider the correctness of the reasons given by the High Court in support of its order21. The High Court was of the opinion that Rule 57 (2) was enacted only for the benefit of the applicants for lease, license etc., so that they may have an early opportunity to move the Central Government for appropriate orders. In the view of the High Court that rule does not take away the power of the State Government to dispose of the applications made for mining lease etc., even after the period prescribed expires. In support of this conclusion, it relied on the decision of the Patna High Court in Dey Gupta and Co. v. State of Bihar, AIR 1961 Pat 487 as well as on the decision of Basi Reddy, J., in Writ Petition No. 888 of 1957 to which reference has already been made. Neither the Patna decision nor the judgment of Basi Reddy, J., nor the decision under appeal gives any cogent reason in support of the conclusion that the deemed dismissal under Rule 57 (2) does not take away the right of the State Government to grant the lease asked for. The Patna High Court in support of its conclusion observed:"No doubt, readingRule28 tabindex = 1>28) withRule57 (2) of the, it is clear that, if the State Government fails to dispose of an application for the grant of a mining lease within nine months, it must be deemed to have been refused by itBut this provision is made, in my opinion, only for the purpose of filing a review application before the Central Government, so that an applicant desirous to have a mining lease may not have to wait unnecessarily for a long period without any order being passed on his application. That however, does not mean that after the lapse of nine months from the date of receipt of the application, the State Government ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receiptThe expression "deemed to be a refusal" inRule57 (2) is only for the purpose of a review application to be filed before the Central Government, and it is not a part of R.28 tabindex = 1>28. In this view of the matter the legality of the order passed by the State Government granting a mining lease to respondent No.2 cannot be challenged on the above ground."22. We think that these observations are not correct. If it is otherwise, even when a review petition is pending before the Central Government underRule57, the State Government can make an order on the application made and thus compel the parties to file another review petition. Further, if the Central Government gives one direction in the review petition and the State Government passes an inconsistent order in the original petition, there is bound to be confusion.If we readRule28 tabindex = 1>28) and7 (2) together, there is hardly any doubt that after the period prescribed, the State Government is incompetent to deal with the applications pending before it. According to rule 57 (2), where a State Government has failed to dispose of an application for the grant of a mining lease within the period prescribed therefor in the rules, such failure shall for the purpose of the rules be deemed to be refusal to grant the lease. The rules referred therein includeRule28 tabindex = 1>28as well. This deemed refusal, if read with the mandate given to the State Government underRule

### 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: of receipt of the application, the State Government ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receipt. The expression "deemed to be a refusal" in Rule 57 (2) is only for the purpose of a review application to be filed before the Central Government, and it is not a part of R. 28 tabindex = 1>28 (1-A). In this view of the matter the legality of the order passed by the State Government granting a mining lease to respondent No.2 cannot be challenged on the above ground." 22. We think that these observations are not correct. If it is otherwise, even when a review petition is pending before the Central Government under Rule 57, the State Government can make an order on the application made and thus compel the parties to file another review petition. Further, if the Central Government gives one direction in the review petition and the State Government passes an inconsistent order in the original petition, there is bound to be confusion.If we read Rule 28 tabindex = 1>28 (1-A) and Rule57 (2) together, there is hardly any doubt that after the period prescribed, the State Government is incompetent to deal with the applications pending before it. According to rule 57 (2), where a State Government has failed to dispose of an application for the grant of a mining lease within the period prescribed therefor in the rules, such failure shall for the purpose of the rules be deemed to be refusal to grant the lease. The rules referred therein include Rule 28 tabindex = 1>28 as well. This deemed refusal, if read with the mandate given to the State Government under Rule 28 tabindex = 1>28 (1-A) requiring it to dispose of the applications within 9 months of the receipt of those applications, there can be hardly any doubt that if the State Government does not dispose of the applications with in the time prescribed, it is deemed to have refused those applications for the purpose of Rule 28 tabindex = 1>28 as well as Rule 57. The High Court was wrong in thinking that in the absence of a provision providing for deemed rejection in Rule 28 tabindex = 1>28 (1-A) the contravention of that rule does not take away the jurisdiction of the State Government. That conclusion ignores the words in Rule 57 (2) that deemed rejection is for the purpose of these rules. In view of those words in Rule 57 (2), it was unnecessary for the rule-making authority to prescribe in Rule 28 tabindex = 1>28 (1-A) the consequences of the failure on the part of the State Government to implement the mandate of Rule 28 tabindex = 1>28 (1-A).Hence, in our opinion, the Central Governments decision that the application made by the appellant, the 1st respondent and others for mining lease should be deemed to have been refused on March 1, 1958 is correct. Therefore the High Court was wrong in quashing the order of the Central Government on that ground. 23. The High Court was also wrong in opining that in view of the representations made by the learned Government Pleader before Bhimasankaran, J., on August 25, 1959, in Writ Petition No. 1237 of 1957, the State Government is estopped from contending that the application made by the 1st respondent on September 15, 1953, must be deemed to have been refused.There can be no estoppel against a statute. Rule 28 tabindex = 1>28 (1-A) and Rule 57 (2) are statutory rules. They bind the Government as much as they bind others. The requirement of those rules cannot be waived by the State Governments. Therefore the fact that the learned Government Pleader represented to the Court that the petition filed by the 1st respondent on September 15, 1953 was still pending disposal cannot change the legal position nor could it confer on the State Government any power to act in contravention of those rules. 24. Yet another ground relied on by the High Court is that in view of the writ issued by Basi Reddy, J., in Writ Petition No. 888 of 1957, the State Government was bound to consider the application of the 1st respondent and therefore the decision of the State Government taken him obedience to the order of the High Court could not have been set aside by the Central Government. It is true that as far as the State Government is concerned the writ issued was binding whether the decision rendered by the Court was correct in law or not; but then that decision will not bind either the appellant herein or the Central Government who were not parties to that writ petition. It is not a judgment in rem. In obedience to the writ issued by the Court, the State Government did consider the application of the 1st respondent. It granted him the lease asked for by him. Therefore the State Government has complied with the direction issued to it by the High Court.The Central Government had been constituted as the revisional authority under Rule 57. That authority is a quasi-judicial body created by statutory rules. It is bound by law to discharge the duties imposed on it by Rule 57. Therefore it had to obey the mandate of Rule 57. In so doing, it cannot be said that it had infringed the mandamus issued by the High Court in Writ Petition No. 888 of 1957 to which, as pointed out before, the appellant was not a party and the order made in which could not be binding either on the Central Government or the appellant. 25. For the reasons mentioned above, we allow Civil Appeal no. 2121 of 1969 and set aside the order of the High Court and dismiss the Writ petition No. 464 of 1965 but in the circumstances of the case, we make no order as to costs in these appeals. ORDER ### Response: 1 ### Explanation: 19. So far as Civil Appeal No. 2122 of 1969 is concerned there is no merit in the same. No ground in support of that appeal was urged before us. Hence it fails and it is dismissedWe shall now proceed to consider the correctness of the reasons given by the High Court in support of its order21. The High Court was of the opinion that Rule 57 (2) was enacted only for the benefit of the applicants for lease, license etc., so that they may have an early opportunity to move the Central Government for appropriate orders. In the view of the High Court that rule does not take away the power of the State Government to dispose of the applications made for mining lease etc., even after the period prescribed expires. In support of this conclusion, it relied on the decision of the Patna High Court in Dey Gupta and Co. v. State of Bihar, AIR 1961 Pat 487 as well as on the decision of Basi Reddy, J., in Writ Petition No. 888 of 1957 to which reference has already been made. Neither the Patna decision nor the judgment of Basi Reddy, J., nor the decision under appeal gives any cogent reason in support of the conclusion that the deemed dismissal under Rule 57 (2) does not take away the right of the State Government to grant the lease asked for. The Patna High Court in support of its conclusion observed:"No doubt, readingRule28 tabindex = 1>28) withRule57 (2) of the, it is clear that, if the State Government fails to dispose of an application for the grant of a mining lease within nine months, it must be deemed to have been refused by itBut this provision is made, in my opinion, only for the purpose of filing a review application before the Central Government, so that an applicant desirous to have a mining lease may not have to wait unnecessarily for a long period without any order being passed on his application. That however, does not mean that after the lapse of nine months from the date of receipt of the application, the State Government ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receiptThe expression "deemed to be a refusal" inRule57 (2) is only for the purpose of a review application to be filed before the Central Government, and it is not a part of R.28 tabindex = 1>28. In this view of the matter the legality of the order passed by the State Government granting a mining lease to respondent No.2 cannot be challenged on the above ground."22. We think that these observations are not correct. If it is otherwise, even when a review petition is pending before the Central Government underRule57, the State Government can make an order on the application made and thus compel the parties to file another review petition. Further, if the Central Government gives one direction in the review petition and the State Government passes an inconsistent order in the original petition, there is bound to be confusion.If we readRule28 tabindex = 1>28) and7 (2) together, there is hardly any doubt that after the period prescribed, the State Government is incompetent to deal with the applications pending before it. According to rule 57 (2), where a State Government has failed to dispose of an application for the grant of a mining lease within the period prescribed therefor in the rules, such failure shall for the purpose of the rules be deemed to be refusal to grant the lease. The rules referred therein includeRule28 tabindex = 1>28as well. This deemed refusal, if read with the mandate given to the State Government underRule

State of Maharashtra Vs. Prabhakar Pandurang Sanzgiri & Another

was detrimental to public interest or safety or the discipline of the place of detention. Prima facie the said sub-rule applies only to letters to and from security prisoners and does not regulate the sending out of prison books for publication. Indeed, the learned Additional Solicitor-General does not rely upon this provision. 7. Let us now consider the validity of the argument of the learned Additional Solicitor-General. He relies upon the following observations of Das, J., as he then was, in A. K. Gopalans case. 1950 SCR 88 at p. 291: (AIR 1950 SC 27 at p. 108). If a mans person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his own inclination may direct, reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently attached to the person. Relying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression and that in the light of the said observations, as the detenu ceased to be free in view of his detention, he cannot exercise his freedom to publish his book. In other words, as he is no longer a free man, his right to publish his book, which is only an attribute of personal liberty, is lost. The principle accepted by Das, J., as he then was, does not appear to be the basis of the conclusion arrived at by the other learned Judges who agreed with the conclusion. Different reasons are given by the learned Judges for arriving at the same conclusion. As has been pointed out by this Court in the second Kochunnis case, (Kavalappara Kottarathil Kochuni v. State of Madras), (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), the views of the learned Judges may be broadly summarized under the following heads: (1) to invoke Art. 19 (1) of the Constitution, a law shall be made directly infringing the right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 19 postulate a free man. Therefore, it cannot be said that the said principle was accepted by all the learned Judges who took part in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ). That apart, there are five distinct lines of thought in the matter of reconciling Art. 21 with Art. 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in Art. 19; (2) personal liberty in Art. 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in Art. 19; (3) the personal liberty included in Art. 21 is wide enough to include some or all of the freedom mentioned in Art. 19, but they are two distinct fundamental rights - a law to be valid shall not infringe both the rights; (4) the expression law in Art. 21 means a valid law and, therefore, even if a persons liberty is deprived by law of detention, the said law shall not infringe Art. 19; and (5) Art. 21 applies to procedural law, whereas Art. 19 to substantive law relating to personal liberty. We do not propose to pursue the matter further or to express our opinion one way or other. We have only mentioned the said views to show that the view expressed by Das, J., as he then was, in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ), is not the last word on the subject. 8. In this case, as we have said earlier, we are only concerned with the question whether the restriction imposed on the personal liberty of the first respondent is in terms of the relevant provisions of the Defence of India Rules. Here, the first respondents liberty is restricted under the Defence of India Rules subject to conditions determined in the manner prescribed in sub-r. (4) of R. 30 thereof. We find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons. We, therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be restricted. As there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or sending it for publication, the State of Maharashtra infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained. 9. The appellant, therefore, acted contrary to law in refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publication. 10. In the views we have taken, another argument advanced by Mr. Garg, namely, that the restriction can only be imposed by an order made under S. 30 (f) or (h) of the Rules and that too in strict compliance with S. 44 of the Act need not be considered. That question may arise if and when an appropriate condition is imposed restricting the liberty of a detenu in the matter of sending his books for publication. We do not express our view on this question one way or other.

1[ds]4. Article 358 of the Constitution suspends the provisions of Art. 19 of Part III of the Constitution during the period the proclamation of emergency is in operation; and the order passed by the President under Art. 359 suspended the enforcement, inter alia, of Art. 21 during the period of the said emergency. But the Presidents order was a conditional one. In effect it said that the right to move the High Court or the Supreme Court remained suspended if such a person had been deprived of his personal liberty under the Defence of India Act, 1962, or any rule or order made thereunder. If a person was deprived of his personal liberty not under the Act or a rule or order made thereunder but in contravention thereof, his right to move the said Courts in that regard would not be suspended. The question, therefore, in this case is whether the first respondents liberty has been restricted in terms of the Defence of India Rules whereunder he was detained. If it was in contravention of the said Rules, he would have the right to approach the High Court under Art. 226 of the Constitution5. In exercise of the power conferred on the Central Government by S. 3 of the Act, the Central Government made the Defence of India Rules. Under R. 30 of the Rules the Central Government or the State Government, if it is satisfied with respect to any person that in order to prevent him from acting in any manner prejudicial to the matters mentioned therein, it is necessary so to do, may make an order directing that he be detained. Under. (4) thereof he shall be liable to be detained in such place and under such conditions as to maintenance, discipline and the punishment of the offence and the breaches of discipline as the Central Government or the State Government, as the case may be, may from time to time determine. In exercise of the power conferred under. (4) of R. 30 of the Rules, the Government of Maharashtra determined that the conditions as to maintenance, discipline and the punishment of offences and breaches of discipline governing persons ordered to be detained in any place in the State of Maharashtra, shall be the same as those contained in the Bombay Conditions of Detention Order, 1951. The Bombay Conditions of Detention Order, 1951, does not contain any condition as regards the writing of books by a detenu or sending them out of jail for publication. Briefly stated, the scheme of the said provisions is that a person can be detained if the appropriate Government is satisfied that in order to prevent him from doing the prejudicial acts mentioned in R. 30 of the Rules it is necessary to detain him in prison subject to the conditions imposed in the manner prescribed in. (4) of R. 30 of the Rules. To put it in a negative form no restrictions other than those prescribed under. (4) of R. 30 can be imposed on a detenu. If the appropriate authority seeks to impose on a detenu a restriction not so prescribed, the said authority will be interfering with the personal liberty of the detenu in derogation of the law whereunder he is detained. If that happens, the High Court, in terms of Art. 226 of the Constitution, can issue an appropriate writ or direction to the authority concerned to act in accordance with law6. We have gone through the provisions of the Bombay Conditions of Detention Order, 1951. There is no provision in that Order dealing with the writing or publication of books by a detenu. There is, therefore, no restriction on the detenu in respect of that activity.e (iii) of R. 17 of the said Order7. Let us now consider the validity of the argument of the learned Additional. He relies upon the following observations of Das, J., as he then was, in A. K. Gopalans case. 1950 SCR 88 at p. 291: (AIR 1950 SC 27 at p. 108)If a mans person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his own inclination may direct, reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently attached to the personRelying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression and that in the light of the said observations, as the detenu ceased to be free in view of his detention, he cannot exercise his freedom to publish his book. In other words, as he is no longer a free man, his right to publish his book, which is only an attribute of personal liberty, is lost. The principle accepted by Das, J., as he then was, does not appear to be the basis of the conclusion arrived at by the other learned Judges who agreed with the conclusion. Different reasons are given by the learned Judges for arriving at the same conclusion. As has been pointed out by this Court in the second Kochunnis case, (Kavalappara Kottarathil Kochuni v. State of Madras), (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), the views of the learned Judges may be broadly summarized under the following heads: (1) to invoke Art. 19 (1) of the Constitution, a law shall be made directly infringing the right; (2) Arts. 21 and 22 constitute ad code; and (3) the freedoms in Art. 19 postulate a free man. Therefore, it cannot be said that the said principle was accepted by all the learned Judges who took part in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ). That apart, there are five distinct lines of thought in the matter of reconciling Art. 21 with Art. 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in Art. 19; (2) personal liberty in Art. 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in Art. 19; (3) the personal liberty included in Art. 21 is wide enough to include some or all of the freedom mentioned in Art. 19, but they are two distinct fundamental rightsa law to be valid shall not infringe both the rights; (4) the expression law in Art. 21 means a valid law and, therefore, even if a persons liberty is deprived by law of detention, the said law shall not infringe Art. 19; and (5) Art. 21 applies to procedural law, whereas Art. 19 to substantive law relating to personal liberty. We do not propose to pursue the matter further or to express our opinion one way or other. We have only mentioned the said views to show that the view expressed by Das, J., as he then was, in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ), is not the last word on the subject8. In this case, as we have said earlier, we are only concerned with the question whether the restriction imposed on the personal liberty of the first respondent is in terms of the relevant provisions of the Defence of India Rules. Here, the first respondents liberty is restricted under the Defence of India Rules subject to conditions determined in the manner prescribed in. (4) of R. 30 thereofWe find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons. We, therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be restricted. As there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or sending it for publication, the State of Maharashtra infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained9. The appellant, therefore, acted contrary to law in refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publicationThat question may arise if and when an appropriate condition is imposed restricting the liberty of a detenu in the matter of sending his books for publication. We do not express our view on this question one way or other.

### 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: was detrimental to public interest or safety or the discipline of the place of detention. Prima facie the said sub-rule applies only to letters to and from security prisoners and does not regulate the sending out of prison books for publication. Indeed, the learned Additional Solicitor-General does not rely upon this provision. 7. Let us now consider the validity of the argument of the learned Additional Solicitor-General. He relies upon the following observations of Das, J., as he then was, in A. K. Gopalans case. 1950 SCR 88 at p. 291: (AIR 1950 SC 27 at p. 108). If a mans person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his own inclination may direct, reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently attached to the person. Relying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression and that in the light of the said observations, as the detenu ceased to be free in view of his detention, he cannot exercise his freedom to publish his book. In other words, as he is no longer a free man, his right to publish his book, which is only an attribute of personal liberty, is lost. The principle accepted by Das, J., as he then was, does not appear to be the basis of the conclusion arrived at by the other learned Judges who agreed with the conclusion. Different reasons are given by the learned Judges for arriving at the same conclusion. As has been pointed out by this Court in the second Kochunnis case, (Kavalappara Kottarathil Kochuni v. State of Madras), (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), the views of the learned Judges may be broadly summarized under the following heads: (1) to invoke Art. 19 (1) of the Constitution, a law shall be made directly infringing the right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 19 postulate a free man. Therefore, it cannot be said that the said principle was accepted by all the learned Judges who took part in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ). That apart, there are five distinct lines of thought in the matter of reconciling Art. 21 with Art. 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in Art. 19; (2) personal liberty in Art. 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in Art. 19; (3) the personal liberty included in Art. 21 is wide enough to include some or all of the freedom mentioned in Art. 19, but they are two distinct fundamental rights - a law to be valid shall not infringe both the rights; (4) the expression law in Art. 21 means a valid law and, therefore, even if a persons liberty is deprived by law of detention, the said law shall not infringe Art. 19; and (5) Art. 21 applies to procedural law, whereas Art. 19 to substantive law relating to personal liberty. We do not propose to pursue the matter further or to express our opinion one way or other. We have only mentioned the said views to show that the view expressed by Das, J., as he then was, in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ), is not the last word on the subject. 8. In this case, as we have said earlier, we are only concerned with the question whether the restriction imposed on the personal liberty of the first respondent is in terms of the relevant provisions of the Defence of India Rules. Here, the first respondents liberty is restricted under the Defence of India Rules subject to conditions determined in the manner prescribed in sub-r. (4) of R. 30 thereof. We find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons. We, therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be restricted. As there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or sending it for publication, the State of Maharashtra infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained. 9. The appellant, therefore, acted contrary to law in refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publication. 10. In the views we have taken, another argument advanced by Mr. Garg, namely, that the restriction can only be imposed by an order made under S. 30 (f) or (h) of the Rules and that too in strict compliance with S. 44 of the Act need not be considered. That question may arise if and when an appropriate condition is imposed restricting the liberty of a detenu in the matter of sending his books for publication. We do not express our view on this question one way or other. ### Response: 1 ### Explanation: a restriction not so prescribed, the said authority will be interfering with the personal liberty of the detenu in derogation of the law whereunder he is detained. If that happens, the High Court, in terms of Art. 226 of the Constitution, can issue an appropriate writ or direction to the authority concerned to act in accordance with law6. We have gone through the provisions of the Bombay Conditions of Detention Order, 1951. There is no provision in that Order dealing with the writing or publication of books by a detenu. There is, therefore, no restriction on the detenu in respect of that activity.e (iii) of R. 17 of the said Order7. Let us now consider the validity of the argument of the learned Additional. He relies upon the following observations of Das, J., as he then was, in A. K. Gopalans case. 1950 SCR 88 at p. 291: (AIR 1950 SC 27 at p. 108)If a mans person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his own inclination may direct, reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently attached to the personRelying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression and that in the light of the said observations, as the detenu ceased to be free in view of his detention, he cannot exercise his freedom to publish his book. In other words, as he is no longer a free man, his right to publish his book, which is only an attribute of personal liberty, is lost. The principle accepted by Das, J., as he then was, does not appear to be the basis of the conclusion arrived at by the other learned Judges who agreed with the conclusion. Different reasons are given by the learned Judges for arriving at the same conclusion. As has been pointed out by this Court in the second Kochunnis case, (Kavalappara Kottarathil Kochuni v. State of Madras), (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), the views of the learned Judges may be broadly summarized under the following heads: (1) to invoke Art. 19 (1) of the Constitution, a law shall be made directly infringing the right; (2) Arts. 21 and 22 constitute ad code; and (3) the freedoms in Art. 19 postulate a free man. Therefore, it cannot be said that the said principle was accepted by all the learned Judges who took part in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ). That apart, there are five distinct lines of thought in the matter of reconciling Art. 21 with Art. 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in Art. 19; (2) personal liberty in Art. 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in Art. 19; (3) the personal liberty included in Art. 21 is wide enough to include some or all of the freedom mentioned in Art. 19, but they are two distinct fundamental rightsa law to be valid shall not infringe both the rights; (4) the expression law in Art. 21 means a valid law and, therefore, even if a persons liberty is deprived by law of detention, the said law shall not infringe Art. 19; and (5) Art. 21 applies to procedural law, whereas Art. 19 to substantive law relating to personal liberty. We do not propose to pursue the matter further or to express our opinion one way or other. We have only mentioned the said views to show that the view expressed by Das, J., as he then was, in A. K. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ), is not the last word on the subject8. In this case, as we have said earlier, we are only concerned with the question whether the restriction imposed on the personal liberty of the first respondent is in terms of the relevant provisions of the Defence of India Rules. Here, the first respondents liberty is restricted under the Defence of India Rules subject to conditions determined in the manner prescribed in. (4) of R. 30 thereofWe find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons. We, therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be restricted. As there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or sending it for publication, the State of Maharashtra infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained9. The appellant, therefore, acted contrary to law in refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publicationThat question may arise if and when an appropriate condition is imposed restricting the liberty of a detenu in the matter of sending his books for publication. We do not express our view on this question one way or other.

Narendrakumar Nakhat Vs. M/s Nandi Hasbi Textile Mills & Others

on the same day. The bank has not challenged that order probably because the whole amount was not ordered to be refunded. The appellant then filed a review petition (Company Application No. 826/96) but it was rejected on 21.2.1997.3. The High Court rejected the claim for refund of the earnest money on the ground that at that stage it was not proper to grant it as that might affect the right of the official Liquidator to forfeit that amount in case it is held that he has suffered some loss as a result of the conduct of the appellant. As regards the claim of the Syndicate Bank for damages the High Court merely stated that "in view of the order made in Company Application No. 542 of 1996, this application stands rejected." In the order passed on Company Application No. 542 of 1996 there is no discussion regarding the Banks claim for damages or regarding the claim of damages by the General Body of Liquidators on account of the dilatory tactics adopted by the appellant in the proceedings for confirmation of sale. The only observation made in that order is "the question whether the amounts due by the applicant by reason of non-performance of his part of the contract in any manner arises and the damages payable by him could be appropriately adjudicated at a later stage."4. Mr. R.F. Nariman, learned senior counsel appearing for the appellant submitted that the bid of the appellant having been cancelled, he became entitled to refund of the whole amount and the High Court committed a grave error in not passing an order for refunding the same. He drew our attention to the following observations made by the High Court itself in this behalf :"As long as the transaction is inchoate or incomplete for any reason and the acceptance of the bid is cancelled, the parties are relegated to the original position even though the cancellation of the acceptance of the bid may be on account of the conduct of the bidder himself. By virtue of the cancellation of the acceptance of the bid, the offer made by the bidder is not accepted. It is only on acceptance of the offer made by the bidder, other clauses would stand attracted. This is a case where the sale proceedings were cancelled on account of the conduct of the parties in not doing one or the other acts provided under the terms of sale. The act attributed to the applicant is that he had adopted the stance of filibusters by indulging in dilatory tactics in postponing the proceedings for confirmation of sale. If the Court had confirmed the sale, other terms and conditions in the offer of sale would have arisen. In the absence of such an event of confirmation of the sale, the only conclusion we have to draw is that the applicant is entitled to the entire refund of the money."He also submitted that the Division Bench of the High Court while disposing of the said application proceeded on a wrong assumption that the order dated 12.4.1996 passed by the learned Single Judge of that High Court was the final order as can be seen from the following observations made by it :"The learned Company Judge made an order on 12.4.1996 and that order has not been challenged in an appeal. Therefore, the applicant cannot now seek for refund of the entire amount, but only to the extent indicated by the learned Company Judge." 5. Having gone through the order dated 12.4.1996 we find that it was an interim order and the application was ordered to be listed again on 15.4.1996. On that day the learned Single Judge had passed an order for keeping that order in abeyance and directing the secured creditors to file their objections. Thereafter for certain reasons the same application was placed before a Division Bench for passing a final order thereon. Therefore, there was no question of the appellant challenging that order by way of an appeal. The High Court was, therefore, obviously wrong in observing that the appellant "cannot now seek for refund of the entire amount but only to the extent indicated by the learned Company Judge." We also find that the final order passed by the High Court is not quite consistent with its own observations quoted above. As observed by us earlier the High Court has not stated why the balance amount minus the earnest money deposit should not be refunded to the appellant. The banks application for awarding compensation was rejected. Probably it was premature in view of the fact that the appellants application for refund of the balance amount was already rejected. Even if we proceed on the basis that the appellant had indulged in dilatory tactics during the proceedings for confirmation of sale and had thereby wasted almost one year it cannot be said with certainty at this stage that he will be liable to pay compensation for the alleged loss caused to the General Body of Creditors. The bank is a secured creditor and there is nothing to show that it had made the application for and on behalf of the General Body of Creditors. Their entitlement to damages and the extent of loss suffered by them, even if they are held entitled to claim damages on that count, is yet to be decided. In such circumstances, the court having not confirmed the sale and cancelled the bid of the appellant, ought not to have rejected the claim of the appellant except in respect of the earnest money deposit of Rs. 5 lakhs. The High Court was, therefore, not right in holding the refund of the remaining amount of Rs. 9 lakhs along with the interest accrued thereon at the instance of the Syndicate Bank. If the bank is of the view that it has suffered any loss as a result of wrongful act of the appellant it will be open to it to adopt an appropriate remedy for claiming damages.

1[ds]We also find that the final order passed by the High Court is not quite consistent with its own observations quoted above. As observed by us earlier the High Court has not stated why the balance amount minus the earnest money deposit should not be refunded to the appellant. The banks application for awarding compensation was rejected. Probably it was premature in view of the fact that the appellants application for refund of the balance amount was already rejected. Even if we proceed on the basis that the appellant had indulged in dilatory tactics during the proceedings for confirmation of sale and had thereby wasted almost one year it cannot be said with certainty at this stage that he will be liable to pay compensation for the alleged loss caused to the General Body of Creditors. The bank is a secured creditor and there is nothing to show that it had made the application for and on behalf of the General Body of Creditors. Their entitlement to damages and the extent of loss suffered by them, even if they are held entitled to claim damages on that count, is yet to be decided. In such circumstances, the court having not confirmed the sale and cancelled the bid of the appellant, ought not to have rejected the claim of the appellant except in respect of the earnest money deposit of Rs. 5 lakhs. The High Court was, therefore, not right in holding the refund of the remaining amount of Rs. 9 lakhs along with the interest accrued thereon at the instance of the Syndicate Bank. If the bank is of the view that it has suffered any loss as a result of wrongful act of the appellant it will be open to it to adopt an appropriate remedy for claiming damages.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: on the same day. The bank has not challenged that order probably because the whole amount was not ordered to be refunded. The appellant then filed a review petition (Company Application No. 826/96) but it was rejected on 21.2.1997.3. The High Court rejected the claim for refund of the earnest money on the ground that at that stage it was not proper to grant it as that might affect the right of the official Liquidator to forfeit that amount in case it is held that he has suffered some loss as a result of the conduct of the appellant. As regards the claim of the Syndicate Bank for damages the High Court merely stated that "in view of the order made in Company Application No. 542 of 1996, this application stands rejected." In the order passed on Company Application No. 542 of 1996 there is no discussion regarding the Banks claim for damages or regarding the claim of damages by the General Body of Liquidators on account of the dilatory tactics adopted by the appellant in the proceedings for confirmation of sale. The only observation made in that order is "the question whether the amounts due by the applicant by reason of non-performance of his part of the contract in any manner arises and the damages payable by him could be appropriately adjudicated at a later stage."4. Mr. R.F. Nariman, learned senior counsel appearing for the appellant submitted that the bid of the appellant having been cancelled, he became entitled to refund of the whole amount and the High Court committed a grave error in not passing an order for refunding the same. He drew our attention to the following observations made by the High Court itself in this behalf :"As long as the transaction is inchoate or incomplete for any reason and the acceptance of the bid is cancelled, the parties are relegated to the original position even though the cancellation of the acceptance of the bid may be on account of the conduct of the bidder himself. By virtue of the cancellation of the acceptance of the bid, the offer made by the bidder is not accepted. It is only on acceptance of the offer made by the bidder, other clauses would stand attracted. This is a case where the sale proceedings were cancelled on account of the conduct of the parties in not doing one or the other acts provided under the terms of sale. The act attributed to the applicant is that he had adopted the stance of filibusters by indulging in dilatory tactics in postponing the proceedings for confirmation of sale. If the Court had confirmed the sale, other terms and conditions in the offer of sale would have arisen. In the absence of such an event of confirmation of the sale, the only conclusion we have to draw is that the applicant is entitled to the entire refund of the money."He also submitted that the Division Bench of the High Court while disposing of the said application proceeded on a wrong assumption that the order dated 12.4.1996 passed by the learned Single Judge of that High Court was the final order as can be seen from the following observations made by it :"The learned Company Judge made an order on 12.4.1996 and that order has not been challenged in an appeal. Therefore, the applicant cannot now seek for refund of the entire amount, but only to the extent indicated by the learned Company Judge." 5. Having gone through the order dated 12.4.1996 we find that it was an interim order and the application was ordered to be listed again on 15.4.1996. On that day the learned Single Judge had passed an order for keeping that order in abeyance and directing the secured creditors to file their objections. Thereafter for certain reasons the same application was placed before a Division Bench for passing a final order thereon. Therefore, there was no question of the appellant challenging that order by way of an appeal. The High Court was, therefore, obviously wrong in observing that the appellant "cannot now seek for refund of the entire amount but only to the extent indicated by the learned Company Judge." We also find that the final order passed by the High Court is not quite consistent with its own observations quoted above. As observed by us earlier the High Court has not stated why the balance amount minus the earnest money deposit should not be refunded to the appellant. The banks application for awarding compensation was rejected. Probably it was premature in view of the fact that the appellants application for refund of the balance amount was already rejected. Even if we proceed on the basis that the appellant had indulged in dilatory tactics during the proceedings for confirmation of sale and had thereby wasted almost one year it cannot be said with certainty at this stage that he will be liable to pay compensation for the alleged loss caused to the General Body of Creditors. The bank is a secured creditor and there is nothing to show that it had made the application for and on behalf of the General Body of Creditors. Their entitlement to damages and the extent of loss suffered by them, even if they are held entitled to claim damages on that count, is yet to be decided. In such circumstances, the court having not confirmed the sale and cancelled the bid of the appellant, ought not to have rejected the claim of the appellant except in respect of the earnest money deposit of Rs. 5 lakhs. The High Court was, therefore, not right in holding the refund of the remaining amount of Rs. 9 lakhs along with the interest accrued thereon at the instance of the Syndicate Bank. If the bank is of the view that it has suffered any loss as a result of wrongful act of the appellant it will be open to it to adopt an appropriate remedy for claiming damages. ### Response: 1 ### Explanation: We also find that the final order passed by the High Court is not quite consistent with its own observations quoted above. As observed by us earlier the High Court has not stated why the balance amount minus the earnest money deposit should not be refunded to the appellant. The banks application for awarding compensation was rejected. Probably it was premature in view of the fact that the appellants application for refund of the balance amount was already rejected. Even if we proceed on the basis that the appellant had indulged in dilatory tactics during the proceedings for confirmation of sale and had thereby wasted almost one year it cannot be said with certainty at this stage that he will be liable to pay compensation for the alleged loss caused to the General Body of Creditors. The bank is a secured creditor and there is nothing to show that it had made the application for and on behalf of the General Body of Creditors. Their entitlement to damages and the extent of loss suffered by them, even if they are held entitled to claim damages on that count, is yet to be decided. In such circumstances, the court having not confirmed the sale and cancelled the bid of the appellant, ought not to have rejected the claim of the appellant except in respect of the earnest money deposit of Rs. 5 lakhs. The High Court was, therefore, not right in holding the refund of the remaining amount of Rs. 9 lakhs along with the interest accrued thereon at the instance of the Syndicate Bank. If the bank is of the view that it has suffered any loss as a result of wrongful act of the appellant it will be open to it to adopt an appropriate remedy for claiming damages.

State Of Andhra Pradesh Vs. Gundugola Venkata Suryanarayana Garu

represent. Section 80 requires that the name, description and place of residence of the plaintiff must be set out in the notice and not of persons whom he seeks to represent. A suit filed with permission to sue for and on behalf of numerous persons having the same interest under O. 1, R. 8 is still a suit filed by the person who is permitted to sue as the plaintiff : the persons represented by him do not in virtue of the permission become plaintiffs in the suit. Such other persons would be bound by the decree in the suit, but that is because they are represented by the plaintiff, not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded.14. In the present case G. V. Suryanarayana Garu has served the notice under S. 80 Code of Civil Procedure and he has also instituted the suit : the plaint complies with the requirements of S. 80, and the fact that Yegneswara Sastri had joined in serving the notice, but not in seeking permission of the Court, does not render the plaint and the proceedings in suit defective. The principle of the two decisions of the Privy Council : Vellayan Chettiar v. Govt. of the Province of Madras, [74 Ind App 223 : (AIR 1947 PC 197 ) and Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia, 76 Ind App 85 : (AIR 1949 PC 143 ) on which reliance was placed by counsel for the State has no bearing on the case before us. Vellayan Chettiars case, 74 Ind App 223 : (AIR 1947 PC 197 ) was one in which notice was given by one plaintiff stating the cause of action, his name, description and place of his residence and the relief which he claimed, and that the suit was instituted by him and another. The Privy Council observed that :"The section according to its plain meaning, requires that there should be identity of the person who issues the notice with the person who brings the suit : see Venakta Rangiah Appa Rao v. Secy, of State, ILR 54 Mad 416 : (AIR 1931 Mad 175 ) and on appeal, AIR 1935 Mad 389 , to hold otherwise would be to admit an implication or exception for which there is no justification."Two persons had, it is clear, sued for a declaration that certain lands belonged to them, and for an order setting aside the decision of the Appellate Survey Officer in regard to those lands. It was found that one alone of the two had served the notice, the relief claimed by the two persons was personal to them and the right thereto arose out of their title to the land claimed by them. It was held that without a proper notice the suit could not be instituted under S. 80 for to hold otherwise would be to admit an implication or exception for which there was no justification. In Prestonji Ardeshir Wadias case,76 Ind App 85 : (AIR171949 PC 143) two trustees of a Trust served a notice in October 1963 upon the Government of Bombay under S. 80 intimating that the trustees intended to institute a suit against the Government on the cause of and for the relief set out therein. One of the trustees dies before the plaint was lodged in Court, and two more trustees were appointed in the place of the deceased trustee. Thereafter the two new trustees-and the surviving trustee filed the suit out of which the appeal arose which was decided by the Privy Council. No notice was served on the Government on behalf of the two new trustees. The Privy Council accepted the view of the High Court that where there were three plaintiffs, the names and addresses of all of them must be given in the notice. Their Lordships observed that:"the provisions of S. 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government in the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit. "In both these cases the suit was instituted by two or more persons but not all had served the statutory notice. In the present case the person who instituted the suit had in fact served the notice. He had intimated the Government by the notice that a cause of action had arisen in favour of the Inamdar, and that proceedings would be started on behalf of the Inandars for relief set out in the notice. The cause of action as set out in the notice remained unchanged in the suit, and it is not, claimed that the relief set out in the plaint is different from the relief set out in the notice. The only discrepancy between the notice and the plaint is that the notice was given by two persons intimating that an action would be started against the Government for and on behalf of the Inamdars on the cause of action and relief set out therein, the action was instituted by one person but with the permission of the Court for and on behalf of the inamdars on the same cause of action and for the same relief15. The other contention raised by counsel for the State of Andhra Pradesh that in a suit which is to be instituted against the State after notice under S. 80 Code of Civil Procedure the plaintiff must first obtain the permission of the Court before serving a notice, is in our judgment futile. The permission of the Court has to be obtained for instituting a representative suit and not for serving the notice. The Code contains no machinery for granting permission to a party seeking to serve a notice upon the Government or a public servant.

0[ds]The evidence therefore clearly establishes that the grant was not of the entire village and the Trial Court and the High Court were, in our judgment, right in declining to accept the case of the State.The notice in the present suit was served by the plaintiff and Yegneswara Sastri. They raised a grievance about the notification issued by the Government of Madras on May 16, 1950 : it was not an individual grievance of the two persons who served the notice but of all the Inamdars or agrahararndars. The relief for which the suit was intended to be filed was also not restricted to their personal claim. The notice stated the cause of action arising in favour of all the Inamdars, and it is not disputed that the notice set out the relief which would be claimable by all the Inamdars or on their behalf in default of compliance with the requisition. The plaintiff it is true alone filed the suit, but he was permitted to sue, for and on behalf of all the Inamdars by an order of the Court under O. 1, R.8 Code of Civil Procedure. The requirements as to the cause of action, the name, description and place of residence of the plaintiff was therefore complied with and the relief which the plaintiff claimed was duly set out in the notice. The only departure from the notice was that two persons served a notice under S.80 informing the Government that proceedings would be started, in default of compliance with the requisition, for violation of the rights of the Inamdars, and one person only out of the two instituted the suit. That in our judgment is not a defect which brings the case within the terms of S. 80. The right to institute a representative action may be exercised by one or more persons having an interest which is common with the others but it can only be exercised with the permission of the Court. If the Court grants permission to one person to institute such a representative action and if that person had served the notice under S. 80, the circumstance that another person had joined him in serving the notice but did not effectuate that notice by joining in the suit, would not in our judgment be a sufficient ground for regarding the suit asthere is nothing in S. 80 of the Code or O. 1, R. 8 Code of Civil Procedure which supports this submission, and there is inherent indication in O. 1, R. 8 to the contrary. To enable a person to file a suit in a representative capacity for and on behalf of numerous persons where they have the same interest, the only condition is the permission of the Court. The provision which requires that the Court shall in such a case give, at the plaintiffs expense notice of the institution of the suit to all persons having the same interest, and the power reserved to the Court to entertain an application from any person on whose behalf or for whose benefit the suit is instituted, indicate that no previous sanction or authority of persons interested in the suit is required to be obtained before institution of the suit. Nor is there anything in S. 80 that notice of a proposed suit in a representative capacity may be served only after expressly obtaining the authority of persons whom he seeks to represent. Section 80 requires that the name, description and place of residence of the plaintiff must be set out in the notice and not of persons whom he seeks to represent. A suit filed with permission to sue for and on behalf of numerous persons having the same interest under O. 1, R. 8 is still a suit filed by the person who is permitted to sue as the plaintiff : the persons represented by him do not in virtue of the permission become plaintiffs in the suit. Such other persons would be bound by the decree in the suit, but that is because they are represented by the plaintiff, not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded.14. In the present case G. V. Suryanarayana Garu has served the notice under S. 80 Code of Civil Procedure and he has also instituted the suit : the plaint complies with the requirements of S. 80, and the fact that Yegneswara Sastri had joined in serving the notice, but not in seeking permission of the Court, does not render the plaint and the proceedings in suitboth these cases the suit was instituted by two or more persons but not all had served the statutory notice. In the present case the person who instituted the suit had in fact served the notice. He had intimated the Government by the notice that a cause of action had arisen in favour of the Inamdar, and that proceedings would be started on behalf of the Inandars for relief set out in the notice. The cause of action as set out in the notice remained unchanged in the suit, and it is not, claimed that the relief set out in the plaint is different from the relief set out in the notice. The only discrepancy between the notice and the plaint is that the notice was given by two persons intimating that an action would be started against the Government for and on behalf of the Inamdars on the cause of action and relief set out therein, the action was instituted by one person but with the permission of the Court for and on behalf of the inamdars on the same cause of action and for the same relief15. The other contention raised by counsel for the State of Andhra Pradesh that in a suit which is to be instituted against the State after notice under S. 80 Code of Civil Procedure the plaintiff must first obtain the permission of the Court before serving a notice, is in our judgment futile. The permission of the Court has to be obtained for instituting a representative suit and not for serving the notice. The Code contains no machinery for granting permission to a party seeking to serve a notice upon the Government or a public servant.

### 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: represent. Section 80 requires that the name, description and place of residence of the plaintiff must be set out in the notice and not of persons whom he seeks to represent. A suit filed with permission to sue for and on behalf of numerous persons having the same interest under O. 1, R. 8 is still a suit filed by the person who is permitted to sue as the plaintiff : the persons represented by him do not in virtue of the permission become plaintiffs in the suit. Such other persons would be bound by the decree in the suit, but that is because they are represented by the plaintiff, not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded.14. In the present case G. V. Suryanarayana Garu has served the notice under S. 80 Code of Civil Procedure and he has also instituted the suit : the plaint complies with the requirements of S. 80, and the fact that Yegneswara Sastri had joined in serving the notice, but not in seeking permission of the Court, does not render the plaint and the proceedings in suit defective. The principle of the two decisions of the Privy Council : Vellayan Chettiar v. Govt. of the Province of Madras, [74 Ind App 223 : (AIR 1947 PC 197 ) and Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia, 76 Ind App 85 : (AIR 1949 PC 143 ) on which reliance was placed by counsel for the State has no bearing on the case before us. Vellayan Chettiars case, 74 Ind App 223 : (AIR 1947 PC 197 ) was one in which notice was given by one plaintiff stating the cause of action, his name, description and place of his residence and the relief which he claimed, and that the suit was instituted by him and another. The Privy Council observed that :"The section according to its plain meaning, requires that there should be identity of the person who issues the notice with the person who brings the suit : see Venakta Rangiah Appa Rao v. Secy, of State, ILR 54 Mad 416 : (AIR 1931 Mad 175 ) and on appeal, AIR 1935 Mad 389 , to hold otherwise would be to admit an implication or exception for which there is no justification."Two persons had, it is clear, sued for a declaration that certain lands belonged to them, and for an order setting aside the decision of the Appellate Survey Officer in regard to those lands. It was found that one alone of the two had served the notice, the relief claimed by the two persons was personal to them and the right thereto arose out of their title to the land claimed by them. It was held that without a proper notice the suit could not be instituted under S. 80 for to hold otherwise would be to admit an implication or exception for which there was no justification. In Prestonji Ardeshir Wadias case,76 Ind App 85 : (AIR171949 PC 143) two trustees of a Trust served a notice in October 1963 upon the Government of Bombay under S. 80 intimating that the trustees intended to institute a suit against the Government on the cause of and for the relief set out therein. One of the trustees dies before the plaint was lodged in Court, and two more trustees were appointed in the place of the deceased trustee. Thereafter the two new trustees-and the surviving trustee filed the suit out of which the appeal arose which was decided by the Privy Council. No notice was served on the Government on behalf of the two new trustees. The Privy Council accepted the view of the High Court that where there were three plaintiffs, the names and addresses of all of them must be given in the notice. Their Lordships observed that:"the provisions of S. 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government in the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit. "In both these cases the suit was instituted by two or more persons but not all had served the statutory notice. In the present case the person who instituted the suit had in fact served the notice. He had intimated the Government by the notice that a cause of action had arisen in favour of the Inamdar, and that proceedings would be started on behalf of the Inandars for relief set out in the notice. The cause of action as set out in the notice remained unchanged in the suit, and it is not, claimed that the relief set out in the plaint is different from the relief set out in the notice. The only discrepancy between the notice and the plaint is that the notice was given by two persons intimating that an action would be started against the Government for and on behalf of the Inamdars on the cause of action and relief set out therein, the action was instituted by one person but with the permission of the Court for and on behalf of the inamdars on the same cause of action and for the same relief15. The other contention raised by counsel for the State of Andhra Pradesh that in a suit which is to be instituted against the State after notice under S. 80 Code of Civil Procedure the plaintiff must first obtain the permission of the Court before serving a notice, is in our judgment futile. The permission of the Court has to be obtained for instituting a representative suit and not for serving the notice. The Code contains no machinery for granting permission to a party seeking to serve a notice upon the Government or a public servant. ### Response: 0 ### Explanation: They raised a grievance about the notification issued by the Government of Madras on May 16, 1950 : it was not an individual grievance of the two persons who served the notice but of all the Inamdars or agrahararndars. The relief for which the suit was intended to be filed was also not restricted to their personal claim. The notice stated the cause of action arising in favour of all the Inamdars, and it is not disputed that the notice set out the relief which would be claimable by all the Inamdars or on their behalf in default of compliance with the requisition. The plaintiff it is true alone filed the suit, but he was permitted to sue, for and on behalf of all the Inamdars by an order of the Court under O. 1, R.8 Code of Civil Procedure. The requirements as to the cause of action, the name, description and place of residence of the plaintiff was therefore complied with and the relief which the plaintiff claimed was duly set out in the notice. The only departure from the notice was that two persons served a notice under S.80 informing the Government that proceedings would be started, in default of compliance with the requisition, for violation of the rights of the Inamdars, and one person only out of the two instituted the suit. That in our judgment is not a defect which brings the case within the terms of S. 80. The right to institute a representative action may be exercised by one or more persons having an interest which is common with the others but it can only be exercised with the permission of the Court. If the Court grants permission to one person to institute such a representative action and if that person had served the notice under S. 80, the circumstance that another person had joined him in serving the notice but did not effectuate that notice by joining in the suit, would not in our judgment be a sufficient ground for regarding the suit asthere is nothing in S. 80 of the Code or O. 1, R. 8 Code of Civil Procedure which supports this submission, and there is inherent indication in O. 1, R. 8 to the contrary. To enable a person to file a suit in a representative capacity for and on behalf of numerous persons where they have the same interest, the only condition is the permission of the Court. The provision which requires that the Court shall in such a case give, at the plaintiffs expense notice of the institution of the suit to all persons having the same interest, and the power reserved to the Court to entertain an application from any person on whose behalf or for whose benefit the suit is instituted, indicate that no previous sanction or authority of persons interested in the suit is required to be obtained before institution of the suit. Nor is there anything in S. 80 that notice of a proposed suit in a representative capacity may be served only after expressly obtaining the authority of persons whom he seeks to represent. Section 80 requires that the name, description and place of residence of the plaintiff must be set out in the notice and not of persons whom he seeks to represent. A suit filed with permission to sue for and on behalf of numerous persons having the same interest under O. 1, R. 8 is still a suit filed by the person who is permitted to sue as the plaintiff : the persons represented by him do not in virtue of the permission become plaintiffs in the suit. Such other persons would be bound by the decree in the suit, but that is because they are represented by the plaintiff, not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded.14. In the present case G. V. Suryanarayana Garu has served the notice under S. 80 Code of Civil Procedure and he has also instituted the suit : the plaint complies with the requirements of S. 80, and the fact that Yegneswara Sastri had joined in serving the notice, but not in seeking permission of the Court, does not render the plaint and the proceedings in suitboth these cases the suit was instituted by two or more persons but not all had served the statutory notice. In the present case the person who instituted the suit had in fact served the notice. He had intimated the Government by the notice that a cause of action had arisen in favour of the Inamdar, and that proceedings would be started on behalf of the Inandars for relief set out in the notice. The cause of action as set out in the notice remained unchanged in the suit, and it is not, claimed that the relief set out in the plaint is different from the relief set out in the notice. The only discrepancy between the notice and the plaint is that the notice was given by two persons intimating that an action would be started against the Government for and on behalf of the Inamdars on the cause of action and relief set out therein, the action was instituted by one person but with the permission of the Court for and on behalf of the inamdars on the same cause of action and for the same relief15. The other contention raised by counsel for the State of Andhra Pradesh that in a suit which is to be instituted against the State after notice under S. 80 Code of Civil Procedure the plaintiff must first obtain the permission of the Court before serving a notice, is in our judgment futile. The permission of the Court has to be obtained for instituting a representative suit and not for serving the notice. The Code contains no machinery for granting permission to a party seeking to serve a notice upon the Government or a public servant.

State Of U.P Vs. Zahoor Ahmad & Anr

contended that the provisions of the Transfer of Property Act did not apply and therefore the respondent could not hold over within the meaning of Section 116 of the Transfer of Property Act. The State relied on the Government Grants Act. Section 2 of the Government Grants Act enacts that nothing in the Transfer of Property Act shall apply to any grant or other transfer of land or of any interest therein in favour of any person, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.11. An example of a Government grant within the meaning of the Government Grants Act occurs in the decision in Jnanendra Nath Nanda v. Jadu Nath Banerji ILR (1938) 1 Cal 626 - (AIR 1938 Cal 211 ). Two leases of two lots were granted by the Sunderban Commissioner an behalf of the Secretary of State. The lands comprised In the lots were waste lands of the Government. The waste lands of the Sunderbans were not the property of any subject. The Sunderbans were a vast impenetrable forest. It was the property of the East India Company. It later on vested in the Crown in those days by virtue of an Imperial statute. The history of the legislation showed that grants of Sunderbans lands which were vested in the Crown at that time were Crown Grants within the meaning of the Crown Grants Act as it then stood.12. On the other hand, there is an illustration of what is not a Government grant within the meaning of the Government Grants Act. The decision in Secretary of State for India in Council v. Lal Mohan Chaudhuri, ILR 63 Cal 523 = (AIR 1935 Cal 746) furnishes that illustration. The Government in that case granted lease in respect of Khas Mahal lands. The lease of Khas Mahal was held not to fall within the category of grants as contemplated in the then Crown Grants Act.13. The lease in die present case was for the purpose of erecting a temporary rice mill and for no other purpose. The mere fact that the State is the lessor will not by it a Government grant within the meaning of the Government Grants Act. There is no evidence in the present case in the character of the land or in the making of the lease or in the content of the lease to support the plea on behalf of the State that it was a grant within the meaning of the Government Grants Act.14. The High Court in sent case relied on a Bench decision of that Court. That is the case of Lala Kishun Chand v. Sheo Dutta, AIR 1958 A11 879. The land in that case belonged to the Government and was nazul. The management thereof vested in the notified area of the Bindi Board. The land was taken on lease by the defendant for a period of l 1/2 years in the first instance and thereafter for 4112 Years. After the expiry of the lease the defendant was permitted by the Board to continue in occupation as tenant and the rent used to be realised from him In the meantime, the plaintiff obtained a lease in regard to the land from the Commissioner. 1 he plaintiff could not get possession. The plaintiff filed a suit in the city civil court. The reamed single Judge of the High Court affirmed the decision of the courts below that the defendant was a trespasser and the defendants right as a lessee came to an end at the expiry of the lease in 1909. (sic) The High Court on appeal held that the lessee remained in possession after the termination of the lease and therefore there was holding over within the meaning of Section 116 of the Transfer of Property Act. The contention which was advanced that Section 2 of the Government Grants Act rendered the provisions of the Transfer of Property Act; in applicable was not accepted. The High Court correctly held that when the court is called upon to construe an instrument granting land by the Government it shall construe irrespective of the provisions of the Transfer of Property Act. The provisions of Section 116 of the Transfer of Property Act were correctly held by the High Court to be operative in that case.15.In the present case the High Court correctly found on the facts that the respondent after the determination of the leave held over. Even if the Government Grants Act applied Section 116 of the Transfer of Property Act was not rendered inapplicable. The effect of Section 2 of the Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act. It does not mean that all the provisions of the Transfer of Property Act are inapplicable. To illustrate, in the case of a grant under the Government Grants Act Section 14 of the Transfer of Property Act will not apply because Sec-tion 14 which provides what is known as the rule against perpetuity will not apply by reason of the provisions in the Government Grants Act The grant shall be construed to take effect as if the Transfer of Property Act does not apply.16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections and. 3 of the Governments Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.

0[ds]7. With regard to the amount of rent payable the provisions of Section 116 of the Transfer of Property Act indicate that the renewal of the lease would mean that the terms and conditions would be the same as of the previous lease. The High Court, therefore, correctly found that in the absence of any agreement to pay Rs. 3000/- as annual rent or in the absence of any agreement and undertaking that the respondent would accept the amount fixed by the appellant- as the rent, the appellant was not entitled to anything more than Rupees 1000/- a year which was the amount of rent for the year 1949 to 1950.The lease in die present case was for the purpose of erecting a temporary rice mill and for no other purpose. The mere fact that the State is the lessor will not by it a Government grant within the meaning of the Government Grants Act. There is no evidence in the present case in the character of the land or in the making of the lease or in the content of the lease to support the plea on behalf of the State that it was a grant within the meaning of the Government Grantsthe present case the High Court correctly found on the facts that the respondent after the determination of the leave held over. Even if the Government Grants Act applied Section 116 of the Transfer of Property Act was not rendered inapplicable. The effect of Section 2 of the Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act. It does not mean that all the provisions of the Transfer of Property Act are inapplicable. To illustrate, in the case of a grant under the Government Grants Act Section 14 of the Transfer of Property Act will not apply because Sec-tion 14 which provides what is known as the rule against perpetuity will not apply by reason of the provisions in the Government Grants Act The grant shall be construed to take effect as if the Transfer of Property Act does not apply.16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections and. 3 of the Governments Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: contended that the provisions of the Transfer of Property Act did not apply and therefore the respondent could not hold over within the meaning of Section 116 of the Transfer of Property Act. The State relied on the Government Grants Act. Section 2 of the Government Grants Act enacts that nothing in the Transfer of Property Act shall apply to any grant or other transfer of land or of any interest therein in favour of any person, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.11. An example of a Government grant within the meaning of the Government Grants Act occurs in the decision in Jnanendra Nath Nanda v. Jadu Nath Banerji ILR (1938) 1 Cal 626 - (AIR 1938 Cal 211 ). Two leases of two lots were granted by the Sunderban Commissioner an behalf of the Secretary of State. The lands comprised In the lots were waste lands of the Government. The waste lands of the Sunderbans were not the property of any subject. The Sunderbans were a vast impenetrable forest. It was the property of the East India Company. It later on vested in the Crown in those days by virtue of an Imperial statute. The history of the legislation showed that grants of Sunderbans lands which were vested in the Crown at that time were Crown Grants within the meaning of the Crown Grants Act as it then stood.12. On the other hand, there is an illustration of what is not a Government grant within the meaning of the Government Grants Act. The decision in Secretary of State for India in Council v. Lal Mohan Chaudhuri, ILR 63 Cal 523 = (AIR 1935 Cal 746) furnishes that illustration. The Government in that case granted lease in respect of Khas Mahal lands. The lease of Khas Mahal was held not to fall within the category of grants as contemplated in the then Crown Grants Act.13. The lease in die present case was for the purpose of erecting a temporary rice mill and for no other purpose. The mere fact that the State is the lessor will not by it a Government grant within the meaning of the Government Grants Act. There is no evidence in the present case in the character of the land or in the making of the lease or in the content of the lease to support the plea on behalf of the State that it was a grant within the meaning of the Government Grants Act.14. The High Court in sent case relied on a Bench decision of that Court. That is the case of Lala Kishun Chand v. Sheo Dutta, AIR 1958 A11 879. The land in that case belonged to the Government and was nazul. The management thereof vested in the notified area of the Bindi Board. The land was taken on lease by the defendant for a period of l 1/2 years in the first instance and thereafter for 4112 Years. After the expiry of the lease the defendant was permitted by the Board to continue in occupation as tenant and the rent used to be realised from him In the meantime, the plaintiff obtained a lease in regard to the land from the Commissioner. 1 he plaintiff could not get possession. The plaintiff filed a suit in the city civil court. The reamed single Judge of the High Court affirmed the decision of the courts below that the defendant was a trespasser and the defendants right as a lessee came to an end at the expiry of the lease in 1909. (sic) The High Court on appeal held that the lessee remained in possession after the termination of the lease and therefore there was holding over within the meaning of Section 116 of the Transfer of Property Act. The contention which was advanced that Section 2 of the Government Grants Act rendered the provisions of the Transfer of Property Act; in applicable was not accepted. The High Court correctly held that when the court is called upon to construe an instrument granting land by the Government it shall construe irrespective of the provisions of the Transfer of Property Act. The provisions of Section 116 of the Transfer of Property Act were correctly held by the High Court to be operative in that case.15.In the present case the High Court correctly found on the facts that the respondent after the determination of the leave held over. Even if the Government Grants Act applied Section 116 of the Transfer of Property Act was not rendered inapplicable. The effect of Section 2 of the Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act. It does not mean that all the provisions of the Transfer of Property Act are inapplicable. To illustrate, in the case of a grant under the Government Grants Act Section 14 of the Transfer of Property Act will not apply because Sec-tion 14 which provides what is known as the rule against perpetuity will not apply by reason of the provisions in the Government Grants Act The grant shall be construed to take effect as if the Transfer of Property Act does not apply.16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections and. 3 of the Governments Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law. ### Response: 0 ### Explanation: 7. With regard to the amount of rent payable the provisions of Section 116 of the Transfer of Property Act indicate that the renewal of the lease would mean that the terms and conditions would be the same as of the previous lease. The High Court, therefore, correctly found that in the absence of any agreement to pay Rs. 3000/- as annual rent or in the absence of any agreement and undertaking that the respondent would accept the amount fixed by the appellant- as the rent, the appellant was not entitled to anything more than Rupees 1000/- a year which was the amount of rent for the year 1949 to 1950.The lease in die present case was for the purpose of erecting a temporary rice mill and for no other purpose. The mere fact that the State is the lessor will not by it a Government grant within the meaning of the Government Grants Act. There is no evidence in the present case in the character of the land or in the making of the lease or in the content of the lease to support the plea on behalf of the State that it was a grant within the meaning of the Government Grantsthe present case the High Court correctly found on the facts that the respondent after the determination of the leave held over. Even if the Government Grants Act applied Section 116 of the Transfer of Property Act was not rendered inapplicable. The effect of Section 2 of the Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act. It does not mean that all the provisions of the Transfer of Property Act are inapplicable. To illustrate, in the case of a grant under the Government Grants Act Section 14 of the Transfer of Property Act will not apply because Sec-tion 14 which provides what is known as the rule against perpetuity will not apply by reason of the provisions in the Government Grants Act The grant shall be construed to take effect as if the Transfer of Property Act does not apply.16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections and. 3 of the Governments Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.

L.M.L. Limited Vs. State Of U.P

the same was contrary to the existing Circulars of the Board, the same cannot be sustained.” 44. In Collector of Central Excise Vadodra vs. Dhiren Chemical Industries : (2002) 2 SCC 127 this Court held :- “We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue.” 45. The latter decision is also an authority for the proposition that a circular would be binding on the State in appropriate cases. We are not oblivious of the decisions of this Court where the Commission has been held to be the sole tariff making authority. [See Association of Industrial Electricity Users Vs. Respondent: State of Andhra Pradesh and others: (2002) 3 SCC 711 ] and West Bengal Electricity Regulatory Commission vs. C.E.S.C. Ltd. etc. etc : (2002) 8 SCC 715. In CESC (supra) this Court observed:- “58. Having carefully considered the provisions of the Act as also the arguments advanced in this regard, we are of the opinion that under the 1998 Act, it is the Commission concerned and in the instant case the State Commission of West Bengal, which is the sole authority to determine the tariff, of course as per the procedure in the said Act.” 46. We may also notice that in BSES Ltd. Vs. Tata Power Co., Ltd. and others : (2004) 1 SCC 195 this Court held :- “16. The word "tariff" has not been defined in the Act. "Tariff is a cartel of commerce and normal it is a book of rates. It will mean a schedule of standard prices or charges provided to the category or categories of customers specified in the tariff. Sub-section (1) of Section 22 clearly lays down that the State Commission shall determine the tariff for electricity (wholesale, bulk, grid or retail) and also for use of transmission facilities. It has also the power to regulate power purchase of the distribution utilities including the price at which the power shall be procured from the generating companies for transmission, sale, distribution and supply in the State. Utility has been defined in Section 2(1) of the Act and it means any person or entity engaged in the generation, transmission, sale, distribution or supply, as the case may be, of energy. Section 29 lays down that the tariff for intra-State transmission of electricity and tariff for supply of electricity, wholesale, bulk or retail in a State shall be subject to the provisions of the Act and the tariff shall be determined by the State Commission. Sub-section (2) of Section 29 shows that terms and conditions for fixation of tariff shall be determined by Regulations and while doing so, the Commission shall be guided by the factors enumerated in Clauses (a) to (g) thereof. The Regulations referred to earlier show that generating companies and utilities have to first approach the Commission for approval of their tariff whether for generation, transmission, distribution or supply and also for terms and conditions of supply. They can charge from their customers only such tariff which has been approved by the Commission. Charging of a tariff which has not been approved by the Commission is an offence which is punishable under Section 45 of the Act. The provisions of the Act and Regulations show that the Commission has the exclusive power to determine the tariff. The tariff approved by the Commission is final and binding and it is not permissible for the licensee, utility or any one else to charge a different tariff.” 47. The abovesaid three decisions are distinguishable on facts. They were not dealing with a situation of the present kind. It was not a case where the supplier had difficulty of supplying uninterrupted electrical energy. 48. The proximity of issuance of the circular vis-a-vis Notification must also be noticed. The tariff was framed on 7th August, 2000 which came into force from 9th August, 2000 whereas the circular was issued on 8th September, 2000. The consumers exercised their option on 31st October, 2000. The judgment in the case of LML (supra) was delivered on 25th April, 2001. The circular dated 31st August, 2001 undoubtedly was issued in view of the said judgment. The said judgment did not deal with the questions raised before us. In any event if the licensee violates the tariff approved by the Commission appropriate legal action can be taken against it. But it would be too much to contend that for a mistake on the part of the Corporation, the consumers would suffer. In this view of the matter, we are of the considered view that the doctrine of estoppel shall apply in the cases where the promise was made. However, the principle of said doctrine would, however, not be applicable where no such promise was made. 49. Respondent-Kanpur Electricity Supply Company would not be bound thereby. Tariff is fixed for providing a service. Supply of electrical energy is a public utility service. While carrying out a function of this nature, the court of law must keep in mind the equitable principles also. Equity does not postulates that although the supplier did not fulfil its obligation, still it would be entitled to the benefits envisaged under the law. 50. Similarly Uttarnachal Power Corporation also does not appear to have made such a promise. The doctrine of promissory estoppel in those cases also will have no application. 51. In view of the fact that several matters are pending before the Commission on question of independent feeder we need not express any opinion thereupon. If any appeal is pending before the Commission on the said question it would decide the same independent of the same irrespective of the result of this decision..We, therefore, without expressing any opinion on the said question, permit the appellants to agitate the same point before the Commission.52. We, therefore,

1[ds]In view of the fact that several matters are pending before the Commission on question of independent feeder we need not express any opinion thereupon. If any appeal is pending before the Commission on the said question it would decide the same independent of the same irrespective of the result of this decision..We, therefore, without expressing any opinion on the said question, permit the appellants to agitate the same point before the Commission.

### 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: the same was contrary to the existing Circulars of the Board, the same cannot be sustained.” 44. In Collector of Central Excise Vadodra vs. Dhiren Chemical Industries : (2002) 2 SCC 127 this Court held :- “We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue.” 45. The latter decision is also an authority for the proposition that a circular would be binding on the State in appropriate cases. We are not oblivious of the decisions of this Court where the Commission has been held to be the sole tariff making authority. [See Association of Industrial Electricity Users Vs. Respondent: State of Andhra Pradesh and others: (2002) 3 SCC 711 ] and West Bengal Electricity Regulatory Commission vs. C.E.S.C. Ltd. etc. etc : (2002) 8 SCC 715. In CESC (supra) this Court observed:- “58. Having carefully considered the provisions of the Act as also the arguments advanced in this regard, we are of the opinion that under the 1998 Act, it is the Commission concerned and in the instant case the State Commission of West Bengal, which is the sole authority to determine the tariff, of course as per the procedure in the said Act.” 46. We may also notice that in BSES Ltd. Vs. Tata Power Co., Ltd. and others : (2004) 1 SCC 195 this Court held :- “16. The word "tariff" has not been defined in the Act. "Tariff is a cartel of commerce and normal it is a book of rates. It will mean a schedule of standard prices or charges provided to the category or categories of customers specified in the tariff. Sub-section (1) of Section 22 clearly lays down that the State Commission shall determine the tariff for electricity (wholesale, bulk, grid or retail) and also for use of transmission facilities. It has also the power to regulate power purchase of the distribution utilities including the price at which the power shall be procured from the generating companies for transmission, sale, distribution and supply in the State. Utility has been defined in Section 2(1) of the Act and it means any person or entity engaged in the generation, transmission, sale, distribution or supply, as the case may be, of energy. Section 29 lays down that the tariff for intra-State transmission of electricity and tariff for supply of electricity, wholesale, bulk or retail in a State shall be subject to the provisions of the Act and the tariff shall be determined by the State Commission. Sub-section (2) of Section 29 shows that terms and conditions for fixation of tariff shall be determined by Regulations and while doing so, the Commission shall be guided by the factors enumerated in Clauses (a) to (g) thereof. The Regulations referred to earlier show that generating companies and utilities have to first approach the Commission for approval of their tariff whether for generation, transmission, distribution or supply and also for terms and conditions of supply. They can charge from their customers only such tariff which has been approved by the Commission. Charging of a tariff which has not been approved by the Commission is an offence which is punishable under Section 45 of the Act. The provisions of the Act and Regulations show that the Commission has the exclusive power to determine the tariff. The tariff approved by the Commission is final and binding and it is not permissible for the licensee, utility or any one else to charge a different tariff.” 47. The abovesaid three decisions are distinguishable on facts. They were not dealing with a situation of the present kind. It was not a case where the supplier had difficulty of supplying uninterrupted electrical energy. 48. The proximity of issuance of the circular vis-a-vis Notification must also be noticed. The tariff was framed on 7th August, 2000 which came into force from 9th August, 2000 whereas the circular was issued on 8th September, 2000. The consumers exercised their option on 31st October, 2000. The judgment in the case of LML (supra) was delivered on 25th April, 2001. The circular dated 31st August, 2001 undoubtedly was issued in view of the said judgment. The said judgment did not deal with the questions raised before us. In any event if the licensee violates the tariff approved by the Commission appropriate legal action can be taken against it. But it would be too much to contend that for a mistake on the part of the Corporation, the consumers would suffer. In this view of the matter, we are of the considered view that the doctrine of estoppel shall apply in the cases where the promise was made. However, the principle of said doctrine would, however, not be applicable where no such promise was made. 49. Respondent-Kanpur Electricity Supply Company would not be bound thereby. Tariff is fixed for providing a service. Supply of electrical energy is a public utility service. While carrying out a function of this nature, the court of law must keep in mind the equitable principles also. Equity does not postulates that although the supplier did not fulfil its obligation, still it would be entitled to the benefits envisaged under the law. 50. Similarly Uttarnachal Power Corporation also does not appear to have made such a promise. The doctrine of promissory estoppel in those cases also will have no application. 51. In view of the fact that several matters are pending before the Commission on question of independent feeder we need not express any opinion thereupon. If any appeal is pending before the Commission on the said question it would decide the same independent of the same irrespective of the result of this decision..We, therefore, without expressing any opinion on the said question, permit the appellants to agitate the same point before the Commission.52. We, therefore, ### Response: 1 ### Explanation: In view of the fact that several matters are pending before the Commission on question of independent feeder we need not express any opinion thereupon. If any appeal is pending before the Commission on the said question it would decide the same independent of the same irrespective of the result of this decision..We, therefore, without expressing any opinion on the said question, permit the appellants to agitate the same point before the Commission.

Bangalore Electricity Supply Company Limited (BESCOM) Vs. E.S. Solar Power Pvt. Ltd. & Ors

the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Bihar State Electricity Board, Patna and Ors. v. M/s. Green Rubber Industries and Ors 1990 (1) SCC 731. 17. Liquidated damages can be imposed on the Developer under Article 5.8.1 if he is unable to commence supply of power to the Appellant by the Scheduled Commissioning Date. Article 12 deals with the applicable tariff. The developer shall be entitled to receive the tariff of Rs. 6.10/kWh of energy supplied the Appellant in accordance with the terms of the agreement. If there is delay in commissioning of the project beyond the Scheduled Commissioning Date and if there is change in KERC applicable tariff, Article 12.2 provides that the changed applicable tariff for the project shall be the lower of the Tariff as in Clause 12.1 and KERC applicable tariff as on the commercial operation day. 18. The bone of contention is whether the Scheduled Commissioning Date of the Solar Power Project is 16.10.2017 or 17.10.2017. We proceed to advert to the undisputed facts. KERC approved the PPAs on 17.10.2016. Scheduled Commissioning Date according to the agreement should be 12 months from 17.10.2016. There is also no dispute between the parties that 12 months means 365 days. According to the Appellants if 17.10.2016 is included in computation of 365 days, the Scheduled Commissioning Date is 16.10.2017. On the other hand, the Respondents contended that 17.10.2016 should be excluded in the calculation of 365 days, in which case, 17.10.2017 would be the Scheduled Commissioning Date. 19. The Commission relied upon 1.2.1(m) of the PPA to conclude that 17.10.2016 has to be included for ciphering the period of 365 days to determine the Scheduled Commissioning Date. Whereas, the Appellate Tribunal was of the view that Article 1.2.1 (k) of the PPA is relevant. The Tribunal held that the date of the event which is the date on which the PPA was approved i.e. 17.10.2016 shall be excluded in calculating the period of 12 months. 20. Reduction of applicable tariff is permissible under Article 12.2 of the PPA only when there is delay in commissioning of the Project beyond the Scheduled Commissioning Date. As discussed above, there is no dispute that the Scheduled Commissioning date shall be 12 months from the effective date. There is no quarrel between the parties that the effective date is 17.10.2016. The interpretation clause contains three provisions which are 1.2.1 (k), 1.2.1 (l) and 1.2.1 (m). According to 1.2.1 (k), any reference to a month shall mean a reference to a Calendar month as per the Gregorian Calendar. 1.2.1 (l) provides that references to any date or period shall mean and include such date, period as may be extended pursuant to the agreement. As per Article 1.2.1 (m), any reference to any period commencing from a specified date and until the specified day shall include both such day or dates. The other crucial provision which has to be taken note of is the definition of the expression Month in Article 21.1 of the agreement. Month has been defined to mean a period of 30 days and excluding (the date of the evet) where applicable, else a Calendar month. We are not concerned with 1.2.1 (l), in this case as there is no question of any extension of any period pursuant to the agreement. 1.2.1 (k) indicates that any reference to a month shall mean reference to a Calendar month. Reverting to the definition of Month, it is clear that a month shall mean either 30 days where applicable or a Calendar month. In this case, there is no dispute that 12 Calendar months have to be taken into account for determining the Scheduled Commissioning Date. The crucial expression in the definition of Month is excluding the date of the event. If the date of the event i.e. 17.10.2016 is excluded, the Scheduled Commissioning Date would be 17.10.2017. We do not agree with the conclusion of the Commission that the definition of month is with reference only to one month and not more which is wrong a reading of the provision. The Commission applied 1.2.1 (m) which refers to a period commencing from a specified date to a specified day for the purpose of including the date of the event. In our view, the Commission has committed an error in applying 1.2.1 (m) when the provision that is applicable is 1.2.1 (k) read with the definition of month in Article 21.1. There is a specific mention of twelve months in the definition of SCOD and Article 1.2.1 (k) categorically provides that any reference to a Month shall be a calendar month. Applicability of Article 1.2.1 (k) excludes the operation of Article 1.2.1 (m) to the facts of this case. 21. The next contention of the Appellant is that actual injection of power into the Grid was on 17.10.2017 and as the Scheduled is 16.10.2017, the reduction of the tariff in view of the delay of 1 day in commissioning is justified. The alternate submission that is made by the Respondents that even assuming that the Scheduled Commissioning Date is 16.10.2017 and not 17.10.2017, the Respondents commissioned the Solar Plants on 16.10.2017 itself. According to the Respondents, the Appellant committed an error in penalizing the Respondents on a wrong premise that the actual injection of power is required to show that the Solar Plants were commissioned. The Commission answered the point in favour of the Appellants by holding that actual injection of power is necessary to determine the date of commissioning of the Plant. The Appellate Tribunal reversed the findings recorded by the Commission on this aspect by relying upon the Commissioning certificate issued by the KPTCL which is to the effect that the Solar Plants were commissioned on 16.10.2017 itself. There is no dispute that the power was injected from the solar plants on 17.10.2017.

1[ds]16. The duty of the Court is not to delve deep into the intricies of human mind to explore the undisclosed intention, but only to take the meaning of words used i.e. to say expressed intentions (Smt. Kamala Devi vs. Seth Takhatmal & Anr 1964 (2) SCR 152 ). In seeking to construe a clause in a Contract, there is no scope for adopting either a liberal or a narrow approach, whatever that may mean. The exercise which has to be undertaken is to determine what the words used mean. It can happen that in doing so one is driven to the conclusion that clause is ambiguous, and that it has two possible meanings. In those circumstances, the Court has to prefer one above the other in accordance with the settled principles. If one meaning is more in accord with what the Court considers to the underlined purpose and intent of the contract, or part of it, than the other, then the court will choose former or rather than the later. Ashville Investment v. Elmer Contractors. 1988 (2) All ER 577 The intention of the parties must be understood from the language they have used, considered in the light of the surrounding circumstances and object of the contract. Bank of India and Anr. v. K. MohanDas and Ors 2009 5 SCC 313. Every contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Bihar State Electricity Board, Patna and Ors. v. M/s. Green Rubber Industries and Ors 1990 (1) SCC 731. 17. Liquidated damages can be imposed on the Developer under Article 5.8.1 if he is unable to commence supply of power to the Appellant by the Scheduled Commissioning Date. Article 12 deals with the applicable tariff. The developer shall be entitled to receive the tariff of Rs. 6.10/kWh of energy supplied the Appellant in accordance with the terms of the agreement. If there is delay in commissioning of the project beyond the Scheduled Commissioning Date and if there is change in KERC applicable tariff, Article 12.2 provides that the changed applicable tariff for the project shall be the lower of the Tariff as in Clause 12.1 and KERC applicable tariff as on the commercial operation day.KERC approved the PPAs on 17.10.2016. Scheduled Commissioning Date according to the agreement should be 12 months from 17.10.2016. There is also no dispute between the parties that 12 months means 365 days.According to the Appellants if 17.10.2016 is included in computation of 365 days, the Scheduled Commissioning Date is 16.10.2017.On the other hand, the Respondents contended that 17.10.2016 should be excluded in the calculation of 365 days, in which case, 17.10.2017 would be the Scheduled Commissioning Date.19. The Commission relied upon 1.2.1(m) of the PPA to conclude that 17.10.2016 has to be included for ciphering the period of 365 days to determine the Scheduled Commissioning Date. Whereas, the Appellate Tribunal was of the view that Article 1.2.1 (k) of the PPA is relevant. The Tribunal held that the date of the event which is the date on which the PPA was approved i.e. 17.10.2016 shall be excluded in calculating the period of 12 months.20. Reduction of applicable tariff is permissible under Article 12.2 of the PPA only when there is delay in commissioning of the Project beyond the Scheduled Commissioning Date. As discussed above, there is no dispute that the Scheduled Commissioning date shall be 12 months from the effective date. There is no quarrel between the parties that the effective date is 17.10.2016. The interpretation clause contains three provisions which are 1.2.1 (k), 1.2.1 (l) and 1.2.1 (m). According to 1.2.1 (k), any reference to a month shall mean a reference to a Calendar month as per the Gregorian Calendar. 1.2.1 (l) provides that references to any date or period shall mean and include such date, period as may be extended pursuant to the agreement. As per Article 1.2.1 (m), any reference to any period commencing from a specified date and until the specified day shall include both such day or dates. The other crucial provision which has to be taken note of is the definition of the expression Month in Article 21.1 of the agreement. Month has been defined to mean a period of 30 days and excluding (the date of the evet) where applicable, else a Calendar month. We are not concerned with 1.2.1 (l), in this case as there is no question of any extension of any period pursuant to the agreement. 1.2.1 (k) indicates that any reference to a month shall mean reference to a Calendar month. Reverting to the definition of Month, it is clear that a month shall mean either 30 days where applicable or a Calendar month. In this case, there is no dispute that 12 Calendar months have to be taken into account for determining the Scheduled Commissioning Date. The crucial expression in the definition of Month is excluding the date of the event. If the date of the event i.e. 17.10.2016 is excluded, the Scheduled Commissioning Date would be 17.10.2017. We do not agree with the conclusion of the Commission that the definition of month is with reference only to one month and not more which is wrong a reading of the provision. The Commission applied 1.2.1 (m) which refers to a period commencing from a specified date to a specified day for the purpose of including the date of the event. In our view, the Commission has committed an error in applying 1.2.1 (m) when the provision that is applicable is 1.2.1 (k) read with the definition of month in Article 21.1. There is a specific mention of twelve months in the definition of SCOD and Article 1.2.1 (k) categorically provides that any reference to a Month shall be a calendar month. Applicability of Article 1.2.1 (k) excludes the operation of Article 1.2.1 (m) to the facts of this case.The Commission answered the point in favour of the Appellants by holding that actual injection of power is necessary to determine the date of commissioning of the Plant. The Appellate Tribunal reversed the findings recorded by the Commission on this aspect by relying upon the Commissioning certificate issued by the KPTCL which is to the effect that the Solar Plants were commissioned on 16.10.2017 itself. There is no dispute that the power was injected from the solar plants on 17.10.2017.

### 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: the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Bihar State Electricity Board, Patna and Ors. v. M/s. Green Rubber Industries and Ors 1990 (1) SCC 731. 17. Liquidated damages can be imposed on the Developer under Article 5.8.1 if he is unable to commence supply of power to the Appellant by the Scheduled Commissioning Date. Article 12 deals with the applicable tariff. The developer shall be entitled to receive the tariff of Rs. 6.10/kWh of energy supplied the Appellant in accordance with the terms of the agreement. If there is delay in commissioning of the project beyond the Scheduled Commissioning Date and if there is change in KERC applicable tariff, Article 12.2 provides that the changed applicable tariff for the project shall be the lower of the Tariff as in Clause 12.1 and KERC applicable tariff as on the commercial operation day. 18. The bone of contention is whether the Scheduled Commissioning Date of the Solar Power Project is 16.10.2017 or 17.10.2017. We proceed to advert to the undisputed facts. KERC approved the PPAs on 17.10.2016. Scheduled Commissioning Date according to the agreement should be 12 months from 17.10.2016. There is also no dispute between the parties that 12 months means 365 days. According to the Appellants if 17.10.2016 is included in computation of 365 days, the Scheduled Commissioning Date is 16.10.2017. On the other hand, the Respondents contended that 17.10.2016 should be excluded in the calculation of 365 days, in which case, 17.10.2017 would be the Scheduled Commissioning Date. 19. The Commission relied upon 1.2.1(m) of the PPA to conclude that 17.10.2016 has to be included for ciphering the period of 365 days to determine the Scheduled Commissioning Date. Whereas, the Appellate Tribunal was of the view that Article 1.2.1 (k) of the PPA is relevant. The Tribunal held that the date of the event which is the date on which the PPA was approved i.e. 17.10.2016 shall be excluded in calculating the period of 12 months. 20. Reduction of applicable tariff is permissible under Article 12.2 of the PPA only when there is delay in commissioning of the Project beyond the Scheduled Commissioning Date. As discussed above, there is no dispute that the Scheduled Commissioning date shall be 12 months from the effective date. There is no quarrel between the parties that the effective date is 17.10.2016. The interpretation clause contains three provisions which are 1.2.1 (k), 1.2.1 (l) and 1.2.1 (m). According to 1.2.1 (k), any reference to a month shall mean a reference to a Calendar month as per the Gregorian Calendar. 1.2.1 (l) provides that references to any date or period shall mean and include such date, period as may be extended pursuant to the agreement. As per Article 1.2.1 (m), any reference to any period commencing from a specified date and until the specified day shall include both such day or dates. The other crucial provision which has to be taken note of is the definition of the expression Month in Article 21.1 of the agreement. Month has been defined to mean a period of 30 days and excluding (the date of the evet) where applicable, else a Calendar month. We are not concerned with 1.2.1 (l), in this case as there is no question of any extension of any period pursuant to the agreement. 1.2.1 (k) indicates that any reference to a month shall mean reference to a Calendar month. Reverting to the definition of Month, it is clear that a month shall mean either 30 days where applicable or a Calendar month. In this case, there is no dispute that 12 Calendar months have to be taken into account for determining the Scheduled Commissioning Date. The crucial expression in the definition of Month is excluding the date of the event. If the date of the event i.e. 17.10.2016 is excluded, the Scheduled Commissioning Date would be 17.10.2017. We do not agree with the conclusion of the Commission that the definition of month is with reference only to one month and not more which is wrong a reading of the provision. The Commission applied 1.2.1 (m) which refers to a period commencing from a specified date to a specified day for the purpose of including the date of the event. In our view, the Commission has committed an error in applying 1.2.1 (m) when the provision that is applicable is 1.2.1 (k) read with the definition of month in Article 21.1. There is a specific mention of twelve months in the definition of SCOD and Article 1.2.1 (k) categorically provides that any reference to a Month shall be a calendar month. Applicability of Article 1.2.1 (k) excludes the operation of Article 1.2.1 (m) to the facts of this case. 21. The next contention of the Appellant is that actual injection of power into the Grid was on 17.10.2017 and as the Scheduled is 16.10.2017, the reduction of the tariff in view of the delay of 1 day in commissioning is justified. The alternate submission that is made by the Respondents that even assuming that the Scheduled Commissioning Date is 16.10.2017 and not 17.10.2017, the Respondents commissioned the Solar Plants on 16.10.2017 itself. According to the Respondents, the Appellant committed an error in penalizing the Respondents on a wrong premise that the actual injection of power is required to show that the Solar Plants were commissioned. The Commission answered the point in favour of the Appellants by holding that actual injection of power is necessary to determine the date of commissioning of the Plant. The Appellate Tribunal reversed the findings recorded by the Commission on this aspect by relying upon the Commissioning certificate issued by the KPTCL which is to the effect that the Solar Plants were commissioned on 16.10.2017 itself. There is no dispute that the power was injected from the solar plants on 17.10.2017. ### Response: 1 ### Explanation: doing so one is driven to the conclusion that clause is ambiguous, and that it has two possible meanings. In those circumstances, the Court has to prefer one above the other in accordance with the settled principles. If one meaning is more in accord with what the Court considers to the underlined purpose and intent of the contract, or part of it, than the other, then the court will choose former or rather than the later. Ashville Investment v. Elmer Contractors. 1988 (2) All ER 577 The intention of the parties must be understood from the language they have used, considered in the light of the surrounding circumstances and object of the contract. Bank of India and Anr. v. K. MohanDas and Ors 2009 5 SCC 313. Every contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Bihar State Electricity Board, Patna and Ors. v. M/s. Green Rubber Industries and Ors 1990 (1) SCC 731. 17. Liquidated damages can be imposed on the Developer under Article 5.8.1 if he is unable to commence supply of power to the Appellant by the Scheduled Commissioning Date. Article 12 deals with the applicable tariff. The developer shall be entitled to receive the tariff of Rs. 6.10/kWh of energy supplied the Appellant in accordance with the terms of the agreement. If there is delay in commissioning of the project beyond the Scheduled Commissioning Date and if there is change in KERC applicable tariff, Article 12.2 provides that the changed applicable tariff for the project shall be the lower of the Tariff as in Clause 12.1 and KERC applicable tariff as on the commercial operation day.KERC approved the PPAs on 17.10.2016. Scheduled Commissioning Date according to the agreement should be 12 months from 17.10.2016. There is also no dispute between the parties that 12 months means 365 days.According to the Appellants if 17.10.2016 is included in computation of 365 days, the Scheduled Commissioning Date is 16.10.2017.On the other hand, the Respondents contended that 17.10.2016 should be excluded in the calculation of 365 days, in which case, 17.10.2017 would be the Scheduled Commissioning Date.19. The Commission relied upon 1.2.1(m) of the PPA to conclude that 17.10.2016 has to be included for ciphering the period of 365 days to determine the Scheduled Commissioning Date. Whereas, the Appellate Tribunal was of the view that Article 1.2.1 (k) of the PPA is relevant. The Tribunal held that the date of the event which is the date on which the PPA was approved i.e. 17.10.2016 shall be excluded in calculating the period of 12 months.20. Reduction of applicable tariff is permissible under Article 12.2 of the PPA only when there is delay in commissioning of the Project beyond the Scheduled Commissioning Date. As discussed above, there is no dispute that the Scheduled Commissioning date shall be 12 months from the effective date. There is no quarrel between the parties that the effective date is 17.10.2016. The interpretation clause contains three provisions which are 1.2.1 (k), 1.2.1 (l) and 1.2.1 (m). According to 1.2.1 (k), any reference to a month shall mean a reference to a Calendar month as per the Gregorian Calendar. 1.2.1 (l) provides that references to any date or period shall mean and include such date, period as may be extended pursuant to the agreement. As per Article 1.2.1 (m), any reference to any period commencing from a specified date and until the specified day shall include both such day or dates. The other crucial provision which has to be taken note of is the definition of the expression Month in Article 21.1 of the agreement. Month has been defined to mean a period of 30 days and excluding (the date of the evet) where applicable, else a Calendar month. We are not concerned with 1.2.1 (l), in this case as there is no question of any extension of any period pursuant to the agreement. 1.2.1 (k) indicates that any reference to a month shall mean reference to a Calendar month. Reverting to the definition of Month, it is clear that a month shall mean either 30 days where applicable or a Calendar month. In this case, there is no dispute that 12 Calendar months have to be taken into account for determining the Scheduled Commissioning Date. The crucial expression in the definition of Month is excluding the date of the event. If the date of the event i.e. 17.10.2016 is excluded, the Scheduled Commissioning Date would be 17.10.2017. We do not agree with the conclusion of the Commission that the definition of month is with reference only to one month and not more which is wrong a reading of the provision. The Commission applied 1.2.1 (m) which refers to a period commencing from a specified date to a specified day for the purpose of including the date of the event. In our view, the Commission has committed an error in applying 1.2.1 (m) when the provision that is applicable is 1.2.1 (k) read with the definition of month in Article 21.1. There is a specific mention of twelve months in the definition of SCOD and Article 1.2.1 (k) categorically provides that any reference to a Month shall be a calendar month. Applicability of Article 1.2.1 (k) excludes the operation of Article 1.2.1 (m) to the facts of this case.The Commission answered the point in favour of the Appellants by holding that actual injection of power is necessary to determine the date of commissioning of the Plant. The Appellate Tribunal reversed the findings recorded by the Commission on this aspect by relying upon the Commissioning certificate issued by the KPTCL which is to the effect that the Solar Plants were commissioned on 16.10.2017 itself. There is no dispute that the power was injected from the solar plants on 17.10.2017.

Videocon International Ltd Vs. Securities & Exchange Board of India

the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated. Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before 29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing of the appeal, preferred by the Board, before the High Court. We accordingly reiterate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law.31. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein, does not so envisage, it has to be concluded, that the pending appeals (before the amendment of Section 15Z) would not be affected in any manner. Accordingly, for the same reasons as have been expressed in the above judgment (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for the appellant is wholly misconceived. Furthermore, the instant contention is wholly unacceptable in view of the mandate contained in Section 6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that the amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly or by necessary intendment provides otherwise. Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallized on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected. Herein also, therefore, our conclusion is the same as has already been rendered by us, in the foregoing paragraphs.32. Having concluded in the manner expressed in the foregoing paragraphs, it is not necessary for us to examine the main contention, advanced at the hands of the learned counsel for the appellant, namely, that the amendment to Section 15Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, learned counsel for the appellant had placed reliance on, the decisions rendered by this Court in Maria Cristina De Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases (supra) to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Commissioner of Income Tax, Orissa case (supra), wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29.10.2002, would have to be accepted as vested, and must be adjudicated accordingly.33. The conclusion recorded by us in the foregoing paragraph emerges even from the mandate contained in Section 6 of the General Clauses Act, 1897. The legal contours emerging out of Section 6 aforementioned, have already been recorded by us, and need not be repeated.

0[ds]21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums.We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. We shall now venture to determine the controversy which has been debated hereinabove. So as not to be required to repeatedly express one foundational fact, it would be pertinent to mention, that our determination, insofar as the present controversy is concerned, is with reference to situations wherein, the amending provision by express words or by necessary implication, does not mandate the amendment to be either prospective or retrospective. In the present case, the instant situation emerges from Section 32 of the Securities and Exchange Board of India (Amendment) Act, 2002, which is silent on the above subject.25. First and foremost, we shall determine the veracity of the contention advanced at the hands of the learned counsel for the appellant, that the remedy of second appeal provided for in the unamended Section 15Z of the SEBI Act remained unaffected by the amendment of the said provision; and on the basis of the above assumption, the learned counsels submission, that the present controversy relates to an amendment which envisaged a mere change of forum. Insofar as the instant aspect of the matter is concerned, it would be pertinent to mention, that a right of appeal can be availed of only when it is expressly conferred. When such a right is conferred, its parameters are also laid down. A right of appeal may be absolute, i.e., without any limitations. Or, it may be a limited right. The above position is understandable, from a perusal of the unamended and amended Section 15Z of the SEBI Act. Under the unamended Section 15Z, the appellate remedy to the High Court, against an order passed by the Securities Appellate Tribunal, was circumscribed by the words "...on any question of fact or law arising out of such order.". The amended Section 15Z, while altering the appellate forum from the High Court to the Supreme Court, curtailed and restricted the scope of the appeal, against an order passed by the Securities Appellate Tribunal, by expressing that the remedy could be availed of "...on any question of law arising out of such order.".It is, therefore apparent, that the right to appeal, is available in different packages, and that, the amendment to Section 15Z, varied the scope of the second appeal provided under the SEBI Act.Where the appellate package, as in the present case, is expressed differently at the "pre" and "post" amendment stages, there could only be two eventualities. Firstly, the pre-amendment appellate package, could have been decreased by the amendment. Or alternatively, the post-amendment package, could have been increased by the amendment. In the former situation, all that was available earlier, is now not available. In other words, the right of an individual to the appellate remedy, stands reduced or curtailed. In the latter situation, the amendment enhances the appellate package. The appellate remedy available prior to the amendment, stands included in the amendment, and some further addition has been made thereto. In the latter stage, all that was available earlier continues to subsist. The two situations contemplated hereinabove, will obviously lead to different consequences, because in the former position, the amendment would adversely affect the right, as was available earlier. In the latter position, the amendment would not affect the right of appeal, as was available earlier, because the earlier package is still included in the amended package.28. In the facts and circumstances of this case, it is apparent that Section 15Z of the SEBI Act prior to the amendment, postulated that the appellate remedy would extend to "...any question of fact or law arising out of such order.". Whereas, the appellate remedy was curtailed consequent upon the amendment, whereunder the appellate right was limited to, "...any question of law arising out of such order.". Accordingly, by the amendment, the earlier appellate package stands reduced, because under the amended Section 15Z, it is not open to an appellant, to agitate an appeal on facts. That being the position, it is not possible for us to accept the contention advanced at the hands of the learned counsel for the appellant, that the amendment to Section 15Z of the SEBI Act, envisages only an amendment of the forum, where the second appeal would lie. In our considered view, the amendment to Section 15Z of the SEBI Act, having reduced the appellate package, adversely affected the appellate right vested of the concerned litigant. The right of appeal being a vested right, the appellate package, as was available at the commencement of the proceedings, would continue to vest in the parties engaged in a lis, till the eventual culmination of the proceedings. Obviously, that would be subject to an amendment expressly or impliedly, providing to the contrary. Section 32 of the Securities and Exchange Board of India (Amendment) Act, 2002, which has been extracted in paragraph 12 hereinabove reveals, that the repeal and saving clause, neither expressly nor impliedly, so provides. Thus viewed, we are constrained to conclude, that the assertion advanced at the hands of the learned counsel for the appellant, that the instant amendment to Section 15Z of the SEBI Act, does not affect the second appellate remedy, but merely alters the forum where the second appellate remedy would lie, is not acceptable.29. Having concluded, that the remedy of second appeal vested in the respondent has not been preserved, in the same format as it was available to the respondent, at the time of initiation of the lis between the parties; and also having concluded, that the scope of the appellate remedy has been diminished by the amendment, we are satisfied in holding, that amendment to Section 15Z of the SEBI Act adversely affected the respondent, of a vested substantive appellate right, as was available to the respondent, at the commencement of the lis or dispute between the rival parties. Having recorded the aforesaid conclusion, based on the judgments relied upon by the learned counsel for the appellant, as also, by the learned counsel for the respondent, it is inevitable to conclude, that the appellate remedy available to the respondent prior to the amendment of Section 15Z of the SEBI Act, must continue to be available to the respondent, despite the amendment. We accordingly hold, that all the appeals preferred by the Board, before the High Court, were maintainable in law.30. Having recorded our conclusion, as has been noticed in the foregoing paragraph, it is apparent, that insofar as the vesting of the second appellate remedy is concerned, neither the date of filing of the second appeal, nor the date of hearing thereof, is of any relevance. Legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps are deemingly connected by an intrinsic unity, which are treated as one singular proceeding. Therefore, the relevant date when the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated. Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before 29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing of the appeal, preferred by the Board, before the High Court. We accordingly reiterate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law.31. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein, does not so envisage, it has to be concluded, that the pending appeals (before the amendment of Section 15Z) would not be affected in any manner. Accordingly, for the same reasons as have been expressed in the above judgment (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for the appellant is wholly misconceived. Furthermore, the instant contention is wholly unacceptable in view of the mandate contained in Section 6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that the amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly or by necessary intendment provides otherwise. Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallized on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected. Herein also, therefore, our conclusion is the same as has already been rendered by us, in the foregoing paragraphs.32. Having concluded in the manner expressed in the foregoing paragraphs, it is not necessary for us to examine the main contention, advanced at the hands of the learned counsel for the appellant, namely, that the amendment to Section 15Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, learned counsel for the appellant had placed reliance on, the decisions rendered by this Court in Maria Cristina De Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases (supra) to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Commissioner of Income Tax, Orissa case (supra), wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29.10.2002, would have to be accepted as vested, and must be adjudicated accordingly.33. The conclusion recorded by us in the foregoing paragraph emerges even from the mandate contained in Section 6 of the General Clauses Act, 1897. The legal contours emerging out of Section 6 aforementioned, have already been recorded by us, and need not be repeated.

### 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: the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated. Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before 29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing of the appeal, preferred by the Board, before the High Court. We accordingly reiterate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law.31. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein, does not so envisage, it has to be concluded, that the pending appeals (before the amendment of Section 15Z) would not be affected in any manner. Accordingly, for the same reasons as have been expressed in the above judgment (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for the appellant is wholly misconceived. Furthermore, the instant contention is wholly unacceptable in view of the mandate contained in Section 6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that the amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly or by necessary intendment provides otherwise. Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallized on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected. Herein also, therefore, our conclusion is the same as has already been rendered by us, in the foregoing paragraphs.32. Having concluded in the manner expressed in the foregoing paragraphs, it is not necessary for us to examine the main contention, advanced at the hands of the learned counsel for the appellant, namely, that the amendment to Section 15Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, learned counsel for the appellant had placed reliance on, the decisions rendered by this Court in Maria Cristina De Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases (supra) to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Commissioner of Income Tax, Orissa case (supra), wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29.10.2002, would have to be accepted as vested, and must be adjudicated accordingly.33. The conclusion recorded by us in the foregoing paragraph emerges even from the mandate contained in Section 6 of the General Clauses Act, 1897. The legal contours emerging out of Section 6 aforementioned, have already been recorded by us, and need not be repeated. ### Response: 0 ### Explanation: the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated. Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before 29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing of the appeal, preferred by the Board, before the High Court. We accordingly reiterate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law.31. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein, does not so envisage, it has to be concluded, that the pending appeals (before the amendment of Section 15Z) would not be affected in any manner. Accordingly, for the same reasons as have been expressed in the above judgment (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for the appellant is wholly misconceived. Furthermore, the instant contention is wholly unacceptable in view of the mandate contained in Section 6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that the amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly or by necessary intendment provides otherwise. Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallized on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected. Herein also, therefore, our conclusion is the same as has already been rendered by us, in the foregoing paragraphs.32. Having concluded in the manner expressed in the foregoing paragraphs, it is not necessary for us to examine the main contention, advanced at the hands of the learned counsel for the appellant, namely, that the amendment to Section 15Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, learned counsel for the appellant had placed reliance on, the decisions rendered by this Court in Maria Cristina De Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases (supra) to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Commissioner of Income Tax, Orissa case (supra), wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29.10.2002, would have to be accepted as vested, and must be adjudicated accordingly.33. The conclusion recorded by us in the foregoing paragraph emerges even from the mandate contained in Section 6 of the General Clauses Act, 1897. The legal contours emerging out of Section 6 aforementioned, have already been recorded by us, and need not be repeated.

Jose @ Pappachan Vs. The Sub-Inspector of Police, Koyilandy & Another

the one favourable to the accused ought to be adopted. 54. The facts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of the appellant. 55. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise “The Law of Evidence” fifth edition by Ian Dennis at page 445: “The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendants guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendants guilt.” 56. The above quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction. 57. This applies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard. 58. Addressing this aspect, however, is the following extract also from the same treatise “The Law of Evidence” fifth edition by Ian Dennis at page 483: “ Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, factfinders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure. The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the factfinder believes is “probably” guilty, or “likely” to be guilty will be acquitted, since these judgements of probability necessarily admit that the factfinder is not “sure”. It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the “beyond reasonable doubt” standard against wrongful conviction.” 59. A reference in the passing however to the of quoted decision in Sharad Birdhichand Sarda (supra) construed to be locus classicus on the relevance and decisiveness of circumstantial evidence as a proof of the charge of a criminal offence would not be out of place. The relevant excerpts from paragraph 153 of the decision is extracted herein below. “153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.* * *(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 60. As recent as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 , this Court also in the contextual facts constituting circumstantial evidence ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused. 61. In Dhan Raj @ Dhand vs. State of Haryana (2014) 6 SCC 745 , one of us (Hon. Ghose,J.) while dwelling on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture. 62. Judged on the above parameters, we are of the unhesitant opinion that the evidence adduced by the prosecution constituting circumstantial evidence in support of the charge does not furnish an unassailable basis to hold the appellant guilty of the charge of murder levelled against him. The facts and circumstances admit of a reasonable doubt in his favour. 63. The circumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below.

1[ds]On an overall consideration of the evidence available on record, it would be, in our view, wholly unsafe to hold the appellant guilty of the charge of murder of his wife by strangulating her with the nylon rope as seized and then hanging her from the roof with the saree to complete the act. The circumstantial evidence adduced by the prosecution in our assessment falls short of the requirement in law to return a finding of guilt against the appellant without any element of doubt whatsoever. The fact that both the accused persons had been exonerated of the charge of cruelty under Section 498A IPC and that the co-accused, who allegedly had assisted the appellant in the perpetration of the crime had been fully acquitted by the courts below of all the charges also takes away the wind from the sails of theis a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm ofbut has to essentially elevate it to the grade ofIn a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to befacts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of theabove quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmeritedapplies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in thison the above parameters, we are of the unhesitant opinion that the evidence adduced by the prosecution constituting circumstantial evidence in support of the charge does not furnish an unassailable basis to hold the appellant guilty of the charge of murder levelled against him. The facts and circumstances admit of a reasonable doubt in hiscircumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: the one favourable to the accused ought to be adopted. 54. The facts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of the appellant. 55. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise “The Law of Evidence” fifth edition by Ian Dennis at page 445: “The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendants guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendants guilt.” 56. The above quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction. 57. This applies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard. 58. Addressing this aspect, however, is the following extract also from the same treatise “The Law of Evidence” fifth edition by Ian Dennis at page 483: “ Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, factfinders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure. The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the factfinder believes is “probably” guilty, or “likely” to be guilty will be acquitted, since these judgements of probability necessarily admit that the factfinder is not “sure”. It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the “beyond reasonable doubt” standard against wrongful conviction.” 59. A reference in the passing however to the of quoted decision in Sharad Birdhichand Sarda (supra) construed to be locus classicus on the relevance and decisiveness of circumstantial evidence as a proof of the charge of a criminal offence would not be out of place. The relevant excerpts from paragraph 153 of the decision is extracted herein below. “153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.* * *(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 60. As recent as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 , this Court also in the contextual facts constituting circumstantial evidence ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused. 61. In Dhan Raj @ Dhand vs. State of Haryana (2014) 6 SCC 745 , one of us (Hon. Ghose,J.) while dwelling on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture. 62. Judged on the above parameters, we are of the unhesitant opinion that the evidence adduced by the prosecution constituting circumstantial evidence in support of the charge does not furnish an unassailable basis to hold the appellant guilty of the charge of murder levelled against him. The facts and circumstances admit of a reasonable doubt in his favour. 63. The circumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below. ### Response: 1 ### Explanation: On an overall consideration of the evidence available on record, it would be, in our view, wholly unsafe to hold the appellant guilty of the charge of murder of his wife by strangulating her with the nylon rope as seized and then hanging her from the roof with the saree to complete the act. The circumstantial evidence adduced by the prosecution in our assessment falls short of the requirement in law to return a finding of guilt against the appellant without any element of doubt whatsoever. The fact that both the accused persons had been exonerated of the charge of cruelty under Section 498A IPC and that the co-accused, who allegedly had assisted the appellant in the perpetration of the crime had been fully acquitted by the courts below of all the charges also takes away the wind from the sails of theis a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm ofbut has to essentially elevate it to the grade ofIn a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to befacts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of theabove quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmeritedapplies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in thison the above parameters, we are of the unhesitant opinion that the evidence adduced by the prosecution constituting circumstantial evidence in support of the charge does not furnish an unassailable basis to hold the appellant guilty of the charge of murder levelled against him. The facts and circumstances admit of a reasonable doubt in hiscircumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below.

KASABAI TUKARAM KARVAR & ORS Vs. NIVRUTI (DEAD) THROUGH LEGAL HEIRS & ORS

aspect of the matter as the present case relates to a pre-statutory adoption. Even Section 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. 9. The plaintiff, as the adopted son, for secular and spiritual purposes continues the line of the adoptive father and when the widow adopts, the doctrine of relation-back makes sonship retroactive from the moment of death of the late husband. The new entrant is deemed to have been born on the date of death of the adoptive father. Supposing there was an undivided family in existence when the adoptive father died, how far can the legal fiction of anterior sonship disrupt the doings between notional birth and actual adoption? Mulla sums up the result of the rulings thus: (p. 496) If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in the family properties as if they were still joint. 11. In this case, there is no dispute about the adoption or about the validity of the adoption. It is, in fact, the case of the plaintiff that the first defendant was the adopted son. On the said basis, the further conclusion is inevitable that on applying the doctrine of relation back, it would be deemed that as on the date of the death of their father, the first defendant was very much notionally alive and he would become the sole coparcener. It is indisputable that there can be no vacuum or break in vesting of title on the death of a person. We must further bear in mind that this is a case where succession opened up admittedly prior to the Hindu Succession Act, 1956 coming into force. 12. The learned counsel for the plaintiff, no doubt, relied upon Section-72 of Part-I, Chapter VI-Order of Succession to Males in the Bombay State in Mulla on Hindu Law, 23rd Edition which is reproduced below:- 72. Order of succession in cases governed by Mitakshara- The following is the order of succession to males among sapindas in the Bombay State in cases governed by Mitakshara: (1-6) Son, sons son (whose father is dead) and sons sons son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1937, the widow, the predeceased sons widow, and the widow of a predeceased son of a predeceased son, are also recognised as heirs. xxxxxx (7) Daughter xxxxx In the Bombay State, daughter do not take as joint tenants with benefit of survivorship, but they take as tenants-in-common. Further, a daughter in that State does not take a limited estate in her fathers property, but takes the property absolutely. Thus, if Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her fathers estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. xxxxx 13. There are other heirs but they are not being referred to. We must, in the facts of this case, proceed on the basis that the adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter. This result flows from the statement that the persons in serial Nos.1 to 6, namely, son, sons son (whose father is dead) and sons sons son (whose father and grandfather are both dead) inherit simultaneously. 14. We would hold that if there is a son, the daughter would not be entitled to share along with the son. The daughter, in other words, would not be a legal heir who would take simultaneously with the son. The example which, in fact, has been set out and which we have extracted would only be applicable in a situation where there were only daughters and no son. 15. It is, undoubtedly, true that in view of the Hindu Womens Rights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view of the notional existence of the adopted son by virtue of the doctrine of relation back. 16. As far as the effect of remarriage of the mother of the plaintiff and the first defendant is concerned, again, in view of the fact that in the presence of the son, the daughter may stand excluded, it would again result in no right accruing to the plaintiff-daughter as a result of the remarriage. In other words, the first defendant, as son, would become the sole owner of the property. 17. Aid is sought to be drawn from the terms of the compromise entered into between the adopted son (first defendant) and the step-sisters in a proceeding to which the plaintiff was admittedly not a party. We are not even called upon to decide a case that estoppel, as such, would arise in favour of the plaintiff.

0[ds]10. As far as the doctrine of relation back goes, we need only notice decisions of this Court in Govind Hanumantha Rao Desai versus Nagappa alias Narahari Laxman Rao Deshpande and Sever Others, (1972) 1 SCC 515 and Shripad Gajanan Suthankar versus Dattaram Kashinath Suthankar and Others, (1974) 2 SCC 156 . We may only further expatiate by referring to paragraphs 6, 7 and 9 of Shripad Gajanan Suthankar and Others (Supra).6. It is established law that the adoption by a widow relates back to the date of the death of the adoptive father, which, in this case, took place in 1921. Indeed, the complexity of the present case arises from the application of this legal fiction of relation-back and the limitations on the amplitude of that fiction visa-vis the partition of 1944, in the light of the rulings of the various High Courts and of the Judicial Committee of the Privy Council, and of this Court, the last of which is Govind v. Nagappa. According to the appellant, the rights of the adopted son, armed as he is with the theory of relation-back, have to be effectuated retroactively, the guidelines wherefor are available from the decided cases. It is no doubt true thatwhen a member of a joint family governed by Mitakshara law dies and the widow validly adopts a son to him, a coparcenary interest in the joint property is immediately created by the adoption co-extensive with that which the deceased coparcener had, and it vests at once in the adopted son. (See Mulla on Hindu Law, 13th Edn.p. 516.)The same author, however, points out that:the rights of an adopted son arise for the first time on his adoption. He may, by virtue of his rights as adopted son, divest other persons in whom the property vested after the death of the adoptive father, but all lawful alienations made by previous holder would be binding on him. His right to impeach previous alienations would depend upon the capacity of the holder who made the alienation as well as on the nature of the action of alienation. When the holder was a male, who had unfettered right of transfer, e.g., the last surviving member of a joint family, the adopted son could not impeach the transfer. In case of females who had restricted rights of transfer even apart from any adoption, the transfers would be valid only when they are supported by legal necessity. (ibid, pp. 516-517; para 507.)An adopted son is bound by alienations made by his adoptive father prior to the adoption to the same extent as a natural-born son would be. (ibid; p. 517: para 508.)7. It is settled law that the rights of an adopted son spring into existence only from the moment of the adoption and all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956 can upset the partition of 1944, validly made under the then conditions, and the gift by Mahadev of properties exclusively set apart to him and, therefore, alienable by him, could be retro-actively invalidated by the plaintiff on the application of the legal fiction of relationback. It is unlikely that a similar question will arise hereinafter since Section 4 of the Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of that law in force immediately before the commencement of the Act, if provisions have been made for such matters in the Act. Since on the husbands death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled for ever. Of course, we need not investigate this aspect of the matter as the present case relates to a pre-statutory adoption. Even Section 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption.9. The plaintiff, as the adopted son, for secular and spiritual purposes continues the line of the adoptive father and when the widow adopts, the doctrine of relation-back makes sonship retroactive from the moment of death of the late husband. The new entrant is deemed to have been born on the date of death of the adoptive father. Supposing there was an undivided family in existence when the adoptive father died, how far can the legal fiction of anterior sonship disrupt the doings between notional birth and actual adoption? Mulla sums up the result of the rulings thus: (p. 496)If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in the family properties as if they were still joint.11. In this case, there is no dispute about the adoption or about the validity of the adoption. It is, in fact, the case of the plaintiff that the first defendant was the adopted son. On the said basis, the further conclusion is inevitable that on applying the doctrine of relation back, it would be deemed that as on the date of the death of their father, the first defendant was very much notionally alive and he would become the sole coparcener. It is indisputable that there can be no vacuum or break in vesting of title on the death of a person. We must further bear in mind that this is a case where succession opened up admittedly prior to the Hindu Succession Act, 1956 coming into force.13. There are other heirs but they are not being referred to. We must, in the facts of this case, proceed on the basis that the adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter. This result flows from the statement that the persons in serial Nos.1 to 6, namely, son, sons son (whose father is dead) and sons sons son (whose father and grandfather are both dead) inherit simultaneously.14. We would hold that if there is a son, the daughter would not be entitled to share along with the son. The daughter, in other words, would not be a legal heir who would take simultaneously with the son. The example which, in fact, has been set out and which we have extracted would only be applicable in a situation where there were only daughters and no son.15. It is, undoubtedly, true that in view of the Hindu Womens Rights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view of the notional existence of the adopted son by virtue of the doctrine of relation back.16. As far as the effect of remarriage of the mother of the plaintiff and the first defendant is concerned, again, in view of the fact that in the presence of the son, the daughter may stand excluded, it would again result in no right accruing to the plaintiff-daughter as a result of the remarriage. In other words, the first defendant, as son, would become the sole owner of the property.17. Aid is sought to be drawn from the terms of the compromise entered into between the adopted son (first defendant) and the step-sisters in a proceeding to which the plaintiff was admittedly not a party. We are not even called upon to decide a case that estoppel, as such, would arise in favour of the plaintiff.

### 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: aspect of the matter as the present case relates to a pre-statutory adoption. Even Section 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. 9. The plaintiff, as the adopted son, for secular and spiritual purposes continues the line of the adoptive father and when the widow adopts, the doctrine of relation-back makes sonship retroactive from the moment of death of the late husband. The new entrant is deemed to have been born on the date of death of the adoptive father. Supposing there was an undivided family in existence when the adoptive father died, how far can the legal fiction of anterior sonship disrupt the doings between notional birth and actual adoption? Mulla sums up the result of the rulings thus: (p. 496) If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in the family properties as if they were still joint. 11. In this case, there is no dispute about the adoption or about the validity of the adoption. It is, in fact, the case of the plaintiff that the first defendant was the adopted son. On the said basis, the further conclusion is inevitable that on applying the doctrine of relation back, it would be deemed that as on the date of the death of their father, the first defendant was very much notionally alive and he would become the sole coparcener. It is indisputable that there can be no vacuum or break in vesting of title on the death of a person. We must further bear in mind that this is a case where succession opened up admittedly prior to the Hindu Succession Act, 1956 coming into force. 12. The learned counsel for the plaintiff, no doubt, relied upon Section-72 of Part-I, Chapter VI-Order of Succession to Males in the Bombay State in Mulla on Hindu Law, 23rd Edition which is reproduced below:- 72. Order of succession in cases governed by Mitakshara- The following is the order of succession to males among sapindas in the Bombay State in cases governed by Mitakshara: (1-6) Son, sons son (whose father is dead) and sons sons son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1937, the widow, the predeceased sons widow, and the widow of a predeceased son of a predeceased son, are also recognised as heirs. xxxxxx (7) Daughter xxxxx In the Bombay State, daughter do not take as joint tenants with benefit of survivorship, but they take as tenants-in-common. Further, a daughter in that State does not take a limited estate in her fathers property, but takes the property absolutely. Thus, if Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her fathers estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. xxxxx 13. There are other heirs but they are not being referred to. We must, in the facts of this case, proceed on the basis that the adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter. This result flows from the statement that the persons in serial Nos.1 to 6, namely, son, sons son (whose father is dead) and sons sons son (whose father and grandfather are both dead) inherit simultaneously. 14. We would hold that if there is a son, the daughter would not be entitled to share along with the son. The daughter, in other words, would not be a legal heir who would take simultaneously with the son. The example which, in fact, has been set out and which we have extracted would only be applicable in a situation where there were only daughters and no son. 15. It is, undoubtedly, true that in view of the Hindu Womens Rights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view of the notional existence of the adopted son by virtue of the doctrine of relation back. 16. As far as the effect of remarriage of the mother of the plaintiff and the first defendant is concerned, again, in view of the fact that in the presence of the son, the daughter may stand excluded, it would again result in no right accruing to the plaintiff-daughter as a result of the remarriage. In other words, the first defendant, as son, would become the sole owner of the property. 17. Aid is sought to be drawn from the terms of the compromise entered into between the adopted son (first defendant) and the step-sisters in a proceeding to which the plaintiff was admittedly not a party. We are not even called upon to decide a case that estoppel, as such, would arise in favour of the plaintiff. ### Response: 0 ### Explanation: be. (ibid; p. 517: para 508.)7. It is settled law that the rights of an adopted son spring into existence only from the moment of the adoption and all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956 can upset the partition of 1944, validly made under the then conditions, and the gift by Mahadev of properties exclusively set apart to him and, therefore, alienable by him, could be retro-actively invalidated by the plaintiff on the application of the legal fiction of relationback. It is unlikely that a similar question will arise hereinafter since Section 4 of the Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of that law in force immediately before the commencement of the Act, if provisions have been made for such matters in the Act. Since on the husbands death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled for ever. Of course, we need not investigate this aspect of the matter as the present case relates to a pre-statutory adoption. Even Section 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption.9. The plaintiff, as the adopted son, for secular and spiritual purposes continues the line of the adoptive father and when the widow adopts, the doctrine of relation-back makes sonship retroactive from the moment of death of the late husband. The new entrant is deemed to have been born on the date of death of the adoptive father. Supposing there was an undivided family in existence when the adoptive father died, how far can the legal fiction of anterior sonship disrupt the doings between notional birth and actual adoption? Mulla sums up the result of the rulings thus: (p. 496)If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in the family properties as if they were still joint.11. In this case, there is no dispute about the adoption or about the validity of the adoption. It is, in fact, the case of the plaintiff that the first defendant was the adopted son. On the said basis, the further conclusion is inevitable that on applying the doctrine of relation back, it would be deemed that as on the date of the death of their father, the first defendant was very much notionally alive and he would become the sole coparcener. It is indisputable that there can be no vacuum or break in vesting of title on the death of a person. We must further bear in mind that this is a case where succession opened up admittedly prior to the Hindu Succession Act, 1956 coming into force.13. There are other heirs but they are not being referred to. We must, in the facts of this case, proceed on the basis that the adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter. This result flows from the statement that the persons in serial Nos.1 to 6, namely, son, sons son (whose father is dead) and sons sons son (whose father and grandfather are both dead) inherit simultaneously.14. We would hold that if there is a son, the daughter would not be entitled to share along with the son. The daughter, in other words, would not be a legal heir who would take simultaneously with the son. The example which, in fact, has been set out and which we have extracted would only be applicable in a situation where there were only daughters and no son.15. It is, undoubtedly, true that in view of the Hindu Womens Rights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view of the notional existence of the adopted son by virtue of the doctrine of relation back.16. As far as the effect of remarriage of the mother of the plaintiff and the first defendant is concerned, again, in view of the fact that in the presence of the son, the daughter may stand excluded, it would again result in no right accruing to the plaintiff-daughter as a result of the remarriage. In other words, the first defendant, as son, would become the sole owner of the property.17. Aid is sought to be drawn from the terms of the compromise entered into between the adopted son (first defendant) and the step-sisters in a proceeding to which the plaintiff was admittedly not a party. We are not even called upon to decide a case that estoppel, as such, would arise in favour of the plaintiff.

Gitesh Pipes Private Limited & Another Vs. The State of Maharashtra & Others

which is produced as Annexure E to the petition, respondent no. 3 has informed that as per Government Resolution dated 23.3.2000 the last date for completing all stages was 31.12.2001 and, therefore, within 15 days from the date of the letter they should produce all necessary documents so that they will be entitled for all benefits except sales tax. It is this letter which is challenged. According to the petitioners, this was the first communication in which it is said that the petitioners would not be entitled to benefit of sales tax but only to the subsidy and again it is said that they have to complete the steps before 31.3.2002. So this letter in one sentence stated that the last date for completion as per the Government Resolution was 31.12.2001, but then it is said that the petitioners would be entitled to the benefits other than sales tax if they complete all stages before 31.3.2002.17. Along with the affidavit in reply, the respondents have produced the original package scheme of incentives 1993 as Annexure R-1 and its preamble discloses that package scheme of incentives which is a scheme introduced in order to achieve dispersal of industries outside the Bombay-Thane-Pune belt and to attract them to the underdeveloped and developing areas of the State. Para 2 shows that the implementing agency was the District Industries Centre which is respondent no. 3 in this case. Para 3.3 shows what are the effective steps which are to be taken for getting benefits. Para 5 deals with incentives and para 5.1 deals with sales tax incentives which include sales tax incentives by way of exemption, sales tax incentives by way of deferal, and sales tax incentives by way interest free unsecured loan, etc. 18. In the case of Hitech Electrothermics & Hydropower Ltd. vs. State of Kerala and others (2003) 3 SCC 716, the Kerala Government in its industrial policy offered concessional tariff rate for a five year period to new industries from the date they commenced such production between 1.1.1992 and 31.12.1996. The Electricity Board adopted that policy. The appellant industry was granted registration certificate by District Industries Centre in 1993 and the Board accorded sanction for power to it in 1995. However, the Board, despite repeated requests, provided power connection only in 1998 and such an inaction on the part of the Board prevented appellant from starting production within the prescribed time limit i.e. 31.12.1996. It was held that, under the circumstances, concessional rate cannot be denied to the appellant on literal interpretation of the Governments policy as adopted by the Board. The Supreme Court directed concessional rate to be granted to the appellant which commenced production, though not by 31.12.1996, but for a period of 3 years. 19. The doctrine of promissory estoppel was considered by the Supreme Court recently in the case of Southern Petrochemical Industries Co. Ltd. vs Electricity Inspector and E.T.I.O. & Ors. [2007 AIR SCW 3752]. The case related to tax on electricity consumed. In para 135 it is observed that the doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications expressed under the statutory provisions, but also under the executive instructions. 20. In this case the respondents have stated that publication was given regarding notification dated 12.5.2000 in daily "Loksatta" dated 14.3.2000. Its copy is not produced. It is not known whether it has wide circulation in Jalgaon district. Secondly it is also stated that the District Information Officer, Jalgaon was informed by letter dated 22.3.2000 regarding giving publicity. There is nothing to show whether he acted on the letter and how he had given publicity. So the respondents have not brought on record evidence to show that the petitioners knew or there is reason to believe that they knew the facts and there was no question of they being misled by the representation. 21. It is not the case of the respondents that the doctrine of promissory estoppel cannot be invoked by the petitioners because the Government has been acting in discharge of its duty in law or that acting in pursuance of the representation made in the letter of intent would be against any statute. It also does not appear that the doctrine is invoked against the legislative power of the State nor it is said that special considerations necessitated the respondents not to comply with the representation in the letter of intent in the public interest. So, the respondents have not brought their case under any of the exceptions to the doctrine of promissory estoppel.22. So, considering the facts and circumstances, it is abundantly clear that the petitioners were represented by the respondents by letter of intent Exh. A that the effective steps had to be completed by 31.3.2002. On the said representation the petitioners have acted upon. They purchased land to set up factory after obtaining loan from the Bank. They have also obtained loan of Rs. 1.90 crores, power supply and the no objection certificate from the Maharashtra Pollution Control Board. Respondent no.3 is admittedly agency of respondent nos.1 and 2 and respondent nos.1 and 2 cannot deny the representation/act made/committed by their representative/agent i.e. respondent no.3. In the circumstances, therefore, in our considered opinion, the petitioners are entitled to the benefit of the concessions which were promised by the letter of intent. In the facts and circumstances of the case, we hold that the Government Circular dated 23.3.2000 which provides 31.12.2001 as cut off date will not be applicable to the petitioners in view of the letter of intent in which 31.3.2002 is mentioned as the cut off date. Therefore, the petitioners are entitled to grant of S.T.I. incentives under the package scheme of 1993.

1[ds]16. By letter dated 20.3.2002 which is produced as Annexure E to the petition, respondent no. 3 has informed that as per Government Resolution dated 23.3.2000 the last date for completing all stages was 31.12.2001 and, therefore, within 15 days from the date of the letter they should produce all necessary documents so that they will be entitled for all benefits except sales tax. It is this letter which is challenged. According to the petitioners, this was the first communication in which it is said that the petitioners would not be entitled to benefit of sales tax but only to the subsidy and again it is said that they have to complete the steps before 31.3.2002. So this letter in one sentence stated that the last date for completion as per the Government Resolution was 31.12.2001, but then it is said that the petitioners would be entitled to the benefits other than sales tax if they complete all stages before 31.3.2002.17. Along with the affidavit in reply, the respondents have produced the original package scheme of incentives 1993 as Annexureand its preamble discloses that package scheme of incentives which is a scheme introduced in order to achieve dispersal of industries outside thebelt and to attract them to theunderdeveloped and developing areas of theState. Para 2 shows that the implementing agency was the District Industries Centre which is respondent no. 3 in this case. Para 3.3 shows what are the effective steps which are to be taken for getting benefits. Para 5 deals with incentives and para 5.1 deals with sales tax incentives which include sales tax incentives by way of exemption, sales tax incentives by way of deferal, and sales tax incentives by way interest free unsecured loan, etc. 18. In the case of Hitech ElectrothermicsHydropower Ltd. vs. State of Kerala and others (2003) 3 SCC 716, the Kerala Government in its industrial policy offered concessional tariff rate for a five year period to new industries from the date they commenced such production between 1.1.1992 and 31.12.1996. The Electricity Board adopted that policy. The appellant industry was granted registration certificate by District Industries Centre in 1993 and the Board accorded sanction for power to it in 1995. However, the Board, despite repeated requests, provided power connection only in 1998 and such an inaction on the part of the Board prevented appellant from starting production within the prescribed time limit i.e. 31.12.1996. It was held that, under the circumstances, concessional rate cannot be denied to the appellant on literal interpretation of the Governments policy as adopted by the Board. The Supreme Court directed concessional rate to be granted to the appellant which commenced production, though not by 31.12.1996, but for a period of 3 years. 19. The doctrine of promissory estoppel was considered by the Supreme Court recently in the case of Southern Petrochemical Industries Co. Ltd. vs Electricity Inspector and E.T.I.O.Ors. [2007 AIR SCW 3752]. The case related to tax on electricity consumed. In para 135 it is observed that the doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications expressed under the statutory provisions, but also under the executive instructions. 20. In this case the respondents have stated that publication was given regarding notification dated 12.5.2000 in daily "Loksatta" dated 14.3.2000. Its copy is not produced. It is not known whether it has wide circulation in Jalgaon district. Secondly it is also stated that the District Information Officer, Jalgaon was informed by letter dated 22.3.2000 regarding giving publicity. There is nothing to show whether he acted on the letter and how he had given publicity. So the respondents have not brought on record evidence to show that the petitioners knew or there is reason to believe that they knew the facts and there was no question of they being misled by the representation. 21. It is not the case of the respondents that the doctrine of promissory estoppel cannot be invoked by the petitioners because the Government has been acting in discharge of its duty in law or that acting in pursuance of the representation made in the letter of intent would be against any statute. It also does not appear that the doctrine is invoked against the legislative power of the State nor it is said that special considerations necessitated the respondents not to comply with the representation in the letter of intent in the public interest. So, the respondents have not brought their case under any of the exceptions to the doctrine of promissory estoppel.22. So, considering the facts and circumstances, it is abundantly clear that the petitioners were represented by the respondents by letter of intent Exh. A that the effective steps had to be completed by 31.3.2002. On the said representation the petitioners have acted upon. They purchased land to set up factory after obtaining loan from the Bank. They have also obtained loan of Rs. 1.90 crores, power supply and the no objection certificate from the Maharashtra Pollution Control Board. Respondent no.3 is admittedly agency of respondent nos.1 and 2 and respondent nos.1 and 2 cannot deny the representation/act made/committed by their representative/agent i.e. respondent no.3. In the circumstances, therefore, in our considered opinion, the petitioners are entitled to the benefit of the concessions which were promised by the letter of intent. In the facts and circumstances of the case, we hold that the Government Circular dated 23.3.2000 which provides 31.12.2001 as cut off date will not be applicable to the petitioners in view of the letter of intent in which 31.3.2002 is mentioned as the cut off date. Therefore, the petitioners are entitled to grant of S.T.I. incentives under the package scheme of 1993.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: which is produced as Annexure E to the petition, respondent no. 3 has informed that as per Government Resolution dated 23.3.2000 the last date for completing all stages was 31.12.2001 and, therefore, within 15 days from the date of the letter they should produce all necessary documents so that they will be entitled for all benefits except sales tax. It is this letter which is challenged. According to the petitioners, this was the first communication in which it is said that the petitioners would not be entitled to benefit of sales tax but only to the subsidy and again it is said that they have to complete the steps before 31.3.2002. So this letter in one sentence stated that the last date for completion as per the Government Resolution was 31.12.2001, but then it is said that the petitioners would be entitled to the benefits other than sales tax if they complete all stages before 31.3.2002.17. Along with the affidavit in reply, the respondents have produced the original package scheme of incentives 1993 as Annexure R-1 and its preamble discloses that package scheme of incentives which is a scheme introduced in order to achieve dispersal of industries outside the Bombay-Thane-Pune belt and to attract them to the underdeveloped and developing areas of the State. Para 2 shows that the implementing agency was the District Industries Centre which is respondent no. 3 in this case. Para 3.3 shows what are the effective steps which are to be taken for getting benefits. Para 5 deals with incentives and para 5.1 deals with sales tax incentives which include sales tax incentives by way of exemption, sales tax incentives by way of deferal, and sales tax incentives by way interest free unsecured loan, etc. 18. In the case of Hitech Electrothermics & Hydropower Ltd. vs. State of Kerala and others (2003) 3 SCC 716, the Kerala Government in its industrial policy offered concessional tariff rate for a five year period to new industries from the date they commenced such production between 1.1.1992 and 31.12.1996. The Electricity Board adopted that policy. The appellant industry was granted registration certificate by District Industries Centre in 1993 and the Board accorded sanction for power to it in 1995. However, the Board, despite repeated requests, provided power connection only in 1998 and such an inaction on the part of the Board prevented appellant from starting production within the prescribed time limit i.e. 31.12.1996. It was held that, under the circumstances, concessional rate cannot be denied to the appellant on literal interpretation of the Governments policy as adopted by the Board. The Supreme Court directed concessional rate to be granted to the appellant which commenced production, though not by 31.12.1996, but for a period of 3 years. 19. The doctrine of promissory estoppel was considered by the Supreme Court recently in the case of Southern Petrochemical Industries Co. Ltd. vs Electricity Inspector and E.T.I.O. & Ors. [2007 AIR SCW 3752]. The case related to tax on electricity consumed. In para 135 it is observed that the doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications expressed under the statutory provisions, but also under the executive instructions. 20. In this case the respondents have stated that publication was given regarding notification dated 12.5.2000 in daily "Loksatta" dated 14.3.2000. Its copy is not produced. It is not known whether it has wide circulation in Jalgaon district. Secondly it is also stated that the District Information Officer, Jalgaon was informed by letter dated 22.3.2000 regarding giving publicity. There is nothing to show whether he acted on the letter and how he had given publicity. So the respondents have not brought on record evidence to show that the petitioners knew or there is reason to believe that they knew the facts and there was no question of they being misled by the representation. 21. It is not the case of the respondents that the doctrine of promissory estoppel cannot be invoked by the petitioners because the Government has been acting in discharge of its duty in law or that acting in pursuance of the representation made in the letter of intent would be against any statute. It also does not appear that the doctrine is invoked against the legislative power of the State nor it is said that special considerations necessitated the respondents not to comply with the representation in the letter of intent in the public interest. So, the respondents have not brought their case under any of the exceptions to the doctrine of promissory estoppel.22. So, considering the facts and circumstances, it is abundantly clear that the petitioners were represented by the respondents by letter of intent Exh. A that the effective steps had to be completed by 31.3.2002. On the said representation the petitioners have acted upon. They purchased land to set up factory after obtaining loan from the Bank. They have also obtained loan of Rs. 1.90 crores, power supply and the no objection certificate from the Maharashtra Pollution Control Board. Respondent no.3 is admittedly agency of respondent nos.1 and 2 and respondent nos.1 and 2 cannot deny the representation/act made/committed by their representative/agent i.e. respondent no.3. In the circumstances, therefore, in our considered opinion, the petitioners are entitled to the benefit of the concessions which were promised by the letter of intent. In the facts and circumstances of the case, we hold that the Government Circular dated 23.3.2000 which provides 31.12.2001 as cut off date will not be applicable to the petitioners in view of the letter of intent in which 31.3.2002 is mentioned as the cut off date. Therefore, the petitioners are entitled to grant of S.T.I. incentives under the package scheme of 1993. ### Response: 1 ### Explanation: 16. By letter dated 20.3.2002 which is produced as Annexure E to the petition, respondent no. 3 has informed that as per Government Resolution dated 23.3.2000 the last date for completing all stages was 31.12.2001 and, therefore, within 15 days from the date of the letter they should produce all necessary documents so that they will be entitled for all benefits except sales tax. It is this letter which is challenged. According to the petitioners, this was the first communication in which it is said that the petitioners would not be entitled to benefit of sales tax but only to the subsidy and again it is said that they have to complete the steps before 31.3.2002. So this letter in one sentence stated that the last date for completion as per the Government Resolution was 31.12.2001, but then it is said that the petitioners would be entitled to the benefits other than sales tax if they complete all stages before 31.3.2002.17. Along with the affidavit in reply, the respondents have produced the original package scheme of incentives 1993 as Annexureand its preamble discloses that package scheme of incentives which is a scheme introduced in order to achieve dispersal of industries outside thebelt and to attract them to theunderdeveloped and developing areas of theState. Para 2 shows that the implementing agency was the District Industries Centre which is respondent no. 3 in this case. Para 3.3 shows what are the effective steps which are to be taken for getting benefits. Para 5 deals with incentives and para 5.1 deals with sales tax incentives which include sales tax incentives by way of exemption, sales tax incentives by way of deferal, and sales tax incentives by way interest free unsecured loan, etc. 18. In the case of Hitech ElectrothermicsHydropower Ltd. vs. State of Kerala and others (2003) 3 SCC 716, the Kerala Government in its industrial policy offered concessional tariff rate for a five year period to new industries from the date they commenced such production between 1.1.1992 and 31.12.1996. The Electricity Board adopted that policy. The appellant industry was granted registration certificate by District Industries Centre in 1993 and the Board accorded sanction for power to it in 1995. However, the Board, despite repeated requests, provided power connection only in 1998 and such an inaction on the part of the Board prevented appellant from starting production within the prescribed time limit i.e. 31.12.1996. It was held that, under the circumstances, concessional rate cannot be denied to the appellant on literal interpretation of the Governments policy as adopted by the Board. The Supreme Court directed concessional rate to be granted to the appellant which commenced production, though not by 31.12.1996, but for a period of 3 years. 19. The doctrine of promissory estoppel was considered by the Supreme Court recently in the case of Southern Petrochemical Industries Co. Ltd. vs Electricity Inspector and E.T.I.O.Ors. [2007 AIR SCW 3752]. The case related to tax on electricity consumed. In para 135 it is observed that the doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications expressed under the statutory provisions, but also under the executive instructions. 20. In this case the respondents have stated that publication was given regarding notification dated 12.5.2000 in daily "Loksatta" dated 14.3.2000. Its copy is not produced. It is not known whether it has wide circulation in Jalgaon district. Secondly it is also stated that the District Information Officer, Jalgaon was informed by letter dated 22.3.2000 regarding giving publicity. There is nothing to show whether he acted on the letter and how he had given publicity. So the respondents have not brought on record evidence to show that the petitioners knew or there is reason to believe that they knew the facts and there was no question of they being misled by the representation. 21. It is not the case of the respondents that the doctrine of promissory estoppel cannot be invoked by the petitioners because the Government has been acting in discharge of its duty in law or that acting in pursuance of the representation made in the letter of intent would be against any statute. It also does not appear that the doctrine is invoked against the legislative power of the State nor it is said that special considerations necessitated the respondents not to comply with the representation in the letter of intent in the public interest. So, the respondents have not brought their case under any of the exceptions to the doctrine of promissory estoppel.22. So, considering the facts and circumstances, it is abundantly clear that the petitioners were represented by the respondents by letter of intent Exh. A that the effective steps had to be completed by 31.3.2002. On the said representation the petitioners have acted upon. They purchased land to set up factory after obtaining loan from the Bank. They have also obtained loan of Rs. 1.90 crores, power supply and the no objection certificate from the Maharashtra Pollution Control Board. Respondent no.3 is admittedly agency of respondent nos.1 and 2 and respondent nos.1 and 2 cannot deny the representation/act made/committed by their representative/agent i.e. respondent no.3. In the circumstances, therefore, in our considered opinion, the petitioners are entitled to the benefit of the concessions which were promised by the letter of intent. In the facts and circumstances of the case, we hold that the Government Circular dated 23.3.2000 which provides 31.12.2001 as cut off date will not be applicable to the petitioners in view of the letter of intent in which 31.3.2002 is mentioned as the cut off date. Therefore, the petitioners are entitled to grant of S.T.I. incentives under the package scheme of 1993.

Skol Breweries Limited Vs. Sanman Distributors Private Limited

P.C.This Appeal is directed against the order of the learned Single Judge whereby Company Application filed by the Respondent-company has been allowed and an ex-parte order of winding up dated 25th April 1997 has been set aside.2.The Company Petition was admitted on 2nd March 1995. The advertisements took place on 14th April, 1995. It is not in dispute that after admission of the Company Petition, notice in terms of Rule 28 of the Company Court Rules was not served on the Respondent-Company. Rule 28 postulates that a notice in the prescribed form together with a copy of the Petition shall be served on the company on its registered office or principal place of business. Rules also postulate filing of affidavit of service placing on record the fact of service on the Company. It is also postulated that in default of compliance with the requirements of the Rules as regards the advertisement and service of the Petition, the Petition is required to be posted for orders of the Company Judge whereupon either the Petition may be dismissed or such further directions as the Judge may think fit be issued.3.Since, admittedly, no notice was served on the Company, the learned Single Judge, relying upon a Division Bench decision of this Court in Modern Dekor Painting Contracts Pvt. Ltd. v. Jenson and Nicholson (India) Ltd. & Anr. 1985 Company Cases 675, has, by the impugned order, allowed the Application and set aside the winding up order, and has further directed the Company to file reply affidavit within six weeks so that Petition may be tried on merits.4.The learned Counsel for the Appellants contends that the Advocates of the Respondent-company were supplied, on 31st August 1995, copy of the Company Petition; the order dated 2nd March 1995 admitting the Petition and copies of the public advertisements dated 14th April 1995 when the said Advocates had asked for these documents in terms of their letter dated 22nd August 1995 in relation to Summary Suit No.3498 of 1992 between the parties. It has been contended that in the Application seeking setting aside of the ex-parte order of winding up, no explanation whatsoever has been offered as to why steps were not taken from August 1995 till filing of the Company Application in August 1997.5.It is true that there is no explanation on the part of the Company as to why the Company waited for nearly two years in filing the Application and why it did not appear in the Company Petition despite the supply of the documents on 31st August 1995 to their Advocates. The conduct of the Respondent-Company may be reprehensible but considering the mandatory nature of the Rules, we are of the opinion that the view taken by the learned Single Judge is a possible view and thus it does not call for any interference in the exercise of our appellate jurisdiction.6.In view of the above, the contention that the form of public advertisement, copies whereof were sent to the Advocates of the Respondent-Company, is similar to the form in which notice is required to be sent to the company, is not of much consequence. On the facts and circumstances of the case, the supply of documents in the manner aforesaid on the Advocates for the Respondent-company in the Summary Suit, cannot be said to be a compliance of aforesaid Rules for service of notice on the Respondent-company.

0[ds]5.It is true that there is no explanation on the part of the Company as to why the Company waited for nearly two years in filing the Application and why it did not appear in the Company Petition despite the supply of the documents on 31st August 1995 to their Advocates. The conduct of themay be reprehensible but considering the mandatory nature of the Rules, we are of the opinion that the view taken by the learned Single Judge is a possible view and thus it does not call for any interference in the exercise of our appellate jurisdiction.6.In view of the above, the contention that the form of public advertisement, copies whereof were sent to the Advocates of theis similar to the form in which notice is required to be sent to the company, is not of much consequence. On the facts and circumstances of the case, the supply of documents in the manner aforesaid on the Advocates for thein the Summary Suit, cannot be said to be a compliance of aforesaid Rules for service of notice on the

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: P.C.This Appeal is directed against the order of the learned Single Judge whereby Company Application filed by the Respondent-company has been allowed and an ex-parte order of winding up dated 25th April 1997 has been set aside.2.The Company Petition was admitted on 2nd March 1995. The advertisements took place on 14th April, 1995. It is not in dispute that after admission of the Company Petition, notice in terms of Rule 28 of the Company Court Rules was not served on the Respondent-Company. Rule 28 postulates that a notice in the prescribed form together with a copy of the Petition shall be served on the company on its registered office or principal place of business. Rules also postulate filing of affidavit of service placing on record the fact of service on the Company. It is also postulated that in default of compliance with the requirements of the Rules as regards the advertisement and service of the Petition, the Petition is required to be posted for orders of the Company Judge whereupon either the Petition may be dismissed or such further directions as the Judge may think fit be issued.3.Since, admittedly, no notice was served on the Company, the learned Single Judge, relying upon a Division Bench decision of this Court in Modern Dekor Painting Contracts Pvt. Ltd. v. Jenson and Nicholson (India) Ltd. & Anr. 1985 Company Cases 675, has, by the impugned order, allowed the Application and set aside the winding up order, and has further directed the Company to file reply affidavit within six weeks so that Petition may be tried on merits.4.The learned Counsel for the Appellants contends that the Advocates of the Respondent-company were supplied, on 31st August 1995, copy of the Company Petition; the order dated 2nd March 1995 admitting the Petition and copies of the public advertisements dated 14th April 1995 when the said Advocates had asked for these documents in terms of their letter dated 22nd August 1995 in relation to Summary Suit No.3498 of 1992 between the parties. It has been contended that in the Application seeking setting aside of the ex-parte order of winding up, no explanation whatsoever has been offered as to why steps were not taken from August 1995 till filing of the Company Application in August 1997.5.It is true that there is no explanation on the part of the Company as to why the Company waited for nearly two years in filing the Application and why it did not appear in the Company Petition despite the supply of the documents on 31st August 1995 to their Advocates. The conduct of the Respondent-Company may be reprehensible but considering the mandatory nature of the Rules, we are of the opinion that the view taken by the learned Single Judge is a possible view and thus it does not call for any interference in the exercise of our appellate jurisdiction.6.In view of the above, the contention that the form of public advertisement, copies whereof were sent to the Advocates of the Respondent-Company, is similar to the form in which notice is required to be sent to the company, is not of much consequence. On the facts and circumstances of the case, the supply of documents in the manner aforesaid on the Advocates for the Respondent-company in the Summary Suit, cannot be said to be a compliance of aforesaid Rules for service of notice on the Respondent-company. ### Response: 0 ### Explanation: 5.It is true that there is no explanation on the part of the Company as to why the Company waited for nearly two years in filing the Application and why it did not appear in the Company Petition despite the supply of the documents on 31st August 1995 to their Advocates. The conduct of themay be reprehensible but considering the mandatory nature of the Rules, we are of the opinion that the view taken by the learned Single Judge is a possible view and thus it does not call for any interference in the exercise of our appellate jurisdiction.6.In view of the above, the contention that the form of public advertisement, copies whereof were sent to the Advocates of theis similar to the form in which notice is required to be sent to the company, is not of much consequence. On the facts and circumstances of the case, the supply of documents in the manner aforesaid on the Advocates for thein the Summary Suit, cannot be said to be a compliance of aforesaid Rules for service of notice on the

Bharat Barrel & Drum Mfg Co Vs. Amin Chand Payeralal

by the plaintiff had been booked and requested the plaintiff to open the necessary letter of Credit on the terms and conditions contained in the letter of the defendant dated 15.9.1961. The total price of the goods to be imported under the said import licence and the aforesaid aggrangement with the plaintiff was about Rs. 55,30,000/-. The plaintiff through its director Shri L.P. Goenka was stated to have represented to the defendant in October 1961 that until and unless the assurance or guarantee that deliveries would be made in time could be given, the Letter of Credit would not be opened by the plaintiff. Shri Goenka insisted that the defendant should either give a guarantee or provide some security for the due performance by the defendant of its obligation under the said arrangement for supply of goods under the Letter of Credit. It was further suggested that the defendant should execute a promissory note for the sum of Rs.6,20,000/- by way of collateral security for payment to the plaintiff of damages, in any event, which the plaintiff might actually suffer in consequence of non-supply of the goods due to default on the part of the supplier. Eventually, the defendant in order that its reputation in the foreign market and that the foreign suppliers might not be injured, was compelled to agree to execute a promissory note for Rs. 6,20,000/- by way of collateral security. It was specifically pleaded that :- "on or about October 11, 1961, at the request of the plaintiff and on the express agreement or understanding between the plaintiff and the defendant as aforesaid the defendant executed the Promissory Note for Rs. 6,20,000/-(which Promissory Note is the subject matter of the suit) in favour of the plaintiff by way of collateral security for payment to the plaintiff of damages not exceeding, in any event, the said amount which the plaintiff might actually suffer in consequence of non supply of goods due to default on the part of the foreign supplier". Denying the consideration the defendant submitted that: "The defendant states that in the premises there was no consideration for execution of the said Promissory Note by the defendant. No amount or value whatsoever was received by the defendant for the execution of the said Promissory Note. The defendant further states that in any event, the consideration, if any, (which is denied) for the said Promissory Note has failed. The same is no longer enforceable or binding on the defendant. The defendant has no liability whatsoever to the plaintiff on the Promissory Note or otherwise. The plaintiff has suffered no damages. Further the said Promissory Note having been given and accepted as collateral security the plaintiff is not entitled to sue thereon without suing for damages, if any, actually suffered and then only to the extent of such damages upto a maximum of Rs. 6,20,000/-" 14. A perusal of the written statement of the defendant would clearly and unambiguously show that to disprove the consideration of the Promissory Note, he had brought certain circumstances to the notice of the Court which he wanted to probabilise by leading evidence. The evidence led by the defendant in that regard was not accepted by any of the Judges dealing with the case as noticed herein earlier. In the absence of disproving the existence of the consideration, the onus of proof of the legal presumption in favour of the plaintiff could not be shifted. It is true that the plaintiff had produced evidence in the case and that evidence was in fact the evidence in rebuttal, of the evidence produced by the defendant in the case. After holding issue No. 1 to have not been proved, the High Court was not justified in holding that the defendant had discharged the onus of proof of issue No. 2. In fact both the issues were required to be decided together which was not done with the result that miscarriage of justice crept into the proceedings depriving the plaintiff of its rights on account of the pendency of this litigation in the courts for a period of about now four decades. The technicalities of law and procedural wrangles deprived the plaintiff of its due entitlement. The justice claimed by the plaintiff was buried under the heaps of divergent legal pronouncements on the subject conveyed and communicated in sweetly coated articulate language and the oratory of the persons which is shown to have been resorted to present the rival claims. The approach adopted by the majority of the Judges in dealing with the case was contrary to the basic principles governing the law relating to negotiable instruments. Faith of business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles as appears to have been done in the instant case. Even though it is true that the plaintiffs evidence was not believed yet we are of the opinion that the same could not be made basis for rejecting its claim because obligation upon the plaintiff to lead evidence for the purposes of "to prove his case", could not have been insisted upon because the defendant has prima facie or initially not discharged his onus of proof by showing directly or probabilising the non existence of consideration.15. We do not agree with the submission of the learned counsel for the defendant that issues Nos. 1 to 3 were based upon different pleas raised in the defence. In the contextual circumstances, we find that all the three issues were based upon the plea relating to non existence of consideration, namely, the promissory Note allegedly having been procured by the plaintiff as a collateral security and not for the purpose which was mentioned in it namely, "for value received". The finding that the plaintiff had failed to proved the case despite holding that defendant had not discharged his initial burden the non existence of consideration amounted to negating the presumption arising under Section 118(a) of the Act.

1[ds]9. After going through the detailed and lengthy judgments of the learned Judges of the High Court, who dealt with the case, we fell that a rational view has not been adopted by anyone. Extreme views taken by the learned Judges in the matter are required to be reconciled on the basis of the law alreadyreferred to the method and manner in which the presumption under Section 118 is to be rebutted and as to how, it thereafter `disappears we shall also make reference to three principles which are relevant in the context. The first one is connected with the practical difficulties that beset the defendant for proving a negative, namely that no other conceivable considerationhave referred to these three principles as they are important and have to be borne in mind by the Court while deciding whether the initial `evidential burden under S. 118 of the Negotiable Instruments Act has been discharged by the defendant and the presumption `disappeared and whether the burden has shifted and later whether the plaintiff has discharged the `legal burden after the same was restored.For the aforesaid reasons, we are of the view that where, in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S. 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words `until the contrary is proved in S. 118 do not mean that the defendant must necessarily show that the document is not supported by any from of consideration but the defendant has the option to ask the court to consider theof consideration so probable that a prudent man ought, under the circumstance of the case, to fact upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S. 118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption `disappears. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S. 118 does not again come to the plaintiffs rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance.Before leaving the discussion on these aspects we would like to make it clear that merely because the plaintiff comes forward with a case different from the one mentioned in the promissory note it will not be correct to say that the presumption under S. 118 does not apply at all.In our view the presumption applies once the execution of the promissory note is accepted by the defendant but the circumstance that the plaintiffs case is at variance with the one contained in the promissory note or the notice can be relief upon by the defendant for the purpose of rebutting the presumption and shifting the evidential burden to the plaintiff who has also the legal burden. To the above extent, we agree with the view of the Bombay High Court in Taramhomeds case (supra). Our dissent is only to the extent of the principle laid down in that case that even when the case of the plaintiff and that of the defendant is disbelieved still the suit is to be decreed on the basis of the presumption under S. 118 of the Negotiable Instruments Act.We, therefor, respectfully follow the decision of the Supreme Court in Kundanlals case (supra) and dissent form the judgment of the Bombay High Court in Tarmahomed v. Syed Ebrahim in so far as it held that even after the plaintiffs version and the defendants version are disbelieved, still the presumption under S. 118 operates. We also dissent form the judgments of the Kerala High Court in Alex Matthew v. Philip, AIR 1973 Ker 210 , as also from the judgment of the Allahabad High Court in Lal Girwarlal v. Daul Dayal, AIR 1935 All 509 ; of the Nagpur High Court in Prem Raj v. Nathumal, AIR 1936 Nag 130; of the Calcutta High Court in Ramani Mohan v. Surjya Kumar Dhan, AIR 1943 Cal. 22 ; of the Patna High Court in Barham Deo Singh v. Kari Singh, AIR 1936 Pat 498 and of the views of Abdur Rahim, J. in Venkataraghavalu Chetty v. Sabapathy Chetti, 1911(21) Mad LJ 1013 of the Madras High Court. We accordingly overrule the decision of our High Court in M. Janaka Lakshmi v. Madhava Rao, AIR 1973 Andhra Pradesh 103.On the contrary, we follow the views of Varadachariar J. in the decisions of the Madras High Court in Narasamma v. Veerraju, AIR 1935 Mad 769 and Lakshmanaswamy v. Narasimha Rao, AIR 1937 Mad 223 of the views of Wanchoo, C.J. (as he then was) in Heerachand v. Jheevraj case, (AIR 1959 Raj 1 ) (FB), Rajasthan High Court and of Teckchand, J. of the Punjab High Court in Chandanal v. Amin chand, AIR 1960 Punj 500 and the Lahore High Court in Sundar Lal Singh v. Klushi Singh, AIR 1927 Lah 864 rendered by Teckchand, J. of the Allahabad High Court in Md. Shafi v. Md. Moazzam Ali, AIR 1923 All 214 of Pandey and A.P. Sen, JJ. Of the Madhya Pradesh High Court in Indermal v. Ram Prasad, AIR 1970 Madhya Pradesh 40 and of Honnaiah and E.S. Venkataramiah, JJ. Of the Mysore High Court in Sharada Bai v. Syed Abdul Hai, 1971(2) Mysore LJ 407; We approve of the views expressed by our High Court in Maddam Lingaiah v.Court in Kundan Lal Rallaaram v. Custodian Evacuee Property, Bombay, AIR 1961 SC 1316 declared the Section 118 of the Act lays down a prescribed special rule of evidence applicable to negotiable instruments. The presumption contemplated thereunder is one of law which obliges the Court to presume, inter alia that the negotiable instruments or the endorsement was made or endorsed for consideration and the burden of proof of failure of consideration is thrown on the maker of the note or that endorser as the case mayconsideration of various judgments as noted here in above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove theof consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove wouldhim to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving theof the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing theof the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible not contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or itswas so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.13. In the instant case, the existence of the consideration mentioned in the promissory note was denied by the defendant with reference to the circumstances which according to him showed theof such consideration. It was submitted that the parties to the litigation had been having business dealings and transactions with respect to import of steel including drum sheets. In or about August 1961 the defendant claimed to have offered to arrange to import for the consideration of 10160 metric tones of steel drum sheets from USA on the terms and conditions contained in the letter dated 10.8.1961. The plaintiff was alleged to have accepted the offer and stated that the shipment of the materials would have to be made within the validity period of import licence, issued in the name of the plaintiff and that all requisite formalities at the level of the authorities concerned would have to be complied within the time. The defendant claimed to have confirmed that the order placed by the plaintiff had been booked and requested the plaintiff to open the necessary letter of Credit on the terms and conditions contained in the letter of the defendant dated 15.9.1961. The total price of the goods to be imported under the said import licence and the aforesaid aggrangement with the plaintiff was about Rs.The plaintiff through its director Shri L.P. Goenka was stated to have represented to the defendant in October 1961 that until and unless the assurance or guarantee that deliveries would be made in time could be given, the Letter of Credit would not be opened by the plaintiff. Shri Goenka insisted that the defendant should either give a guarantee or provide some security for the due performance by the defendant of its obligation under the said arrangement for supply of goods under the Letter of Credit. It was further suggested that the defendant should execute a promissory note for the sum of Rs.6,20,000/by way of collateral security for payment to the plaintiff of damages, in any event, which the plaintiff might actually suffer in consequence ofof the goods due to default on the part of the supplier.A perusal of the written statement of the defendant would clearly and unambiguously show that to disprove the consideration of the Promissory Note, he had brought certain circumstances to the notice of the Court which he wanted to probabilise by leading evidence. The evidence led by the defendant in that regard was not accepted by any of the Judges dealing with the case as noticed herein earlier. In the absence of disproving the existence of the consideration, the onus of proof of the legal presumption in favour of the plaintiff could not be shifted. It is true that the plaintiff had produced evidence in the case and that evidence was in fact the evidence in rebuttal, of the evidence produced by the defendant in the case. After holding issue No. 1 to have not been proved, the High Court was not justified in holding that the defendant had discharged the onus of proof of issue No. 2. In fact both the issues were required to be decided together which was not done with the result that miscarriage of justice crept into the proceedings depriving the plaintiff of its rights on account of the pendency of this litigation in the courts for a period of about now four decades. The technicalities of law and procedural wrangles deprived the plaintiff of its due entitlement. The justice claimed by the plaintiff was buried under the heaps of divergent legal pronouncements on the subject conveyed and communicated in sweetly coated articulate language and the oratory of the persons which is shown to have been resorted to present the rival claims. The approach adopted by the majority of the Judges in dealing with the case was contrary to the basic principles governing the law relating to negotiable instruments. Faith of business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles as appears to have been done in the instant case. Even though it is true that the plaintiffs evidence was not believed yet we are of the opinion that the same could not be made basis for rejecting its claim because obligation upon the plaintiff to lead evidence for the purposes of "to prove his case", could not have been insisted upon because the defendant has prima facie or initially not discharged his onus of proof by showing directly or probabilising the non existence of consideration.15. We do not agree with the submission of the learned counsel for the defendant that issues Nos. 1 to 3 were based upon different pleas raised in the defence. In the contextual circumstances, we find that all the three issues were based upon the plea relating to non existence of consideration, namely, the promissory Note allegedly having been procured by the plaintiff as a collateral security and not for the purpose which was mentioned in it namely, "for value received". The finding that the plaintiff had failed to proved the case despite holding that defendant had not discharged his initial burden the non existence of consideration amounted to negating the presumption arising under Section 118(a) of the Act.

### 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: by the plaintiff had been booked and requested the plaintiff to open the necessary letter of Credit on the terms and conditions contained in the letter of the defendant dated 15.9.1961. The total price of the goods to be imported under the said import licence and the aforesaid aggrangement with the plaintiff was about Rs. 55,30,000/-. The plaintiff through its director Shri L.P. Goenka was stated to have represented to the defendant in October 1961 that until and unless the assurance or guarantee that deliveries would be made in time could be given, the Letter of Credit would not be opened by the plaintiff. Shri Goenka insisted that the defendant should either give a guarantee or provide some security for the due performance by the defendant of its obligation under the said arrangement for supply of goods under the Letter of Credit. It was further suggested that the defendant should execute a promissory note for the sum of Rs.6,20,000/- by way of collateral security for payment to the plaintiff of damages, in any event, which the plaintiff might actually suffer in consequence of non-supply of the goods due to default on the part of the supplier. Eventually, the defendant in order that its reputation in the foreign market and that the foreign suppliers might not be injured, was compelled to agree to execute a promissory note for Rs. 6,20,000/- by way of collateral security. It was specifically pleaded that :- "on or about October 11, 1961, at the request of the plaintiff and on the express agreement or understanding between the plaintiff and the defendant as aforesaid the defendant executed the Promissory Note for Rs. 6,20,000/-(which Promissory Note is the subject matter of the suit) in favour of the plaintiff by way of collateral security for payment to the plaintiff of damages not exceeding, in any event, the said amount which the plaintiff might actually suffer in consequence of non supply of goods due to default on the part of the foreign supplier". Denying the consideration the defendant submitted that: "The defendant states that in the premises there was no consideration for execution of the said Promissory Note by the defendant. No amount or value whatsoever was received by the defendant for the execution of the said Promissory Note. The defendant further states that in any event, the consideration, if any, (which is denied) for the said Promissory Note has failed. The same is no longer enforceable or binding on the defendant. The defendant has no liability whatsoever to the plaintiff on the Promissory Note or otherwise. The plaintiff has suffered no damages. Further the said Promissory Note having been given and accepted as collateral security the plaintiff is not entitled to sue thereon without suing for damages, if any, actually suffered and then only to the extent of such damages upto a maximum of Rs. 6,20,000/-" 14. A perusal of the written statement of the defendant would clearly and unambiguously show that to disprove the consideration of the Promissory Note, he had brought certain circumstances to the notice of the Court which he wanted to probabilise by leading evidence. The evidence led by the defendant in that regard was not accepted by any of the Judges dealing with the case as noticed herein earlier. In the absence of disproving the existence of the consideration, the onus of proof of the legal presumption in favour of the plaintiff could not be shifted. It is true that the plaintiff had produced evidence in the case and that evidence was in fact the evidence in rebuttal, of the evidence produced by the defendant in the case. After holding issue No. 1 to have not been proved, the High Court was not justified in holding that the defendant had discharged the onus of proof of issue No. 2. In fact both the issues were required to be decided together which was not done with the result that miscarriage of justice crept into the proceedings depriving the plaintiff of its rights on account of the pendency of this litigation in the courts for a period of about now four decades. The technicalities of law and procedural wrangles deprived the plaintiff of its due entitlement. The justice claimed by the plaintiff was buried under the heaps of divergent legal pronouncements on the subject conveyed and communicated in sweetly coated articulate language and the oratory of the persons which is shown to have been resorted to present the rival claims. The approach adopted by the majority of the Judges in dealing with the case was contrary to the basic principles governing the law relating to negotiable instruments. Faith of business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles as appears to have been done in the instant case. Even though it is true that the plaintiffs evidence was not believed yet we are of the opinion that the same could not be made basis for rejecting its claim because obligation upon the plaintiff to lead evidence for the purposes of "to prove his case", could not have been insisted upon because the defendant has prima facie or initially not discharged his onus of proof by showing directly or probabilising the non existence of consideration.15. We do not agree with the submission of the learned counsel for the defendant that issues Nos. 1 to 3 were based upon different pleas raised in the defence. In the contextual circumstances, we find that all the three issues were based upon the plea relating to non existence of consideration, namely, the promissory Note allegedly having been procured by the plaintiff as a collateral security and not for the purpose which was mentioned in it namely, "for value received". The finding that the plaintiff had failed to proved the case despite holding that defendant had not discharged his initial burden the non existence of consideration amounted to negating the presumption arising under Section 118(a) of the Act. ### Response: 1 ### Explanation: with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or itswas so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.13. In the instant case, the existence of the consideration mentioned in the promissory note was denied by the defendant with reference to the circumstances which according to him showed theof such consideration. It was submitted that the parties to the litigation had been having business dealings and transactions with respect to import of steel including drum sheets. In or about August 1961 the defendant claimed to have offered to arrange to import for the consideration of 10160 metric tones of steel drum sheets from USA on the terms and conditions contained in the letter dated 10.8.1961. The plaintiff was alleged to have accepted the offer and stated that the shipment of the materials would have to be made within the validity period of import licence, issued in the name of the plaintiff and that all requisite formalities at the level of the authorities concerned would have to be complied within the time. The defendant claimed to have confirmed that the order placed by the plaintiff had been booked and requested the plaintiff to open the necessary letter of Credit on the terms and conditions contained in the letter of the defendant dated 15.9.1961. The total price of the goods to be imported under the said import licence and the aforesaid aggrangement with the plaintiff was about Rs.The plaintiff through its director Shri L.P. Goenka was stated to have represented to the defendant in October 1961 that until and unless the assurance or guarantee that deliveries would be made in time could be given, the Letter of Credit would not be opened by the plaintiff. Shri Goenka insisted that the defendant should either give a guarantee or provide some security for the due performance by the defendant of its obligation under the said arrangement for supply of goods under the Letter of Credit. It was further suggested that the defendant should execute a promissory note for the sum of Rs.6,20,000/by way of collateral security for payment to the plaintiff of damages, in any event, which the plaintiff might actually suffer in consequence ofof the goods due to default on the part of the supplier.A perusal of the written statement of the defendant would clearly and unambiguously show that to disprove the consideration of the Promissory Note, he had brought certain circumstances to the notice of the Court which he wanted to probabilise by leading evidence. The evidence led by the defendant in that regard was not accepted by any of the Judges dealing with the case as noticed herein earlier. In the absence of disproving the existence of the consideration, the onus of proof of the legal presumption in favour of the plaintiff could not be shifted. It is true that the plaintiff had produced evidence in the case and that evidence was in fact the evidence in rebuttal, of the evidence produced by the defendant in the case. After holding issue No. 1 to have not been proved, the High Court was not justified in holding that the defendant had discharged the onus of proof of issue No. 2. In fact both the issues were required to be decided together which was not done with the result that miscarriage of justice crept into the proceedings depriving the plaintiff of its rights on account of the pendency of this litigation in the courts for a period of about now four decades. The technicalities of law and procedural wrangles deprived the plaintiff of its due entitlement. The justice claimed by the plaintiff was buried under the heaps of divergent legal pronouncements on the subject conveyed and communicated in sweetly coated articulate language and the oratory of the persons which is shown to have been resorted to present the rival claims. The approach adopted by the majority of the Judges in dealing with the case was contrary to the basic principles governing the law relating to negotiable instruments. Faith of business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles as appears to have been done in the instant case. Even though it is true that the plaintiffs evidence was not believed yet we are of the opinion that the same could not be made basis for rejecting its claim because obligation upon the plaintiff to lead evidence for the purposes of "to prove his case", could not have been insisted upon because the defendant has prima facie or initially not discharged his onus of proof by showing directly or probabilising the non existence of consideration.15. We do not agree with the submission of the learned counsel for the defendant that issues Nos. 1 to 3 were based upon different pleas raised in the defence. In the contextual circumstances, we find that all the three issues were based upon the plea relating to non existence of consideration, namely, the promissory Note allegedly having been procured by the plaintiff as a collateral security and not for the purpose which was mentioned in it namely, "for value received". The finding that the plaintiff had failed to proved the case despite holding that defendant had not discharged his initial burden the non existence of consideration amounted to negating the presumption arising under Section 118(a) of the Act.

M/s. Tirath Ram Rajindra Nath Vs. State of Uttar Pradesh & Another

validity of that amendment came up for consideration before the Allahabad High Court in Krishna Brick Field v. State of U. P., 29 STC 15 = (1971 Tax LR 1057) (FB) (All). A Full Bench of that High Court held that Section 3-A (1) was unconstitutional inasmuch as it delegated essential legislative functions to the State Government and further the power conferred under S. 3A to the Government was an arbitrary power and consequently it was violative of Art. 14 of the Constitution. After that decision, the U. P. legislature again amended the Act by U. P. Sales Tax (Amendment and Validiation) Act, 1971 (Act 20 of 1971). The said amending Act incorporated into the Act S. 3AB (1) which reads :"Notwithstanding any judgment, decree or order of any court, any tax imposed, assessed, levied or collected, or purporting to have been imposed, assessed, levied or collected before the commencement of the U. P. Sales Tax (Amendment and Validation) Act, 1971, under any of the notifications specified in the Second Schedule shall be deemed to have been validly imposed, assessed, levied or collected in accordance with law, as if the said notifications had been included in and formed part of this section and this section had been in force at all material times when such tax was imposed, assessed, levied or collected."4. Dr. L. M. Singhvi, the learned Counsel for the appellants sought to assail the decision of the High Court on three grounds i.e. (1) in any event the purported validation does not cure the vice noticed by the High Court in the previous decision. Unless the vice is cured, there can be no validation; (2) S. 3AB which seeks to validate the notifications has merely removed the vice of excessive delegation but has not cured the judicially declared infirmity in respect of want of power and (3) the liability to be taxed arises only under the charging section; section 3A is only prospective and not retrospective. Section 3AB is not a charging section though it is both prospective and retrospective. It can assist the charging section only in its prospective operation.5. We are unable to accept any of these contentions as correct. We have earlier noticed that the High Court struck down the levy in Krishna Brick Fields case (supra) on two grounds viz. (1) that the Act delegated the essential legislative powers to the State Government and (2) that the levy is violative of Art. 14 of the Constitution. The latter conclusion was based on the ground that the discretion conferred on the Government is an arbitrary discretion. As seen earlier, the legislature has now incorporated the impugned notifications as part of S. 3AB. Those notifications have now ceased to be subordinate legislations. They are now part of the law enacted by the legislature. Hence there is no question of any excessive delegation.6. Now coming to the question of the infringement of Art. 14 the High Court earlier came to the conclusion that the notifications issued by the Government were violative of that Article solely on the ground that the power conferred on the Government is an arbitrary power. That question no more arises for consideration. It is well settled that the legislature has wide powers of classification in the case of taxing statutes.The question of the impact of Art. 14 on taxing statutes has been elaborately discussed by us in Hira Lal Rattan Lal v. State of U. P. (1972) Civil Appeals Nos. 821, 822, 1625 and 2008 of 1971, D/- 3-10-1972 (SC). For the reasons mentioned therein we are unable to accept the contention that the vice noticed by the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All), (supra) has not been removed.7. Now coming to the 2nd contention of Dr. Singhvi, we fail to see how the question of lack of power now arises in view of S. 3AB. While developing his contention No. 2, Dr. Singhvi urged that the legislature has unauthorisedly encroached on the judicial power. The amended S. 3AB merely intradicts the decision rendered by the High Court and has not removed the want of power noticed by the High Court. We are unable to accede to this contention. The legislature has not purported either directly or by necessary implication to overrule the decision of the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All) (supra). On the other hand it has accepted the decisions as correct but has sought to remove the basis of the decision by retrospectively changing the law.This court has pointed out in several cases the distinction between encroachment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits. In the instant case what the legislature has done is to amend the law retrospectively and thereby remove the basis of the decision rendered by the High Court. Such a course cannot be considered as an encroachment on the judicial power.8. Dr. Singhvis contention that S. 3AB is not a charging section cannot be accepted as correct. That section as it now stands incorporates into itself the impugned notifications. Those notifications have now become part of that section. To find out the scope and effect of that section, we have not only to read the section but we have also to read the concerned notifications. If so read, as it should be, it is clear that the section not only levies tax on the bricks at the prescribed rates, it also provides for the quantification of tax. The law is given retrospective effect. The fact that in those notifications it is mentioned that they were issued in pursuance of the power conferred under S. 3A does not in any way take away the intended legal effect. The intention of the legislature is clear.

0[ds]4. Dr. L. M. Singhvi, the learned Counsel for the appellants sought to assail the decision of the High Court on three grounds i.e. (1) in any event the purported validation does not cure the vice noticed by the High Court in the previous decision. Unless the vice is cured, there can be no validation; (2) S. 3AB which seeks to validate the notifications has merely removed the vice of excessive delegation but has not cured the judicially declared infirmity in respect of want of power and (3) the liability to be taxed arises only under the charging section; section 3A is only prospective and not retrospective. Section 3AB is not a charging section though it is both prospective and retrospective. It can assist the charging section only in its prospective operation.We are unable to accept any of these contentions as correct. We have earlier noticed that the High Court struck down the levy in Krishna Brick Fields case (supra) on two grounds viz. (1) that the Act delegated the essential legislative powers to the State Government and (2) that the levy is violative of Art. 14 of the Constitution. The latter conclusion was based on the ground that the discretion conferred on the Government is an arbitrary discretion. As seen earlier, the legislature has now incorporated the impugned notifications as part of S. 3AB. Those notifications have now ceased to be subordinate legislations. They are now part of the law enacted by the legislature. Hence there is no question of any excessive delegation.6. Now coming to the question of the infringement of Art. 14 the High Court earlier came to the conclusion that the notifications issued by the Government were violative of that Article solely on the ground that the power conferred on the Government is an arbitrary power. That question no more arises for consideration. It is well settled that the legislature has wide powers of classification in the case of taxing statutes.The question of the impact of Art. 14 on taxing statutes has been elaborately discussed by us in Hira Lal Rattan Lal v. State of U. P. (1972) Civil Appeals Nos. 821, 822, 1625 and 2008 of 1971, D/(SC). For the reasons mentioned therein we are unable to accept the contention that the vice noticed by the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All), (supra) has not been removed.7. Now coming to the 2nd contention of Dr. Singhvi, we fail to see how the question of lack of power now arises in view of S. 3AB. While developing his contention No. 2, Dr. Singhvi urged that the legislature has unauthorisedly encroached on the judicial power. The amended S. 3AB merely intradicts the decision rendered by the High Court and has not removed the want of power noticed by the High Court. We are unable to accede to this contention. The legislature has not purported either directly or by necessary implication to overrule the decision of the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All) (supra). On the other hand it has accepted the decisions as correct but has sought to remove the basis of the decision by retrospectively changing the law.This court has pointed out in several cases the distinction between encroachment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits. In the instant case what the legislature has done is to amend the law retrospectively and thereby remove the basis of the decision rendered by the High Court. Such a course cannot be considered as an encroachment on the judicial power.8. Dr. Singhvis contention that S. 3AB is not a charging section cannot be accepted as correct. That section as it now stands incorporates into itself the impugned notifications. Those notifications have now become part of that section. To find out the scope and effect of that section, we have not only to read the section but we have also to read the concerned notifications. If so read, as it should be, it is clear that the section not only levies tax on the bricks at the prescribed rates, it also provides for the quantification of tax. The law is given retrospective effect. The fact that in those notifications it is mentioned that they were issued in pursuance of the power conferred under S. 3A does not in any way take away the intended legal effect. The intention of the legislature is clear.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: validity of that amendment came up for consideration before the Allahabad High Court in Krishna Brick Field v. State of U. P., 29 STC 15 = (1971 Tax LR 1057) (FB) (All). A Full Bench of that High Court held that Section 3-A (1) was unconstitutional inasmuch as it delegated essential legislative functions to the State Government and further the power conferred under S. 3A to the Government was an arbitrary power and consequently it was violative of Art. 14 of the Constitution. After that decision, the U. P. legislature again amended the Act by U. P. Sales Tax (Amendment and Validiation) Act, 1971 (Act 20 of 1971). The said amending Act incorporated into the Act S. 3AB (1) which reads :"Notwithstanding any judgment, decree or order of any court, any tax imposed, assessed, levied or collected, or purporting to have been imposed, assessed, levied or collected before the commencement of the U. P. Sales Tax (Amendment and Validation) Act, 1971, under any of the notifications specified in the Second Schedule shall be deemed to have been validly imposed, assessed, levied or collected in accordance with law, as if the said notifications had been included in and formed part of this section and this section had been in force at all material times when such tax was imposed, assessed, levied or collected."4. Dr. L. M. Singhvi, the learned Counsel for the appellants sought to assail the decision of the High Court on three grounds i.e. (1) in any event the purported validation does not cure the vice noticed by the High Court in the previous decision. Unless the vice is cured, there can be no validation; (2) S. 3AB which seeks to validate the notifications has merely removed the vice of excessive delegation but has not cured the judicially declared infirmity in respect of want of power and (3) the liability to be taxed arises only under the charging section; section 3A is only prospective and not retrospective. Section 3AB is not a charging section though it is both prospective and retrospective. It can assist the charging section only in its prospective operation.5. We are unable to accept any of these contentions as correct. We have earlier noticed that the High Court struck down the levy in Krishna Brick Fields case (supra) on two grounds viz. (1) that the Act delegated the essential legislative powers to the State Government and (2) that the levy is violative of Art. 14 of the Constitution. The latter conclusion was based on the ground that the discretion conferred on the Government is an arbitrary discretion. As seen earlier, the legislature has now incorporated the impugned notifications as part of S. 3AB. Those notifications have now ceased to be subordinate legislations. They are now part of the law enacted by the legislature. Hence there is no question of any excessive delegation.6. Now coming to the question of the infringement of Art. 14 the High Court earlier came to the conclusion that the notifications issued by the Government were violative of that Article solely on the ground that the power conferred on the Government is an arbitrary power. That question no more arises for consideration. It is well settled that the legislature has wide powers of classification in the case of taxing statutes.The question of the impact of Art. 14 on taxing statutes has been elaborately discussed by us in Hira Lal Rattan Lal v. State of U. P. (1972) Civil Appeals Nos. 821, 822, 1625 and 2008 of 1971, D/- 3-10-1972 (SC). For the reasons mentioned therein we are unable to accept the contention that the vice noticed by the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All), (supra) has not been removed.7. Now coming to the 2nd contention of Dr. Singhvi, we fail to see how the question of lack of power now arises in view of S. 3AB. While developing his contention No. 2, Dr. Singhvi urged that the legislature has unauthorisedly encroached on the judicial power. The amended S. 3AB merely intradicts the decision rendered by the High Court and has not removed the want of power noticed by the High Court. We are unable to accede to this contention. The legislature has not purported either directly or by necessary implication to overrule the decision of the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All) (supra). On the other hand it has accepted the decisions as correct but has sought to remove the basis of the decision by retrospectively changing the law.This court has pointed out in several cases the distinction between encroachment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits. In the instant case what the legislature has done is to amend the law retrospectively and thereby remove the basis of the decision rendered by the High Court. Such a course cannot be considered as an encroachment on the judicial power.8. Dr. Singhvis contention that S. 3AB is not a charging section cannot be accepted as correct. That section as it now stands incorporates into itself the impugned notifications. Those notifications have now become part of that section. To find out the scope and effect of that section, we have not only to read the section but we have also to read the concerned notifications. If so read, as it should be, it is clear that the section not only levies tax on the bricks at the prescribed rates, it also provides for the quantification of tax. The law is given retrospective effect. The fact that in those notifications it is mentioned that they were issued in pursuance of the power conferred under S. 3A does not in any way take away the intended legal effect. The intention of the legislature is clear. ### Response: 0 ### Explanation: 4. Dr. L. M. Singhvi, the learned Counsel for the appellants sought to assail the decision of the High Court on three grounds i.e. (1) in any event the purported validation does not cure the vice noticed by the High Court in the previous decision. Unless the vice is cured, there can be no validation; (2) S. 3AB which seeks to validate the notifications has merely removed the vice of excessive delegation but has not cured the judicially declared infirmity in respect of want of power and (3) the liability to be taxed arises only under the charging section; section 3A is only prospective and not retrospective. Section 3AB is not a charging section though it is both prospective and retrospective. It can assist the charging section only in its prospective operation.We are unable to accept any of these contentions as correct. We have earlier noticed that the High Court struck down the levy in Krishna Brick Fields case (supra) on two grounds viz. (1) that the Act delegated the essential legislative powers to the State Government and (2) that the levy is violative of Art. 14 of the Constitution. The latter conclusion was based on the ground that the discretion conferred on the Government is an arbitrary discretion. As seen earlier, the legislature has now incorporated the impugned notifications as part of S. 3AB. Those notifications have now ceased to be subordinate legislations. They are now part of the law enacted by the legislature. Hence there is no question of any excessive delegation.6. Now coming to the question of the infringement of Art. 14 the High Court earlier came to the conclusion that the notifications issued by the Government were violative of that Article solely on the ground that the power conferred on the Government is an arbitrary power. That question no more arises for consideration. It is well settled that the legislature has wide powers of classification in the case of taxing statutes.The question of the impact of Art. 14 on taxing statutes has been elaborately discussed by us in Hira Lal Rattan Lal v. State of U. P. (1972) Civil Appeals Nos. 821, 822, 1625 and 2008 of 1971, D/(SC). For the reasons mentioned therein we are unable to accept the contention that the vice noticed by the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All), (supra) has not been removed.7. Now coming to the 2nd contention of Dr. Singhvi, we fail to see how the question of lack of power now arises in view of S. 3AB. While developing his contention No. 2, Dr. Singhvi urged that the legislature has unauthorisedly encroached on the judicial power. The amended S. 3AB merely intradicts the decision rendered by the High Court and has not removed the want of power noticed by the High Court. We are unable to accede to this contention. The legislature has not purported either directly or by necessary implication to overrule the decision of the Allahabad High Court in Krishna Brick Fields case, 29 STC 15 = (1971 Tax LR 1057) (FB) (All) (supra). On the other hand it has accepted the decisions as correct but has sought to remove the basis of the decision by retrospectively changing the law.This court has pointed out in several cases the distinction between encroachment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits. In the instant case what the legislature has done is to amend the law retrospectively and thereby remove the basis of the decision rendered by the High Court. Such a course cannot be considered as an encroachment on the judicial power.8. Dr. Singhvis contention that S. 3AB is not a charging section cannot be accepted as correct. That section as it now stands incorporates into itself the impugned notifications. Those notifications have now become part of that section. To find out the scope and effect of that section, we have not only to read the section but we have also to read the concerned notifications. If so read, as it should be, it is clear that the section not only levies tax on the bricks at the prescribed rates, it also provides for the quantification of tax. The law is given retrospective effect. The fact that in those notifications it is mentioned that they were issued in pursuance of the power conferred under S. 3A does not in any way take away the intended legal effect. The intention of the legislature is clear.

B.S. Vadera Vs. Union of India & Others

currency, until provision, in that behalf, is made by or under an Act, of the appropriate Legislature, under Article 309. 25. It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be subject to the provisions of the Constitution shall have effect, subject to the provisions of any such Act. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other imposed by the proviso to Article 309, regarding the ambit of the, operations of such rules. In other words the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority. 26. In the case before us, the Indian Railway Establishment Code has been issued, by the President, in the exercise of his powers, under the proviso to Article 309 . Under Rule 157, the President has directed the Railway Board, to make rules, of general application to nongazetted railway servants, under their control. The rules, which are embodied in the Schemes framed by the Board under Annexures 4 and 7, are within the powers, conferred under Rule 157; and, in the absence of any Act, having been passed by the appropriate Legislature, on the said matter, the rules, framed by the Railway Board, will have full effect and, if so indicated retrospectively also. Such indication, about retrospective effect, as has already been pointed out by us, is clearly there, in the impugned provisions. 27. The decision of this Court in 1966-1 SCR 994 = (AIR 1966 SC 602 ) does not assist the petitioners. The rule that came up, for consideration, has been referred to, at p. 999, of the Reports, in the judgment of Wanchoo, J., (as he then was), and the Court specifically says that the rule, referred to by it, cannot be made, under the proviso to Article 309 of the Constitution. It is further stated that the notification, referred to, cannot be said to be a rule, regulating the recruitment and conditions of service of persons appointed to the services and posts, in connection with the affairs of the State. This Court further observed that the effect of the notification, or the rule, that it had to consider, was to select certain Government servants, who had been illegally required to retire, and to say that even if the retirement had been illegal that retirement should be deemed to have been properly and lawfully made. Finally, the Court said, that such a declaration, made by the Governor, cannot, in any sense, be regarded as a rule, made under the proviso to Art. 309. Having held that the rule, which was before it, was not one made under the proviso to Article 309 the Court further observed in that case, that it was not necessary to decide, whether a rule, governing conditions of service, of persons appointed in connection with the affairs of the State, can be made retrospectively under the proviso to Article 309. This decision, in our opinion, can be distinguished, on two grounds: (i) that the rule, in question, construed by the Court was held to be one, not coming within the purview of the proviso to Art. 309; and (ii) the question, as to whether rule, under the proviso to Art. 309, can be framed, to have retrospective effect, has been left open. 28. In this connection, we may refer to two decisions, of the Mysore High Court, and one of the Allahabad High Court. The Mysore Court, in the decisions, Govindaraju v. State of Mysore, AIR 1963 Mys 265 and Govindappa v. I. G. of Registration, AIR 1965 Mys 25, has taken the view that it is not open to the Governor, under the proviso to Article 309, to frame a rule, having retrospective effect. We may state that the decision in Govindarajus case AIR 1963 Mys 265 came up, before this Court, on appeal, in Nagarajan v. State of Mysore, 1966-3 SCR 682 = (AIR 1966 SC 1942 ). But this Court, in Nagarajans case, 1966-3 SCR 682 = (AIR 1966 SC 1942 ), had no occasion to express any opinion on the question as to whether the Governor under the proviso to Article 309, could frame a rule, having retrospective operation as it took the view that the relevant rules had not been made under Article 309. 29. A Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328 (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgment. 30. To conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution. 31.

0[ds]Therefore, we are not inclined to accept the contention of the petitioners that there has been a promotion, on a permanent basis in the first instance as Upper Division Clerks and, latter, as Assistants, which cannot be disturbed, by any orders that may be passed, by the 2nd respondent. We have already indicated that the regular promotions and appointments have to be made, under the Scheme, with effect from December 1, 1954There is no substance, in this contention, in view of the statement, made by the 2nd respondent, that this petitioner was confirmed, as a Lower Division Clerk in 1966, with effect from September 14, 1957, in which case it follows that he will not be eligible, for promotion, as an Upper Division Clerk, under the Scheme. The petitioner, in Writ Petition No. 96 of 1967, as pointed out, by the 2nd respondent, continues, even now as a temporary Lower Division Clerk, and he has not been made permanent, and, therefore, he cannot certainly be considered eligible, for promotion, under the SchemeOnce it is held that the said petitioner does not satisfy the requirement of the Scheme, them is no question of any discrimination, under Article 14, or violation of Article 16, arising for consideration at all. Therefore, both the petitioners, will have to fail, on meritsA Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328 (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgmentTo conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution.

### 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: currency, until provision, in that behalf, is made by or under an Act, of the appropriate Legislature, under Article 309. 25. It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be subject to the provisions of the Constitution shall have effect, subject to the provisions of any such Act. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other imposed by the proviso to Article 309, regarding the ambit of the, operations of such rules. In other words the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority. 26. In the case before us, the Indian Railway Establishment Code has been issued, by the President, in the exercise of his powers, under the proviso to Article 309 . Under Rule 157, the President has directed the Railway Board, to make rules, of general application to nongazetted railway servants, under their control. The rules, which are embodied in the Schemes framed by the Board under Annexures 4 and 7, are within the powers, conferred under Rule 157; and, in the absence of any Act, having been passed by the appropriate Legislature, on the said matter, the rules, framed by the Railway Board, will have full effect and, if so indicated retrospectively also. Such indication, about retrospective effect, as has already been pointed out by us, is clearly there, in the impugned provisions. 27. The decision of this Court in 1966-1 SCR 994 = (AIR 1966 SC 602 ) does not assist the petitioners. The rule that came up, for consideration, has been referred to, at p. 999, of the Reports, in the judgment of Wanchoo, J., (as he then was), and the Court specifically says that the rule, referred to by it, cannot be made, under the proviso to Article 309 of the Constitution. It is further stated that the notification, referred to, cannot be said to be a rule, regulating the recruitment and conditions of service of persons appointed to the services and posts, in connection with the affairs of the State. This Court further observed that the effect of the notification, or the rule, that it had to consider, was to select certain Government servants, who had been illegally required to retire, and to say that even if the retirement had been illegal that retirement should be deemed to have been properly and lawfully made. Finally, the Court said, that such a declaration, made by the Governor, cannot, in any sense, be regarded as a rule, made under the proviso to Art. 309. Having held that the rule, which was before it, was not one made under the proviso to Article 309 the Court further observed in that case, that it was not necessary to decide, whether a rule, governing conditions of service, of persons appointed in connection with the affairs of the State, can be made retrospectively under the proviso to Article 309. This decision, in our opinion, can be distinguished, on two grounds: (i) that the rule, in question, construed by the Court was held to be one, not coming within the purview of the proviso to Art. 309; and (ii) the question, as to whether rule, under the proviso to Art. 309, can be framed, to have retrospective effect, has been left open. 28. In this connection, we may refer to two decisions, of the Mysore High Court, and one of the Allahabad High Court. The Mysore Court, in the decisions, Govindaraju v. State of Mysore, AIR 1963 Mys 265 and Govindappa v. I. G. of Registration, AIR 1965 Mys 25, has taken the view that it is not open to the Governor, under the proviso to Article 309, to frame a rule, having retrospective effect. We may state that the decision in Govindarajus case AIR 1963 Mys 265 came up, before this Court, on appeal, in Nagarajan v. State of Mysore, 1966-3 SCR 682 = (AIR 1966 SC 1942 ). But this Court, in Nagarajans case, 1966-3 SCR 682 = (AIR 1966 SC 1942 ), had no occasion to express any opinion on the question as to whether the Governor under the proviso to Article 309, could frame a rule, having retrospective operation as it took the view that the relevant rules had not been made under Article 309. 29. A Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328 (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgment. 30. To conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution. 31. ### Response: 0 ### Explanation: Therefore, we are not inclined to accept the contention of the petitioners that there has been a promotion, on a permanent basis in the first instance as Upper Division Clerks and, latter, as Assistants, which cannot be disturbed, by any orders that may be passed, by the 2nd respondent. We have already indicated that the regular promotions and appointments have to be made, under the Scheme, with effect from December 1, 1954There is no substance, in this contention, in view of the statement, made by the 2nd respondent, that this petitioner was confirmed, as a Lower Division Clerk in 1966, with effect from September 14, 1957, in which case it follows that he will not be eligible, for promotion, as an Upper Division Clerk, under the Scheme. The petitioner, in Writ Petition No. 96 of 1967, as pointed out, by the 2nd respondent, continues, even now as a temporary Lower Division Clerk, and he has not been made permanent, and, therefore, he cannot certainly be considered eligible, for promotion, under the SchemeOnce it is held that the said petitioner does not satisfy the requirement of the Scheme, them is no question of any discrimination, under Article 14, or violation of Article 16, arising for consideration at all. Therefore, both the petitioners, will have to fail, on meritsA Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328 (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgmentTo conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution.

M. R. Mini (Minor) Represented By Her Guardian and Father M.P Vs. State of Kerala and Another

KRISHNA IYER, J. 1. The petitioner, an aspirant for admission to the M.B.B.S. course in one or other of the medical college in Kerala, has failed to qualify for selection from the Kerala university pool, not having secured high enough marks, and has failed to fall within the Calicut University pool, not having been a student of that University.2. What is urged, as a claim f or inclusion, is that had she been treated as a Calicut University student her marks would have been sufficient to gain admission and since she belongs to the Malabar region, which is broadly served by the Calicut University, she should be given the benefit of Calicut University students and consequential admission-a mixture of district-wise backwardness and university-wise preference to reach the desired advantage. 3. We cannot agree. Under the existing scheme, the classification for purpose of quota is university-wise, not territory-wise. Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University. Maybe, the State could have classified candidates university- wise, backward region-wise or otherwise, separately or in any constitutionally permissible combination. We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project. Mystic maybes are beyond judicial conjecture. Once we hold that the university-wise allocation of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context. Every adversity is not an injury. Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its bounds. 4. We do not preclude the State from taking any other pragmatic formula or evolving any selection calculus, constitutionally permissible, so as to promote equality against the backdrop of social justice. Indeed, we have by our Judgment in Dr. Jagadish Saran &Ors. v. Union of India &Ors.(1), explained the parameters, the criteria and the correct measures which must be initiated to marry equality to excellence, solemnised constitutionally.Too long has the state been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum. To keep t he education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenge in court or agitational ex ercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality. 5.

0[ds]Under the existing scheme, the classification for purpose of quota is university-wise, not territory-wise. Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University. Maybe, the State could have classified candidates university- wise, backward region-wise or otherwise, separately or in any constitutionally permissible combination. We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project. Mystic maybes are beyond judicial conjecture. Once we hold that the university-wise allocation of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context. Every adversity is not an injury. Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its boundsWe do not preclude the State from taking any other pragmatic formula or evolving any selection calculus, constitutionally permissible, so as to promote equality against the backdrop of social justice. Indeed, we have by our Judgment in Dr. Jagadish Saran &Ors. v. Union of India &Ors.(1), explained the parameters, the criteria and the correct measures which must be initiated to marry equality to excellence, solemnised constitutionally.Too long has the state been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum. To keep t he education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenge in court or agitational ex ercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality.

### 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: KRISHNA IYER, J. 1. The petitioner, an aspirant for admission to the M.B.B.S. course in one or other of the medical college in Kerala, has failed to qualify for selection from the Kerala university pool, not having secured high enough marks, and has failed to fall within the Calicut University pool, not having been a student of that University.2. What is urged, as a claim f or inclusion, is that had she been treated as a Calicut University student her marks would have been sufficient to gain admission and since she belongs to the Malabar region, which is broadly served by the Calicut University, she should be given the benefit of Calicut University students and consequential admission-a mixture of district-wise backwardness and university-wise preference to reach the desired advantage. 3. We cannot agree. Under the existing scheme, the classification for purpose of quota is university-wise, not territory-wise. Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University. Maybe, the State could have classified candidates university- wise, backward region-wise or otherwise, separately or in any constitutionally permissible combination. We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project. Mystic maybes are beyond judicial conjecture. Once we hold that the university-wise allocation of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context. Every adversity is not an injury. Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its bounds. 4. We do not preclude the State from taking any other pragmatic formula or evolving any selection calculus, constitutionally permissible, so as to promote equality against the backdrop of social justice. Indeed, we have by our Judgment in Dr. Jagadish Saran &Ors. v. Union of India &Ors.(1), explained the parameters, the criteria and the correct measures which must be initiated to marry equality to excellence, solemnised constitutionally.Too long has the state been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum. To keep t he education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenge in court or agitational ex ercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality. 5. ### Response: 0 ### Explanation: Under the existing scheme, the classification for purpose of quota is university-wise, not territory-wise. Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University. Maybe, the State could have classified candidates university- wise, backward region-wise or otherwise, separately or in any constitutionally permissible combination. We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project. Mystic maybes are beyond judicial conjecture. Once we hold that the university-wise allocation of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context. Every adversity is not an injury. Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its boundsWe do not preclude the State from taking any other pragmatic formula or evolving any selection calculus, constitutionally permissible, so as to promote equality against the backdrop of social justice. Indeed, we have by our Judgment in Dr. Jagadish Saran &Ors. v. Union of India &Ors.(1), explained the parameters, the criteria and the correct measures which must be initiated to marry equality to excellence, solemnised constitutionally.Too long has the state been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum. To keep t he education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenge in court or agitational ex ercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality.

A.K. Bindal & Another Vs. Union of India & Others

the total compensation amount has to be calculated on the basis of existing pay scale and as there was no revision of pay scales since 1972, the petitioners have got a very small amount. Learned counsel has further submitted that there can be no waiver of fundamental rights and even if an employee has opted for VRS and has taken the amount and left the company it would not mean that he has foregone his right to claim the salary which he was entitled to get during the period when he was an employee of the company. 30. The material on record shows that both FCI and HFC had suffered continuous losses. The Financial status of the companies as on 31.3.1996 was as under: 31. In the year 1996-97 FCI and HFC projected net losses of Rs. 562.51 crores and Rs. 438.99 crores respectively. The total loss suffered by these companies as on 31.1.2003 was Rs. 8874.00 crores and 7421.52 crores respectively. The Government extended non-plan budgetary assistance of Rs. 2369.00 crores to FCI and Rs. 2227.00 crores to HFC upto 31.1.2003. 32. The units of the companies have already suspended their operations quite some time back and as on date no unit is functioning nor any production is being made. There is also no denial of the fact that the companies have suffered huge losses and salaries of the employees who were practically doing no work has been paid by the Government for a considerable long period. The employees accepted VRS with their eyes open without making any kind of protest regarding their past rights based upon revision of pay scale from 1.1.1992. 33. The Voluntary Retirement Scheme (VRS) which is some times called Voluntary Separation Scheme (VSS) is introduced by companies and industrial establishments in order to reduce the surplus staff and to bring in financial efficiency. The Office Memorandum dated 5.5.2000 issued by Government of India provided that for sick and unviable units, the VRS package of Department of Heavy Industry will be adopted. Under this Scheme an employee is entitled to an ex-gratia payment equivalent to 45 days emoluments (pay + D.A.) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before the normal date of retirement, whichever is less. This is in addition to terminal benefits. The Government was conscious about the fact that the pay scales of some of the PSUs had not been revised with effect from 1.1.1992 and therefore it has provided adequate compensation in that regard in the second VRS which was announced for all Central Public Sector Undertakings on 6.11.2001. Clause (a) of the scheme reads as under: a) Ex-gratia payment in respect of employees on pay scales at 1.1.87 and 1.1.92 levels, computed on their existing pay scales in accordance with the extant scheme, shall be increased by 100% and 50% respectively. 34. This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as Golden Handshake. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated. 35. The contention that the employees opted for VRS under any kind of compulsion is not worthy of acceptance. The petitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However, they, in their wisdom thought that in the fact situation VRS was a better option available and those the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the companies (FCI & HFC), the writ petition no longer survives and has become infructuous.36. Shri Nageshwar Rao, learned senior counsel appearing in Transferred Case No. 35 of 2000 (Writ Petition filed by employees of HFC in Calcutta High Court) apart from challenging the validity of the Office Memorandum on the same grounds also urged that the price of urea was fixed by the Government under Fertilizer Control Order which was wholly unremunerative and, therefore, the employees cannot in any way be held responsible for the losses suffered by the Units and consequently they should not be made to suffer on that account. We are unable to entertain this submission as the factual foundation for such a plea has not been laid in the pleadings. That apart, learned counsel for the respondents has made a statement that the Government had reimbursed the Units in that regard. 37. For the reasons discussed above,

0[ds]considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as Golden Handshake. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totallypetitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However, they, in their wisdom thought that in the fact situation VRS was a better option available and those the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the companies (FCI & HFC), the writ petition no longer survives and has become infructuous.

### 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: the total compensation amount has to be calculated on the basis of existing pay scale and as there was no revision of pay scales since 1972, the petitioners have got a very small amount. Learned counsel has further submitted that there can be no waiver of fundamental rights and even if an employee has opted for VRS and has taken the amount and left the company it would not mean that he has foregone his right to claim the salary which he was entitled to get during the period when he was an employee of the company. 30. The material on record shows that both FCI and HFC had suffered continuous losses. The Financial status of the companies as on 31.3.1996 was as under: 31. In the year 1996-97 FCI and HFC projected net losses of Rs. 562.51 crores and Rs. 438.99 crores respectively. The total loss suffered by these companies as on 31.1.2003 was Rs. 8874.00 crores and 7421.52 crores respectively. The Government extended non-plan budgetary assistance of Rs. 2369.00 crores to FCI and Rs. 2227.00 crores to HFC upto 31.1.2003. 32. The units of the companies have already suspended their operations quite some time back and as on date no unit is functioning nor any production is being made. There is also no denial of the fact that the companies have suffered huge losses and salaries of the employees who were practically doing no work has been paid by the Government for a considerable long period. The employees accepted VRS with their eyes open without making any kind of protest regarding their past rights based upon revision of pay scale from 1.1.1992. 33. The Voluntary Retirement Scheme (VRS) which is some times called Voluntary Separation Scheme (VSS) is introduced by companies and industrial establishments in order to reduce the surplus staff and to bring in financial efficiency. The Office Memorandum dated 5.5.2000 issued by Government of India provided that for sick and unviable units, the VRS package of Department of Heavy Industry will be adopted. Under this Scheme an employee is entitled to an ex-gratia payment equivalent to 45 days emoluments (pay + D.A.) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before the normal date of retirement, whichever is less. This is in addition to terminal benefits. The Government was conscious about the fact that the pay scales of some of the PSUs had not been revised with effect from 1.1.1992 and therefore it has provided adequate compensation in that regard in the second VRS which was announced for all Central Public Sector Undertakings on 6.11.2001. Clause (a) of the scheme reads as under: a) Ex-gratia payment in respect of employees on pay scales at 1.1.87 and 1.1.92 levels, computed on their existing pay scales in accordance with the extant scheme, shall be increased by 100% and 50% respectively. 34. This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as Golden Handshake. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated. 35. The contention that the employees opted for VRS under any kind of compulsion is not worthy of acceptance. The petitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However, they, in their wisdom thought that in the fact situation VRS was a better option available and those the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the companies (FCI & HFC), the writ petition no longer survives and has become infructuous.36. Shri Nageshwar Rao, learned senior counsel appearing in Transferred Case No. 35 of 2000 (Writ Petition filed by employees of HFC in Calcutta High Court) apart from challenging the validity of the Office Memorandum on the same grounds also urged that the price of urea was fixed by the Government under Fertilizer Control Order which was wholly unremunerative and, therefore, the employees cannot in any way be held responsible for the losses suffered by the Units and consequently they should not be made to suffer on that account. We are unable to entertain this submission as the factual foundation for such a plea has not been laid in the pleadings. That apart, learned counsel for the respondents has made a statement that the Government had reimbursed the Units in that regard. 37. For the reasons discussed above, ### Response: 0 ### Explanation: considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as Golden Handshake. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totallypetitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However, they, in their wisdom thought that in the fact situation VRS was a better option available and those the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the companies (FCI & HFC), the writ petition no longer survives and has become infructuous.

Tukaram S. Bhat Vs. K.E. Steel Union Limited & Others

who passed the order dated 23rd February, 2006 granted liberty to the respondent No.3 to make, if necessary, a fresh application seeking the same relief was maintainable, in our opinion, also cannot be sustained. The learned Single Judge, after disposing of the company application granted liberty to apply so that the parties could seek further directions pursuant to this order. The liberty granted by the learned Single Judge cannot be used to seek from the learned Single Judge orders which are contrary to his principal order rejecting the company application for grant of leave. In our opinion, the learned counsel appearing for appellant rightly relied on the observations of the Supreme Court in this regard in its judgment in the case of Kewal Chand Mimani referred to above. In our opinion, following observations found in paragraph 19 are important, they read as under:-"19. Another aspect of some importance ought also to be delved into at this stage, to wit, the effect of the liberty granted to mention the matter after the judgment was delivered. It is on this score that Mr. Gupta very strongly contended that the question of reopening the issue by reason of the liberty would not arise. As a matter of fact, it has been contended that by the aforesaid first judgment, the High Court came to a definite finding that the property should immediately be restored back to the possession of the owner of the property and/or the occupier, which cannot but mean the Mimanis, as the case may be this direction as contained in the judgment by itself connotes final disposal and denotes specifically the determination of the issue raised in the matter. The High Court, Mr. Gupta contended, recorded that though many other points were argued and several case laws were cited, but there was felt no necessity for deciding those points as the appeal succeeded on the point of order of requisition not been continued on the basis of a lapsed statute; no doubt, a very convincing reason that when the entire appeal stands disposed off there exists no scope of reopening the issue on the basis of the liberty granted to mention the matter doubt, there is none; liberty to mention cannot be used as a means to achieve an advantage which is not otherwise available in law a question which stands finally decided cannot be reopened, neither has the Court any further jurisdiction upon the signature been appended on the judgment by oral mention. The issue stands concluded as soon as the judgment is pronounced and the same is signed.""Be it noted, however, that the words liberty to mention have been as a matter of fact a phraseology which did come through judicial process without any definite legal sanction for the purpose of clarification if needed, but not otherwise. It is a legal process which has been evolved for convenience and for shortening the litigation so that the parties are not dragged into further and further course of litigation, and it is in this context that the submissions of Mr. Gupta. that the Court has no jurisdiction to reopen the issue on the ground of availability of the legal phraseology of liberty to mention cannot be brushed aside. As noticed hereinabove, the insertion of the above noted legal phraseology is to obliterate any confusion or any difficulty being experienced in the matter it does not give the right anew to the party to agitate the matter further or does it confer jurisdiction on the Court itself to further probe the correctness of the decision arrived at; review of a judgment cannot be had on the basis of this liberty. The circumstances under which review can be had are provided under Order 47 of the Code of Civil Procedure. In any event, law is well settled on this score that the power to review is not any inherent power and it must be conferred by law either specifically or by necessary implication. In this context, reference may be made to the decision in Patel Narshi Thakershi vs. Pradyumnasinghji Arjhunsinghji."; (emphasis supplied).In view of the law laid down by the Supreme Court that normally this practice of granting liberty is adopted by the Court to obliterate any confusion or any difficulty being experienced in the matter, fresh application for the same relief could not have been filed. The Supreme Court in categorical terms has said that grant of such liberty does not give right to the party to agitate the matter further nor does it confer jurisdiction on the Court to further probe the correctness of the decision arrived at or review of the judgment and review of the judgment cannot be had on the basis of such liberty.13. So far as the submission of the learned counsel appearing for appellant that the learned Single Judge Could not have granted leave to continue the second suit because that suit was instituted after obtaining leave from the learned Single Judge which was revoked by the Division Bench of this Court, in our opinion, the submission has no substance. Section 446 of the said Act does not contemplate obtaining of prior leave. If there is a requirement of obtaining prior leave, then before instituting the suit, leave has to be obtained and obtaining of subsequent leave will not validate the institution of the suit. But what is contemplated is merely obtaining of leave. therefore, post facto leave is, also capable of being granted. A suit instituted without obtaining leave will not be per se not maintainable against all the parties to the suit. It will not be maintainable against the company till leave is secured but if leave is applied for and is not granted, the institution of the suit as against the company would be bad. However, as we have held now that the learned Single Judge was not justified in granting leave, obviously the suit cannot be continued. Taking overall view of the matter therefore, following order would meet the ends of justice.

0[ds]13. So far as the submission of the learned counsel appearing for appellant that the learned Single Judge Could not have granted leave to continue the second suit because that suit was instituted after obtaining leave from the learned Single Judge which was revoked by the Division Bench of this Court, in our opinion, the submission has no substance. Section 446 of the said Act does not contemplate obtaining of prior leave. If there is a requirement of obtaining prior leave, then before instituting the suit, leave has to be obtained and obtaining of subsequent leave will not validate the institution of the suit. But what is contemplated is merely obtaining of leave. therefore, post facto leave is, also capable of being granted. A suit instituted without obtaining leave will not be per se not maintainable against all the parties to the suit. It will not be maintainable against the company till leave is secured but if leave is applied for and is not granted, the institution of the suit as against the company would be bad. However, as we have held now that the learned Single Judge was not justified in granting leave, obviously the suit cannot be continued. Taking overall view of the matter therefore, following order would meet the ends of justice.

### 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: who passed the order dated 23rd February, 2006 granted liberty to the respondent No.3 to make, if necessary, a fresh application seeking the same relief was maintainable, in our opinion, also cannot be sustained. The learned Single Judge, after disposing of the company application granted liberty to apply so that the parties could seek further directions pursuant to this order. The liberty granted by the learned Single Judge cannot be used to seek from the learned Single Judge orders which are contrary to his principal order rejecting the company application for grant of leave. In our opinion, the learned counsel appearing for appellant rightly relied on the observations of the Supreme Court in this regard in its judgment in the case of Kewal Chand Mimani referred to above. In our opinion, following observations found in paragraph 19 are important, they read as under:-"19. Another aspect of some importance ought also to be delved into at this stage, to wit, the effect of the liberty granted to mention the matter after the judgment was delivered. It is on this score that Mr. Gupta very strongly contended that the question of reopening the issue by reason of the liberty would not arise. As a matter of fact, it has been contended that by the aforesaid first judgment, the High Court came to a definite finding that the property should immediately be restored back to the possession of the owner of the property and/or the occupier, which cannot but mean the Mimanis, as the case may be this direction as contained in the judgment by itself connotes final disposal and denotes specifically the determination of the issue raised in the matter. The High Court, Mr. Gupta contended, recorded that though many other points were argued and several case laws were cited, but there was felt no necessity for deciding those points as the appeal succeeded on the point of order of requisition not been continued on the basis of a lapsed statute; no doubt, a very convincing reason that when the entire appeal stands disposed off there exists no scope of reopening the issue on the basis of the liberty granted to mention the matter doubt, there is none; liberty to mention cannot be used as a means to achieve an advantage which is not otherwise available in law a question which stands finally decided cannot be reopened, neither has the Court any further jurisdiction upon the signature been appended on the judgment by oral mention. The issue stands concluded as soon as the judgment is pronounced and the same is signed.""Be it noted, however, that the words liberty to mention have been as a matter of fact a phraseology which did come through judicial process without any definite legal sanction for the purpose of clarification if needed, but not otherwise. It is a legal process which has been evolved for convenience and for shortening the litigation so that the parties are not dragged into further and further course of litigation, and it is in this context that the submissions of Mr. Gupta. that the Court has no jurisdiction to reopen the issue on the ground of availability of the legal phraseology of liberty to mention cannot be brushed aside. As noticed hereinabove, the insertion of the above noted legal phraseology is to obliterate any confusion or any difficulty being experienced in the matter it does not give the right anew to the party to agitate the matter further or does it confer jurisdiction on the Court itself to further probe the correctness of the decision arrived at; review of a judgment cannot be had on the basis of this liberty. The circumstances under which review can be had are provided under Order 47 of the Code of Civil Procedure. In any event, law is well settled on this score that the power to review is not any inherent power and it must be conferred by law either specifically or by necessary implication. In this context, reference may be made to the decision in Patel Narshi Thakershi vs. Pradyumnasinghji Arjhunsinghji."; (emphasis supplied).In view of the law laid down by the Supreme Court that normally this practice of granting liberty is adopted by the Court to obliterate any confusion or any difficulty being experienced in the matter, fresh application for the same relief could not have been filed. The Supreme Court in categorical terms has said that grant of such liberty does not give right to the party to agitate the matter further nor does it confer jurisdiction on the Court to further probe the correctness of the decision arrived at or review of the judgment and review of the judgment cannot be had on the basis of such liberty.13. So far as the submission of the learned counsel appearing for appellant that the learned Single Judge Could not have granted leave to continue the second suit because that suit was instituted after obtaining leave from the learned Single Judge which was revoked by the Division Bench of this Court, in our opinion, the submission has no substance. Section 446 of the said Act does not contemplate obtaining of prior leave. If there is a requirement of obtaining prior leave, then before instituting the suit, leave has to be obtained and obtaining of subsequent leave will not validate the institution of the suit. But what is contemplated is merely obtaining of leave. therefore, post facto leave is, also capable of being granted. A suit instituted without obtaining leave will not be per se not maintainable against all the parties to the suit. It will not be maintainable against the company till leave is secured but if leave is applied for and is not granted, the institution of the suit as against the company would be bad. However, as we have held now that the learned Single Judge was not justified in granting leave, obviously the suit cannot be continued. Taking overall view of the matter therefore, following order would meet the ends of justice. ### Response: 0 ### Explanation: 13. So far as the submission of the learned counsel appearing for appellant that the learned Single Judge Could not have granted leave to continue the second suit because that suit was instituted after obtaining leave from the learned Single Judge which was revoked by the Division Bench of this Court, in our opinion, the submission has no substance. Section 446 of the said Act does not contemplate obtaining of prior leave. If there is a requirement of obtaining prior leave, then before instituting the suit, leave has to be obtained and obtaining of subsequent leave will not validate the institution of the suit. But what is contemplated is merely obtaining of leave. therefore, post facto leave is, also capable of being granted. A suit instituted without obtaining leave will not be per se not maintainable against all the parties to the suit. It will not be maintainable against the company till leave is secured but if leave is applied for and is not granted, the institution of the suit as against the company would be bad. However, as we have held now that the learned Single Judge was not justified in granting leave, obviously the suit cannot be continued. Taking overall view of the matter therefore, following order would meet the ends of justice.

Uttar Bhartiya Rajak Samaj Panchayat Banganga Rajak Samaj Co-operative Housing Society (Proposed) & Anr Vs. State of Maharashtra Through Secretary & Ors.

on plot bearing no.CS No.51, 2/51, 3/51 of Malabar Hill and Cumballa Hill Div. at Bhagwan Indrajit Road, Mumbai. The appellant no.2 is a rehabilitator who was approached by the 1 st appellant-society to develop the said plot and rehabilitate its members under Slum Rehabilitation Scheme, under Maharashtra Slum Rehabilitation Act, 1976. On the proposal for the aforesaid scheme, a LOI bearing no.SRA/Eng/875/D/GL/LOI dated 05.01.2005 has been issued by the 2 nd respondent-authority in favour of the 2 nd appellant to carry out the said rehabilitation. Since the said plot was within the area of Coastal Regulation Zone (CRZ), the said LOI was issued subject to clearance by CRZ authorities as provided under Clause 46, by the 1 st respondent and Maharashtra Coastal Zone Management Authority (MCZMA). 5. During the pendency of the proceedings before the Coastal Zone Management Authority, 1 st respondent-Government issued notification dated 16.04.2008. The Government of Maharashtra has issued directives under Section 37(1) and Section 154 of the Maharashtra Regional & Town Planning Act. As per the above said directives issued by the Government, developer/co-operative society is required to pay premium @ 25% in terms of the Ready Reckoner in respect of Slum Rehabilitation Scheme proposed to be undertaken on the lands owned by the Government, Semi-Government Undertakings and local bodies. In view of the said notification issued by the Government, the appellants were demanded an amount of Rs.8,47,69,029.69 (Rupees Eight Crores Forty Seven Lakhs Sixty Nine Thousand Twenty Nine and Sixty Nine Paise only) towards the premium. 6. Questioning the letter of demand issued by the 2 nd respondent for the aforesaid sum, the appellants have approached the HPC. Even the HPC has considered the issue and rejected the claim of the appellants that they are not required to pay the premium amount as much as they were already issued LOI dated 05.01.2005. Questioning the demand of Rs.8,47,69,029.69 and further order issued by the HPC, the appellants have approached the High Court by filing writ petition in W.P.No.1902 of 2010. The above writ petition was dismissed by the impugned order dated 03.05.2012 by the High Court of Judicature at Bombay and the review petition filed by the appellants has also ended in dismissal by order dated 01.07.2015. 7. We have heard Sri Shekhar Naphade, learned senior counsel appearing for the appellants and learned counsel appearing for the 1 st respondent-Government and 2 nd respondent-authority. 8. The Letter of Intent dated 05.01.2005 was issued in favour of the appellants in respect of the scheme, under Development Control Regulation 33(10). Clauses 40 and 46 of the LOI read as under : 40. That this LOI is valid for the period of 3 (three) months from the date hereof. However, if IOA/CC is obtained for any one bldg.. of the project then this LOI will remain valid till completion of estimated project period. … … … … 46. That the confirmation from Govt. regarding the imaginary line from CRZ point of view shall be obtained before asking approval of plans & if required the scheme shall be revised accordingly. 9. As the area covered by the scheme was within the CRZ, the appellants have approached the Coastal Zone Management Authority for clearance. During the pendency of the application, the Government of Maharashtra has issued directives in exercise of power under Sections 37(1) and 154 of the Maharashtra Regional & Town Planning Act. Clause 3 of the schedule thereto reads as under : 3. Premium in respect of lands of public ownership: The title of regulation No.1.11 of Appendix IV of Regulation 33(10) shall be changed as Premium for ownership and terms of lease. Also following provision shall be added after the existing provisions of Regulation 1.11 of Regulation 33(10). In addition to above, the Developer/Co-op. Housing Society shall pay premium at the rate of Twenty Five percent in terms of Ready Reckoner in respect of Slum Rehabilitation Scheme proposed to be undertaken on lands owned by Government, Semi-Government Undertakings and Local Bodies. 10. It is contended by learned senior counsel Sri Shekhar Naphade that in view of the delay in clearance by the Coastal Zone Management Authority, the appellants cannot be prejudiced, for payment of premium pursuant to directions issued on 16 th April 2008. It is submitted that appellants were issued Letter of Intent on 05.01.2005. The delay which is to be attributed to Coastal Zone Management Authority cannot come in the way of the appellants so as to recover huge amount of Rs.8,47,69,029.69 towards premium. On the other hand, learned counsel appearing for the respondents have submitted that the validity of the Letter of Intent was only for a period of three months and the same was not extended and no representation to that effect was filed so as to keep it alive. In view of the same, the conditions notified in the GR dated 16.04.2008 will apply for the scheme. 11. In this case it is to be noted that the Letter of Intent was valid for a period of three months only. If, for any reason, delay is occurred in obtaining clearance from the Coastal Zone Management Authority, nothing prevented the appellants to make appropriate representation so as to keep the Letter of Intent alive. When the validity of Letter of Intent itself is for three months and if the same is not kept alive, we are of the view that the premium is to be paid as per the Government Resolution dated 16.04.2008. By virtue of the aforesaid notification, developer/co- operative society is required to pay premium @ 25% in terms of the Ready Reckoner, in respect of Slum Rehabilitation Schemes proposed to be undertaken on the lands owned by the Government, Semi- Government Undertakings and local bodies. 12. In that view of the matter the demand made by the respondents is in conformity with the law and we do not find any illegality in the impugned orders passed by the High Court in either dismissing the writ petition or the review petition.

0[ds]11. In this case it is to be noted that the Letter of Intent was valid for a period of three months only. If, for any reason, delay is occurred in obtaining clearance from the Coastal Zone Management Authority, nothing prevented the appellants to make appropriate representation so as to keep the Letter of Intent alive. When the validity of Letter of Intent itself is for three months and if the same is not kept alive, we are of the view that the premium is to be paid as per the Government Resolution dated 16.04.2008. By virtue of the aforesaid notification, developer/co- operative society is required to pay premium @ 25% in terms of the Ready Reckoner, in respect of Slum Rehabilitation Schemes proposedto be undertaken on the lands owned by the Government, Semi- Government Undertakings and local bodies12. In that view of the matter the demand made by the respondents is in conformity with the law and we do not find any illegality in the impugned orders passed by the High Court in either dismissing the writ petition or the review petition.

### 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: on plot bearing no.CS No.51, 2/51, 3/51 of Malabar Hill and Cumballa Hill Div. at Bhagwan Indrajit Road, Mumbai. The appellant no.2 is a rehabilitator who was approached by the 1 st appellant-society to develop the said plot and rehabilitate its members under Slum Rehabilitation Scheme, under Maharashtra Slum Rehabilitation Act, 1976. On the proposal for the aforesaid scheme, a LOI bearing no.SRA/Eng/875/D/GL/LOI dated 05.01.2005 has been issued by the 2 nd respondent-authority in favour of the 2 nd appellant to carry out the said rehabilitation. Since the said plot was within the area of Coastal Regulation Zone (CRZ), the said LOI was issued subject to clearance by CRZ authorities as provided under Clause 46, by the 1 st respondent and Maharashtra Coastal Zone Management Authority (MCZMA). 5. During the pendency of the proceedings before the Coastal Zone Management Authority, 1 st respondent-Government issued notification dated 16.04.2008. The Government of Maharashtra has issued directives under Section 37(1) and Section 154 of the Maharashtra Regional & Town Planning Act. As per the above said directives issued by the Government, developer/co-operative society is required to pay premium @ 25% in terms of the Ready Reckoner in respect of Slum Rehabilitation Scheme proposed to be undertaken on the lands owned by the Government, Semi-Government Undertakings and local bodies. In view of the said notification issued by the Government, the appellants were demanded an amount of Rs.8,47,69,029.69 (Rupees Eight Crores Forty Seven Lakhs Sixty Nine Thousand Twenty Nine and Sixty Nine Paise only) towards the premium. 6. Questioning the letter of demand issued by the 2 nd respondent for the aforesaid sum, the appellants have approached the HPC. Even the HPC has considered the issue and rejected the claim of the appellants that they are not required to pay the premium amount as much as they were already issued LOI dated 05.01.2005. Questioning the demand of Rs.8,47,69,029.69 and further order issued by the HPC, the appellants have approached the High Court by filing writ petition in W.P.No.1902 of 2010. The above writ petition was dismissed by the impugned order dated 03.05.2012 by the High Court of Judicature at Bombay and the review petition filed by the appellants has also ended in dismissal by order dated 01.07.2015. 7. We have heard Sri Shekhar Naphade, learned senior counsel appearing for the appellants and learned counsel appearing for the 1 st respondent-Government and 2 nd respondent-authority. 8. The Letter of Intent dated 05.01.2005 was issued in favour of the appellants in respect of the scheme, under Development Control Regulation 33(10). Clauses 40 and 46 of the LOI read as under : 40. That this LOI is valid for the period of 3 (three) months from the date hereof. However, if IOA/CC is obtained for any one bldg.. of the project then this LOI will remain valid till completion of estimated project period. … … … … 46. That the confirmation from Govt. regarding the imaginary line from CRZ point of view shall be obtained before asking approval of plans & if required the scheme shall be revised accordingly. 9. As the area covered by the scheme was within the CRZ, the appellants have approached the Coastal Zone Management Authority for clearance. During the pendency of the application, the Government of Maharashtra has issued directives in exercise of power under Sections 37(1) and 154 of the Maharashtra Regional & Town Planning Act. Clause 3 of the schedule thereto reads as under : 3. Premium in respect of lands of public ownership: The title of regulation No.1.11 of Appendix IV of Regulation 33(10) shall be changed as Premium for ownership and terms of lease. Also following provision shall be added after the existing provisions of Regulation 1.11 of Regulation 33(10). In addition to above, the Developer/Co-op. Housing Society shall pay premium at the rate of Twenty Five percent in terms of Ready Reckoner in respect of Slum Rehabilitation Scheme proposed to be undertaken on lands owned by Government, Semi-Government Undertakings and Local Bodies. 10. It is contended by learned senior counsel Sri Shekhar Naphade that in view of the delay in clearance by the Coastal Zone Management Authority, the appellants cannot be prejudiced, for payment of premium pursuant to directions issued on 16 th April 2008. It is submitted that appellants were issued Letter of Intent on 05.01.2005. The delay which is to be attributed to Coastal Zone Management Authority cannot come in the way of the appellants so as to recover huge amount of Rs.8,47,69,029.69 towards premium. On the other hand, learned counsel appearing for the respondents have submitted that the validity of the Letter of Intent was only for a period of three months and the same was not extended and no representation to that effect was filed so as to keep it alive. In view of the same, the conditions notified in the GR dated 16.04.2008 will apply for the scheme. 11. In this case it is to be noted that the Letter of Intent was valid for a period of three months only. If, for any reason, delay is occurred in obtaining clearance from the Coastal Zone Management Authority, nothing prevented the appellants to make appropriate representation so as to keep the Letter of Intent alive. When the validity of Letter of Intent itself is for three months and if the same is not kept alive, we are of the view that the premium is to be paid as per the Government Resolution dated 16.04.2008. By virtue of the aforesaid notification, developer/co- operative society is required to pay premium @ 25% in terms of the Ready Reckoner, in respect of Slum Rehabilitation Schemes proposed to be undertaken on the lands owned by the Government, Semi- Government Undertakings and local bodies. 12. In that view of the matter the demand made by the respondents is in conformity with the law and we do not find any illegality in the impugned orders passed by the High Court in either dismissing the writ petition or the review petition. ### Response: 0 ### Explanation: 11. In this case it is to be noted that the Letter of Intent was valid for a period of three months only. If, for any reason, delay is occurred in obtaining clearance from the Coastal Zone Management Authority, nothing prevented the appellants to make appropriate representation so as to keep the Letter of Intent alive. When the validity of Letter of Intent itself is for three months and if the same is not kept alive, we are of the view that the premium is to be paid as per the Government Resolution dated 16.04.2008. By virtue of the aforesaid notification, developer/co- operative society is required to pay premium @ 25% in terms of the Ready Reckoner, in respect of Slum Rehabilitation Schemes proposedto be undertaken on the lands owned by the Government, Semi- Government Undertakings and local bodies12. In that view of the matter the demand made by the respondents is in conformity with the law and we do not find any illegality in the impugned orders passed by the High Court in either dismissing the writ petition or the review petition.

CURRENCY NOTE PRESS Vs. N.N.SARDESAI

Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 21.10.2011 passed by the High Court of Judicature at Bombay in Writ Petition No. 534 of 1997 whereby the Single Judge of the High Court allowed the writ petition filed by the Respondents herein and set aside the order dated 16.02.1995 passed by the Labour Court and allowed the applications of the Respondents.2. It may not be necessary to set out the facts in detail except to the extent necessary to appreciate the short issue involved in the appeal.3. The question involved in the appeal is whether the High Court was justified in allowing the Respondents (employees) writ petition and was, therefore, justified in setting aside the order passed by the Labour Court.4. The Appellants herein are body Corporate wholly owned by and working under the control of Ministry of Finance, Government of India and had been specifically incorporated to take on the work of printing currency notes and minting of coins along with 7 other units. Their printing press is at Nashik(Maharashtra). The Respondents (total 17) at all relevant times were the employees of the Appellants printing press on different posts such as Junior Accounts Officer/Head Accountants and Section Officers.5. The Respondents claiming to be the workmen of the Appellants filed applications Under Section 33-C(2) of the Industrial Disputes Act, 1947 before the Labour Court No. 2, Bombay (for short, "the Labour Court") against the Appellants claiming overtime wages for the work claimed to have been done by them in discharge of their duties for the period 1986 to 1990. The Appellants on facts and law contested these applications.6. By order dated 16.02.1995, the Labour Court dismissed the applications. The Respondents felt aggrieved and filed writ petition before the High Court of Judicature at Bombay challenging the order of the Labour Court.7. By impugned order, the Single Judge allowed the Respondents writ petition and while setting aside the order of the Labour Court allowed the Respondents applications and granted them the monetary relief claimed therein. It is against this order, the Appellants (employers) have felt aggrieved and filed this appeal by way of special leave before this Court.8. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal on more than one reason mentioned hereinbelow.9. First, all the Respondents (total 17) are now no longer in service and have either retired from the service or died; Second, the amount involved and awarded to the Respondents is not very sizable; Third, it relates to the period from 1986-1990; Fourth, the amount, pursuant to the impugned order, was already paid long back to the Respondents; and lastly, as mentioned above, it relates to the overtime work admittedly done by these Respondents (employees) while on duty.10. In view of these five factual reasons, we are not inclined to interfere in the impugned order of the High Court.11. Learned Counsel for the Appellants (employers), however, argued several legal issues which, according to him, arise in the case. These submissions relate to interpretation of certain provisions of the Bombay Shops and Establishment Act, 1948 and the Factories Act, 1948.12. Keeping in view the five factual reasons set out above which admittedly emerge from the record of the case, we are not inclined to examine the legal questions urged by the learned Counsel for the Appellants and consider it proper to leave these questions open for our decision on their merits in some other case.13.

0[ds]First, all the(total 17) are now no longer in service and have either retired from the service or died; Second, the amount involved and awarded to theis not very sizable; Third, it relates to the period from 1986-1990; Fourth, the amount, pursuant to the impugned order, was already paid long back to theand lastly, as mentioned above, it relates to the overtime work admittedly done by these(employees) while onview of these five factual reasons, we are not inclined to interfere in the impugned order of the Highl for the(employers), however, argued several legal issues which, according to him, arise in the case. These submissions relate to interpretation of certain provisions of the Bombay Shops and Establishment Act, 1948 and the Factories Act,in view the five factual reasons set out above which admittedly emerge from the record of the case, we are not inclined to examine the legal questions urged by the learnednts and consider it proper to leave these questions open for our decision on their merits in some other case.

### 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: Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 21.10.2011 passed by the High Court of Judicature at Bombay in Writ Petition No. 534 of 1997 whereby the Single Judge of the High Court allowed the writ petition filed by the Respondents herein and set aside the order dated 16.02.1995 passed by the Labour Court and allowed the applications of the Respondents.2. It may not be necessary to set out the facts in detail except to the extent necessary to appreciate the short issue involved in the appeal.3. The question involved in the appeal is whether the High Court was justified in allowing the Respondents (employees) writ petition and was, therefore, justified in setting aside the order passed by the Labour Court.4. The Appellants herein are body Corporate wholly owned by and working under the control of Ministry of Finance, Government of India and had been specifically incorporated to take on the work of printing currency notes and minting of coins along with 7 other units. Their printing press is at Nashik(Maharashtra). The Respondents (total 17) at all relevant times were the employees of the Appellants printing press on different posts such as Junior Accounts Officer/Head Accountants and Section Officers.5. The Respondents claiming to be the workmen of the Appellants filed applications Under Section 33-C(2) of the Industrial Disputes Act, 1947 before the Labour Court No. 2, Bombay (for short, "the Labour Court") against the Appellants claiming overtime wages for the work claimed to have been done by them in discharge of their duties for the period 1986 to 1990. The Appellants on facts and law contested these applications.6. By order dated 16.02.1995, the Labour Court dismissed the applications. The Respondents felt aggrieved and filed writ petition before the High Court of Judicature at Bombay challenging the order of the Labour Court.7. By impugned order, the Single Judge allowed the Respondents writ petition and while setting aside the order of the Labour Court allowed the Respondents applications and granted them the monetary relief claimed therein. It is against this order, the Appellants (employers) have felt aggrieved and filed this appeal by way of special leave before this Court.8. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal on more than one reason mentioned hereinbelow.9. First, all the Respondents (total 17) are now no longer in service and have either retired from the service or died; Second, the amount involved and awarded to the Respondents is not very sizable; Third, it relates to the period from 1986-1990; Fourth, the amount, pursuant to the impugned order, was already paid long back to the Respondents; and lastly, as mentioned above, it relates to the overtime work admittedly done by these Respondents (employees) while on duty.10. In view of these five factual reasons, we are not inclined to interfere in the impugned order of the High Court.11. Learned Counsel for the Appellants (employers), however, argued several legal issues which, according to him, arise in the case. These submissions relate to interpretation of certain provisions of the Bombay Shops and Establishment Act, 1948 and the Factories Act, 1948.12. Keeping in view the five factual reasons set out above which admittedly emerge from the record of the case, we are not inclined to examine the legal questions urged by the learned Counsel for the Appellants and consider it proper to leave these questions open for our decision on their merits in some other case.13. ### Response: 0 ### Explanation: First, all the(total 17) are now no longer in service and have either retired from the service or died; Second, the amount involved and awarded to theis not very sizable; Third, it relates to the period from 1986-1990; Fourth, the amount, pursuant to the impugned order, was already paid long back to theand lastly, as mentioned above, it relates to the overtime work admittedly done by these(employees) while onview of these five factual reasons, we are not inclined to interfere in the impugned order of the Highl for the(employers), however, argued several legal issues which, according to him, arise in the case. These submissions relate to interpretation of certain provisions of the Bombay Shops and Establishment Act, 1948 and the Factories Act,in view the five factual reasons set out above which admittedly emerge from the record of the case, we are not inclined to examine the legal questions urged by the learnednts and consider it proper to leave these questions open for our decision on their merits in some other case.

Venkatarao Esajirao Limbekar & Ors Vs. The State Of Bombay & Ors

the notification issued in May 1957 was also attacked. This petition was dismissed by the High Court in March 1960.5. In January 1961 this Court granted special leave to appeal against that judgment. In March 1961 during the pendency of the appeal the Andhra Pradesh High Court in Inamdars of Sulhanagar Colony. V. Government of Andhra Pradesh, AIR 1961 Andh Pra 523 struck down Hyderabad Act XXI of 1950 amended by Act III of 1054 on the sole ground that it had not received the assent of the President as required by Article 31 (3) of the Constitution. In February, 1961, the Maharashtra Act was enacted after the assent of the President had been obtained. It repealed and reenacted the Hyderabad Act XI of 1950 and declared that it shall be deemed to have come into force on 10th day of June 1950 as re-enacted. It also repealed the amending laws and re-enacted them and declared that as re-enacted they shall be deemed to have come into force on the day specified against each of them in the table given therein. It made certain further amendments. Thereupon the appeal pending in this court was withdrawn by the appellants with liberty to challenged the constitutionality of the Maharashtra Act. In November, 1962 the appellants filed a petition under Article 226 of the Constitution in the Bombay High Court challenging the Maharashtra Act. This petition was dismissed by the High Court in March 1964.6. It appears that only two points were urged before the High Court. The first was that the State Legislature had no power to re-enact the provisions of the Hyderabad Acts (the parent Act and the amending Acts) with retrospective effect. This argument was repelled by a brief observation that the State Legislature was competent to give retrospective effect to the provisions enacted by it. The second point raised was that Sec. 38E which provided that protected tenants would be deemed to have become owners of the land held by them subject to certain conditions with effect from the date notified by the Government was ultra vires Articles 19 and 31 of the Constitution. The High Court referred to its earlier decision in Special Civil Application No. 1128 of 1959 in which the same contention had been pressed but had not been accepted. The High Court also relied on a decision of this court in Sri Ram Narain v. State of Bombay, 61 Bom LR 811 = (AIR 1959 SC 459 ) in which the constitutional validity of similar provisions contained in Section 32 of the Bombay Tenancy and Agricultural Lands Act had been upheld.7. The present appeal must fail. The provisions of the Maharashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the ground of contravention of Articles 19 and 31 of the Constitution. By the Constitution (Seventeenth Amendment) Act 1964, after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to the Constitution.Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1050 respectively. Article 31-B gives full protection to an Act and its provisions in the Schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Constitution. This would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary. The amending laws and, in particular, Hyderabad Act III of 1954 which inserted Section 38E would also be covered by the same protection because the parent Act, namely, the Hyderabad Act XXI of 1950 was included in the Ninth Schedule in the year 1964 which was long after enactment of the amending Act.8. In the above view of the matter no attempt was made on behalf of the appellants to raise the second question about the competency of the Legislature of the Maharashtra State to enact the Maharashtra Act with retrospective effect in respect of Parbhani District which became a part of the erstwhile Bombay State only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assumption that the Maharashtra Legislature could not have validly enacted retrospective legislation with regard to Parbhani District, the Hyderabad Act XXI of 1950 as amended by Act III of 1954 was in force at the time when the notification was made in May 1957 pursuant to which proceedings were taken which were challenged by the appellants.As regards the decision of the Andhra Pradesh High Court. AIR 1961 Andh Pra 528 (supra) by which the Hyderabad Act XXI of 1950 was struck down as not having received the assent of the President under Article 31 (3) the position taken up in the writ petition was that such assent had been given to it on April 8, 1958 and till then the said Act was not valid and operative. According to the judgment of the Andhra Pradesh High Court, Hyderabad Act XXI of 1950 had never been assented to by the President although it had received the assent of the Rajpramukh of the erswhile Hyderabad State. Now the question of lack of assent of the President was never pressed before the High Court, nor have we been invited to examine it.9. We would, however, like to observe that, as noticed before, when Hyderabad Amending Act III of 1954 was enacted the assent of the President was duly obtained. Similarly when Bombay Act XXXII of 1958 which was meant for amending Hyderabad Act XXI of 1950 was enacted the assent of the President had been given.If the assent of the President had been accorded to the amending Acts, it would be difficult to hold that the President had never assented to the parent Act, namely, Hyderabad Act XXI of 1950. Even if such assent had not been accorded earlier it must be taken to have been granted when Amending Act III of 1954 was assented to.10.

0[ds]The present appeal must fail. The provisions of the Maharashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the ground of contravention of Articles 19 and 31 of the Constitution. By the Constitution (Seventeenth Amendment) Act 1964, after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to the Constitution.Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1050 respectively. Article 31-B gives full protection to an Act and its provisions in the Schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Constitution. This would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary. The amending laws and, in particular, Hyderabad Act III of 1954 which inserted Section 38E would also be covered by the same protection because the parent Act, namely, the Hyderabad Act XXI of 1950 was included in the Ninth Schedule in the year 1964 which was long after enactment of the amending Act.In the above view of the matter no attempt was made on behalf of the appellants to raise the second question about the competency of the Legislature of the Maharashtra State to enact the Maharashtra Act with retrospective effect in respect of Parbhani District which became a part of the erstwhile Bombay State only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assumption that the Maharashtra Legislature could not have validly enacted retrospective legislation with regard to Parbhani District, the Hyderabad Act XXI of 1950 as amended by Act III of 1954 was in force at the time when the notification was made in May 1957 pursuant to which proceedings were taken which were challenged by the appellants.As regards the decision of the Andhra Pradesh High Court. AIR 1961 Andh Pra 528 (supra) by which the Hyderabad Act XXI of 1950 was struck down as not having received the assent of the President under Article 31 (3) the position taken up in the writ petition was that such assent had been given to it on April 8, 1958 and till then the said Act was not valid and operative. According to the judgment of the Andhra Pradesh High Court, Hyderabad Act XXI of 1950 had never been assented to by the President although it had received the assent of the Rajpramukh of the erswhile Hyderabad State. Now the question of lack of assent of the President was never pressed before the High Court, nor have we been invited to examine it.We would, however, like to observe that, as noticed before, when Hyderabad Amending Act III of 1954 was enacted the assent of the President was duly obtained. Similarly when Bombay Act XXXII of 1958 which was meant for amending Hyderabad Act XXI of 1950 was enacted the assent of the President had been given.If the assent of the President had been accorded to the amending Acts, it would be difficult to hold that the President had never assented to the parent Act, namely, Hyderabad Act XXI of 1950. Even if such assent had not been accorded earlier it must be taken to have been granted when Amending Act III of 1954 was assented to.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: the notification issued in May 1957 was also attacked. This petition was dismissed by the High Court in March 1960.5. In January 1961 this Court granted special leave to appeal against that judgment. In March 1961 during the pendency of the appeal the Andhra Pradesh High Court in Inamdars of Sulhanagar Colony. V. Government of Andhra Pradesh, AIR 1961 Andh Pra 523 struck down Hyderabad Act XXI of 1950 amended by Act III of 1054 on the sole ground that it had not received the assent of the President as required by Article 31 (3) of the Constitution. In February, 1961, the Maharashtra Act was enacted after the assent of the President had been obtained. It repealed and reenacted the Hyderabad Act XI of 1950 and declared that it shall be deemed to have come into force on 10th day of June 1950 as re-enacted. It also repealed the amending laws and re-enacted them and declared that as re-enacted they shall be deemed to have come into force on the day specified against each of them in the table given therein. It made certain further amendments. Thereupon the appeal pending in this court was withdrawn by the appellants with liberty to challenged the constitutionality of the Maharashtra Act. In November, 1962 the appellants filed a petition under Article 226 of the Constitution in the Bombay High Court challenging the Maharashtra Act. This petition was dismissed by the High Court in March 1964.6. It appears that only two points were urged before the High Court. The first was that the State Legislature had no power to re-enact the provisions of the Hyderabad Acts (the parent Act and the amending Acts) with retrospective effect. This argument was repelled by a brief observation that the State Legislature was competent to give retrospective effect to the provisions enacted by it. The second point raised was that Sec. 38E which provided that protected tenants would be deemed to have become owners of the land held by them subject to certain conditions with effect from the date notified by the Government was ultra vires Articles 19 and 31 of the Constitution. The High Court referred to its earlier decision in Special Civil Application No. 1128 of 1959 in which the same contention had been pressed but had not been accepted. The High Court also relied on a decision of this court in Sri Ram Narain v. State of Bombay, 61 Bom LR 811 = (AIR 1959 SC 459 ) in which the constitutional validity of similar provisions contained in Section 32 of the Bombay Tenancy and Agricultural Lands Act had been upheld.7. The present appeal must fail. The provisions of the Maharashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the ground of contravention of Articles 19 and 31 of the Constitution. By the Constitution (Seventeenth Amendment) Act 1964, after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to the Constitution.Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1050 respectively. Article 31-B gives full protection to an Act and its provisions in the Schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Constitution. This would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary. The amending laws and, in particular, Hyderabad Act III of 1954 which inserted Section 38E would also be covered by the same protection because the parent Act, namely, the Hyderabad Act XXI of 1950 was included in the Ninth Schedule in the year 1964 which was long after enactment of the amending Act.8. In the above view of the matter no attempt was made on behalf of the appellants to raise the second question about the competency of the Legislature of the Maharashtra State to enact the Maharashtra Act with retrospective effect in respect of Parbhani District which became a part of the erstwhile Bombay State only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assumption that the Maharashtra Legislature could not have validly enacted retrospective legislation with regard to Parbhani District, the Hyderabad Act XXI of 1950 as amended by Act III of 1954 was in force at the time when the notification was made in May 1957 pursuant to which proceedings were taken which were challenged by the appellants.As regards the decision of the Andhra Pradesh High Court. AIR 1961 Andh Pra 528 (supra) by which the Hyderabad Act XXI of 1950 was struck down as not having received the assent of the President under Article 31 (3) the position taken up in the writ petition was that such assent had been given to it on April 8, 1958 and till then the said Act was not valid and operative. According to the judgment of the Andhra Pradesh High Court, Hyderabad Act XXI of 1950 had never been assented to by the President although it had received the assent of the Rajpramukh of the erswhile Hyderabad State. Now the question of lack of assent of the President was never pressed before the High Court, nor have we been invited to examine it.9. We would, however, like to observe that, as noticed before, when Hyderabad Amending Act III of 1954 was enacted the assent of the President was duly obtained. Similarly when Bombay Act XXXII of 1958 which was meant for amending Hyderabad Act XXI of 1950 was enacted the assent of the President had been given.If the assent of the President had been accorded to the amending Acts, it would be difficult to hold that the President had never assented to the parent Act, namely, Hyderabad Act XXI of 1950. Even if such assent had not been accorded earlier it must be taken to have been granted when Amending Act III of 1954 was assented to.10. ### Response: 0 ### Explanation: The present appeal must fail. The provisions of the Maharashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the ground of contravention of Articles 19 and 31 of the Constitution. By the Constitution (Seventeenth Amendment) Act 1964, after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to the Constitution.Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1050 respectively. Article 31-B gives full protection to an Act and its provisions in the Schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Constitution. This would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary. The amending laws and, in particular, Hyderabad Act III of 1954 which inserted Section 38E would also be covered by the same protection because the parent Act, namely, the Hyderabad Act XXI of 1950 was included in the Ninth Schedule in the year 1964 which was long after enactment of the amending Act.In the above view of the matter no attempt was made on behalf of the appellants to raise the second question about the competency of the Legislature of the Maharashtra State to enact the Maharashtra Act with retrospective effect in respect of Parbhani District which became a part of the erstwhile Bombay State only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assumption that the Maharashtra Legislature could not have validly enacted retrospective legislation with regard to Parbhani District, the Hyderabad Act XXI of 1950 as amended by Act III of 1954 was in force at the time when the notification was made in May 1957 pursuant to which proceedings were taken which were challenged by the appellants.As regards the decision of the Andhra Pradesh High Court. AIR 1961 Andh Pra 528 (supra) by which the Hyderabad Act XXI of 1950 was struck down as not having received the assent of the President under Article 31 (3) the position taken up in the writ petition was that such assent had been given to it on April 8, 1958 and till then the said Act was not valid and operative. According to the judgment of the Andhra Pradesh High Court, Hyderabad Act XXI of 1950 had never been assented to by the President although it had received the assent of the Rajpramukh of the erswhile Hyderabad State. Now the question of lack of assent of the President was never pressed before the High Court, nor have we been invited to examine it.We would, however, like to observe that, as noticed before, when Hyderabad Amending Act III of 1954 was enacted the assent of the President was duly obtained. Similarly when Bombay Act XXXII of 1958 which was meant for amending Hyderabad Act XXI of 1950 was enacted the assent of the President had been given.If the assent of the President had been accorded to the amending Acts, it would be difficult to hold that the President had never assented to the parent Act, namely, Hyderabad Act XXI of 1950. Even if such assent had not been accorded earlier it must be taken to have been granted when Amending Act III of 1954 was assented to.

RITU BHATIA Vs. MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS AND PUBLIC DISTRIBUTION

it appears and even it can be seen from the relevant appointment orders, and even as per the case of the appellant that she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointment ‘as’ a Company Secretary.7.3 The word ‘as’ used in the advertisement should be given a literal meaning. The respondent is the author of the advertisement and they are the best person to consider what they meant by using the word ‘as’. It is the specific case on behalf of the respondents that the intention behind the advertisement was that the applicant must have been appointed ‘as’ a Company Secretary in PSU/Company of repute and functioned as such for five years to be eligible for appointment. According to the respondent, the purpose was that the person should have held the position of a Company Secretary in a PSU/Company of repute and discharged the statutory functions as such i.e. should have held the position of responsibility. Therefore, when the word ‘as’ is specifically used, the same is to be considered strictly and therefore the experience of the appellant, while working as a ‘Management Trainee’ cannot be considered as an experience of working ‘as’ a Company Secretary and/or it cannot be said that she was appointed ‘as’ a Company Secretary. If the period during which the appellant had worked as a ‘Management Trainee’ is excluded, in that case, admittedly, the appellant would not be fulfilling the requisite eligibility criteria of having been appointed ‘as’ a Company Secretary in a PSU/Company of repute. It cannot be said that the appellant had, while working as a ‘Management Trainee’, functioned ‘as’ a ‘Company Secretary.7.4 If submission on behalf of the appellant is accepted that by performing duties as ‘Management Trainee’ she was also performing some duties as ‘Company Secretary’ and therefore she can be said to have fulfilled the eligibility criteria of having been appointed ‘as’ a Company Secretary, in that case, it would be against the intent. If the intention was such, in that case, the wording in the advertisement should have been that the candidate should have the experience of the similar nature of work as “Company Secretary”. In the advertisement, it has been specifically and categorically stated that a candidate shall have post qualification experience of five years ‘as’ Company Secretary. The word used “experience as Company Secretary” has to be given meaning that a candidate must have been appointed ‘as’ a Company Secretary and shall have actually worked ‘as’ a Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. As observed hereinabove, the appellant has no experience of five years ‘as’ Company Secretary, as she was appointed and/or worked as ‘Management Trainee’ or ‘Assistant Company Secretary’.7.5 Now, so far as the reliance placed upon the decision of this Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel appearing on behalf of the appellant is concerned, on considering the facts of the case before this Court, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. The facts before this Court in the aforesaid decision are distinguishable. In the aforesaid decision, the appellant was appointed to the Specialists’ Grade in substantive capacity as Radiologist in Irwin Hospital, Delhi which was a teaching hospital. He was considered as an Associate Professor of Radiology (ex officio) both by the Delhi University as well as by the Maulana Azad Medical College, Delhi to which Irwin Hospital was affiliated. He was not considered for the regular appointment to the post of Associate Professor of Radiotherapy in that college on the ground that his teaching experience as ex officio Associate Professor was not to be counted. Rule 8(2¬A) of the Central Health Service Rules was under consideration by this Court which provided that a candidate shall have the teaching experience as an Associate Professor. The appellant was having the experience as an Associate Professor of Radiology (Ex¬officio) and therefore it was the case on behalf of the Union of India that he was not having the teaching experience as Associate Professor as he worked as an Associate Professor of Radiology (ex¬officio). To that, this Court observed and held that the provisions contained in Rule 8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules must be interpreted in a broad and liberal sense so as to avoid any injustice to person in specialists’ Grade like the appellant. This Court observed that the Rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital as an Associate Professor (ex officio) shall not be counted towards the requisite teaching experience. This Court further observed that there is hardly any difference so far as the teaching experience is concerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex officio designation. It was thereafter further observed that the word ‘as’ in the collocation of the words used “at least six years’ experience as Associate Professor/Assistant Professor/Reader” and of the words “at least five years’ experience as Reader/Assistant Professor” in the relevant Rules must be interpreted in its ordinary sense as meaning teaching experience gained “in the capacity of”.7.6 In the present case, the word ‘as’ and the words ‘experience as Company Secretary’ used in the advertisement are very clear and as observed hereinabove it means the candidate ought to be appointed and worked as such ‘as’ a Company Secretary. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.

0[ds]7.1 From the material on record, more particularly the application submitted by the appellant and the supporting self¬ attested documents and the certificates, it appears that according to the appellant she was having seven years and three months post qualification experience. The same is reproduced and considered by the High Court in para 3 of the impugned judgment and order.7.2 Considering the above, it appears and even it can be seen from the relevant appointment orders, and even as per the case of the appellant that she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointmenta Company Secretary.7.3 The wordused in the advertisement should be given a literal meaning. The respondent is the author of the advertisement and they are the best person to consider what they meant by using the wordIt is the specific case on behalf of the respondents that the intention behind the advertisement was that the applicant must have been appointeda Company Secretary in PSU/Company of repute and functioned as such for five yearsto be eligible for appointment. According to the respondent, the purpose was that the person should have held the position of a Company Secretary in a PSU/Company of repute and discharged the statutory functions as such i.e. should have held the position of responsibility. Therefore, when the wordis specifically used, the same is to be considered strictly and therefore the experience of the appellant, while working as a ‘Managementcannot be considered as an experience of workinga Company Secretary and/or it cannot be said that she was appointeda Company Secretary. If the period during which the appellant had worked as a ‘Managementis excluded, in that case, admittedly, the appellant would not be fulfilling the requisite eligibility criteria of having been appointeda Company Secretary in a PSU/Company of repute. It cannot be said that the appellant had, while working as a ‘Managementa ‘Company Secretary.7.4 If submission on behalf of the appellant is accepted that by performing duties as ‘Managementshe was also performing some duties as ‘Companyand therefore she can be said to have fulfilled the eligibility criteria of having been appointeda Company Secretary, in that case, it would be against the intent. If the intention was such, in that case, the wording in the advertisement should have been that the candidate should have the experience of the similar nature of work as. In the advertisement, it has been specifically and categorically stated that a candidate shall have post qualification experience of five yearsCompany Secretary. The word usedhas to be given meaning that a candidate must have been appointeda Company Secretary and shall have actually workeda Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. As observed hereinabove, the appellant has no experience of five yearsCompany Secretary, as she was appointed and/or worked as ‘Managementor ‘Assistant CompanyNow, so far as the reliance placed upon the decision of this Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel appearing on behalf of the appellant is concerned, on considering the facts of the case before this Court, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. The facts before this Court in the aforesaid decision are distinguishable. In the aforesaid decision, the appellant was appointed to theGrade in substantive capacity as Radiologist in Irwin Hospital, Delhi which was a teaching hospital. He was considered as an Associate Professor of Radiology (ex officio) both by the Delhi University as well as by the Maulana Azad Medical College, Delhi to which Irwin Hospital was affiliated. He was not considered for the regular appointment to the post of Associate Professor of Radiotherapy in that college on the ground that his teaching experience as ex officio Associate Professor was not to be counted. Rule 8(2¬A) of the Central Health Service Rules was under consideration by this Court which provided that a candidate shall have the teaching experience as an Associate Professor. The appellant was having the experience as an Associate Professor of Radiology (Ex¬officio) and therefore it was the case on behalf of the Union of India that he was not having the teaching experience as Associate Professor as he worked as an Associate Professor of Radiology (ex¬officio). To that, this Court observed and held that the provisions contained in Rule 8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules must be interpreted in a broad and liberal sense so as to avoid any injustice to person inGrade like the appellant. This Court observed that the Rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital as an Associate Professor (ex officio) shall not be counted towards the requisite teaching experience. This Court further observed that there is hardly any difference so far as the teaching experience is concerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex officio designation. It was thereafter further observed that the wordin the collocation of the words usedexperience as Associate Professor/Assistantand of the wordsexperience as Reader/Assistantin the relevant Rulesmust be interpreted in its ordinary sense as meaning teaching experience gained7.6 In the present case, the wordand the words‘experience as Companyused in the advertisement are very clear and as observed hereinabove it means the candidate ought to be appointed and worked as sucha Company Secretary. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.

### 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 appears and even it can be seen from the relevant appointment orders, and even as per the case of the appellant that she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointment ‘as’ a Company Secretary.7.3 The word ‘as’ used in the advertisement should be given a literal meaning. The respondent is the author of the advertisement and they are the best person to consider what they meant by using the word ‘as’. It is the specific case on behalf of the respondents that the intention behind the advertisement was that the applicant must have been appointed ‘as’ a Company Secretary in PSU/Company of repute and functioned as such for five years to be eligible for appointment. According to the respondent, the purpose was that the person should have held the position of a Company Secretary in a PSU/Company of repute and discharged the statutory functions as such i.e. should have held the position of responsibility. Therefore, when the word ‘as’ is specifically used, the same is to be considered strictly and therefore the experience of the appellant, while working as a ‘Management Trainee’ cannot be considered as an experience of working ‘as’ a Company Secretary and/or it cannot be said that she was appointed ‘as’ a Company Secretary. If the period during which the appellant had worked as a ‘Management Trainee’ is excluded, in that case, admittedly, the appellant would not be fulfilling the requisite eligibility criteria of having been appointed ‘as’ a Company Secretary in a PSU/Company of repute. It cannot be said that the appellant had, while working as a ‘Management Trainee’, functioned ‘as’ a ‘Company Secretary.7.4 If submission on behalf of the appellant is accepted that by performing duties as ‘Management Trainee’ she was also performing some duties as ‘Company Secretary’ and therefore she can be said to have fulfilled the eligibility criteria of having been appointed ‘as’ a Company Secretary, in that case, it would be against the intent. If the intention was such, in that case, the wording in the advertisement should have been that the candidate should have the experience of the similar nature of work as “Company Secretary”. In the advertisement, it has been specifically and categorically stated that a candidate shall have post qualification experience of five years ‘as’ Company Secretary. The word used “experience as Company Secretary” has to be given meaning that a candidate must have been appointed ‘as’ a Company Secretary and shall have actually worked ‘as’ a Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. As observed hereinabove, the appellant has no experience of five years ‘as’ Company Secretary, as she was appointed and/or worked as ‘Management Trainee’ or ‘Assistant Company Secretary’.7.5 Now, so far as the reliance placed upon the decision of this Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel appearing on behalf of the appellant is concerned, on considering the facts of the case before this Court, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. The facts before this Court in the aforesaid decision are distinguishable. In the aforesaid decision, the appellant was appointed to the Specialists’ Grade in substantive capacity as Radiologist in Irwin Hospital, Delhi which was a teaching hospital. He was considered as an Associate Professor of Radiology (ex officio) both by the Delhi University as well as by the Maulana Azad Medical College, Delhi to which Irwin Hospital was affiliated. He was not considered for the regular appointment to the post of Associate Professor of Radiotherapy in that college on the ground that his teaching experience as ex officio Associate Professor was not to be counted. Rule 8(2¬A) of the Central Health Service Rules was under consideration by this Court which provided that a candidate shall have the teaching experience as an Associate Professor. The appellant was having the experience as an Associate Professor of Radiology (Ex¬officio) and therefore it was the case on behalf of the Union of India that he was not having the teaching experience as Associate Professor as he worked as an Associate Professor of Radiology (ex¬officio). To that, this Court observed and held that the provisions contained in Rule 8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules must be interpreted in a broad and liberal sense so as to avoid any injustice to person in specialists’ Grade like the appellant. This Court observed that the Rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital as an Associate Professor (ex officio) shall not be counted towards the requisite teaching experience. This Court further observed that there is hardly any difference so far as the teaching experience is concerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex officio designation. It was thereafter further observed that the word ‘as’ in the collocation of the words used “at least six years’ experience as Associate Professor/Assistant Professor/Reader” and of the words “at least five years’ experience as Reader/Assistant Professor” in the relevant Rules must be interpreted in its ordinary sense as meaning teaching experience gained “in the capacity of”.7.6 In the present case, the word ‘as’ and the words ‘experience as Company Secretary’ used in the advertisement are very clear and as observed hereinabove it means the candidate ought to be appointed and worked as such ‘as’ a Company Secretary. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand. ### Response: 0 ### Explanation: 7.1 From the material on record, more particularly the application submitted by the appellant and the supporting self¬ attested documents and the certificates, it appears that according to the appellant she was having seven years and three months post qualification experience. The same is reproduced and considered by the High Court in para 3 of the impugned judgment and order.7.2 Considering the above, it appears and even it can be seen from the relevant appointment orders, and even as per the case of the appellant that she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointmenta Company Secretary.7.3 The wordused in the advertisement should be given a literal meaning. The respondent is the author of the advertisement and they are the best person to consider what they meant by using the wordIt is the specific case on behalf of the respondents that the intention behind the advertisement was that the applicant must have been appointeda Company Secretary in PSU/Company of repute and functioned as such for five yearsto be eligible for appointment. According to the respondent, the purpose was that the person should have held the position of a Company Secretary in a PSU/Company of repute and discharged the statutory functions as such i.e. should have held the position of responsibility. Therefore, when the wordis specifically used, the same is to be considered strictly and therefore the experience of the appellant, while working as a ‘Managementcannot be considered as an experience of workinga Company Secretary and/or it cannot be said that she was appointeda Company Secretary. If the period during which the appellant had worked as a ‘Managementis excluded, in that case, admittedly, the appellant would not be fulfilling the requisite eligibility criteria of having been appointeda Company Secretary in a PSU/Company of repute. It cannot be said that the appellant had, while working as a ‘Managementa ‘Company Secretary.7.4 If submission on behalf of the appellant is accepted that by performing duties as ‘Managementshe was also performing some duties as ‘Companyand therefore she can be said to have fulfilled the eligibility criteria of having been appointeda Company Secretary, in that case, it would be against the intent. If the intention was such, in that case, the wording in the advertisement should have been that the candidate should have the experience of the similar nature of work as. In the advertisement, it has been specifically and categorically stated that a candidate shall have post qualification experience of five yearsCompany Secretary. The word usedhas to be given meaning that a candidate must have been appointeda Company Secretary and shall have actually workeda Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. As observed hereinabove, the appellant has no experience of five yearsCompany Secretary, as she was appointed and/or worked as ‘Managementor ‘Assistant CompanyNow, so far as the reliance placed upon the decision of this Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel appearing on behalf of the appellant is concerned, on considering the facts of the case before this Court, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. The facts before this Court in the aforesaid decision are distinguishable. In the aforesaid decision, the appellant was appointed to theGrade in substantive capacity as Radiologist in Irwin Hospital, Delhi which was a teaching hospital. He was considered as an Associate Professor of Radiology (ex officio) both by the Delhi University as well as by the Maulana Azad Medical College, Delhi to which Irwin Hospital was affiliated. He was not considered for the regular appointment to the post of Associate Professor of Radiotherapy in that college on the ground that his teaching experience as ex officio Associate Professor was not to be counted. Rule 8(2¬A) of the Central Health Service Rules was under consideration by this Court which provided that a candidate shall have the teaching experience as an Associate Professor. The appellant was having the experience as an Associate Professor of Radiology (Ex¬officio) and therefore it was the case on behalf of the Union of India that he was not having the teaching experience as Associate Professor as he worked as an Associate Professor of Radiology (ex¬officio). To that, this Court observed and held that the provisions contained in Rule 8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules must be interpreted in a broad and liberal sense so as to avoid any injustice to person inGrade like the appellant. This Court observed that the Rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital as an Associate Professor (ex officio) shall not be counted towards the requisite teaching experience. This Court further observed that there is hardly any difference so far as the teaching experience is concerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex officio designation. It was thereafter further observed that the wordin the collocation of the words usedexperience as Associate Professor/Assistantand of the wordsexperience as Reader/Assistantin the relevant Rulesmust be interpreted in its ordinary sense as meaning teaching experience gained7.6 In the present case, the wordand the words‘experience as Companyused in the advertisement are very clear and as observed hereinabove it means the candidate ought to be appointed and worked as sucha Company Secretary. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.

Shivasharanappa Vs. Sri Amarappa & Others

1. We have heard learned counsel for the parties.2. This appeal by special leave petition arises out of a common judgment passed by the High Court of Karnataka in R.S.A. Nos. 725 and 726 of 2001, dated 18th January, 2006 whereby the High Court dismissed RSA No. 725 of 2001 and partly allowed RSA No. 726 of 2001.3. The whole dispute revolves around one acre of non-agriculture land allegedly purchased by the appellant-plaintiff from one Sharabanna Wanikihal, father of respondent/defendant Nos. 1-4 and husband of respondent No. 5, by way of a registered sale deed dated 23-02-1987 for a consideration of Rs. 15,000/-. When the defendants/ respondents were allegedly interfering with the peaceful possession and enjoyment of the property, the appellant filed O.S. No. 17 of 1994 seeking perpetual injunction in respect of the suit schedule property. On the other hand, respondent No.1 herein filed O.S. No. 72 of 1995 seeking declaration that the sale deed dated 23-02-1987 is null and void.4. The trial Court though decreed the Suit filed by the appellant for permanent injunction by restraining the respondents from interfering with the peaceful possession and enjoyment of the suit schedule property, the first appellate Court reversed the finding by allowing the appeal mainly on the basis of the earlier judgment in the suit filed by the respondent for declaration. Aggrieved by the judgment and decree passed by the 1st appellate Court the appellant carried the matter in second appeal in RSA No. 725/2001. Whereas, O.S. No. 72 of 1995 was preferred by the defendant/Respondent No. 1 for annulment of the sale deed which was dismissed by the trial Court, but the 1st appellate Court allowed the appeal thereby declaring the sale deed dated 23-02-1987 as null and void. Aggrieved thereby, the appellant-purchaser carried the matter by filing regular second appeals before the High Court. The High Court heard both appeals of the appellant and by way of common judgment dismissed RSA No. 725 of 2001 arising out of the injunction suit and partly allowed RSA No. 726 of 2001 by directing return of property subject to refund of the sale consideration. Dissatisfied with the judgment of the High Court, the purchaser of the land is before us in this appeal.5. Learned counsel for the appellant argued that his client has purchased the land for a valid consideration by way of a registered sale deed which was lawfully executed and the view taken by the High Court that there was no proof of legal necessity is baseless. The legal necessity can be inferred from the fact that other pieces of land have also been sold by the father of respondents to other persons.6. Learned Senior counsel appearing for the respondents submitted that there was no substantial question of law in this appeal for determination by this Court. He contended that the sale deed in question was got registered in a fraudulent manner and the appellant has failed to prove the execution of sale deed inasmuch as PW2--Mallikarjun in O.S. No. 72 of 1995 has categorically denied to have attested the sale deed as witness. Moreover, there was no evidence to reflect existence of legal necessity in support of the alleged sale deed and the father of respondents had not sold any piece of land to any person.7. We have given our thoughtful consideration to the submissions made on behalf of either parties and perused the material available on record. First and foremost, the appellant fails to draw our attention to the substantial question of law which warrants interference of this Court. In respect of joint family properties when the property is sold by the kartha of the joint family defeating the interest of the plaintiff/respondent the burden heavily lies on the appellant to prove that property was sold for the necessity of joint family. In this case, the appellant failed to discharge his burden when admittedly it is a joint family property. Apart from that even the attester of the sale deed has not supported the appellant and he has gone to the extent of deposing that he has never gone to the Registrars office. Hence the High Court was perfectly right in partly decreeing the suit by directing the plaintiff to return the sale consideration as he could not prove fraud as alleged by him.8. Considering the facts and circumstances of the case in their entirety, we are of the considered opinion that the High Court has rightly dealt with the matter.

0[ds]7. We have given our thoughtful consideration to the submissions made on behalf of either parties and perused the material available on record. First and foremost, the appellant fails to draw our attention to the substantial question of law which warrants interference of this Court. In respect of joint family properties when the property is sold by the kartha of the joint family defeating the interest of the plaintiff/respondent the burden heavily lies on the appellant to prove that property was sold for the necessity of joint family. In this case, the appellant failed to discharge his burden when admittedly it is a joint family property. Apart from that even the attester of the sale deed has not supported the appellant and he has gone to the extent of deposing that he has never gone to the Registrars office. Hence the High Court was perfectly right in partly decreeing the suit by directing the plaintiff to return the sale consideration as he could not prove fraud as alleged by him.8. Considering the facts and circumstances of the case in their entirety, we are of the considered opinion that the High Court has rightly dealt with the matter.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: 1. We have heard learned counsel for the parties.2. This appeal by special leave petition arises out of a common judgment passed by the High Court of Karnataka in R.S.A. Nos. 725 and 726 of 2001, dated 18th January, 2006 whereby the High Court dismissed RSA No. 725 of 2001 and partly allowed RSA No. 726 of 2001.3. The whole dispute revolves around one acre of non-agriculture land allegedly purchased by the appellant-plaintiff from one Sharabanna Wanikihal, father of respondent/defendant Nos. 1-4 and husband of respondent No. 5, by way of a registered sale deed dated 23-02-1987 for a consideration of Rs. 15,000/-. When the defendants/ respondents were allegedly interfering with the peaceful possession and enjoyment of the property, the appellant filed O.S. No. 17 of 1994 seeking perpetual injunction in respect of the suit schedule property. On the other hand, respondent No.1 herein filed O.S. No. 72 of 1995 seeking declaration that the sale deed dated 23-02-1987 is null and void.4. The trial Court though decreed the Suit filed by the appellant for permanent injunction by restraining the respondents from interfering with the peaceful possession and enjoyment of the suit schedule property, the first appellate Court reversed the finding by allowing the appeal mainly on the basis of the earlier judgment in the suit filed by the respondent for declaration. Aggrieved by the judgment and decree passed by the 1st appellate Court the appellant carried the matter in second appeal in RSA No. 725/2001. Whereas, O.S. No. 72 of 1995 was preferred by the defendant/Respondent No. 1 for annulment of the sale deed which was dismissed by the trial Court, but the 1st appellate Court allowed the appeal thereby declaring the sale deed dated 23-02-1987 as null and void. Aggrieved thereby, the appellant-purchaser carried the matter by filing regular second appeals before the High Court. The High Court heard both appeals of the appellant and by way of common judgment dismissed RSA No. 725 of 2001 arising out of the injunction suit and partly allowed RSA No. 726 of 2001 by directing return of property subject to refund of the sale consideration. Dissatisfied with the judgment of the High Court, the purchaser of the land is before us in this appeal.5. Learned counsel for the appellant argued that his client has purchased the land for a valid consideration by way of a registered sale deed which was lawfully executed and the view taken by the High Court that there was no proof of legal necessity is baseless. The legal necessity can be inferred from the fact that other pieces of land have also been sold by the father of respondents to other persons.6. Learned Senior counsel appearing for the respondents submitted that there was no substantial question of law in this appeal for determination by this Court. He contended that the sale deed in question was got registered in a fraudulent manner and the appellant has failed to prove the execution of sale deed inasmuch as PW2--Mallikarjun in O.S. No. 72 of 1995 has categorically denied to have attested the sale deed as witness. Moreover, there was no evidence to reflect existence of legal necessity in support of the alleged sale deed and the father of respondents had not sold any piece of land to any person.7. We have given our thoughtful consideration to the submissions made on behalf of either parties and perused the material available on record. First and foremost, the appellant fails to draw our attention to the substantial question of law which warrants interference of this Court. In respect of joint family properties when the property is sold by the kartha of the joint family defeating the interest of the plaintiff/respondent the burden heavily lies on the appellant to prove that property was sold for the necessity of joint family. In this case, the appellant failed to discharge his burden when admittedly it is a joint family property. Apart from that even the attester of the sale deed has not supported the appellant and he has gone to the extent of deposing that he has never gone to the Registrars office. Hence the High Court was perfectly right in partly decreeing the suit by directing the plaintiff to return the sale consideration as he could not prove fraud as alleged by him.8. Considering the facts and circumstances of the case in their entirety, we are of the considered opinion that the High Court has rightly dealt with the matter. ### Response: 0 ### Explanation: 7. We have given our thoughtful consideration to the submissions made on behalf of either parties and perused the material available on record. First and foremost, the appellant fails to draw our attention to the substantial question of law which warrants interference of this Court. In respect of joint family properties when the property is sold by the kartha of the joint family defeating the interest of the plaintiff/respondent the burden heavily lies on the appellant to prove that property was sold for the necessity of joint family. In this case, the appellant failed to discharge his burden when admittedly it is a joint family property. Apart from that even the attester of the sale deed has not supported the appellant and he has gone to the extent of deposing that he has never gone to the Registrars office. Hence the High Court was perfectly right in partly decreeing the suit by directing the plaintiff to return the sale consideration as he could not prove fraud as alleged by him.8. Considering the facts and circumstances of the case in their entirety, we are of the considered opinion that the High Court has rightly dealt with the matter.

UNION OF INDIA & OTHERS Vs. BHARAT FORGE LTD. & ANOTHER

out wherein the HSN code is indicated, they are tenders issued by the other units of the Indian Railways. Since the first appellant is the Union of India, we would expect that if it is otherwise permissible to sustain the impugned judgment, it may not be fair to not have a uniform policy in the matter of award of largesse by the various units under it. However, the appellants do point out that even in the tenders which have been brought out, the HSN Code mentioned in the tender is shown as indicative only. It has been provided in the tenders relied upon by the writ petitioner that it will be the responsibility of the bidder to quote the correct HSN Code and the corresponding GST rate while submitting the offer. We may notice the relevant clause: A. 1. HSN number mentioned in tender 8504 is indicative only. It will be responsibility of the bidders to quote correct HSN number and corresponding GST rate while submitting offer. 2. Even if bidders quote different GST rates in offers, the offers shall be evaluated by IREP3 system based on the GST rate as quoted by each bidder and same will be used for determining the inter se ranking. Bidders may note that I. It shall be the responsibility of the bidder to ensure that they quote correct GST code and HSN number. II. Purchaser shall not be responsible for any misclassification of HSN number or incorrect GST rate if quoted by the bidder. III. Wherever the successful bidder invoices the goods GST rate of HSN number which is different from that incorporated in the purchase order, payment shall be made as per GST rate which is lower of the GST rate incorporated in the purchase order or billed. IV. Any amendment to GST rate or HSN number in the contract shall be as per the contractual conditions and statutory amendments in the quoted GST rate and HSN number, under SVC. B. Are you eligible for availing benefits and preferential treatment extended to Micro and Small Enterprises (MSEs). If so, the necessary documents as per special conditions for MSEs for claiming benefits and preferential treatment extended to MSEs to be attached. C. In case the successful tenderer is not liable to be registered under CGST/ IGST/ UTGST/ SGST Act, the railway shall deduct the applicable GST from his/their bills under Reverse Charge Mechanism (RCM) and deposit the same to the concerned tax authority. D. Performance statement of orders received and supplies made for last three years for subject item is must for all tenderers including approved sources. 59. Having regard to the terms, we cannot cull out a public duty to provide for the correct HSN code. Therefore, we cannot support the impugned judgment based on the issuance of tenders as contended. REVERSE CHARGE MECHANISM 60. We have noticed that the appellants have contended that the liability to pay the GST, an indirect tax, lies with supplier of goods and services. The exception which is admitted by the appellants is in cases covered under Section 9(3) of the GST Act which provides for reverse charge mechanism. Under the reverse charge mechanism, the liability to pay tax is on the recipient of the goods or services or both. This would indeed mean that if the appellants are in the shoes of persons who become liable as recipients of goods and services or both under Section 9(3), then it will be the liability of the appellants to pay such tax. Strictly speaking this question does not appear to arise on the facts. At any rate, we do not see how the writ petitioner can advance its case on the basis of this aspect as it is essentially the look out of the appellants. We must not be oblivious to the fact that the complaint of the appellant is the denial of a level playing field among the tenderers. It is obvious that the appellants as purchasers of the goods and services are obliged to purchase the goods and services which are otherwise compliant with the tender conditions at the cheapest rate. In a case where it is liable under revere charge mechanism, it would be the look out of the appellant in public interest to ensure that it will end up purchasing goods at the cheapest rate possible. It is elementary that even the lowest bidder would not have right to have his bid accepted and is always open to the appellants in public interest and in accordance with the tender condition to reject even the lowest bid. No doubt if the tax rate in such a case is separately insisted upon, then on the rate acceptable to the appellants, the gross outflow can be calculated consisting the amount to be paid to the successful tenderer and the amount to be remitted to the revenue. In this regard, we notice from the tender condition relied upon by the writ petitioner which we have extracted at paragraph 58, what is contemplated is that the amount would be deducted at the applicable GST rate from the bill under the Reverse Charge Mechanism and deposited with the concerned tax authority. If under the terms of the tender, what is contemplated is that, in a case where the tax component is not included or it is included at a lower rate, the appellants are entitled to deduct the actual rate of tax as payable by it under the Reverse Charge Mechanism and the tender of such a person is accepted being the lowest tender, then there can be no question of public interest being prejudiced. If on the other hand, the tax rate is included and the clause provides for deduction of the actual rate from the bill, then also public interest may not be affected. This is all the more reason for the tenderer specifically including the tax component indicating the correct rate of tax. This is a matter where the first appellant can consider giving appropriate instructions.

1[ds]We would think that this is not a matter which is res integra. As early as in Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another (1986) 2 SCC 679, a Bench of three learned Judges of this Court had this to say:18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission—both with respec t to the order of the Division Bench and the purpose and scope of the writ of mandam us. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in th e exercise of its jurisdiction under Articl e 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authori ty, including in appropriate cases, any gov ernment, throughout the territories in rela tion to which it exercises jurisdiction, directions, orders, or writs including writ s in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Righ ts conferred by Part III of the Constitutio n or for any other purpose. In Dwarkanath v. ITO [AIR 1966 SC 81 : (1965) 3 SCR 536 , 54 0] this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts to reach injustice wherever it is found and to mould the reliefs to meet the peculiar and complicated requirements of this country. In Hochtief Gammon v. Sta te of Orissa [(1975) 2 SCC 649 : 1975 SCC (L&S) 362 : AIR 1975 SC 2226 : (1976) 1 SCR 667 , 676] this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers.20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.16. Three years thereafter, in the decision reported in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others (1989) 2 SCC 691, while dealing with the word authority, used in Article 226 and also dealing with the issue as to whether Mandamus will lie even if the duty is not imposed under a Statute, this court held as follows:20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Arti cle 12 is relevant only for the purpose of enforcement of fundamental rights under Art icle 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fu ndamental rights. The words any person or authority used in Article 226 are, therefo re, not to be confined only to statutory au thorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the bod y concerned is not very much relevant. What is relevant is the nature of the duty impos ed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected par ty. No matter by what means the duty is imposed, if a positive obligation exists ma ndamus cannot be denied.22. Here again we may point out that mand amus cannot be denied on the ground that th e duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. [ Judicial Revi ew of Administrative Action, 4th Edn., p. 5 40] We share this view. The judicial contro l over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirem ents of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the cont ention urged for the appellants on the main tainability of the writ petition.19. Having cleared the air with regard to the jurisdiction of the High Court in the matter of a Writ of Mandamus or a direction in the nature thereof, we may proceed next to the law relating to the ambit of the Courts jurisdiction in judicial review in contractual matters. It is, undoubtedly, too late in the day to countenance the contention that the mandate of fairness in State action does not extend to the realm of contract entered into by the State. We would not burden our judgment chronicling the catena of decisions, which have expounded the law in this regard. We deem it sufficient if we refer to the judgment of this Court in Reliance Telecom Ltd. and another v. Union of India and another (2017) 4 SCC 269 . After an exhaustive survey of case law, this Court, inter alia, held as follows:42. In Global Energy Ltd. v. Adani Exports Ltd. [Global Energy Ltd. v. Adani Exports Ltd., (2005) 4 SCC 435] , this Court reiterated the principles that: (SCC p. 441, para 10)10. … the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice.44. In Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216] , the Court, after referring to Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] and Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa [Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464] , expressed the view that (at SCC p. 229, para 23) the basic requirement of Article 14 is fairness in action by the State, and non- arbitrariness in essence and substance is the heartbeat of fair play and actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose and if the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities. It further observed that fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers and greater latitude is required to be conceded to the State authorities in the matter of formulating conditions of a tender document and awarding a contract. The Court also laid emphasis on public interest and the prudence in applying the principle of restraint where the action is fair and reasonable and does not smack of mala fides. It was also emphasised that the courts cannot interfere with the terms of the tender prescribed by the Government simply because it feels that some other terms in the tender would have been fair, wiser or logical.20. This Court also laid down paragraph 46 as follows:46. In Census Commr. v. R. Krishnamurthy [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] , a three-Judge Bench of this Court, after noting several decisions, held that (SCC p. 809, para 33) it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved and the courts can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded on ipse dixit offending the basic requirement of Article 14 of the Constitution. It further observed that in certain matters, as often said, there can be opinions but the court is not expected to sit as an appellate authority on an opinion.21. We must also bear in mind the judgment which is relied upon by the High Court in the impugned Judgment. The High Court has drawn support from the Judgment of this Court in Reliance Energy Ltd. and another v. Maharashtra State Road Development Corpn. Ltd. and others (2007) 8 SCC 1 :36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of non-discrimination. However, it is not a free-standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to right to life. It includes opportunity. In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of T.N. [(2007) 2 SCC 1] , Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. Level playing field is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of level playing field. We may clarify that this doctrine is, however, subject to public interest. In the world of globalisation, competition is an important factor to be kept in mind. The doctrine of level playing field is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. Globalisation, in essence, is liberalisation of trade. Today India has dismantled licence raj. The economic reforms introduced after 1992 have brought in the concept of globalisation. Decisions or acts which result in unequal a nd discriminatory treatment, would violate the doctrine of level playing field embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of equality should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of level playing field. According to Lord Goldsmith, commitment to the rule of law is the heart of parliamentary democracy. On e of the important elements of the rule of law is legal certainty. Article 14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of reasonableness, then such an act or decision would be unconstitutional.38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This legal certainty is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of level playing field.22. It becomes, however, necessary to notice the context in the said case, which persuaded the Court to make the aforesaid observations. The case involved a global tender floated to award a contract, which was to be done by effecting selection in two stages. The relevant clause in the tender document, inter alia, contemplated the fulfilment of certain financial requirements. We may refer to the following discussion, which gives the factual context:50. Taking into account the above principles, it is clear that there are two methods of cash flow reporting i.e., direct and indirect. Both give identical results in the matter of the final total. They differ only in presentation of the data. They differ only in presentation of the data contained in the cash flows from operational activities. No reason has been given by the consultants of MSRDC for rejecting the indirect method invoked by KPMG, chartered accountants of REL/HDEC in their letter dated 12-8-2005. The said method is known as reconciliation method.23. The observations made by the Court, undoubtedly, draw inspiration from factual matrix essentially involved in the culling out of the principle of level playing field, which was found to be impaired on the basis of a lack of legal certainty, as found established by the material available on record. In the course of observations in paragraph-36, this Court held that Article 19(1)(g) confers a Fundamental Right to carry on a business to a company. We would accept it, subject to the caveat that Article 19 confers a right on the citizens, who are natural persons. However, we take it that, what the Court had in mind was, a situation where the company is in the party along with one or more shareholders, who are citizens of India. However, there can be no quarrel with the position at law, having regard to the undeniable and breath-taking advances made by the Courts, drawing inspiration from Article 14 that equals must be treated equally and more importantly, the other facet of Article 14, viz., that all actions of State must be fair, which constitutes the major plank of attack against State action in the arena of contracts. This again is subject to the self- restraint in matters, the scope of which has been dealt with in regard to various aspects of the matter, starting with cases relating to challenge to the very terms of the tender and culminating in the actual award of the contract. Unless such actions are found to be clearly arbitrary, illegal, malafide or contrary to any Statute, the courts would be loathe to fetter even the limited area of freedom of the State has to take decisions which are fair in cases relating to contractual matters.31. The High Court, in the impugned Judgment, has correctly noticed the contours of the jurisdiction of courts in the realm of judicial review of action of State in matters relating to contracts. It is correctly found that the Court cannot examine the details of the terms of the contract. The Judgment is apparently entirely premised on the observations made by this Court in Reliance Energy Ltd. (supra). It has proceeded to support its intervention in the Writ Petition, placing reliance on paragraphs 36 and 38 which we have already referred to above. Thereafter it poses the question, as to whether the classification of the HSN Code is integral to the tendering process and answers it by holding that it is integral and then founds its interference in the manner done by finding that fair competition or level playing field would be denied to each bidder as someone may bag the tender by quoting the lesser rate of GST, creating a substantial difference in the total price. Undoubtedly, selection is based on aggregating the base price with the tax (GST). If there is lack of clarity, each bidder would be in a position to take a shot at the tender by understating the value of the tax.32. We are of the view that in the facts of the case, the High Court has erred. The Court was dealing with a matter pursuant to the NIT dated 11.04.2019. The tenderers including the writ petitioner, participated in the tender and quoted their rates. We cannot be oblivious to the averments in the writ petition that even previously the same issue had arisen for the procurement of the identical product. The bids were opened on 23.11.2018, wherein, some other bidders quoted at the rate of 5 per cent as the tax liability. The writ petitioner had according to it, has written letter dated 07.12.2018, pointing out that the product fell under Chapter 84 and even the appellants had imported the same product under HSN Code 84148090 attracting GST at the rate of 18 per cent. It also drew inspiration from a letter from the Ministry of Finance, Department of Revenue, dated 30.04.2018, being Circular No.30/4/2018GST, wherein, it was stated that the Council took certain decisions. It also referred to customs invoice dated 21.03.2017, showing import of the product with GST rate being show at 18 per cent. There is also reference to a letter dated 04.06.2018, written by the writ petitioner to the Executive Director of Public Grievance, Ministry of Railways. Therefore, the writ petitioner must be treated as aware of the consequences that would flow from the effect of the terms of the Notification. We, however, notice that the writ petitioner went ahead and made its bid pursuant to the NIT dated 11.04.2017. The case of the writ petitioner, admittedly is, that the appellants opened the tender and made a tabulated statement and found that the writ petitioner would stand ranked at L4.36. What is involved before the Court is not a direct challenge to the terms of the tender. The writ petitioner did not choose to challenge the terms of the NIT dated 09.04.2019 despite admitted understanding of the working of similar tender notification leading to some of the bidders showing the GST rate at 5 per cent and even writing about it. The writ petitioner chose to participate in it and filed its bid, showing the tax rate at 18 per cent. The entities, which were shown as entitled to rank as L1 to L3, have shown the tax GST liability as 5 per cent on the product. It is thereafter that the Writ Petition was filed seeking the reliefs, we have already noticed.37. The appellants stand in the shoes of a purchaser of goods and services. By the global tender floated by the appellants, the appellants called for e-tenders from intending suppliers of the goods. The terms of the tender were well-known to the tenderers. Under Clause 2.7.6, undoubtedly, the bidders and the tenderers, while quoting the rates, were to clearly indicate the rate of applicable duties and taxes included in the price quoted by them. Let us pause for a moment and analyse its true meaning. Under the said Clause, the bidders were to quote the rate of applicable duties and taxes, which were included in the price quoted by them. This Clause must be read in conjunction with Clause 2.8.6, which provides that the purchaser (appellants) will not be responsible for the payment of taxes and duties paid by the supplier, on the basis of the misclassification or a misapprehension of law. This would mean that the appellants as purchaser was making it clear that it will have no liability to shoulder, in the payment of tax if it is found that, while indicating the rate of applicable duty or tax by the tenderer, it has wrongly quoted a rate which is lower than the rate, which it was liable to pay in law. The quoting of the rate, in other words, by the tenderer, within the meaning of Clause 2.7.6, would bind the tenderer and he would not be heard to say that he had arrived at the rate and made the bid and which stood accepted, on the basis of misapprehension of law or misclassification. On the one hand, Clause 2.7.6 gives the impression that all the bidders/tenderers should clearly indicate the rate of the applicable duty and tax in the price quoted by them. We must however read it in conjunction with Clause 2.9.2. The said Clause provides for a clear duty with the tenderer to acquaint themselves with all the applicable taxes and duties. It further provides that in a case, where the taxes and duties are not indicated explicitly in their offer, the same will be considered, which means, the offer will be considered as inclusive. The meaning of this Clause can only be that while ordinarily the tenderer would and should include in the tender not only the base price but the taxes and the rate of tax and arrive at the global sum at which he is making the bid, Clause 2.9.2 provides for the contingency of the tenderer not indicating about the applicable taxes and duties. In other words, he merely quotes a sum without specifically mentioning about the taxes and duties or the rates. This is pointed out by the learned ASG to contend that the fallacy committed by the High Court lies in it, not giving full meaning to the said Clause.38. It is clear that the Clauses read together will yield the following result, bearing in mind also the GST regime. The liability to pay tax under the GST regime is on the supplier. He must make inquires and make an informed decision as to what would be the relevant HSN Code applicable to the items and the rate of tax applicable. Thereafter, when he makes the bid, the issue of competition for winning the bid, would come into clear focus. The goal of the bidder ordinarily is to emerge successful and bag the contract. The extent of profit that he would earn, is a matter, which is essentially a matter to be decided by him. He may, for germane reasons, wish to bag a contract, with situations ranging from one extreme end of the spectrum, viz., even when the prospect of a loss stares at him, or a slightly brighter outcome, viz., the contract working on a break-even basis or moving on to an even more optimistic possibility, namely, of the contract earning him profit, which he is willing to take at a modest rate or a rate which he considers as reasonable in his understanding and circumstances. This is a matter to be left to the commercial expediency of the bidder. Now, when the matter is viewed from the perspective of the purchaser, the purchaser seeks to buy goods and services or both by awarding the contract to the lowest bidder. When the purchaser happens to be the State, it would be not fair or reasonable to not expect it to accept the bid of the lowest bidder unless it decides to not accept the bid of the lowest bidder for reasons which are fair and legal. No doubt, it is not the law that the Government is bound to accept the lowest bid. It is always open to the Government for relevant, valid and fair reasons, to not accept even the lowest bid.39. The terms of the bid cannot be said to be afflicted with the vice of legal uncertainty. This is not a case where the principle as enunciated in Reliance Energy (supra) would be apposite. It is elementary that principles enunciated in the facts of a case are not be likened to Euclids Theorem, having an inexorable operation divorced from the facts which arise for consideration. In this case, the interplay of the three Clauses, which we have referred to, and its conjoint operation, could not have left the bidders or the purchasers (appellants) in any uncertainty.40. The appellants relied on the judgment of this court in Sarvesh Refractories (P) Ltd. v. Commissioner of Central Excise and Customs (2007) 13 SCC 601 .In the said case the product in question was classified by the officer having jurisdiction over the manufacturers factory as falling under a particular heading. The case of the appellants therein was that the heading should be different. The appellant was the consumer of the goods. It was found by the Tribunal that the appellant as a consumer could not get the classification changed from that of the officer having jurisdiction over the seller. This Court approved the said view. Therefore, the appellants would contend that since the liability to pay the tax is on the successful tenderer (supplier) and Sections 59 and 60 of the GST Act casts the burden on the tenderers to file return, self-assess and pay the tax, it is the jurisdictional officer relevant to the supplier who can make the proper classification. The appellants would stand in the shoes of a purchaser. The appellants cannot therefore be expected to find out the HSN Code and announce it so as to bind the tenderers or fetter the power of jurisdictional officer of the supplier.41. Learned Additional Solicitor General purportedly drew support from the judgment of this court in Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran (2012) 5 SCC 306 .In the said case, the appellant who was the manufacturer of certain products entered into handling contract with the respondent. A clause in the contract inter alia provided that the respondent was to bear and pay all taxes, duties and other liabilities in connection with the discharge of his obligation. The clause, in question, also permitted the appellant to deduct taxes or duties at source in the matter of payment of bill to the respondent. The appellant deducted 5 per cent towards Service Tax. Thereafter, in accordance with the law, as it stood, there was a retrospective amendment by which the liability to pay the service tax stood shifted to the recipient of service. The Arbitrator, appointed to resolve the dispute raised by the respondent that he was not liable to pay the tax on the goods, rejected the contention. The award was set aside by the High court. What is of relevance are the observations in paragraphs 37 and 39. It reads as under:37. As far as the submission of shifting of tax liability is concerned, as observed in para 9 of Laghu Udyog Bharati [(1999) 6 SCC 418] , service tax is an indirect tax, and it is possible that it may be passed on. Therefore, an assessee can certainly enter into a contract to shift its liability of service tax.39. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between the two of them. There was nothing in law to prevent the appellant from entering into an agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent.It was further found that the clause properly read could not support the case of the respondent.There is an eminent need for the State (appellants) to indicate the HSN Code. Once it is indicated, it becomes a panacea, as it were, to the evil, which has been perceived and successfully pressed by the writ petitioner. Is that so? The answer to this question, has both legal and factual dimensions. As far as the legal aspects are concerned, the fundamental question, we must pose is, whether there exists any public duty with the appellants to indicate the HSN Code when they float a public tender. Here the learned ASG is correct, when he points out that there is no statutory duty cast on the appellants to indicate the HSN Code in a tender of the kind we are concerned with. Proceeding on the basis that a public duty may emerge, not merely from a Statute but in various other ways, which has been touched upon, in Andi Mukta (supra) as also, in Mansukh Lal (supra) and even on an expansive exploration, does such a duty flow from any other legitimate source?45. The Communication, no doubt, indicates that the purchaser may incorporate HSN Number in the tender document. While the use of the word may in a statute is capable of being interpreted as mandatory and assuming that we can apply such a principle to a circular we would hold that having regard to the context, the consequences that follow, the tax regime and the public interest, a mandatory duty cannot be spelt out.46. We are of the view that when read in a holistic manner, the purport of the Railway Board is that it is the responsibility of the bidder to quote the correct HSN Number and the corresponding GST rate. We have already unravelled the true scope of the relevant Clauses and wide range of results that would follow on its true construction. It may be true that the circular permits the purchaser to indicate the HSN Number. The purchaser may indicate it. That is a far cry from holding that the communication enshrines a public duty which can be enforced by way of Mandamus. While it is true that in a given case, when a Public Authority is vested with a discretionary power under a Statute, it can be directed to exercise a discretion, it may not be legal to direct even a statutory functionary to exercise the discretion in a particular manner. The very idea of a discretionary power would suffer annihilation, if it ceases to be discretionary in the hands of a Court ordering a Mandamus. No doubt, there may be cases where the facts are such that the court is not powerless to direct the Authority to do a thing which it considers absolutely necessary and just and legal to perform the act even when the Authority seeks shelter on the basis that what is conferred on it, is a mere discretion. The other terms of the circular clearly appear to indicate that the rate even if indicated by the appellants will not detract from the tenderers quoting the rate which is up to them. It is the rate quoted by the tenderers which governs. It is the same which will be used to carry out the ranking. The other terms also militate against a public duty with the appellants as directed. The appellant seeks to protect its best interest as a player in the commercial field. The clauses are self-evident.47. In this regard, we must not overlook the consequences of reading the word may in the letter dated 05.09.2017 as casting a mandatory duty. This would bring us to frontally face the question of how the purchaser would go about implementing such a direction. Sections 96 to 103 of the Central Act, as also of the State GST Act do provide for the mechanism of advance ruling. If the purchaser is to include the HSN Code, there must be a mechanism to give effect to what is directed by the High Court, viz., to clarify the issue with the GST Authorities relating to the applicability of the correct HSN Code of the product and thereafter mention in the NIT. To describe this as impractical and the direction given being without bearing in mind the conspectus of the statutory provisions of the GST Acts, cannot but be correct. Under the provisions relating to advance ruling, while it is true that the question which can become the subject matter of advance ruling includes questions relating to classification of goods and services, there is a detailed procedure provided in the matter. The matter does not rest with the decision of the original Authority. A right of appeal is provided. The matter may travel to the Supreme Court. The provisions contemplate powers of a civil court in the matter of discovery, adducing of evidence etc. In other words, it is long drawn and elaborate procedure and the direction to clarify with the GST Authorities, as directed by the High Court, can hardly square with the cumbersome and elaborate process detailed in the Chapter relating to the advance ruling. The advance ruling, we notice, is binding on the applicant ordinarily. No doubt, it has a wider impact in circumstances detailed in Section 103(1A). We are at a loss to further understand how in the name of producing a level playing field, the State, when it decides to award a contract, would be obliged to undertake the ordeal of finding out the correct HSN Code and the tax applicable for the product, which they wish to procure. This is, particularly so when the State is not burdened with the liability to pay the tax. The liability to pay tax, in the case before us, is squarely on the supplier. There are adequate safeguards and Authorities under the GST Regime must best secure the interests of the Revenue.It is difficult to accept the case of the writ petitioner that appellants must seek the clarification contemplated in the impugned Judgment by resorting to Section 168 of the Central Act or the State Act. Section 168 does not expressly provide for right to any person to seek a direction as contemplated therein. Further, we may notice that there is an express power provided in the provisions relating to advance ruling. There is an elaborate procedure to be followed and even right of appeal. At any rate, power under Section 168 is essentially meant for officers to seek orders, instructions or directions besides the Board itself on its own passing orders, in the interest of maintaining uniformity in the implementation of the Act.49. We cannot ignore the case of the appellant that the Circular cannot bind the supplier and the Circular can be challenged in an appropriate proceeding. Appellants contend that it does not represent a final view, and does not bind the court and a circular which is in the teeth of the statute can have no existence in law. In this regard our attention is drawn to the judgment of this Court in (2008) 13 SCC 1 . It is further contended that the circular cannot bind the appellants who are only purchasers of the product. There is no duty cast on the Board under the Central Act or on the Commissioner under the State Act to issue any clarification, as directed in the impugned Judgment. There is no duty cast on the appellants to seek such direction. Therefore, the appellants are right in contending that there is no statutory duty, which could have been enforced in the manner done in the impugned Judgment. There is no public duty which is enforceable.Proceeding on the basis that it was a unit of the railways, this by itself cannot bind the appellants to comply with the impugned judgment. The nature of the clauses and the liability to pay tax detract from the appellants being bound, particularly in the absence of any public duty. We agree with the appellants.52. In this case, the second respondent has been found to be L1 for 593 pieces of turbo wheel impeller balance assembly. We see from the Counter Affidavit, filed in the High Court, by the appellants, that it was, inter alia, contended that the tendered product is Turbo Wheel Impeller Assembly and not Turbo Super Charger. In the Rejoinder Affidavit, filed by the writ petitioner, we noticed at page-764 onwards of the SLP Paper Book that the writ petitioner has joined issue and contended that the stand of the appellants in the Counter Affidavit was without appreciating that the product is the most integral part of Turbo Charger, without which, the Turbo Charger is rendered commercially redundant. The end item is a Turbo Charger, which houses the Impeller Wheel Assembly and is not an associated product but rather a component of Turbo Charger itself. We further notice the specific stand of the writ petitioner that in the light of the fact that the functionality and commercial purpose of both these products are the same, they have to be classified under the same Head and taxed at 18 per cent. A Chartered Engineers Certificate was produced. So was the diagram. In fact, having regard to the nature of the dispute about the product, it brings into sharp focus, the complex nature of the problem, which appears to have been oversimplified in the matter of issuing the impugned direction. We have already noticed that the second respondent (L1) projected this dispute, even in this Court as well.53. As far as the Make in India Policy is concerned, relied upon by the writ petitioner, which is dated 15.06.2017, it is, no doubt, true that it is a very significant move by the Government to promote the manufacture of goods and services in India, thereby effectively dealing with the problem of unemployment and increasing the income of its people. There is no dispute also that the writ petitioner is an approved local supplier within the meaning of the Order. It is equally true that a preference is contemplated for local suppliers as defined in the Order. The margin of difference between L1 and the local supplier cannot exceed 20 per cent. It is also not in dispute that on the basis of the total price quoted, the margin of purchase preference is much more than 20 per cent.In this connection, we may also notice the definition of L1. L1 has been defined as meaning the lowest tender or the lowest quotation, inter alia, as adjudged in the valuation process as per the tender or other procurement solicitation. Thus, L1 is, undoubtedly, to be determined, based on the terms of the tender.55. In the definition of the word local content, it may be true that, when the value of the imported content in the item is calculated, all the customs duties must be included. The claim of the writ petitioner is that, when the HSN Code, for the purpose of calculating the custom duty, is to be found out for determining the local content, then, there can be no reason to not include the HSN Code for the item for the purpose of GST. We are unable to agree. Proceeding on the basis, that for determining the local content, the HSN Code of the item, for the purpose of custom duty, is to be found, that may not justify the writ petitioner from contending that the HSN Code for the GST must be included in the tender conditions. This is for the reason that, apart from the absence of any duty with the appellants to indicate compulsorily the HSN Code, we would have to overlook the operation of the terms of the tender. Under Clause 2.9.2, we have noticed that a tenderer can make his bid without adding any tax component. It is open to the bidder, wholly or partly, to absorb the tax effect. In other words, being an indirect tax, while it is open to a bidder to pass it on to the buyer (the appellant), nothing stands in the way of the bidder, partly or wholly, absorbing the tax. The liability to pay the tax under the GST regime is with the supplier unless it falls under Section 9(3) of the GST Act. Further, the appellants cannot declare a GST rate and make it binding on the bidder. The correctness of the Code/rate can, at best, be the appellants understanding of the same. This is why, in the Circular dated 05.09.2017, issued by the Railway Board, it conferred a discretion on the purchaser, to incorporate the HSN Number in the tender document. This is carefully conditioned by the caveat that, the responsibility to quote the correct HSN Number and corresponding GST rate, is to be on the bidder. Still further, the Railway Board has contemplated that during the transition phase, it was to be provided that offers will be evaluated, based on the GST rates quoted by each bidder and the same will be used for determining the inter se ranking. When a successful bidder invoices the goods with the GST rate or HSN Number different from that incorporated in the purchase order, payment is to be made at the rate, which is lower of the GST rate, as between what is incorporated in the purchase order or the invoice. It is further made clear in the Circular dated 05.09.2017 that if a higher tax rate is billed and an all-inclusive price is mentioned in the purchase order, then, the basic price would have to be accordingly adjusted to make it in conformity with all- inclusive price.56. We cannot therefore hold that in view of the Make in India policy as contained in the order dated 15.06.2017, there is duty to declare the HSN code in the tender and what is more, make the tenderers quote the rate accordingly.57. Unless Clause 2.9.2 is done away with (it must be remembered that there is no challenge to Clause 2.9.2), the tenderers would be free to quote a lumpsum rate without including the tax rate. The further and more important obstacle is the mechanism or rather the absence of the same by which the purchaser of goods and services (the appellants) can be compelled to ascertain the correct HSN Code. The direction by the High Court is to clarify with the Tax Authorities. We have noticed that there is no provision for clarification, as such. The only provision which clearly deals with classification is provision for advance ruling. We have noticed the nature of the procedure in the Chapter dealing with advance ruling. We would have to assume that the appellants will be compelled to go through the said cumbersome procedure and, at the end of it, proclaim the HSN Code. The appellants purchase several goods and services. Each time, the appellants purchase goods and services or both, if the impugned Order is to be sustained, the appellants would have to resort to the prolonged proceedings in a matter where the appellant had no liability to pay the tax. All of this is premised on the writ petitioners quest for the perfect level playing field. That apart, we have also noticed, how the interests of the appellant, which it pursues as an actor in the commercial world, but wearing the mantle of State obliging it to act fairly, would not empower the Court in judicial review to mandate for a duty, not supported by any Statute, the terms of the bidding document and any other binding instrument. We have already found that Circular dated 05.09.2017, issued by the Board, does not provide for the mandatory duty to specify the HSN Code.Since the first appellant is the Union of India, we would expect that if it is otherwise permissible to sustain the impugned judgment, it may not be fair to not have a uniform policy in the matter of award of largesse by the various units under it. However, the appellants do point out that even in the tenders which have been brought out, the HSN Code mentioned in the tender is shown as indicative only. It has been provided in the tenders relied upon by the writ petitioner that it will be the responsibility of the bidder to quote the correct HSN Code and the corresponding GST rate while submitting the offer.59. Having regard to the terms, we cannot cull out a public duty to provide for the correct HSN code. Therefore, we cannot support the impugned judgment based on the issuance of tenders as contended.60. We have noticed that the appellants have contended that the liability to pay the GST, an indirect tax, lies with supplier of goods and services. The exception which is admitted by the appellants is in cases covered under Section 9(3) of the GST Act which provides for reverse charge mechanism. Under the reverse charge mechanism, the liability to pay tax is on the recipient of the goods or services or both. This would indeed mean that if the appellants are in the shoes of persons who become liable as recipients of goods and services or both under Section 9(3), then it will be the liability of the appellants to pay such tax. Strictly speaking this question does not appear to arise on the facts. At any rate, we do not see how the writ petitioner can advance its case on the basis of this aspect as it is essentially the look out of the appellants. We must not be oblivious to the fact that the complaint of the appellant is the denial of a level playing field among the tenderers. It is obvious that the appellants as purchasers of the goods and services are obliged to purchase the goods and services which are otherwise compliant with the tender conditions at the cheapest rate. In a case where it is liable under revere charge mechanism, it would be the look out of the appellant in public interest to ensure that it will end up purchasing goods at the cheapest rate possible. It is elementary that even the lowest bidder would not have right to have his bid accepted and is always open to the appellants in public interest and in accordance with the tender condition to reject even the lowest bid. No doubt if the tax rate in such a case is separately insisted upon, then on the rate acceptable to the appellants, the gross outflow can be calculated consisting the amount to be paid to the successful tenderer and the amount to be remitted to the revenue. In this regard, we notice from the tender condition relied upon by the writ petitioner which we have extracted at paragraph 58, what is contemplated is that the amount would be deducted at the applicable GST rate from the bill under the Reverse Charge Mechanism and deposited with the concerned tax authority. If under the terms of the tender, what is contemplated is that, in a case where the tax component is not included or it is included at a lower rate, the appellants are entitled to deduct the actual rate of tax as payable by it under the Reverse Charge Mechanism and the tender of such a person is accepted being the lowest tender, then there can be no question of public interest being prejudiced. If on the other hand, the tax rate is included and the clause provides for deduction of the actual rate from the bill, then also public interest may not be affected. This is all the more reason for the tenderer specifically including the tax component indicating the correct rate of tax. This is a matter where the first appellant can consider giving appropriate instructions.

### 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: out wherein the HSN code is indicated, they are tenders issued by the other units of the Indian Railways. Since the first appellant is the Union of India, we would expect that if it is otherwise permissible to sustain the impugned judgment, it may not be fair to not have a uniform policy in the matter of award of largesse by the various units under it. However, the appellants do point out that even in the tenders which have been brought out, the HSN Code mentioned in the tender is shown as indicative only. It has been provided in the tenders relied upon by the writ petitioner that it will be the responsibility of the bidder to quote the correct HSN Code and the corresponding GST rate while submitting the offer. We may notice the relevant clause: A. 1. HSN number mentioned in tender 8504 is indicative only. It will be responsibility of the bidders to quote correct HSN number and corresponding GST rate while submitting offer. 2. Even if bidders quote different GST rates in offers, the offers shall be evaluated by IREP3 system based on the GST rate as quoted by each bidder and same will be used for determining the inter se ranking. Bidders may note that I. It shall be the responsibility of the bidder to ensure that they quote correct GST code and HSN number. II. Purchaser shall not be responsible for any misclassification of HSN number or incorrect GST rate if quoted by the bidder. III. Wherever the successful bidder invoices the goods GST rate of HSN number which is different from that incorporated in the purchase order, payment shall be made as per GST rate which is lower of the GST rate incorporated in the purchase order or billed. IV. Any amendment to GST rate or HSN number in the contract shall be as per the contractual conditions and statutory amendments in the quoted GST rate and HSN number, under SVC. B. Are you eligible for availing benefits and preferential treatment extended to Micro and Small Enterprises (MSEs). If so, the necessary documents as per special conditions for MSEs for claiming benefits and preferential treatment extended to MSEs to be attached. C. In case the successful tenderer is not liable to be registered under CGST/ IGST/ UTGST/ SGST Act, the railway shall deduct the applicable GST from his/their bills under Reverse Charge Mechanism (RCM) and deposit the same to the concerned tax authority. D. Performance statement of orders received and supplies made for last three years for subject item is must for all tenderers including approved sources. 59. Having regard to the terms, we cannot cull out a public duty to provide for the correct HSN code. Therefore, we cannot support the impugned judgment based on the issuance of tenders as contended. REVERSE CHARGE MECHANISM 60. We have noticed that the appellants have contended that the liability to pay the GST, an indirect tax, lies with supplier of goods and services. The exception which is admitted by the appellants is in cases covered under Section 9(3) of the GST Act which provides for reverse charge mechanism. Under the reverse charge mechanism, the liability to pay tax is on the recipient of the goods or services or both. This would indeed mean that if the appellants are in the shoes of persons who become liable as recipients of goods and services or both under Section 9(3), then it will be the liability of the appellants to pay such tax. Strictly speaking this question does not appear to arise on the facts. At any rate, we do not see how the writ petitioner can advance its case on the basis of this aspect as it is essentially the look out of the appellants. We must not be oblivious to the fact that the complaint of the appellant is the denial of a level playing field among the tenderers. It is obvious that the appellants as purchasers of the goods and services are obliged to purchase the goods and services which are otherwise compliant with the tender conditions at the cheapest rate. In a case where it is liable under revere charge mechanism, it would be the look out of the appellant in public interest to ensure that it will end up purchasing goods at the cheapest rate possible. It is elementary that even the lowest bidder would not have right to have his bid accepted and is always open to the appellants in public interest and in accordance with the tender condition to reject even the lowest bid. No doubt if the tax rate in such a case is separately insisted upon, then on the rate acceptable to the appellants, the gross outflow can be calculated consisting the amount to be paid to the successful tenderer and the amount to be remitted to the revenue. In this regard, we notice from the tender condition relied upon by the writ petitioner which we have extracted at paragraph 58, what is contemplated is that the amount would be deducted at the applicable GST rate from the bill under the Reverse Charge Mechanism and deposited with the concerned tax authority. If under the terms of the tender, what is contemplated is that, in a case where the tax component is not included or it is included at a lower rate, the appellants are entitled to deduct the actual rate of tax as payable by it under the Reverse Charge Mechanism and the tender of such a person is accepted being the lowest tender, then there can be no question of public interest being prejudiced. If on the other hand, the tax rate is included and the clause provides for deduction of the actual rate from the bill, then also public interest may not be affected. This is all the more reason for the tenderer specifically including the tax component indicating the correct rate of tax. This is a matter where the first appellant can consider giving appropriate instructions. ### Response: 1 ### Explanation: contained in the order dated 15.06.2017, there is duty to declare the HSN code in the tender and what is more, make the tenderers quote the rate accordingly.57. Unless Clause 2.9.2 is done away with (it must be remembered that there is no challenge to Clause 2.9.2), the tenderers would be free to quote a lumpsum rate without including the tax rate. The further and more important obstacle is the mechanism or rather the absence of the same by which the purchaser of goods and services (the appellants) can be compelled to ascertain the correct HSN Code. The direction by the High Court is to clarify with the Tax Authorities. We have noticed that there is no provision for clarification, as such. The only provision which clearly deals with classification is provision for advance ruling. We have noticed the nature of the procedure in the Chapter dealing with advance ruling. We would have to assume that the appellants will be compelled to go through the said cumbersome procedure and, at the end of it, proclaim the HSN Code. The appellants purchase several goods and services. Each time, the appellants purchase goods and services or both, if the impugned Order is to be sustained, the appellants would have to resort to the prolonged proceedings in a matter where the appellant had no liability to pay the tax. All of this is premised on the writ petitioners quest for the perfect level playing field. That apart, we have also noticed, how the interests of the appellant, which it pursues as an actor in the commercial world, but wearing the mantle of State obliging it to act fairly, would not empower the Court in judicial review to mandate for a duty, not supported by any Statute, the terms of the bidding document and any other binding instrument. We have already found that Circular dated 05.09.2017, issued by the Board, does not provide for the mandatory duty to specify the HSN Code.Since the first appellant is the Union of India, we would expect that if it is otherwise permissible to sustain the impugned judgment, it may not be fair to not have a uniform policy in the matter of award of largesse by the various units under it. However, the appellants do point out that even in the tenders which have been brought out, the HSN Code mentioned in the tender is shown as indicative only. It has been provided in the tenders relied upon by the writ petitioner that it will be the responsibility of the bidder to quote the correct HSN Code and the corresponding GST rate while submitting the offer.59. Having regard to the terms, we cannot cull out a public duty to provide for the correct HSN code. Therefore, we cannot support the impugned judgment based on the issuance of tenders as contended.60. We have noticed that the appellants have contended that the liability to pay the GST, an indirect tax, lies with supplier of goods and services. The exception which is admitted by the appellants is in cases covered under Section 9(3) of the GST Act which provides for reverse charge mechanism. Under the reverse charge mechanism, the liability to pay tax is on the recipient of the goods or services or both. This would indeed mean that if the appellants are in the shoes of persons who become liable as recipients of goods and services or both under Section 9(3), then it will be the liability of the appellants to pay such tax. Strictly speaking this question does not appear to arise on the facts. At any rate, we do not see how the writ petitioner can advance its case on the basis of this aspect as it is essentially the look out of the appellants. We must not be oblivious to the fact that the complaint of the appellant is the denial of a level playing field among the tenderers. It is obvious that the appellants as purchasers of the goods and services are obliged to purchase the goods and services which are otherwise compliant with the tender conditions at the cheapest rate. In a case where it is liable under revere charge mechanism, it would be the look out of the appellant in public interest to ensure that it will end up purchasing goods at the cheapest rate possible. It is elementary that even the lowest bidder would not have right to have his bid accepted and is always open to the appellants in public interest and in accordance with the tender condition to reject even the lowest bid. No doubt if the tax rate in such a case is separately insisted upon, then on the rate acceptable to the appellants, the gross outflow can be calculated consisting the amount to be paid to the successful tenderer and the amount to be remitted to the revenue. In this regard, we notice from the tender condition relied upon by the writ petitioner which we have extracted at paragraph 58, what is contemplated is that the amount would be deducted at the applicable GST rate from the bill under the Reverse Charge Mechanism and deposited with the concerned tax authority. If under the terms of the tender, what is contemplated is that, in a case where the tax component is not included or it is included at a lower rate, the appellants are entitled to deduct the actual rate of tax as payable by it under the Reverse Charge Mechanism and the tender of such a person is accepted being the lowest tender, then there can be no question of public interest being prejudiced. If on the other hand, the tax rate is included and the clause provides for deduction of the actual rate from the bill, then also public interest may not be affected. This is all the more reason for the tenderer specifically including the tax component indicating the correct rate of tax. This is a matter where the first appellant can consider giving appropriate instructions.

Naresh Kumar Madan Vs. State Of M.P

Penal Code (45 of 1860)." 11. The object and purport of the provisions of the 1948 Act is different from the 1988 Act. It, as noticed hereinbefore, provides for constitution and composition of such Electricity Board. Each State is indeed enjoined with a duty to constitute a Board. [See Madhya Pradesh Electricity Board v. Union of India and Others [2006 (9) SCALE 194 ]. 12. Section 12 of the 1948 Act provides for incorporation of Board stating: "Incorporation of Board.-The Board shall be a body corporate by the name notified under sub-section (1) of section 5, having perpetual succession and a common seal, with power to acquire and hold property both movable and immovable, and shall by the said name sue and be sued." 13. Section 15 of the 1948 Act empowers the Board to appoint a Secretary and such other officers and employees as may be required to enable it to carry out its functions under the said Act. Appointment of a Secretary of the Board is subject to the approval of the State Government. Section 65 of the 1948 Act provides for power of the Board to borrow funds for the purposes mentioned therein wherefor however, previous sanction of the State Government would be required to be obtained. Section 66 thereof provides for furnishing of guarantee in respect of such loan advanced by the State Government. Section 78 of the 1948 Act empowers the State Government to make rules for the purposes mentioned therein. Section 78A empowers the State Government to issue directions upon the Board in the discharge of its functions. Such directions are binding upon the Board. State, therefore, exercises a deep and pervasive control over the affairs of the Board. 14. The officers of the State Electricity Board are required to carry out public functions. They are public authorities. Their action in one way or the other may entail civil or evil consequences to the consumers of electrical energy. They may prosecute a person. They are empowered to enter into the house of the Boards consumers. It is only for proper and effective exercise of those powers, the statute provides that they would be public servants, wherefor a legal fiction has been created in favour of those employees, when acting or purported to act in pursuance of any of the provisions of the Act within the meaning of Section 21 of the Indian Penal Code. Indian Penal Code denotes various persons to be public servants. It is, however, not exhaustive. A person may be a public servant in terms of another statute. However, we may notice that a person who, inter alia, is in the service or pay of the Government established by or under a Central, Provincial or State Act, would also come within the purview thereof. Section 2(1)(c) of the 1988 Act also brings within its embrace a person in the service or pay of a corporation established by or under a Central Act.15. We, therefore, fail to see any reason as to why the appellant would not answer the description of public servant within the provisions of the said Act. The decision of the learned Single Judge of the Madhya Pradesh High Court in Bimal Kumar Gupta (supra), in our opinion, does not lay down the correct law. Referring to Section 81 of the 1948 Act, it held: "14. Considering the aforesaid provisions of law, it emerged that for the purpose of the Act of 1947, a "public servant" is a person who is covered under the definition of public servant as given under Section 21 of the IPC On careful perusal of the definition of public servant as given in Section 21 of the IPC, it is found that the employees of the Electricity Board are not covered under any of the clauses of the said Section. However, by virtue of Section 81 of the Electricity Supply Act, 1948, all the members, officers and employees of the Board when acting or purporting to act in pursuance of any of the provisions of the Act are deemed to be public servant under Section 21 of the IPC. As such, it can be inferred that by virtue of Section 81 of the Electricity Supply Act, the Board employees when acting in pursuance of the provisions of the Act are considered deemed public servants under Section 21 of the IPC. But as held by the Apex Court in case of Stale of Maharashtra Vs. Laljit Rajashi Shah (supra) on the ground of deemed provision a person covered under the definition of Section 21 of the IPC cannot be considered public servant for the purpose of prosecution under the provisions of the Prevention of Corruptions Act, 1947. In the aforesaid case, in view of the analogous provision of deemed to be public servant for certain employees of the Cooperative Societies under Maharashtra Cooperative Societies Act, were not considered as public servant for the purpose of the Act of 1947." With respect we do not agree with the aforementioned inference of the learned Judge.16. The Prevention of Corruption Act, 1947 was repealed and enacted in the year 1988. The definition of public servant, as contained in Section 2(c) thereof, is a broad based one. Reliance was placed by the learned Judge in the case of State of Maharashtra v. Laljit Rajashi Shah and Others [AIR 2000 SC 937 ]. Therein the court was dealing with a case of a member of a cooperative society. It was not dealing with the case of an employee of a statutory corporation. The said decision, therefore, has no application to the facts of the present case.17. Definition of public servant will have to be construed having regard to the provisions of the 1988 Act. By giving effect to the definition of public servant in the 1988 Act, the legal fiction is not being extended beyond the purpose for which it was created or beyond the language of the section in which it was created. 18. For the reasons aforementioned, we

0[ds]14. The officers of the State Electricity Board are required to carry out public functions. They are public authorities. Their action in one way or the other may entail civil or evil consequences to the consumers of electrical energy. They may prosecute a person. They are empowered to enter into the house of the Boards consumers. It is only for proper and effective exercise of those powers, the statute provides that they would be public servants, wherefor a legal fiction has been created in favour of those employees, when acting or purported to act in pursuance of any of the provisions of the Act within the meaning of Section 21 of the Indian Penal Code. Indian Penal Code denotes various persons to be public servants. It is, however, not exhaustive. A person may be a public servant in terms of another statute. However, we may notice that a person who, inter alia, is in the service or pay of the Government established by or under a Central, Provincial or State Act, would also come within the purview thereof. Section 2(1)(c) of the 1988 Act also brings within its embrace a person in the service or pay of a corporation established by or under a Central Act.15. We, therefore, fail to see any reason as to why the appellant would not answer the description of public servant within the provisions of the said Act. The decision of the learned Single Judge of the Madhya Pradesh High Court in Bimal Kumar Gupta (supra), in our opinion, does not lay down the correct law. Referring to Section 81 of the 1948 Act, itConsidering the aforesaid provisions of law, it emerged that for the purpose of the Act of 1947, a "public servant" is a person who is covered under the definition of public servant as given under Section 21 of the IPC On careful perusal of the definition of public servant as given in Section 21 of the IPC, it is found that the employees of the Electricity Board are not covered under any of the clauses of the said Section. However, by virtue of Section 81 of the Electricity Supply Act, 1948, all the members, officers and employees of the Board when acting or purporting to act in pursuance of any of the provisions of the Act are deemed to be public servant under Section 21 of the IPC. As such, it can be inferred that by virtue of Section 81 of the Electricity Supply Act, the Board employees when acting in pursuance of the provisions of the Act are considered deemed public servants under Section 21 of the IPC. But as held by the Apex Court in case of Stale of Maharashtra Vs. Laljit Rajashi Shah (supra) on the ground of deemed provision a person covered under the definition of Section 21 of the IPC cannot be considered public servant for the purpose of prosecution under the provisions of the Prevention of Corruptions Act, 1947. In the aforesaid case, in view of the analogous provision of deemed to be public servant for certain employees of the Cooperative Societies under Maharashtra Cooperative Societies Act, were not considered as public servant for the purpose of the Act ofrespect we do not agree with the aforementioned inference of the learned Judge.16. The Prevention of Corruption Act, 1947 was repealed and enacted in the year 1988. The definition of public servant, as contained in Section 2(c) thereof, is a broad based one. Reliance was placed by the learned Judge in the case of State of Maharashtra v. Laljit Rajashi Shah and Others [AIR 2000 SC 937 ]. Therein the court was dealing with a case of a member of a cooperative society. It was not dealing with the case of an employee of a statutory corporation. The said decision, therefore, has no application to the facts of the present case.17. Definition of public servant will have to be construed having regard to the provisions of the 1988 Act. By giving effect to the definition of public servant in the 1988 Act, the legal fiction is not being extended beyond the purpose for which it was created or beyond the language of the section in which it was created.

### 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: Penal Code (45 of 1860)." 11. The object and purport of the provisions of the 1948 Act is different from the 1988 Act. It, as noticed hereinbefore, provides for constitution and composition of such Electricity Board. Each State is indeed enjoined with a duty to constitute a Board. [See Madhya Pradesh Electricity Board v. Union of India and Others [2006 (9) SCALE 194 ]. 12. Section 12 of the 1948 Act provides for incorporation of Board stating: "Incorporation of Board.-The Board shall be a body corporate by the name notified under sub-section (1) of section 5, having perpetual succession and a common seal, with power to acquire and hold property both movable and immovable, and shall by the said name sue and be sued." 13. Section 15 of the 1948 Act empowers the Board to appoint a Secretary and such other officers and employees as may be required to enable it to carry out its functions under the said Act. Appointment of a Secretary of the Board is subject to the approval of the State Government. Section 65 of the 1948 Act provides for power of the Board to borrow funds for the purposes mentioned therein wherefor however, previous sanction of the State Government would be required to be obtained. Section 66 thereof provides for furnishing of guarantee in respect of such loan advanced by the State Government. Section 78 of the 1948 Act empowers the State Government to make rules for the purposes mentioned therein. Section 78A empowers the State Government to issue directions upon the Board in the discharge of its functions. Such directions are binding upon the Board. State, therefore, exercises a deep and pervasive control over the affairs of the Board. 14. The officers of the State Electricity Board are required to carry out public functions. They are public authorities. Their action in one way or the other may entail civil or evil consequences to the consumers of electrical energy. They may prosecute a person. They are empowered to enter into the house of the Boards consumers. It is only for proper and effective exercise of those powers, the statute provides that they would be public servants, wherefor a legal fiction has been created in favour of those employees, when acting or purported to act in pursuance of any of the provisions of the Act within the meaning of Section 21 of the Indian Penal Code. Indian Penal Code denotes various persons to be public servants. It is, however, not exhaustive. A person may be a public servant in terms of another statute. However, we may notice that a person who, inter alia, is in the service or pay of the Government established by or under a Central, Provincial or State Act, would also come within the purview thereof. Section 2(1)(c) of the 1988 Act also brings within its embrace a person in the service or pay of a corporation established by or under a Central Act.15. We, therefore, fail to see any reason as to why the appellant would not answer the description of public servant within the provisions of the said Act. The decision of the learned Single Judge of the Madhya Pradesh High Court in Bimal Kumar Gupta (supra), in our opinion, does not lay down the correct law. Referring to Section 81 of the 1948 Act, it held: "14. Considering the aforesaid provisions of law, it emerged that for the purpose of the Act of 1947, a "public servant" is a person who is covered under the definition of public servant as given under Section 21 of the IPC On careful perusal of the definition of public servant as given in Section 21 of the IPC, it is found that the employees of the Electricity Board are not covered under any of the clauses of the said Section. However, by virtue of Section 81 of the Electricity Supply Act, 1948, all the members, officers and employees of the Board when acting or purporting to act in pursuance of any of the provisions of the Act are deemed to be public servant under Section 21 of the IPC. As such, it can be inferred that by virtue of Section 81 of the Electricity Supply Act, the Board employees when acting in pursuance of the provisions of the Act are considered deemed public servants under Section 21 of the IPC. But as held by the Apex Court in case of Stale of Maharashtra Vs. Laljit Rajashi Shah (supra) on the ground of deemed provision a person covered under the definition of Section 21 of the IPC cannot be considered public servant for the purpose of prosecution under the provisions of the Prevention of Corruptions Act, 1947. In the aforesaid case, in view of the analogous provision of deemed to be public servant for certain employees of the Cooperative Societies under Maharashtra Cooperative Societies Act, were not considered as public servant for the purpose of the Act of 1947." With respect we do not agree with the aforementioned inference of the learned Judge.16. The Prevention of Corruption Act, 1947 was repealed and enacted in the year 1988. The definition of public servant, as contained in Section 2(c) thereof, is a broad based one. Reliance was placed by the learned Judge in the case of State of Maharashtra v. Laljit Rajashi Shah and Others [AIR 2000 SC 937 ]. Therein the court was dealing with a case of a member of a cooperative society. It was not dealing with the case of an employee of a statutory corporation. The said decision, therefore, has no application to the facts of the present case.17. Definition of public servant will have to be construed having regard to the provisions of the 1988 Act. By giving effect to the definition of public servant in the 1988 Act, the legal fiction is not being extended beyond the purpose for which it was created or beyond the language of the section in which it was created. 18. For the reasons aforementioned, we ### Response: 0 ### Explanation: 14. The officers of the State Electricity Board are required to carry out public functions. They are public authorities. Their action in one way or the other may entail civil or evil consequences to the consumers of electrical energy. They may prosecute a person. They are empowered to enter into the house of the Boards consumers. It is only for proper and effective exercise of those powers, the statute provides that they would be public servants, wherefor a legal fiction has been created in favour of those employees, when acting or purported to act in pursuance of any of the provisions of the Act within the meaning of Section 21 of the Indian Penal Code. Indian Penal Code denotes various persons to be public servants. It is, however, not exhaustive. A person may be a public servant in terms of another statute. However, we may notice that a person who, inter alia, is in the service or pay of the Government established by or under a Central, Provincial or State Act, would also come within the purview thereof. Section 2(1)(c) of the 1988 Act also brings within its embrace a person in the service or pay of a corporation established by or under a Central Act.15. We, therefore, fail to see any reason as to why the appellant would not answer the description of public servant within the provisions of the said Act. The decision of the learned Single Judge of the Madhya Pradesh High Court in Bimal Kumar Gupta (supra), in our opinion, does not lay down the correct law. Referring to Section 81 of the 1948 Act, itConsidering the aforesaid provisions of law, it emerged that for the purpose of the Act of 1947, a "public servant" is a person who is covered under the definition of public servant as given under Section 21 of the IPC On careful perusal of the definition of public servant as given in Section 21 of the IPC, it is found that the employees of the Electricity Board are not covered under any of the clauses of the said Section. However, by virtue of Section 81 of the Electricity Supply Act, 1948, all the members, officers and employees of the Board when acting or purporting to act in pursuance of any of the provisions of the Act are deemed to be public servant under Section 21 of the IPC. As such, it can be inferred that by virtue of Section 81 of the Electricity Supply Act, the Board employees when acting in pursuance of the provisions of the Act are considered deemed public servants under Section 21 of the IPC. But as held by the Apex Court in case of Stale of Maharashtra Vs. Laljit Rajashi Shah (supra) on the ground of deemed provision a person covered under the definition of Section 21 of the IPC cannot be considered public servant for the purpose of prosecution under the provisions of the Prevention of Corruptions Act, 1947. In the aforesaid case, in view of the analogous provision of deemed to be public servant for certain employees of the Cooperative Societies under Maharashtra Cooperative Societies Act, were not considered as public servant for the purpose of the Act ofrespect we do not agree with the aforementioned inference of the learned Judge.16. The Prevention of Corruption Act, 1947 was repealed and enacted in the year 1988. The definition of public servant, as contained in Section 2(c) thereof, is a broad based one. Reliance was placed by the learned Judge in the case of State of Maharashtra v. Laljit Rajashi Shah and Others [AIR 2000 SC 937 ]. Therein the court was dealing with a case of a member of a cooperative society. It was not dealing with the case of an employee of a statutory corporation. The said decision, therefore, has no application to the facts of the present case.17. Definition of public servant will have to be construed having regard to the provisions of the 1988 Act. By giving effect to the definition of public servant in the 1988 Act, the legal fiction is not being extended beyond the purpose for which it was created or beyond the language of the section in which it was created.

State of Punjab and Others Vs. Dewan's Modern Breweries Limited

L-2, L-4, L-5 and L-10 licences. The respondent company holds L-1 licence which is meant for whole-sale dealers. The State contested the application and in its counter asserted that the excise trade like many other trades, or even more, had to be regulated and controlled by various Rules and Regulations and in spite of all the restrictions placed thereby an area was still left where the whole-seller and the retail purchaser had to arrive at an agreement by their volition. According to the case of the appellants:"the quality and brand of Foreign Liquor, lifting of the specified quantity in bulk liter or in installments, the size of packages (i.e. Bottles, pints, or Nips) and mode of payment (cash or credit or part payment) and the prices, are the matters which are decided by the petitioner and his purchasers and there is no law or rule restricting the volition or liberty of the petitioner in this respect." 2. Following a Division Bench decision of the Punjab &Haryana High Court in Jagatjit Distilling and Allied Industries Ltd. v. The State(1) a learned single Judge of that Court allowed the writ application and quashed the assessment order. A Letters Patent appeal from the said order was dismissed in limine. Hence this appeal. 3. This case, in our opinion, is squarely covered by a recent decision of this Court delivered by a Bench of seven Judges in M/s Vishnu Agencies (Pvt.) Ltd. etc. v. Commercial Tax Officer and others etc.(2) The High Court in the case of Jagatjit Distilling and Allied Industries Ltd. (supra) had mainly relied upon two decisions of this Court to hold that the transactions in that case were not sales. The said decisions are M/s New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar(3) and Chittar Mal Narain Das v. Commissioner of Sales Tax U.P.(4). In the case of Vishnu Agencies (supra) the former case was considered in paragraph 36 to 39 of A.I.R. volume at pages 463-464 and it was held that the view expressed in the majority judgment was not good law and the one contained in the minority judgment was approved. Chittar Mals case was also considered in paragraph 44-45 at page 467 and it was distinguished on the ground that the said decision "can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer." But then the criticism in that case of the Full Bench decision of the Allahabad High Court in Commr. Sales-tax, U.P. v. Ram Bilas Ram Gopal(5) "which held while construing cl. 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a Statute" was not endorsed. It is, therefore, plain that to that extent Chittar Mals case is also not good law. The decision of the High Court in Jagatjits case is no longer good law.We have examined the various relevant provisions of the Punjab Excise Act and the Rules framed thereunder. We find that an area of agreement sufficient enough for the parties to cover by their volition to bring the transactions in question within the ambit of sales was left in the field. Broadly speaking the stand taken on behalf of the appellants in their counter was correct, except that in regard to the fixation of price we assume in favour of t he respondent-company that the price had been fixed, as usually it is so in the excise trade. Even so the decision of this Court in Vishnu Agencies (supra) and the various other previous decisions reviewed therein justifies in law the imposition of sales tax by the impugned order in question. 4. Mr. Lal Narayan Sinha tried to distinguish the decision in Vishnu Agencies (supra) by pointing out that sales-tax for the period in question was imposed by the Punjab General Sales Tax (Amendment and Validation) Ordinance, 1972 which was promulgated on the 15th November, 1972 with retrospective effect. The respondent-company, counsel submitted, cannot be said to have entered into the trade and carried it on during this period by a volition as it did not know that sales-tax would be chargeable for this period and, therefore, it had not realised sales-tax from its customers. He drew our attention to paragraph 33 of the judgment of this Court in Vishnu Agencies at page 461. 5. In our opinion the argument of the learned counsel is not sound and for two reasons. Firstly, it is well settled and it was not disputed that sales-tax could be imposed retrospectively. That being so the respondent-company will be deemed to have entered th e trade and carried it on the basis that it would be liable to pay sales-tax. Secondly, even assuming it was not so, what has been pointed out in the begining of paragraph 33 as a primary fact of willingness to trade in the commodity strictly o n the terms of Control Orders is only one of the reasons which led to the decision that an area of agreement between the parties was left to their consensus. In our opinion such a part of the area as the one hinted at is not very important and doe s not form the whole and sole basis of the conclusions arrived at in the case of Vishnu Agencies. Even assuming in favour of the respondent-company that it did not carry on the trade thinking that it would be liable to pay sales-tax, the area of consensuality still left in the field for the purpose of agreeing to the final terms of the transactions between the company and its retail dealers was quite sufficient for the application of the ratio of Vishnu Agencies. Having considered all that was submitted on behalf of the respondent-company we find that there is no escape from the conclusion in this case that the transactions in question were sales exigible to sales-tax. 6.

1[ds]This case, in our opinion, is squarely covered by a recent decision of this Court delivered by a Bench of seven Judges in M/s Vishnu Agencies (Pvt.) Ltd. etc. v. Commercial Tax Officer and others etc.(2) The High Court in the case of Jagatjit Distilling and Allied Industries Ltd. (supra) had mainly relied upon two decisions of this Court to hold that the transactions in that case were not sales. The said decisions are M/s New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar(3) and Chittar Mal Narain Das v. Commissioner of Sales Tax U.P.(4). In the case of Vishnu Agencies (supra) the former case was considered in paragraph 36 to 39 of A.I.R. volume at pages 463-464 and it was held that the view expressed in the majority judgment was not good law and the one contained in the minority judgment was approved. Chittar Mals case was also considered in paragraph 44-45 at page 467 and it was distinguished on the ground that the said decision "can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer." But then the criticism in that case of the Full Bench decision of the Allahabad High Court in Commr. Sales-tax, U.P. v. Ram Bilas Ram Gopal(5) "which held while construing cl. 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a Statute" was not endorsed. It is, therefore, plain that to that extent Chittar Mals case is also not good law. The decision of the High Court in Jagatjits case is no longer good law.We have examined the various relevant provisions of the Punjab Excise Act and the Rules framed thereunder. We find that an area of agreement sufficient enough for the parties to cover by their volition to bring the transactions in question within the ambit of sales was left in the field. Broadly speaking the stand taken on behalf of the appellants in their counter was correct, except that in regard to the fixation of price we assume in favour of t he respondent-company that the price had been fixed, as usually it is so in the excise trade. Even so the decision of this Court in Vishnu Agencies (supra) and the various other previous decisions reviewed therein justifies in law the imposition of sales tax by the impugned order in questionn our opinion the argument of the learned counsel is not sound and for two reasons. Firstly, it is well settled and it was not disputed that sales-tax could be imposed retrospectively. That being so the respondent-company will be deemed to have entered th e trade and carried it on the basis that it would be liable to pay sales-tax. Secondly, even assuming it was not so, what has been pointed out in the begining of paragraph 33 as a primary fact of willingness to trade in the commodity strictly o n the terms of Control Orders is only one of the reasons which led to the decision that an area of agreement between the parties was left to their consensus. In our opinion such a part of the area as the one hinted at is not very important and doe s not form the whole and sole basis of the conclusions arrived at in the case of Vishnu Agencies. Even assuming in favour of the respondent-company that it did not carry on the trade thinking that it would be liable to pay sales-tax, the area of consensuality still left in the field for the purpose of agreeing to the final terms of the transactions between the company and its retail dealers was quite sufficient for the application of the ratio of Vishnu Agencies. Having considered all that was submitted on behalf of the respondent-company we find that there is no escape from the conclusion in this case that the transactions in question were sales exigible to sales-tax.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: L-2, L-4, L-5 and L-10 licences. The respondent company holds L-1 licence which is meant for whole-sale dealers. The State contested the application and in its counter asserted that the excise trade like many other trades, or even more, had to be regulated and controlled by various Rules and Regulations and in spite of all the restrictions placed thereby an area was still left where the whole-seller and the retail purchaser had to arrive at an agreement by their volition. According to the case of the appellants:"the quality and brand of Foreign Liquor, lifting of the specified quantity in bulk liter or in installments, the size of packages (i.e. Bottles, pints, or Nips) and mode of payment (cash or credit or part payment) and the prices, are the matters which are decided by the petitioner and his purchasers and there is no law or rule restricting the volition or liberty of the petitioner in this respect." 2. Following a Division Bench decision of the Punjab &Haryana High Court in Jagatjit Distilling and Allied Industries Ltd. v. The State(1) a learned single Judge of that Court allowed the writ application and quashed the assessment order. A Letters Patent appeal from the said order was dismissed in limine. Hence this appeal. 3. This case, in our opinion, is squarely covered by a recent decision of this Court delivered by a Bench of seven Judges in M/s Vishnu Agencies (Pvt.) Ltd. etc. v. Commercial Tax Officer and others etc.(2) The High Court in the case of Jagatjit Distilling and Allied Industries Ltd. (supra) had mainly relied upon two decisions of this Court to hold that the transactions in that case were not sales. The said decisions are M/s New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar(3) and Chittar Mal Narain Das v. Commissioner of Sales Tax U.P.(4). In the case of Vishnu Agencies (supra) the former case was considered in paragraph 36 to 39 of A.I.R. volume at pages 463-464 and it was held that the view expressed in the majority judgment was not good law and the one contained in the minority judgment was approved. Chittar Mals case was also considered in paragraph 44-45 at page 467 and it was distinguished on the ground that the said decision "can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer." But then the criticism in that case of the Full Bench decision of the Allahabad High Court in Commr. Sales-tax, U.P. v. Ram Bilas Ram Gopal(5) "which held while construing cl. 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a Statute" was not endorsed. It is, therefore, plain that to that extent Chittar Mals case is also not good law. The decision of the High Court in Jagatjits case is no longer good law.We have examined the various relevant provisions of the Punjab Excise Act and the Rules framed thereunder. We find that an area of agreement sufficient enough for the parties to cover by their volition to bring the transactions in question within the ambit of sales was left in the field. Broadly speaking the stand taken on behalf of the appellants in their counter was correct, except that in regard to the fixation of price we assume in favour of t he respondent-company that the price had been fixed, as usually it is so in the excise trade. Even so the decision of this Court in Vishnu Agencies (supra) and the various other previous decisions reviewed therein justifies in law the imposition of sales tax by the impugned order in question. 4. Mr. Lal Narayan Sinha tried to distinguish the decision in Vishnu Agencies (supra) by pointing out that sales-tax for the period in question was imposed by the Punjab General Sales Tax (Amendment and Validation) Ordinance, 1972 which was promulgated on the 15th November, 1972 with retrospective effect. The respondent-company, counsel submitted, cannot be said to have entered into the trade and carried it on during this period by a volition as it did not know that sales-tax would be chargeable for this period and, therefore, it had not realised sales-tax from its customers. He drew our attention to paragraph 33 of the judgment of this Court in Vishnu Agencies at page 461. 5. In our opinion the argument of the learned counsel is not sound and for two reasons. Firstly, it is well settled and it was not disputed that sales-tax could be imposed retrospectively. That being so the respondent-company will be deemed to have entered th e trade and carried it on the basis that it would be liable to pay sales-tax. Secondly, even assuming it was not so, what has been pointed out in the begining of paragraph 33 as a primary fact of willingness to trade in the commodity strictly o n the terms of Control Orders is only one of the reasons which led to the decision that an area of agreement between the parties was left to their consensus. In our opinion such a part of the area as the one hinted at is not very important and doe s not form the whole and sole basis of the conclusions arrived at in the case of Vishnu Agencies. Even assuming in favour of the respondent-company that it did not carry on the trade thinking that it would be liable to pay sales-tax, the area of consensuality still left in the field for the purpose of agreeing to the final terms of the transactions between the company and its retail dealers was quite sufficient for the application of the ratio of Vishnu Agencies. Having considered all that was submitted on behalf of the respondent-company we find that there is no escape from the conclusion in this case that the transactions in question were sales exigible to sales-tax. 6. ### Response: 1 ### Explanation: This case, in our opinion, is squarely covered by a recent decision of this Court delivered by a Bench of seven Judges in M/s Vishnu Agencies (Pvt.) Ltd. etc. v. Commercial Tax Officer and others etc.(2) The High Court in the case of Jagatjit Distilling and Allied Industries Ltd. (supra) had mainly relied upon two decisions of this Court to hold that the transactions in that case were not sales. The said decisions are M/s New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar(3) and Chittar Mal Narain Das v. Commissioner of Sales Tax U.P.(4). In the case of Vishnu Agencies (supra) the former case was considered in paragraph 36 to 39 of A.I.R. volume at pages 463-464 and it was held that the view expressed in the majority judgment was not good law and the one contained in the minority judgment was approved. Chittar Mals case was also considered in paragraph 44-45 at page 467 and it was distinguished on the ground that the said decision "can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer." But then the criticism in that case of the Full Bench decision of the Allahabad High Court in Commr. Sales-tax, U.P. v. Ram Bilas Ram Gopal(5) "which held while construing cl. 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a Statute" was not endorsed. It is, therefore, plain that to that extent Chittar Mals case is also not good law. The decision of the High Court in Jagatjits case is no longer good law.We have examined the various relevant provisions of the Punjab Excise Act and the Rules framed thereunder. We find that an area of agreement sufficient enough for the parties to cover by their volition to bring the transactions in question within the ambit of sales was left in the field. Broadly speaking the stand taken on behalf of the appellants in their counter was correct, except that in regard to the fixation of price we assume in favour of t he respondent-company that the price had been fixed, as usually it is so in the excise trade. Even so the decision of this Court in Vishnu Agencies (supra) and the various other previous decisions reviewed therein justifies in law the imposition of sales tax by the impugned order in questionn our opinion the argument of the learned counsel is not sound and for two reasons. Firstly, it is well settled and it was not disputed that sales-tax could be imposed retrospectively. That being so the respondent-company will be deemed to have entered th e trade and carried it on the basis that it would be liable to pay sales-tax. Secondly, even assuming it was not so, what has been pointed out in the begining of paragraph 33 as a primary fact of willingness to trade in the commodity strictly o n the terms of Control Orders is only one of the reasons which led to the decision that an area of agreement between the parties was left to their consensus. In our opinion such a part of the area as the one hinted at is not very important and doe s not form the whole and sole basis of the conclusions arrived at in the case of Vishnu Agencies. Even assuming in favour of the respondent-company that it did not carry on the trade thinking that it would be liable to pay sales-tax, the area of consensuality still left in the field for the purpose of agreeing to the final terms of the transactions between the company and its retail dealers was quite sufficient for the application of the ratio of Vishnu Agencies. Having considered all that was submitted on behalf of the respondent-company we find that there is no escape from the conclusion in this case that the transactions in question were sales exigible to sales-tax.

Thayyil Mammo & Another Vs. Kottiath Ramunni & Others

every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Ss. 14 to 22 of the Act. The only question in this appeal is whether the contesting defendants are kanomdars and, therefore, tenants within the meaning of the Act. 5. The contesting defendants claimed (1) that the rights granted by Mayan to Baithan under the deed (Ex. A-3), dated February 5, 1929 are kanom rights, and (2) the deed (Ex. B-2), dated February 27, 1941 operates as a valid assignment of the aforesaid kanom rights by Baithan to defendants 1 to 5. 6. Mr. Viswanatha Sastry contended that the rights granted by Ex. A-3 were rights of a usufructuary mortgagee, and were not kanom rights. We think that this contention is not open to Mr. Viswanatha Sastry. In the High Court, the appellants expressly conceded that Ex. A-3 was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The definition of kanom in S. 2 (22) of the Kerala Land Reforms Act, 1963 is for all practical purposes the same as the definition of kanom in S. 2 (18) of the Kerala Agrarian Relations Act, 1960. Having regard to the admissions made by the appellants in the High Court, it must be held that Ex. A-3 was a kanom within the meaning of the Kerala Land Reforms Act, 1963. 7. Mr. Viswanatha Sastry next contended that Ex. B-2 is a deed of surrender and cannot be construed as a deed of assignment of the kanom rights in favor of defendants 1 to 5. Now Ex. B-2 is styled release deed in respect of kanom right and its operative part reads as follows:"Since I have this day received to satisfaction in ready cash the sum of Rs. 935 made up of the above balance purappad of Rs. 135 and the kanom amount of Rs. 800, and which you have paid to me, the entire rights, liabilities, and claims belonging to me under the aforesaid kanom deed No. 266 and marupat deed No. 267, have been surrendered to you." It may be noticed that the kanom deed no. 266 is Ex. A-3 and the marupat deed No. 267 is Ex. A-4. 8. Exhibit B-2 was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5: its operative words are capable of passing the title, and on its true construction, it operates as an assignment. Mr. Viswanatha Sastry suggested that Ex. B-2 was stamped as a release and not as an assignment. But the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question of construction. 9. In Mt. Oodey Koowur v. Mt. Ladoo, 13 Moo Ind App 585 (PC), the Privy Council held that a petition admitting that the petitioner had no claim to a certain estate did not operate as a conveyance of her subsequently acquired title, the petition having been filed in a pending suit by a petitioner having no present interest in the estate with a view to avoid an objection as to want of parties, and without receiving any consideration for the transfer of her future title. This case is an authority for the proposition that a bare admission in a document that the executant has no interest in a property, made without any consideration cannot pass his subsequently acquired title to the property. In Jadu Nath Poddar v. Rup Lal Poddar, ILR 33 Cal 967 at pp. 983-984, Dharam Chand v. Mauji Sahu, 16 Cal LJ 436, Narak Lall v. Magoo Lall, 22 Cal LJ 380: (AIR 1915 Cal 819), Mathuramohan Saha v. Ram Kumar Saha, 20 Cal WN 370 at p. 378: (AIR 1916 Cal 136 at p. 141), Mookerjee, J., held that a deed of release or relinquishment could not operate as a conveyance and could at most be taken as an admission that the executant had no interest in the property. But those cases do not lay down a proposition of universal application that a deed styled a deed of release cannot operate as a conveyance. In Hemendra Nath Mukerji v. Kumar Nath Roy, 12 Cal WN 478, by a registered deed called a deed of disclaimer the executants relinquished all their rights, title and interest and claim in the properties in favour of the release upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp, Maclean, C. J. held that on its true construction it was a transfer. We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment. 10. In view of this finding, it must follow that the konam right under Ex. A-3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from eviction under the Kerala Land Reforms Act, 1963. 11. In view of this conclusion, it is not necessary to consider whether Ex. A-8 operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex. A-10 operated as a sub-lease by Abubacker to Raman.

0[ds]10. In view of this finding, it must follow that the konam right under Ex.3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from eviction under the Kerala Land Reforms Act, 196311. In view of this conclusion, it is not necessary to consider whether Ex.8 operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex.0 operated as ae by Abubacker to RamanWe think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex.2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.

### 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: every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Ss. 14 to 22 of the Act. The only question in this appeal is whether the contesting defendants are kanomdars and, therefore, tenants within the meaning of the Act. 5. The contesting defendants claimed (1) that the rights granted by Mayan to Baithan under the deed (Ex. A-3), dated February 5, 1929 are kanom rights, and (2) the deed (Ex. B-2), dated February 27, 1941 operates as a valid assignment of the aforesaid kanom rights by Baithan to defendants 1 to 5. 6. Mr. Viswanatha Sastry contended that the rights granted by Ex. A-3 were rights of a usufructuary mortgagee, and were not kanom rights. We think that this contention is not open to Mr. Viswanatha Sastry. In the High Court, the appellants expressly conceded that Ex. A-3 was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The definition of kanom in S. 2 (22) of the Kerala Land Reforms Act, 1963 is for all practical purposes the same as the definition of kanom in S. 2 (18) of the Kerala Agrarian Relations Act, 1960. Having regard to the admissions made by the appellants in the High Court, it must be held that Ex. A-3 was a kanom within the meaning of the Kerala Land Reforms Act, 1963. 7. Mr. Viswanatha Sastry next contended that Ex. B-2 is a deed of surrender and cannot be construed as a deed of assignment of the kanom rights in favor of defendants 1 to 5. Now Ex. B-2 is styled release deed in respect of kanom right and its operative part reads as follows:"Since I have this day received to satisfaction in ready cash the sum of Rs. 935 made up of the above balance purappad of Rs. 135 and the kanom amount of Rs. 800, and which you have paid to me, the entire rights, liabilities, and claims belonging to me under the aforesaid kanom deed No. 266 and marupat deed No. 267, have been surrendered to you." It may be noticed that the kanom deed no. 266 is Ex. A-3 and the marupat deed No. 267 is Ex. A-4. 8. Exhibit B-2 was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5: its operative words are capable of passing the title, and on its true construction, it operates as an assignment. Mr. Viswanatha Sastry suggested that Ex. B-2 was stamped as a release and not as an assignment. But the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question of construction. 9. In Mt. Oodey Koowur v. Mt. Ladoo, 13 Moo Ind App 585 (PC), the Privy Council held that a petition admitting that the petitioner had no claim to a certain estate did not operate as a conveyance of her subsequently acquired title, the petition having been filed in a pending suit by a petitioner having no present interest in the estate with a view to avoid an objection as to want of parties, and without receiving any consideration for the transfer of her future title. This case is an authority for the proposition that a bare admission in a document that the executant has no interest in a property, made without any consideration cannot pass his subsequently acquired title to the property. In Jadu Nath Poddar v. Rup Lal Poddar, ILR 33 Cal 967 at pp. 983-984, Dharam Chand v. Mauji Sahu, 16 Cal LJ 436, Narak Lall v. Magoo Lall, 22 Cal LJ 380: (AIR 1915 Cal 819), Mathuramohan Saha v. Ram Kumar Saha, 20 Cal WN 370 at p. 378: (AIR 1916 Cal 136 at p. 141), Mookerjee, J., held that a deed of release or relinquishment could not operate as a conveyance and could at most be taken as an admission that the executant had no interest in the property. But those cases do not lay down a proposition of universal application that a deed styled a deed of release cannot operate as a conveyance. In Hemendra Nath Mukerji v. Kumar Nath Roy, 12 Cal WN 478, by a registered deed called a deed of disclaimer the executants relinquished all their rights, title and interest and claim in the properties in favour of the release upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp, Maclean, C. J. held that on its true construction it was a transfer. We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment. 10. In view of this finding, it must follow that the konam right under Ex. A-3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from eviction under the Kerala Land Reforms Act, 1963. 11. In view of this conclusion, it is not necessary to consider whether Ex. A-8 operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex. A-10 operated as a sub-lease by Abubacker to Raman. ### Response: 0 ### Explanation: 10. In view of this finding, it must follow that the konam right under Ex.3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from eviction under the Kerala Land Reforms Act, 196311. In view of this conclusion, it is not necessary to consider whether Ex.8 operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex.0 operated as ae by Abubacker to RamanWe think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex.2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.

State Of Jharkhand Vs. Govind Singh

no case be supplied by a court of law, for that would be to make laws."23. Keeping in view the aforesaid legal principles the inevitable conclusion is that the High Court was not justified in reading into Section 52 (3) of the Act the power of direct release by imposing fine in lieu of confiscation. 24. The matter can be looked at from another angle. Section 68 of the Act reads as follows: "Section 68- Power to compound offences: (1) The State Government may, by notification in the Official Gazette, empower a Forest Officer-(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offence, other than an offence specified in Section 62 or Section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed, and(b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property.(3) A Forest-officer shall not be empowered under this section unless he is a Forest-officer of a rank not inferior to that of a Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as compensation under clause (a) of sub-section (1) shall in no case exceed the sum of fifty rupees." 25. The said section was also amended by the State amendment. The amended provision reads as follows: "Section 68-Power to compound offences: (1) The State Government may, by notification in the Official Gazette, empower a Forest Officer-(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offence, other than an offence specified in clauses (c) and (d) to Section 26, clauses (c) and (d) to Section 33 or Section 62 or Section 63, sum of money by way of compensation for the offence which such person is suspected to have committed, and(b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property.(3) A Forest-officer shall not be empowered under this section unless he is a Forest-officer of rank not inferior to that of an Assistant Conservator of Forest." 26. The power to act in terms of Section 68 of the Act is limited to offences other than those specified in clauses (c) and (d) to Section 26, clauses c and (d) to Section 33 or Section 62 or Section 63. Sub-section (1)(b) of Section 68 is also relevant. It provides that where any property has been seized as liable for confiscation, an officer empowered by the State Government has power to release the same on payment of the value thereof as estimated by such officer. The officer has to be empowered in the official gazette by the State Government. To act in terms of the position the value of the property seized or as liable for confiscation has to be estimated. Therefore, on a combined reading of Section 52 and Section 68 of the Act as amended by the Bihar Act, the vehicle as liable for confiscation may be released on payment of the value of the vehicle and not otherwise. This is certainly a discretionary power, exercise of which would depend upon the gravity of the offence. The officer is empowered to release the vehicle on the payment of the value thereof as compensation. This discretion has to be judicially exercised. Section 68 of the Act deals with power to compound offences. It goes without saying that when the discretionary power is conferred, the same has to be exercised in a judicial manner after recording of reasons by the concerned officer as to why the compounding was necessary to be done. In the instant case, learned Single Judge did not refer to the power available under Section 68 of the Act and on the contrary, introduced the concept of reading into Section 52 of the Act, a power to levy fine in lieu of confiscation which is impermissible. In the impugned judgment nowhere the value of the truck which was liable for confiscation was indicated. It appears that the first appellate Court and the revisional authority did not consider it to be a fit case where the vehicle was to be released and were of the considered view that confiscation was warranted. They took specific note of the fact that fake and fabricated documents were produced to justify possession of the seized articles. In any even the respondent had not made any prayer for compounding in terms of Section 68 of the Act. 27. Confiscation in terms of sub-section (3) of Section 52 of the Act is the immediate statutory action which provides that when forest offence as defined in Section 2(3) of the Act is believed to have been committed in respect of the seized vehicle, the authorized officer may confiscate the forest produce and the vehicle involved in the transportation of the forest produce. Foundation for action in terms of Section 52(3) of the Act is the belief entertained by the concerned officer that forest offence has been committed. It is not the value of the forest produce which is relevant, but the value of the article liable for confiscation. In the instant case it is the truck carrying the forest produce. 28.

1[ds]Learned Single Judge by the impugned judgment held that though the power to levy fine in lieu of confiscation is not there, same has to be read into the statute to fully effectuate the legislative intent. It was a case of casus omissus.9. The conclusion is clearly erroneous. It is against the settled principles relating to statutoryprinciples of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou vs. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid inLuke vs. IRC (1966 AC557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".22. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fentonvs. Hampton 11 Moore, P.C.A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones vs. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."23. Keeping in view the aforesaid legal principles the inevitable conclusion is that the High Court was not justified in reading into Section 52 (3) of the Act the power of direct release by imposing fine in lieu of confiscation.Confiscation in terms of sub-section (3) of Section 52 of the Act is the immediate statutory action which provides that when forest offence as defined in Section 2(3) of the Act is believed to have been committed in respect of the seized vehicle, the authorized officer may confiscate the forest produce and the vehicle involved in the transportation of the forest produce. Foundation for action in terms of Section 52(3) of the Act is the belief entertained by the concerned officer that forest offence has been committed. It is not the value of the forest produce which is relevant, but the value of the article liable for confiscation. In the instant case it is the truck carrying the forest produce.

### 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: no case be supplied by a court of law, for that would be to make laws."23. Keeping in view the aforesaid legal principles the inevitable conclusion is that the High Court was not justified in reading into Section 52 (3) of the Act the power of direct release by imposing fine in lieu of confiscation. 24. The matter can be looked at from another angle. Section 68 of the Act reads as follows: "Section 68- Power to compound offences: (1) The State Government may, by notification in the Official Gazette, empower a Forest Officer-(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offence, other than an offence specified in Section 62 or Section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed, and(b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property.(3) A Forest-officer shall not be empowered under this section unless he is a Forest-officer of a rank not inferior to that of a Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as compensation under clause (a) of sub-section (1) shall in no case exceed the sum of fifty rupees." 25. The said section was also amended by the State amendment. The amended provision reads as follows: "Section 68-Power to compound offences: (1) The State Government may, by notification in the Official Gazette, empower a Forest Officer-(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offence, other than an offence specified in clauses (c) and (d) to Section 26, clauses (c) and (d) to Section 33 or Section 62 or Section 63, sum of money by way of compensation for the offence which such person is suspected to have committed, and(b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property.(3) A Forest-officer shall not be empowered under this section unless he is a Forest-officer of rank not inferior to that of an Assistant Conservator of Forest." 26. The power to act in terms of Section 68 of the Act is limited to offences other than those specified in clauses (c) and (d) to Section 26, clauses c and (d) to Section 33 or Section 62 or Section 63. Sub-section (1)(b) of Section 68 is also relevant. It provides that where any property has been seized as liable for confiscation, an officer empowered by the State Government has power to release the same on payment of the value thereof as estimated by such officer. The officer has to be empowered in the official gazette by the State Government. To act in terms of the position the value of the property seized or as liable for confiscation has to be estimated. Therefore, on a combined reading of Section 52 and Section 68 of the Act as amended by the Bihar Act, the vehicle as liable for confiscation may be released on payment of the value of the vehicle and not otherwise. This is certainly a discretionary power, exercise of which would depend upon the gravity of the offence. The officer is empowered to release the vehicle on the payment of the value thereof as compensation. This discretion has to be judicially exercised. Section 68 of the Act deals with power to compound offences. It goes without saying that when the discretionary power is conferred, the same has to be exercised in a judicial manner after recording of reasons by the concerned officer as to why the compounding was necessary to be done. In the instant case, learned Single Judge did not refer to the power available under Section 68 of the Act and on the contrary, introduced the concept of reading into Section 52 of the Act, a power to levy fine in lieu of confiscation which is impermissible. In the impugned judgment nowhere the value of the truck which was liable for confiscation was indicated. It appears that the first appellate Court and the revisional authority did not consider it to be a fit case where the vehicle was to be released and were of the considered view that confiscation was warranted. They took specific note of the fact that fake and fabricated documents were produced to justify possession of the seized articles. In any even the respondent had not made any prayer for compounding in terms of Section 68 of the Act. 27. Confiscation in terms of sub-section (3) of Section 52 of the Act is the immediate statutory action which provides that when forest offence as defined in Section 2(3) of the Act is believed to have been committed in respect of the seized vehicle, the authorized officer may confiscate the forest produce and the vehicle involved in the transportation of the forest produce. Foundation for action in terms of Section 52(3) of the Act is the belief entertained by the concerned officer that forest offence has been committed. It is not the value of the forest produce which is relevant, but the value of the article liable for confiscation. In the instant case it is the truck carrying the forest produce. 28. ### Response: 1 ### Explanation: Learned Single Judge by the impugned judgment held that though the power to levy fine in lieu of confiscation is not there, same has to be read into the statute to fully effectuate the legislative intent. It was a case of casus omissus.9. The conclusion is clearly erroneous. It is against the settled principles relating to statutoryprinciples of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou vs. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid inLuke vs. IRC (1966 AC557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".22. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fentonvs. Hampton 11 Moore, P.C.A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones vs. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."23. Keeping in view the aforesaid legal principles the inevitable conclusion is that the High Court was not justified in reading into Section 52 (3) of the Act the power of direct release by imposing fine in lieu of confiscation.Confiscation in terms of sub-section (3) of Section 52 of the Act is the immediate statutory action which provides that when forest offence as defined in Section 2(3) of the Act is believed to have been committed in respect of the seized vehicle, the authorized officer may confiscate the forest produce and the vehicle involved in the transportation of the forest produce. Foundation for action in terms of Section 52(3) of the Act is the belief entertained by the concerned officer that forest offence has been committed. It is not the value of the forest produce which is relevant, but the value of the article liable for confiscation. In the instant case it is the truck carrying the forest produce.

BENGALURU DEVELOPMENT AUTHORITY Vs. MR. SUDHAKAR HEGDE & ORS

EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated. I Courts and the environment 77. Courts today are faced with increasing environmental litigation. A development project that was conceptualized as early as in the year 2005 has surfaced before this Court over 15 years later. The period that has led up to the present litigation has involved a myriad of decisions and processes, each contributing to the delay of a project that was outlined to sub-serve a salient development policy of de-congesting the city. Where project proponents and institutions envisaged under the 2006 Notification abdicate their duty, it is not only the environment that suffers a serious set-back, but also the development of the nation. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between the development of the nation and the protection of the environment. 78. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth. Professor Charles E Corker of the University of Washington School of Law said in a speech titled Litigating the Environment – are we overdoing it? (Speech to the Thirteenth Annual Meeting of the Interstate Conference on Water Problems, Portland, Oregon delivered on 29 October, 1970): My answer is yes. We are overdoing our litigation of the environment. I do not mean that there are necessarily too many lawsuits being filed on environmental issues, and that we should somehow cut back – I would not know how, in any case – the number of those suits by ten percent, twenty percent, or fifty percent. I do mean that a disproportionately large share of attention, effort and environmental concern is being focused on lawsuits. Lawsuits cannot accomplish, by themselves, solutions to the most pressing of our environmental problems. As a result, we are in some danger of leaving the most pressing environmental problems unsolved – or even made worse – because the commotion of litigation has persuaded us that something has been accomplished. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions. Equally important however, is to be cautious that environmental litigation alone is not the panacea in the quest to ensure sustainable development. 79. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place. 80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled. 81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification. 82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019. J Directions

1[ds]18. The EIA process under the 2006 Notification serves as a balance between development and protection of the environment: there is no trade-off between the two. In laying down a detailed procedure for the grant of an EC, the 2006 notification attempts to bridge the perceived gap between the protection of the environment and development. The basic postulate of the 2006 Notification is that the path which is prescribed for disclosures, studies, gathering data, consultation and appraisal is designed in a manner that would secure decision making which is transparent, responsive and inclusive. While the BDA Act was enacted with the purpose of establishing a development authority for the development of the city of Bangalore and adjacent areas, the 2006 Notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. The BDA Act and the 2006 Notification operate in different fields. It cannot be said that a site is deemed identified for the purpose of triggering the obligations under the 2006 Notification upon the issuance of a preliminary notification under Section 17 of the BDA Act. Adopting a contrary interpretation would lead to the absurd result where a project proponent is obligated to carry out the EIA process for a scheme even prior to the grant of government sanction and a final notification carrying into effect the proposed scheme. In this view of the matter, the prospective site is deemed to be identified only upon the issuance of the final notification under Section 19 after the proposed scheme has received Government sanction under Section 18(3)19. The final notification under Section 19(1) of the BDA Act was issued on 29 June 2007 following the grant of government sanction for the acquisition of the land. This being after the coming into force of the 2006 Notification, the contention urged by the appellant that the project commenced prior to the coming into force of the 2006 Notification cannot be acceptedAdmittedly, in the present case, no notification was issued under either the National Highways Act 1956 or the Karnataka Highways Act 1964 notifying the PRR project as a highway under those enactments. Initial discussions took place at the Government of Karnataka level regarding the transfer of the PRR project to the National Highways Authority of India (NHAI). On 10 January 2018, the Central Road Transport Ministry was informed that the Government of Karnataka had granted its consent to transfer the said project to the NHAI on an as it is basis. However, the Government of Karnataka, by its order dated 24 June 2008, withdrew the proposal to transfer the PRR project to the NHAI29. An amending provision which clarifies the position of law which was considered to be implicit, is construed to have retrospective effect. The position of the retrospective application of clarificatory amendments to notifications is analogous to the position under statutory enactments. In the present case, the Committee appointed by the MoEF-CC clarified that the term highways included expressways and suggested that a suitable amendment be issued to that effect. Based on the report of the Committee, a clarificatory amendment was issued in column 5 of para 7(f) to stipulate that highways include expressways30. Neither the National Highways Act 1956 nor the Karnataka Highways Act 1964 define the term highway. The 2009 amendment to the 2006 Notification is silent on the definition of the term expressway33. The PRR project is expected to be an 8 lane main carriageway highway (4 + 4 bi-directional), along with a 6 lane road service road (3 + 3 bi-directional) having a right of way of 75 meters and total length of 63.5 kms. The EIA report stipulates that the PRR project was conceptualised with the salient purpose of decongesting the traffic in the city and catering to intercity connectivity and intercity traffic. This, it was stated, would significantly reduce pollution intensity and travel time. The EIA report clarifies that the project is designed to cater to high speed vehicular traffic with vehicles plying at speeds of 100 Kms/hr, where possible, and 80Kms/hr in other places34. Moreover, the report stipulates that the project also comprises of ten interchanges and sixteen toll booths. It is stated that access to the road is restricted only to national highways, state highways and major district roads. In this view of the matter, there is no doubt that the PRR project is an expressway falling within the ambit of para 7(f) of the Schedule to the 2006 Notification. The PRR project commenced on the issuance of the final notification under Section 19(1) of the BDA Act on 29 June 2007. Having concluded that the PRR project is an expressway, the appellant as project proponent was under an obligation under para 7(f) of the Schedule to the 2006 Notification to seek a prior EC to implement the project44. In the present case, the ToR was issued on 21 November 2009, prior to the issue of the OM dated 22 March 2010. Hence, by virtue of the notification, the appellant was required to submit the EIA report within four years from the date of the issuance of the ToR i.e before 21 November 2013. The SEAC was under a corresponding obligation to refuse the consideration of any EIA report prepared after the expiry of the ToR. Public hearing was conducted belatedly only on 6 February 2014 and the EIA report prepared thereafter was placed before the SEAC only on 2 August 2014, nearly a year after the ToR had expired. We cannot gloss over the failure of the project proponent to comply with the OMs issued by the MoEF-CC prescribing a time limit for the validity of the ToR. The decision of the SEAC to proceed with the EIA report as well as seek additional information from the project proponent despite the expiry of the ToR suffers from a non-application of mind and is unsustainable45. Moreover, primary data was collected in December 2009 and February 2010. The EIA report was prepared after the public hearing was conducted in February 2014, nearly a year after the primary data had expired in terms of the OMs issued by the MoEF-CC46. Admittedly, the EIA reports prepared in August and October 2014 relied on primary data which was collected between the months of December 2009 and February 2010. The EIA report was prepared prior to the coming into force of the OM dated 7 November 2014 by which the MoEF-CC extended the validity of primary data collected from a period of three years to four years. Even if the benefit under the notification were extended to the appellant, it was duty bound to collect fresh primary data upon the expiry of four years from the date of issuance of the ToR i.e. 21 November 2013. This was evidently not done. This being the case, there is no manner of doubt that the final EIA report prepared on the basis of an expired ToR and primary data was in contravention of the OMs dated 22 March 2010, 22 August 2014 and 7 November 2014 issued by the MoEF-CC and could not form the basis of a validly issued EC47. It is also pertinent to note that a Rapid EIA along with a socio-economic study was prepared by M/s Ramky Enviro Engineers Ltd., the EIA consultant for the PRR project on behalf of the appellant in November 2010. This EIA report relied on primary data collected between the months of December 2009 and February 2010 and analysed the impact of the proposed PRR project on the environment. A perusal of both the 2010 rapid EIA report and the EIA report prepared in October 2014 reveals that the data as well as the analysis of the impact of the proposed PRR project on the environment in the 2014 report is similar to that in the 2010 Rapid EIA report. It appears that the EIA consultant has reproduced verbatim, portions of the Rapid EIA report which was prepared in the year 2010. No effort was taken by the appellant to ensure the fresh collection of data in compliance with its obligations under the OMs issued by the MoEF-CC. In this view of the matter, the contention urged on behalf of the respondents that there was a substantial delay in the carrying out of the EIA process, vitiating the process commends itself for our acceptance49. The questions framed by the SEAC and responses filed by the appellant demonstrate that there existed serious deficiencies in the EIA report which was submitted to the SEAC. This included outdated data on the AAQ air analysis, soil quality, forest land and the number of trees to be planted. The SEAC noted certain shortfalls which concerned limited aspects of the EIA report including the baseline data of hardness of borewell water, soil analysis and forest land. In addition to this, the SEAC directed that certain samples collected were to be marked on the map submitted to the SEAC in the EIA Report. Significantly, the SEAC noted the discrepancy concerning the disclosure of the existence of forest land. This aspect shall be explored in the course of the judgment50. The SEAC framed questions and sought information which was clarificatory in nature and covered specific substantive aspects of the data submitted in the EIA report. The EIA report on the other hand covers a wide range of matters which include terrain, topography, land requirements, terrain classification, wind and noise pattern analysis, air quality analysis, surface and ground water analysis, soil environment analysis, impact of flora and fauna and environmental monitoring plans51. The submission of additional fresh data on a few points raised in the form of a query on behalf of the SEAC does not remedy the general obligation to ensure that the EIA report was prepared within a time period of four years from the date of the issuance of the ToR, relying on primary data that was no older than four years. Merely because some additional information was sought which required the furnishing of additional details and the collection of fresh samples, it cannot be said that such an exercise cures the defect arising from the preparation of an EIA report outside the time period prescribed by the MoEF-CC. Significantly, even at the relevant time when information was sought from the project proponent, both the ToR as well as the primary data upon which the EIA report was prepared was beyond the period of their validity. In such a case, the SEAC, by seeking additional information, has traversed beyond the power conferred upon it under the 2006 Notification52. The SEAC proceeded to recommend to the SEIAA the grant of the EC to the PRR project in contravention of the obligations stipulated under the OMs issued by the MoEF-CC. Significantly, the SEAC considered the final EIA report only at its 121st meeting between 11 – 18 November 2014 when the OM dated 22 August 2014 issued by the MoEF-CC was in force. The SEAC was under an obligation to direct the appellant to conduct the EIA process de novo. The SEAC and the project proponent cannot circumvent the obligation to ensure reliance on contemporary data by seeking additional information beyond the prescribed validity of the ToR and primary data. The SEAC has clearly erred in recommending to the SEIAA the grant of EC despite the non-compliance by the appellant with the prescribed time limit for the preparation of the EIA report55. The MoEF-CC prescribed that it is mandatory for every consultant or PSU acting as an EIA consultant to get themselves registered under the accreditation scheme of the NABET/QCI. Moreover, a consultant would be confined to the sector for which they receive accreditation to ensure expertise and specificity in the carrying out of the EIA process. This was also to ensure the availability of facilities like laboratories. It was stated that a good quality EIA report is a pre- condition for improved decision-making. In the written submissions before this Court, the appellant urged that M/s Ramky Enviro Engineers Pvt. Ltd. was hired in November 2009 upon the issuance of the ToRs prior to the coming into force of the OM dated 2 December 2009. Consequently, there was no obligation to engage an accredited consultant for the preparation of the EIA report. Be that as it may, Ramky Enviro Engineers Pvt. Ltd, Hyderabad was granted the status of a „consultant withvide OM dated 30 June 2011 issued by the MoEF- CC. At the time of the preparation of the EIA report which was submitted to the SEAC, the EIA consultant had received accreditation60. We cannot gloss over the patent contradiction of the appellant as the project proponent in disclosing the existence of forest land to be diverted for the purposes of the PRR project. Despite a clear indication that a total 1.5 hectares of forest land is to be diverted for the purpose of the PRR project, the appellant sought to remedy its failure in seeking the requisite clearances in a post facto manner by stipulating that 25 acres of land available with it is to be given to the forest department in lieu of the forest cover proposed to be diverted for the project. Post facto explanations are inadequate to deal with a failure of due process in the field of environmental governanceIn addition to the admission by the appellant of the contradictions in the EIA report, it sought to substitute the requisite forest clearance with an agreement with the forest department to provide an alternative site for afforestation. This is not sustainable in law. Compliance with the 2006 Notification and other statutory enactments envisaged in the EIA process cannot be reduced to an ad-hoc mechanism where the project proponent seeks to remedy its abject failure to disclose material information and seek the requisites clearances at a belated stage65. Project proponents are duty bound to disclose the existence of forest land and inform the SEAC of the status of their application for forest clearance at the time of submitting the EIA report for the grant of the EC. Where the competent authority has granted the EC for a project, the project proponent is then duty bound to obtain and submit to the competent authority the requisite stage I forest clearance for the proposed project within 12 months or 18 months, as the case may be. Where the project proponent fails to submit the requisite forest clearance within the prescribed time, the EAC or the SEAC are authorised to reexamine the project and decide whether there is a need for the reappraisal of the project. The process envisaged for the disclosure of the forest clearance procedure as well as the submission of the grant of forest clearance sub-serves the purpose of ensuring timely and adequate protection of forest land. Where the EAC or the SEAC is of the opinion that additional documents are required upon the failure of the project proponent to submit the requisite forest clearance within the prescribed time, it may direct that a fresh public hearing be conducted66. The appellant attempted to remedy its contradictory stand on the forest land proposed to be diverted and its failure to obtain the requisite forest clearance by submitting to the SEAC an undertaking to ensure afforestation in an alternate plot of land owned by it in collaboration with the forest department. Such a procedure is neither envisaged under the 2006 Notification nor is in compliance with the notifications issued by the MoEF-CC from time to time. Similarly, the SEAC was under an obligation to ensure that the project proponent had complied with the stipulated procedure for the grant of forest clearance. Instead, the SEAC proceeded on the clarification issued by the appellant in contravention of the OMs dated 31 March 2011, 9 September 2011 and 18 May 2012. Despite the numerous deficiencies that were noted in the minutes of the SEAC meeting, it proceeded to recommend to the SEIAA the grant of EC for the PRR project. The decision of the SEAC to recommend to the SEIAA the grant of the EC, despite the contradictory stand of the appellant as well as its failure to furnish adequate reasons as to why it was exempt from seeking forest clearance, suffers from a non-application of mindThe EIA report prevaricated by recording that the area required for the proposed PRR project has only a few trees. Though the development of infrastructure may necessitate the felling of trees, the process stipulated under the 2006 Notification must be transparent, candid and robust. Hiding significant components of the environment from scrutiny cannot be an acceptable method of securing project approvals. There was a serious lacuna in regard to disclosures and appraisal on this aspect of the controversy69. The EIA process was challenged on the ground that by virtue of a notification dated 12 June 1999, the Central Government acquired certain lands for laying a petroleum pipeline between Mangalore and Bangalore. Petronet MHB Ltd., by its letters dated 7 November 2005 and 21 November 2007 sought to inform the appellant of the potential crossover of the PRR project over the pipelines. The same was reiterated in its meeting with the appellant dated 4 February 2008. Petronet MHB Ltd. was of the opinion that as the pipelines contain hazardous material which is highly inflammable, care should be taken to either relocate parts of the project or ensure that adequate safeguards were put in place72. The reasons furnished by the SEAC must be assessed with reference to the norm that it is required to submit reasons for its recommendation. The analysis by the SEAC is, to say the least, both perfunctory and fails to disclose the reasons upon which it recommended to the SEIAA the grant of EC for the PRR project. The SEAC proceeds merely on the reply furnished by the appellant to the queries raised by the SEAC at its 115th meeting dated 11-12 August, 2014. In this view, the procedure followed by the SEAC suffers from a non- application of mind73. The SEAC is under an obligation to record the specific reasons upon which it recommends the grant of an EC. The requirement that the SEAC must record reasons, besides being mandatory under the 2006 Notification, is of significance for two reasons: (i) The SEAC makes a recommendation to the SEIAA in terms of the 2006 Notification. The regulatory authority has to consider the recommendation and convey its decision to the project proponent. The regulatory authority, as para 8(ii) of the 2006 Notification provides ((ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned…), shall normally accept the recommendations of the EAC. Thus, the role of the SEAC in the grant of the EC for a proposed project is crucial; and (ii) The grant of an EC is subject to an appeal before the NGT under Section 16 of the NGT Act 2010. The reasons furnished by the SEAC constitute the link upon which the SEIAA either grants or rejects the EC. The reasons form the material which will be considered by the NGT when it considers a challenge to the grant of an EC76. The SEAC, as an expert body, must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment and scrutinise the document submitted to it. The SEAC is duty bound to analyse the EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019.

### 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: EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated. I Courts and the environment 77. Courts today are faced with increasing environmental litigation. A development project that was conceptualized as early as in the year 2005 has surfaced before this Court over 15 years later. The period that has led up to the present litigation has involved a myriad of decisions and processes, each contributing to the delay of a project that was outlined to sub-serve a salient development policy of de-congesting the city. Where project proponents and institutions envisaged under the 2006 Notification abdicate their duty, it is not only the environment that suffers a serious set-back, but also the development of the nation. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between the development of the nation and the protection of the environment. 78. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth. Professor Charles E Corker of the University of Washington School of Law said in a speech titled Litigating the Environment – are we overdoing it? (Speech to the Thirteenth Annual Meeting of the Interstate Conference on Water Problems, Portland, Oregon delivered on 29 October, 1970): My answer is yes. We are overdoing our litigation of the environment. I do not mean that there are necessarily too many lawsuits being filed on environmental issues, and that we should somehow cut back – I would not know how, in any case – the number of those suits by ten percent, twenty percent, or fifty percent. I do mean that a disproportionately large share of attention, effort and environmental concern is being focused on lawsuits. Lawsuits cannot accomplish, by themselves, solutions to the most pressing of our environmental problems. As a result, we are in some danger of leaving the most pressing environmental problems unsolved – or even made worse – because the commotion of litigation has persuaded us that something has been accomplished. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions. Equally important however, is to be cautious that environmental litigation alone is not the panacea in the quest to ensure sustainable development. 79. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place. 80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled. 81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification. 82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019. J Directions ### Response: 1 ### Explanation: May 2012. Despite the numerous deficiencies that were noted in the minutes of the SEAC meeting, it proceeded to recommend to the SEIAA the grant of EC for the PRR project. The decision of the SEAC to recommend to the SEIAA the grant of the EC, despite the contradictory stand of the appellant as well as its failure to furnish adequate reasons as to why it was exempt from seeking forest clearance, suffers from a non-application of mindThe EIA report prevaricated by recording that the area required for the proposed PRR project has only a few trees. Though the development of infrastructure may necessitate the felling of trees, the process stipulated under the 2006 Notification must be transparent, candid and robust. Hiding significant components of the environment from scrutiny cannot be an acceptable method of securing project approvals. There was a serious lacuna in regard to disclosures and appraisal on this aspect of the controversy69. The EIA process was challenged on the ground that by virtue of a notification dated 12 June 1999, the Central Government acquired certain lands for laying a petroleum pipeline between Mangalore and Bangalore. Petronet MHB Ltd., by its letters dated 7 November 2005 and 21 November 2007 sought to inform the appellant of the potential crossover of the PRR project over the pipelines. The same was reiterated in its meeting with the appellant dated 4 February 2008. Petronet MHB Ltd. was of the opinion that as the pipelines contain hazardous material which is highly inflammable, care should be taken to either relocate parts of the project or ensure that adequate safeguards were put in place72. The reasons furnished by the SEAC must be assessed with reference to the norm that it is required to submit reasons for its recommendation. The analysis by the SEAC is, to say the least, both perfunctory and fails to disclose the reasons upon which it recommended to the SEIAA the grant of EC for the PRR project. The SEAC proceeds merely on the reply furnished by the appellant to the queries raised by the SEAC at its 115th meeting dated 11-12 August, 2014. In this view, the procedure followed by the SEAC suffers from a non- application of mind73. The SEAC is under an obligation to record the specific reasons upon which it recommends the grant of an EC. The requirement that the SEAC must record reasons, besides being mandatory under the 2006 Notification, is of significance for two reasons: (i) The SEAC makes a recommendation to the SEIAA in terms of the 2006 Notification. The regulatory authority has to consider the recommendation and convey its decision to the project proponent. The regulatory authority, as para 8(ii) of the 2006 Notification provides ((ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned…), shall normally accept the recommendations of the EAC. Thus, the role of the SEAC in the grant of the EC for a proposed project is crucial; and (ii) The grant of an EC is subject to an appeal before the NGT under Section 16 of the NGT Act 2010. The reasons furnished by the SEAC constitute the link upon which the SEIAA either grants or rejects the EC. The reasons form the material which will be considered by the NGT when it considers a challenge to the grant of an EC76. The SEAC, as an expert body, must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment and scrutinise the document submitted to it. The SEAC is duty bound to analyse the EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019.

Baldev Raj Vs. State of Himachal Pradesh

Fazal Ali, J. This appeal by special leave is directed against the judgment of the High Court of Himachal Pradesh by which the conviction of the appellant under Section 302 and sentence of life imprisonment were confirmed by the High Court. The prosecution case is detailed in the judgment of the High Court and it is not necessary for us to repeat the same. Even according to the prosecution, it appears that the origin of the manner in which the deceased met her death is shrouded in obscurity. In fact the FIR was lodged at the police station Gona by PW 1 Rattan Singh who was the father-in-law of the deceased where he has not mentioned at all that the deceased was assaulted or murdered by anybody. The facts mentioned in the FIR clearly show that it was a case of accidental death as a result of the deceased attempting to light fire in the house and while doing so her clothes caught fire. The medical evidence however does not show that the deceased died of burns though some traces of burning appear on some parts of the body. The High Court has rejected the entire evidence produced by the prosecution against the appellant and relied solely on the statement of PW 8, Smt. Bindra Devi the mother of the deceased to whom the deceased is said to have made an oral dying declaration that she was beaten to death by her husband Baldev Raj, the appellant. We have gone through the evidence of PW 8 from start to finish and we are not impressed with her evidence and are unable to hold that she is a reliable witness. In the first place there dose not appear to be any particular occasion for the presence of PW 8 at the time when the deceased was being carried on a charpai. Secondly PW 8 says that she was not recognised by the deceased but was only identified by the voice of her mother. The most important circumstances to discredit the testimony is that she was nowhere in the picture for five days after the occurrence, when for the first time she made a statement before the police regarding the alleged dying declaration. In her deposition before the Sessions Court she admitted that before the committing Court, she had stated that she had met the Sub-Inspector even before her statement was taken by the police. There is nothing to show that at the time when she met the police for the first time she gave out that the deceased has made any oral dying declaration to her. Apart from this the evidence of this witness suffers from a number of infirmities which render her story inherently improbable. 2. The learned counsel appearing for the State submitted that there was some evidence to show that some strings of moonj was recovered but that by itself would not be sufficient to incriminate the accused. The father-in-law who was the best witness to know about the occurrence has given a complete go-by to the prosecution story when he alleged in the FIR which is the earliest version of occurrence, that the deceased had died an accidental death. It was contended by the counsel for the State that the defence taken by the appellant is false; even if that is so that by itself would not strengthen the prosecution case. On a perusal of the only evidence relied upon by the High Court we are satisfied that the evidence of PW 8 is not worthy of credence. Thus the position is that there is no legal evidence to found the conviction of the appellant.

1[ds]In the first place there dose not appear to be any particular occasion for the presence of PW 8 at the time when the deceased was being carried on a charpai. Secondly PW 8 says that she was not recognised by the deceased but was only identified by the voice of her mother. The most important circumstances to discredit the testimony is that she was nowhere in the picture for five days after the occurrence, when for the first time she made a statement before the police regarding the alleged dying declaration. In her deposition before the Sessions Court she admitted that before the committing Court, she had stated that she had met ther even before her statement was taken by the police. There is nothing to show that at the time when she met the police for the first time she gave out that the deceased has made any oral dying declaration to her. Apart from this the evidence of this witness suffers from a number of infirmities which render her story inherently improbablew who was the best witness to know about the occurrence has given a completey to the prosecution story when he alleged in the FIR which is the earliest version of occurrence, that the deceased had died an accidental death. It was contended by the counsel for the State that the defence taken by the appellant is false; even if that is so that by itself would not strengthen the prosecution case. On a perusal of the only evidence relied upon by the High Court we are satisfied that the evidence of PW 8 is not worthy of credence. Thus the position is that there is no legal evidence to found the conviction of the appellant.

### 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: Fazal Ali, J. This appeal by special leave is directed against the judgment of the High Court of Himachal Pradesh by which the conviction of the appellant under Section 302 and sentence of life imprisonment were confirmed by the High Court. The prosecution case is detailed in the judgment of the High Court and it is not necessary for us to repeat the same. Even according to the prosecution, it appears that the origin of the manner in which the deceased met her death is shrouded in obscurity. In fact the FIR was lodged at the police station Gona by PW 1 Rattan Singh who was the father-in-law of the deceased where he has not mentioned at all that the deceased was assaulted or murdered by anybody. The facts mentioned in the FIR clearly show that it was a case of accidental death as a result of the deceased attempting to light fire in the house and while doing so her clothes caught fire. The medical evidence however does not show that the deceased died of burns though some traces of burning appear on some parts of the body. The High Court has rejected the entire evidence produced by the prosecution against the appellant and relied solely on the statement of PW 8, Smt. Bindra Devi the mother of the deceased to whom the deceased is said to have made an oral dying declaration that she was beaten to death by her husband Baldev Raj, the appellant. We have gone through the evidence of PW 8 from start to finish and we are not impressed with her evidence and are unable to hold that she is a reliable witness. In the first place there dose not appear to be any particular occasion for the presence of PW 8 at the time when the deceased was being carried on a charpai. Secondly PW 8 says that she was not recognised by the deceased but was only identified by the voice of her mother. The most important circumstances to discredit the testimony is that she was nowhere in the picture for five days after the occurrence, when for the first time she made a statement before the police regarding the alleged dying declaration. In her deposition before the Sessions Court she admitted that before the committing Court, she had stated that she had met the Sub-Inspector even before her statement was taken by the police. There is nothing to show that at the time when she met the police for the first time she gave out that the deceased has made any oral dying declaration to her. Apart from this the evidence of this witness suffers from a number of infirmities which render her story inherently improbable. 2. The learned counsel appearing for the State submitted that there was some evidence to show that some strings of moonj was recovered but that by itself would not be sufficient to incriminate the accused. The father-in-law who was the best witness to know about the occurrence has given a complete go-by to the prosecution story when he alleged in the FIR which is the earliest version of occurrence, that the deceased had died an accidental death. It was contended by the counsel for the State that the defence taken by the appellant is false; even if that is so that by itself would not strengthen the prosecution case. On a perusal of the only evidence relied upon by the High Court we are satisfied that the evidence of PW 8 is not worthy of credence. Thus the position is that there is no legal evidence to found the conviction of the appellant. ### Response: 1 ### Explanation: In the first place there dose not appear to be any particular occasion for the presence of PW 8 at the time when the deceased was being carried on a charpai. Secondly PW 8 says that she was not recognised by the deceased but was only identified by the voice of her mother. The most important circumstances to discredit the testimony is that she was nowhere in the picture for five days after the occurrence, when for the first time she made a statement before the police regarding the alleged dying declaration. In her deposition before the Sessions Court she admitted that before the committing Court, she had stated that she had met ther even before her statement was taken by the police. There is nothing to show that at the time when she met the police for the first time she gave out that the deceased has made any oral dying declaration to her. Apart from this the evidence of this witness suffers from a number of infirmities which render her story inherently improbablew who was the best witness to know about the occurrence has given a completey to the prosecution story when he alleged in the FIR which is the earliest version of occurrence, that the deceased had died an accidental death. It was contended by the counsel for the State that the defence taken by the appellant is false; even if that is so that by itself would not strengthen the prosecution case. On a perusal of the only evidence relied upon by the High Court we are satisfied that the evidence of PW 8 is not worthy of credence. Thus the position is that there is no legal evidence to found the conviction of the appellant.

Bengal Timber Trading Co. Ltd Vs. Commissioner Of Sales Tax, Madhyapradesh

accepted by the consignee. Cl. 11 (g) makes it clear that notwithstanding the fact that the goods had been passed by the Sleeper Passing Officer at Dhamtari and that they had been put on rail within the period of the contract at the said station and the Sleeper Passing Officer had given the contractor a passing certificate in terms of C1. 10 and the station master at Dhamtari had issued a tally receipt for the number of sleepers loaded, the consignee still had the right to inspect the goods at the destination and reject any which were not in terms of the contract and such rejected goods were to be treated as non-delivered. All this, in our opinion, puts the matter beyond doubt that the actual physical delivery was not taken as complete before the goods were accepted by the consignee at the destination. In all such cases, the consumption took place in the State to which the goods were despatched with the result that the sales came within the purview of the Explanation to Art. 286 (1) (a) as it stood before the Sixth Amendment of the Constitution.12. Our attention was drawn to a judgment of the Patna High Court in Birendranath Guha and Co. v. State of Bihar, 1954-5 STC 273: (AIR 1955 Pat 245 ) where the assessee had taken lease of a timber forest in Nepal and had built godowns in Nepal territory close to Jogbani railway station in the State of Bihar. The assessee supplied to the railways and despatched to different destinations various quantities of sleepers from Jogbani railway station after obtaining instructions from the Sleeper Control officer. The assessee contended that no sale took place in Bihar since the sleepers had been manufactured in Nepal and despatched from Jogbani railway station to places outside Bihar. The full terms of the contract in that case are not to be found in the report but it appears that it was worded very similarly to the contract before us. The Patna High Court held that on a consideration of all the provisions of the contract, it was manifest that the goods in question had been unconditionally appropriated to the contract at Jogbani railway station. Alternatively, the High Court held that there was appropriation of the goods within the meaning of S. 23(2) of the Sale of Goods Act at Jogbani railway station and accordingly it was held that there was delivery to the carrier at Jogbani railway station coupled with an unconditional appropriation of the goods within the meaning of Section 23 (2) of the Sale of Goods Act. With regard to Clauses 11 (g), 11(j) and 13 (a) the High Court said that these were merely additional stipulations superimposed on the contractor who agreed to act as insurer of the goods till the stage of final destination and also agreed to the other conditions, but these additional conditions had no bearing on the question as to where and when the title to the sleepers passed to the buyer.13. We find ourselves unable to agree with the above expression of opinion as we have already pointed out that the question is not when the title to the goods passed under the contract, but to ascertain whether actual delivery of the goods took place outside the State of Madhya Pradesh for the purpose of consumption there so as to be within the deeming provision of the Explanation to Art. 286 (1). The contract has to be considered in the setting of the facts and circumstances of the case as a whole and Cl. 11(g), 11 (i), 12, 13 and 14 cannot be read as conditions superimposed after the actual delivery of the goods. The place of actual delivery in the light of all the circumstances of the case can only be the destination of the goods and the goods can only be said to be fully delivered and finally accepted after they are acknowledged at the destination by the Sleeper Control Officer.14. A similar contract came up for consideration before the Assam High Court in Birendra Nath Guha v. Commissioner of Taxes, Assam, 1959-10 STC 327: (AIR 1958 Assam 119) and the High Court took a view different from that of the Patna High Court mentioned above.15. In D. N. Dutta v. Commissioner of Sales Tax, Orissa, ILR (1961) Cut 622 two questions were referred to the High Court, one of them being, whether there was a completed sale in Orissa so as to confer jurisdiction on the State of Orissa to tax the impugned transactions and secondly, whether even if there was a completed sale in Orissa, the State Government was prohibited from taxing those transactions in view of the ban imposed by Cl. (1) and Cl. (2) of Art. 286 of the Constitution. The contract, according to the judgment of the High Court, was identical with the one which came for consideration in the Patna case in 1959-10 STC 327: (AIR 1958 Assam 119) (supra). The Orissa High Court held that in respect of the impugned transaction, none of the sleepers had been subject to reinspection by the Sleeper Control Officer "or rejected by him at the destination; all the sleepers were fully delivered when the passing mark was given by the Sleeper Passing Officer at the place of despatch and the seller had loaded them in the wagon at the despatching station and obtained the tally receipt from the station master concerned. It is not necessary to examine the case in detail but it is sufficient to say that even if there was no rejection at the place of destination, actual delivery would not be completed until they were finally accepted at destination and to that extent we find ourselves unable to agree with the decision of the Orissa High Court.16. In the result, it must be held that the sales in these cases were covered by the Explanation to Art. 286 (1) and as such not taxable by the State of Madhya Pradesh.

1[ds]11. In our opinion, we have got to take the whole of the contract into account and then find out the intention of the parties as to where actual delivery was to take place thereunder. While there can be no doubt that the major part of the operations of the contractor with regard to delivery were to be performed at Dhamtari he was not relieved of all liability as to delivery until the goods were finally accepted at the destination by the consignee. In this respect, we cannot overlook Cls. 3 (a), 11(g), 12 and 14 of the conditions of contract when the consignee was outside Madhya Pradesh. Cl. 3 (a) speaks of delivery and final acceptance under the terms of the contract. Delivery here is linked with final acceptance which according to Cl. 11 (g) can only be after the goods had reached the destination and were acknowledged as accepted by the consignee. Cl. 11 (g) makes it clear that notwithstanding the fact that the goods had been passed by the Sleeper Passing Officer at Dhamtari and that they had been put on rail within the period of the contract at the said station and the Sleeper Passing Officer had given the contractor a passing certificate in terms of C1. 10 and the station master at Dhamtari had issued a tally receipt for the number of sleepers loaded, the consignee still had the right to inspect the goods at the destination and reject any which were not in terms of the contract and such rejected goods were to be treated as non-delivered. All this, in our opinion, puts the matter beyond doubt that the actual physical delivery was not taken as complete before the goods were accepted by the consignee at the destination. In all such cases, the consumption took place in the State to which the goods were despatched with the result that the sales came within the purview of the Explanation to Art. 286 (1) (a) as it stood before the Sixth Amendment of the Constitution.We find ourselves unable to agree with the above expression of opinion as we have already pointed out that the question is not when the title to the goods passed under the contract, but to ascertain whether actual delivery of the goods took place outside the State of Madhya Pradesh for the purpose of consumption there so as to be within the deeming provision of the Explanation to Art. 286 (1). The contract has to be considered in the setting of the facts and circumstances of the case as a whole and Cl. 11(g), 11 (i), 12, 13 and 14 cannot be read as conditions superimposed after the actual delivery of the goods. The place of actual delivery in the light of all the circumstances of the case can only be the destination of the goods and the goods can only be said to be fully delivered and finally accepted after they are acknowledged at the destination by the Sleeper Controlis not necessary to examine the case in detail but it is sufficient to say that even if there was no rejection at the place of destination, actual delivery would not be completed until they were finally accepted at destination and to that extent we find ourselves unable to agree with the decision of the Orissa High Court.16. In the result, it must be held that the sales in these cases were covered by the Explanation to Art. 286 (1) and as such not taxable by the State of Madhya Pradesh.

### 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: accepted by the consignee. Cl. 11 (g) makes it clear that notwithstanding the fact that the goods had been passed by the Sleeper Passing Officer at Dhamtari and that they had been put on rail within the period of the contract at the said station and the Sleeper Passing Officer had given the contractor a passing certificate in terms of C1. 10 and the station master at Dhamtari had issued a tally receipt for the number of sleepers loaded, the consignee still had the right to inspect the goods at the destination and reject any which were not in terms of the contract and such rejected goods were to be treated as non-delivered. All this, in our opinion, puts the matter beyond doubt that the actual physical delivery was not taken as complete before the goods were accepted by the consignee at the destination. In all such cases, the consumption took place in the State to which the goods were despatched with the result that the sales came within the purview of the Explanation to Art. 286 (1) (a) as it stood before the Sixth Amendment of the Constitution.12. Our attention was drawn to a judgment of the Patna High Court in Birendranath Guha and Co. v. State of Bihar, 1954-5 STC 273: (AIR 1955 Pat 245 ) where the assessee had taken lease of a timber forest in Nepal and had built godowns in Nepal territory close to Jogbani railway station in the State of Bihar. The assessee supplied to the railways and despatched to different destinations various quantities of sleepers from Jogbani railway station after obtaining instructions from the Sleeper Control officer. The assessee contended that no sale took place in Bihar since the sleepers had been manufactured in Nepal and despatched from Jogbani railway station to places outside Bihar. The full terms of the contract in that case are not to be found in the report but it appears that it was worded very similarly to the contract before us. The Patna High Court held that on a consideration of all the provisions of the contract, it was manifest that the goods in question had been unconditionally appropriated to the contract at Jogbani railway station. Alternatively, the High Court held that there was appropriation of the goods within the meaning of S. 23(2) of the Sale of Goods Act at Jogbani railway station and accordingly it was held that there was delivery to the carrier at Jogbani railway station coupled with an unconditional appropriation of the goods within the meaning of Section 23 (2) of the Sale of Goods Act. With regard to Clauses 11 (g), 11(j) and 13 (a) the High Court said that these were merely additional stipulations superimposed on the contractor who agreed to act as insurer of the goods till the stage of final destination and also agreed to the other conditions, but these additional conditions had no bearing on the question as to where and when the title to the sleepers passed to the buyer.13. We find ourselves unable to agree with the above expression of opinion as we have already pointed out that the question is not when the title to the goods passed under the contract, but to ascertain whether actual delivery of the goods took place outside the State of Madhya Pradesh for the purpose of consumption there so as to be within the deeming provision of the Explanation to Art. 286 (1). The contract has to be considered in the setting of the facts and circumstances of the case as a whole and Cl. 11(g), 11 (i), 12, 13 and 14 cannot be read as conditions superimposed after the actual delivery of the goods. The place of actual delivery in the light of all the circumstances of the case can only be the destination of the goods and the goods can only be said to be fully delivered and finally accepted after they are acknowledged at the destination by the Sleeper Control Officer.14. A similar contract came up for consideration before the Assam High Court in Birendra Nath Guha v. Commissioner of Taxes, Assam, 1959-10 STC 327: (AIR 1958 Assam 119) and the High Court took a view different from that of the Patna High Court mentioned above.15. In D. N. Dutta v. Commissioner of Sales Tax, Orissa, ILR (1961) Cut 622 two questions were referred to the High Court, one of them being, whether there was a completed sale in Orissa so as to confer jurisdiction on the State of Orissa to tax the impugned transactions and secondly, whether even if there was a completed sale in Orissa, the State Government was prohibited from taxing those transactions in view of the ban imposed by Cl. (1) and Cl. (2) of Art. 286 of the Constitution. The contract, according to the judgment of the High Court, was identical with the one which came for consideration in the Patna case in 1959-10 STC 327: (AIR 1958 Assam 119) (supra). The Orissa High Court held that in respect of the impugned transaction, none of the sleepers had been subject to reinspection by the Sleeper Control Officer "or rejected by him at the destination; all the sleepers were fully delivered when the passing mark was given by the Sleeper Passing Officer at the place of despatch and the seller had loaded them in the wagon at the despatching station and obtained the tally receipt from the station master concerned. It is not necessary to examine the case in detail but it is sufficient to say that even if there was no rejection at the place of destination, actual delivery would not be completed until they were finally accepted at destination and to that extent we find ourselves unable to agree with the decision of the Orissa High Court.16. In the result, it must be held that the sales in these cases were covered by the Explanation to Art. 286 (1) and as such not taxable by the State of Madhya Pradesh. ### Response: 1 ### Explanation: 11. In our opinion, we have got to take the whole of the contract into account and then find out the intention of the parties as to where actual delivery was to take place thereunder. While there can be no doubt that the major part of the operations of the contractor with regard to delivery were to be performed at Dhamtari he was not relieved of all liability as to delivery until the goods were finally accepted at the destination by the consignee. In this respect, we cannot overlook Cls. 3 (a), 11(g), 12 and 14 of the conditions of contract when the consignee was outside Madhya Pradesh. Cl. 3 (a) speaks of delivery and final acceptance under the terms of the contract. Delivery here is linked with final acceptance which according to Cl. 11 (g) can only be after the goods had reached the destination and were acknowledged as accepted by the consignee. Cl. 11 (g) makes it clear that notwithstanding the fact that the goods had been passed by the Sleeper Passing Officer at Dhamtari and that they had been put on rail within the period of the contract at the said station and the Sleeper Passing Officer had given the contractor a passing certificate in terms of C1. 10 and the station master at Dhamtari had issued a tally receipt for the number of sleepers loaded, the consignee still had the right to inspect the goods at the destination and reject any which were not in terms of the contract and such rejected goods were to be treated as non-delivered. All this, in our opinion, puts the matter beyond doubt that the actual physical delivery was not taken as complete before the goods were accepted by the consignee at the destination. In all such cases, the consumption took place in the State to which the goods were despatched with the result that the sales came within the purview of the Explanation to Art. 286 (1) (a) as it stood before the Sixth Amendment of the Constitution.We find ourselves unable to agree with the above expression of opinion as we have already pointed out that the question is not when the title to the goods passed under the contract, but to ascertain whether actual delivery of the goods took place outside the State of Madhya Pradesh for the purpose of consumption there so as to be within the deeming provision of the Explanation to Art. 286 (1). The contract has to be considered in the setting of the facts and circumstances of the case as a whole and Cl. 11(g), 11 (i), 12, 13 and 14 cannot be read as conditions superimposed after the actual delivery of the goods. The place of actual delivery in the light of all the circumstances of the case can only be the destination of the goods and the goods can only be said to be fully delivered and finally accepted after they are acknowledged at the destination by the Sleeper Controlis not necessary to examine the case in detail but it is sufficient to say that even if there was no rejection at the place of destination, actual delivery would not be completed until they were finally accepted at destination and to that extent we find ourselves unable to agree with the decision of the Orissa High Court.16. In the result, it must be held that the sales in these cases were covered by the Explanation to Art. 286 (1) and as such not taxable by the State of Madhya Pradesh.

Montecarlo Ltd Vs. Ntpc Ltd

court does not sit as a court of appeal but merely reviews the manner in which the decision was made, (c) the court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible, and (d) the Government must have freedom of contract and that permits a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. Hence, the Court has laid down that the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 19. In Jagdish Mandal v. State of Orissa and Ors, (2007) 14 SCC 517 the Court has held that a contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. 20. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd and Anr, (2005) 6 SCC 138 it has been ruled that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 21. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and Ors., (2006) 11 SCC 548 a two-Judge Bench, after referring to series of judgments has culled out certain principles which include the one that where a decision has been taken purely on public interest, the court ordinarily should apply judicial restraint. 22. In Michigan Rubber (India) Ltd. (supra) the Court referred to the earlier judgments and opined that before a court interferes in tender or contractual matters, in exercise of power of judicial review should pose to itself the question whether the process adopted or decision made by the authority is mala fide or intended to favour someone or whether the process adopted or decision made is so arbitrary and irrational that the judicial conscience cannot countenance. Emphasis was laid on the test, that is, whether award of contract is against public interest. 23. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (8) SCALE 765 a two-Judge Bench eloquently exposited the test which is to the following effect:- We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. 24. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owners organization is taken. This ensures objectivity. Bidders expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. 25. In view of the aforesaid analysis, we

0[ds]In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owners organization is taken. This ensures objectivity. Bidders expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints

### 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: court does not sit as a court of appeal but merely reviews the manner in which the decision was made, (c) the court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible, and (d) the Government must have freedom of contract and that permits a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. Hence, the Court has laid down that the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 19. In Jagdish Mandal v. State of Orissa and Ors, (2007) 14 SCC 517 the Court has held that a contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. 20. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd and Anr, (2005) 6 SCC 138 it has been ruled that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 21. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and Ors., (2006) 11 SCC 548 a two-Judge Bench, after referring to series of judgments has culled out certain principles which include the one that where a decision has been taken purely on public interest, the court ordinarily should apply judicial restraint. 22. In Michigan Rubber (India) Ltd. (supra) the Court referred to the earlier judgments and opined that before a court interferes in tender or contractual matters, in exercise of power of judicial review should pose to itself the question whether the process adopted or decision made by the authority is mala fide or intended to favour someone or whether the process adopted or decision made is so arbitrary and irrational that the judicial conscience cannot countenance. Emphasis was laid on the test, that is, whether award of contract is against public interest. 23. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (8) SCALE 765 a two-Judge Bench eloquently exposited the test which is to the following effect:- We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. 24. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owners organization is taken. This ensures objectivity. Bidders expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. 25. In view of the aforesaid analysis, we ### Response: 0 ### Explanation: In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owners organization is taken. This ensures objectivity. Bidders expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints

The Cement Marketing Co., Of Indialtd. And Another Vs. The State Of Mysore And Another

765 at p. 773) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co.s case, 1955-2 SCR 603: ((S) AIR 1955 SC 661 ). In the case of sales in the course of export or import the test laid down was a series of integrated activities commencing from an agreement of sale and ending with the delivery of goods to a common carrier for export by land or by sea; Bombay Co. Ltd. case, 1952 SCR 1112: (AIR 1952 SC 366 ). "In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar language. This court again accepted these tests in E. Narasimhams case, 1962-1 SCR 314 :(AIR 1961 SC 1344 ). In S. 3 of the Central Sales Tax Act, ( Act 74 of 1956) the legislature has accepted the principle governing inter-State sales as laid down in Mohanlal Hargovinds case, 1955-2 SCR 509: ((s) AIR 1955 SC 786 ). The principles for determining when a sale or purchase of goods takes place in the course of inter-State sale or commerce outside the State are:"S. 3 - A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase(a) occasions the movement of goods from one State to another or(b) is effected by a transfer of documents of title to the goods during their movement from one State to another."13. In Tata Iran and Steel Co. Ltd. Bombay v. S. R. Sarker, 1961-1 SCR 379 at, p. 391: (AIR 1961 SC 65 at p. 72) Shah J., in explaining what sales are covered by cl. (a) of S. 3 above said :"Cl. (a) of S. 3 covers sales, other than those included in Cl. (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State."14. As stated above under the contracts of sale in the present case there was transport of Roods from outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border. Thus if the goods moved under the contract of sale, it cannot be said that they were intra-State sales. It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant. The factories were nominated by the Government by authorisations which formed the buds of the contract between the buyer and the seller. Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature of inter-State sales and were exempt from Sales tax. In these circumstances the contracts of sale in the present case have been erroneously considered to be intra-State sales.15. The decision in Rohtas Industries Ltd. v. State of Bihar, (1961) 12 STC 615: (AIR 1963 SC 347 ) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co. of India in the case above cited. On an examination of the agreement between those two companies this court held that the relationship which existed between the two was of seller and buyer and not of principal and agent. In the present case the agreement is quite different. In the first clause of the agreement between the two appellants and the Patiala Cement Co. dated April 21, 1954 the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payments of the same and do all acts and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals. The sale price and the terms and conditions of sale were to be determined by the principals. The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by the principals.16. All the establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales. At the end of every month the Sales Managers were to submit to the principals accounts showing sales contracts by it on behalf of each one of the principals. At the end of each financial year ending July 31, the Sales Managers had to make a proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate. Clause 10 provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economical transport of cement. These terms are quite different from those in the case of Rohtas Industries Ltd 1961-12 STC 615: (AIR 1963 SC 347 ) and therefore that decision has no application to the facts of the present case.17. In the result the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1,1955 to September 6, 1955 was illegal and was not leviable for that period. The appeal is therefore allowed to that extent and the writ petition of the appellants succeeds but it will not affect the tax paid for the period above mentioned.

1[ds]7. The modus operandi above mentioned shows that before an intending purchaser could obtain cement he had to get what is called an authorisation from a Government authority which nominated the factory from which the intending purchaser had to get his supplies of cement. That authorisation with an order has to be given to the first appellant; and after a contract in the standard form was entered into the first appellant sent the order to the factory named in the authorisation and that factory then supplied the requisite goods to the purchaser. The factory from where the cement was to be supplied was not in the hands or at the option of the first appellant, but was entirely a matter for the Government authority to decide, so that the cement which was supplied from a particular factory was supplied not at the choice of the first appellant but pursuant to the authorisation.In the present case the contract itself involved the movement of goods from the factory to the purchaser i.e. across the border from one State to another because the factories were outside the State of Mysore and therefore transactions were clearly transactions of sale of goods in the course oftrade or commerce. Taking the nature of the transaction and preliminaries which are necessary for the sale or purchase of cement it cannot be said that the sale itself did not occasion the movement of goods from one State to another. The essential features of the contracts proved in the present case are analogous to those in Mohan Lal Hargovind v. State of Madhya Pradesh,SCR 509: ((S) AIR 1955 SC 786 ). In that case the assesses were a firm carrying on business of making and selling birds in Madhya Pradesh. In the course of their business they imported finished tobacco from dealers in Bombay State, rolled it into birds and exported the biris to various other States. Both the exporters of tobacco from Bombay State who supplied the assessees and the assessees were registered dealers under the C.P. and Berar Sales Tax Act 1947. It was held that the assessees imported finished tobacco into Madhya Pradesh from persons who were carrying on in the State of Bombay business of processing tobacco and selling the goods and there was, as a result of these transactions movement of goods from the State of Bombay to the State of Madhya Pradesh and therefore the transactions involved movement of goods across the State border and they were not liable to be taxed by virtue of Art. 286 (2) of the Constitution. In State of Travancore Cochin v. Bombay Co. Ltd., 1952 SCR 1112: (AIR 1952 SC 366 ) which was a case under Art. 286 (1) (b) i.e. sale and purchase in the course of exportThus a sale to fall within Art. 286 (1) (b) has to be a sale which occasions the export. Again in State of Travancore Cochin v. Shanmugha Vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ) the words "in the course of" were interpreted to mean a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as a part of or connected with such activities. At page 63 (of SCR) : (at p. 336 of AIR) the learned Chief Justice explained the words "integratedIn E. Narasimham and Sons v. State of Orissa.SCR 314: (AIR 1961 SC 1344 ), it was held in the case of sales covered by Art. 286 (1) (b) that only sale or purchase of goods which occasions the export or import of the goods out of or into the territory of India were exempt from the imposition of tax on the sale or purchase of goods and in regard to prohibition against imposition of tax on inter State sales the test, it was said, was that in order that a sale or purchase might be inter State it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. The following observations from the Bengal Immunity Co. Ltd. v. State of Bihar,SCR 603 at pp.(S) AIR 1955 SC 661 at p. 734) were quoted with approval in support of thesale could be said to be in the course oftrade only if two conditions conjure: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course ofs the tests which have been laid down to bring a sale withinsales are that the transaction must involve movement of goods across the border, (Mohanlal Hargovinds case,SCR 509: ((S) AIR 1955 SC 786 ); transactions arein which as a direct result of such sales the goods are actually delivered for consumption in another State; Ram Narain and Sons v. Assistant Commissioner of Sales Tax,SCR 483 at p. 504: (S) AIR 1955 SC 765 at p. 773) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co.s case,SCR 603: ((S) AIR 1955 SC 661 ). In the case of sales in the course of export or import the test laid down was a series of integrated activities commencing from an agreement of sale and ending with the delivery of goods to a common carrier for export by land or by sea; Bombay Co. Ltd. case, 1952 SCR 1112: (AIR 1952 SC 366 ). "In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar language. This court again accepted these tests in E. Narasimhams case,SCR 314 :(AIR 1961 SC 1344 ). In S. 3 of the Central Sales Tax Act, ( Act 74 of 1956) the legislature has accepted the principle governingsales as laid down in Mohanlal Hargovinds case,SCR 509: ((s) AIR 1955 SC 786 ). The principles for determining when a sale or purchase of goods takes place in the course ofsale or commerce outside theAs stated above under the contracts of sale in the present case there was transport of Roods from outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border. Thus if the goods moved under the contract of sale, it cannot be said that they weresales. It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant. The factories were nominated by the Government by authorisations which formed the buds of the contract between the buyer and the seller. Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature ofsales and were exempt from Sales tax. In these circumstances the contracts of sale in the present case have been erroneously considered to be. The decision in Rohtas Industries Ltd. v. State of Bihar, (1961) 12 STC 615: (AIR 1963 SC 347 ) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co. of India in the case above cited. On an examination of the agreement between those two companies this court held that the relationship which existed between the two was of seller and buyer and not of principal and agent. In the present case the agreement is quite different. In the first clause of the agreement between the two appellants and the Patiala Cement Co. dated April 21, 1954 the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payments of the same and do all acts and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals. The sale price and the terms and conditions of sale were to be determined by the principals. The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by thethe establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales. At the end of every month the Sales Managers were to submit to the principals accounts showing sales contracts by it on behalf of each one of the principals. At the end of each financial year ending July 31, the Sales Managers had to make a proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate. Clause 10 provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economical transport of cement. These terms are quite different from those in the case of Rohtas Industries LtdSTC 615: (AIR 1963 SC 347 ) and therefore that decision has no application to the facts of the present case.In the result the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1,1955 to September 6, 1955 was illegal and was not leviable for that period. The appeal is therefore allowed to that extent and the writ petition of the appellants succeeds but it will not affect the tax paid for the period above mentioned.

### 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: 765 at p. 773) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co.s case, 1955-2 SCR 603: ((S) AIR 1955 SC 661 ). In the case of sales in the course of export or import the test laid down was a series of integrated activities commencing from an agreement of sale and ending with the delivery of goods to a common carrier for export by land or by sea; Bombay Co. Ltd. case, 1952 SCR 1112: (AIR 1952 SC 366 ). "In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar language. This court again accepted these tests in E. Narasimhams case, 1962-1 SCR 314 :(AIR 1961 SC 1344 ). In S. 3 of the Central Sales Tax Act, ( Act 74 of 1956) the legislature has accepted the principle governing inter-State sales as laid down in Mohanlal Hargovinds case, 1955-2 SCR 509: ((s) AIR 1955 SC 786 ). The principles for determining when a sale or purchase of goods takes place in the course of inter-State sale or commerce outside the State are:"S. 3 - A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase(a) occasions the movement of goods from one State to another or(b) is effected by a transfer of documents of title to the goods during their movement from one State to another."13. In Tata Iran and Steel Co. Ltd. Bombay v. S. R. Sarker, 1961-1 SCR 379 at, p. 391: (AIR 1961 SC 65 at p. 72) Shah J., in explaining what sales are covered by cl. (a) of S. 3 above said :"Cl. (a) of S. 3 covers sales, other than those included in Cl. (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State."14. As stated above under the contracts of sale in the present case there was transport of Roods from outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border. Thus if the goods moved under the contract of sale, it cannot be said that they were intra-State sales. It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant. The factories were nominated by the Government by authorisations which formed the buds of the contract between the buyer and the seller. Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature of inter-State sales and were exempt from Sales tax. In these circumstances the contracts of sale in the present case have been erroneously considered to be intra-State sales.15. The decision in Rohtas Industries Ltd. v. State of Bihar, (1961) 12 STC 615: (AIR 1963 SC 347 ) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co. of India in the case above cited. On an examination of the agreement between those two companies this court held that the relationship which existed between the two was of seller and buyer and not of principal and agent. In the present case the agreement is quite different. In the first clause of the agreement between the two appellants and the Patiala Cement Co. dated April 21, 1954 the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payments of the same and do all acts and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals. The sale price and the terms and conditions of sale were to be determined by the principals. The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by the principals.16. All the establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales. At the end of every month the Sales Managers were to submit to the principals accounts showing sales contracts by it on behalf of each one of the principals. At the end of each financial year ending July 31, the Sales Managers had to make a proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate. Clause 10 provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economical transport of cement. These terms are quite different from those in the case of Rohtas Industries Ltd 1961-12 STC 615: (AIR 1963 SC 347 ) and therefore that decision has no application to the facts of the present case.17. In the result the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1,1955 to September 6, 1955 was illegal and was not leviable for that period. The appeal is therefore allowed to that extent and the writ petition of the appellants succeeds but it will not affect the tax paid for the period above mentioned. ### Response: 1 ### Explanation: the contract of sale or purchase. The following observations from the Bengal Immunity Co. Ltd. v. State of Bihar,SCR 603 at pp.(S) AIR 1955 SC 661 at p. 734) were quoted with approval in support of thesale could be said to be in the course oftrade only if two conditions conjure: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course ofs the tests which have been laid down to bring a sale withinsales are that the transaction must involve movement of goods across the border, (Mohanlal Hargovinds case,SCR 509: ((S) AIR 1955 SC 786 ); transactions arein which as a direct result of such sales the goods are actually delivered for consumption in another State; Ram Narain and Sons v. Assistant Commissioner of Sales Tax,SCR 483 at p. 504: (S) AIR 1955 SC 765 at p. 773) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co.s case,SCR 603: ((S) AIR 1955 SC 661 ). In the case of sales in the course of export or import the test laid down was a series of integrated activities commencing from an agreement of sale and ending with the delivery of goods to a common carrier for export by land or by sea; Bombay Co. Ltd. case, 1952 SCR 1112: (AIR 1952 SC 366 ). "In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar language. This court again accepted these tests in E. Narasimhams case,SCR 314 :(AIR 1961 SC 1344 ). In S. 3 of the Central Sales Tax Act, ( Act 74 of 1956) the legislature has accepted the principle governingsales as laid down in Mohanlal Hargovinds case,SCR 509: ((s) AIR 1955 SC 786 ). The principles for determining when a sale or purchase of goods takes place in the course ofsale or commerce outside theAs stated above under the contracts of sale in the present case there was transport of Roods from outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border. Thus if the goods moved under the contract of sale, it cannot be said that they weresales. It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant. The factories were nominated by the Government by authorisations which formed the buds of the contract between the buyer and the seller. Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature ofsales and were exempt from Sales tax. In these circumstances the contracts of sale in the present case have been erroneously considered to be. The decision in Rohtas Industries Ltd. v. State of Bihar, (1961) 12 STC 615: (AIR 1963 SC 347 ) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co. of India in the case above cited. On an examination of the agreement between those two companies this court held that the relationship which existed between the two was of seller and buyer and not of principal and agent. In the present case the agreement is quite different. In the first clause of the agreement between the two appellants and the Patiala Cement Co. dated April 21, 1954 the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payments of the same and do all acts and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals. The sale price and the terms and conditions of sale were to be determined by the principals. The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by thethe establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales. At the end of every month the Sales Managers were to submit to the principals accounts showing sales contracts by it on behalf of each one of the principals. At the end of each financial year ending July 31, the Sales Managers had to make a proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate. Clause 10 provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economical transport of cement. These terms are quite different from those in the case of Rohtas Industries LtdSTC 615: (AIR 1963 SC 347 ) and therefore that decision has no application to the facts of the present case.In the result the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1,1955 to September 6, 1955 was illegal and was not leviable for that period. The appeal is therefore allowed to that extent and the writ petition of the appellants succeeds but it will not affect the tax paid for the period above mentioned.

Commissioner of Wealth Tax, Rajasthan Vs. Her Highness Maharani Gayatri Devi of Jaipur

decisions, we have now to see as to what was the nature of the right conferred on the assessee under the trust deed.5. The trust deed starts by saying that "the settlor is absolutely entitled to the investments specified in the Schedule hereto (hereinafter called the scheduled property)" and that he is desirous of making an irrevocable settlement of the scheduled property for the benefit of his wife (the assessee) and his four sons. One of the clauses in the deed says that:"The settlor has accordingly transferred or intends forthwith to transfer the scheduled property into the name of the trustee to be held by him upon the trusts and with and subject to the powers and provisions hereinafter declared and contained concerning the same"Clause 1(d) of the deed is important. It reads:"The scheduled property and any other investments or property which may from time to time be transferred to and accepted by the trustee as additions to the scheduled property and any other capital moneys which may be received by the trustee in respect of the trust premises and the investments and property for the time being representing the same respectively are together called the trust fund."From this clause, it is clear that the "trust fund" is not a fixed sum. It is capable of being augmented in several ways.At the time of creation of the trust, the only assets mentioned in the schedule to the trust deed was pound 300, 000 3 1/2 % War Loan. But as seen earlier this fund was capable of being augmented.:Clauses of the trust deed which are relevant for our present purpose are clauses 2, 3, 4(1) and 7. They readClause 2 : "The trustee shall stand possessed of the scheduled property and any other investments or property which may from time to time be transferred to and accepted by the trustee as aforesaid UPON TRUST that the trustee may either allow the same to remain actually invested so long as the trustee thinks fit or may at any time or times at his discretion sell call in or convert into money the same or any part thereof and shall at his discretion (but subject to the restriction contained in clause 9 hereof) invest the moneys produced thereby and any other capital moneys which may be received by him in respect of the trust premises in the name or under the legal control of the trustee in or upon any investments hereby authorised with power at his discretion to vary or transpose any investments for or into others of any nature hereby authorised."Clause 3 : "The trustee shall divide the trust fund into thirty equal parts and shall stand possessed of such parts and the income thereof respectively upon the trusts and with and subject to the powers and provisions hereinafter declared and contained concerning the same."Clause 4(1) : "THE TRUSTEE shall stand possessed of fifteen such parts of the trust fund UPON TRUST to pay the income thereof to the wife during her life and after her death shall hold the said fifteen such parts of the trust and and the income thereof upon the same trusts and with and subject to the same powers and provisions as are hereinafter declared and contained concerning the share in the trust fund which is hereinafter directed to be held in trust for the said Maharaj Kumar Jagat Singh or as near thereto as circumstances will admit."Clause 7 : NOTWITHSTANDING the trusts hereinbefore declared the trustee if he in his absolute discretion thinks fit may at any time by writing under his hand declare that the whole or any part of the share (whether original or accruing) in the trust fund to the income whereof any beneficiary shall then be entitled in possession or any property appropriated in or towards the satisfaction of such share shall thenceforth be held IN TRUST for such beneficiary absolutely and thereupon the trusts hereinbefore declared concerning such share or the part thereof or the property to which such declaration relates shall forthwith determine and the trustee may at any time thereafter transfer such share or the part thereof or the property to which such declaration relates to such beneficiary absolutely"6. From these clauses it is clear that the intention of the Maharaja was that the assessee should get a half share in the income of the trust fund. Neither the trust fund was fixed nor the amount payable to the assessee was fixed. The only thing certain is that she is entitled to a 15/30 share from out of the income of the trust fund. That being so, it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fundMr. Setalvad, learned counsel for the assessee, contended that during the year with which we are concerned, there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth-tax, we would be justified in holding that the amount receivable by the assessee in the year concerned was an annuity. We see no force in this contention. The question whether a particular income is an annuity or not does not depend on the amount received in a particular year. What we have to see is what exactly was the intention of the Maharaja in creating the trust. Did he intend to give the assessee a pre-determined sum every year or did he intend to give her an aliquot share in the income of a fund ? On that question, there can be only one answer and that is that he intended to give her an aliquot share in the income of the trust fund. An income cannot be an annuity in one year and an aliquot share in another year. It cannot change its character year after year. From the facts found, it is clear that the assessee has a life interest in the trust fund.7.

1[ds]If it is considered as an annuity, there is no dispute that the terms and conditions relating to the assessees right relating to annuity precluded commutation of any part thereof into a lump sum grant. Therefore, all that we have to see is whether the income received by the assessee was an annuity or an aliquot share in the income arising from the fund. As seen earlier, the High Court has taken the view that the income in question was an annuity. In arriving at that conclusion, it has referred to various decisions of the English courts as well as the courts in this country. But, in view of the two recent decisions of this court, it is not necessary for us to examine thosethese clauses it is clear that the intention of the Maharaja was that the assessee should get a half share in the income of the trust fund. Neither the trust fund was fixed nor the amount payable to the assessee was fixed. The only thing certain is that she is entitled to a 15/30 share from out of the income of the trust fund. That being so, it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fundMr. Setalvad, learned counsel for the assessee, contended that during the year with which we are concerned, there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth-tax, we would be justified in holding that the amount receivable by the assessee in the year concerned was an annuity. We see no force in this contention. The question whether a particular income is an annuity or not does not depend on the amount received in a particular year. What we have to see is what exactly was the intention of the Maharaja in creating the trust. Did he intend to give the assessee a pre-determined sum every year or did he intend to give her an aliquot share in the income of a fund ? On that question, there can be only one answer and that is that he intended to give her an aliquot share in the income of the trust fund. An income cannot be an annuity in one year and an aliquot share in another year. It cannot change its character year after year. From the facts found, it is clear that the assessee has a life interest in the trustthis clause, it is clear that the "trust fund" is not a fixed sum. It is capable of being augmented in severalthe time of creation of the trust, the only assets mentioned in the schedule to the trust deed was pound 300, 000 3 1/2 % War Loan. But as seen earlier this fund was capable of being augmented

### 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: decisions, we have now to see as to what was the nature of the right conferred on the assessee under the trust deed.5. The trust deed starts by saying that "the settlor is absolutely entitled to the investments specified in the Schedule hereto (hereinafter called the scheduled property)" and that he is desirous of making an irrevocable settlement of the scheduled property for the benefit of his wife (the assessee) and his four sons. One of the clauses in the deed says that:"The settlor has accordingly transferred or intends forthwith to transfer the scheduled property into the name of the trustee to be held by him upon the trusts and with and subject to the powers and provisions hereinafter declared and contained concerning the same"Clause 1(d) of the deed is important. It reads:"The scheduled property and any other investments or property which may from time to time be transferred to and accepted by the trustee as additions to the scheduled property and any other capital moneys which may be received by the trustee in respect of the trust premises and the investments and property for the time being representing the same respectively are together called the trust fund."From this clause, it is clear that the "trust fund" is not a fixed sum. It is capable of being augmented in several ways.At the time of creation of the trust, the only assets mentioned in the schedule to the trust deed was pound 300, 000 3 1/2 % War Loan. But as seen earlier this fund was capable of being augmented.:Clauses of the trust deed which are relevant for our present purpose are clauses 2, 3, 4(1) and 7. They readClause 2 : "The trustee shall stand possessed of the scheduled property and any other investments or property which may from time to time be transferred to and accepted by the trustee as aforesaid UPON TRUST that the trustee may either allow the same to remain actually invested so long as the trustee thinks fit or may at any time or times at his discretion sell call in or convert into money the same or any part thereof and shall at his discretion (but subject to the restriction contained in clause 9 hereof) invest the moneys produced thereby and any other capital moneys which may be received by him in respect of the trust premises in the name or under the legal control of the trustee in or upon any investments hereby authorised with power at his discretion to vary or transpose any investments for or into others of any nature hereby authorised."Clause 3 : "The trustee shall divide the trust fund into thirty equal parts and shall stand possessed of such parts and the income thereof respectively upon the trusts and with and subject to the powers and provisions hereinafter declared and contained concerning the same."Clause 4(1) : "THE TRUSTEE shall stand possessed of fifteen such parts of the trust fund UPON TRUST to pay the income thereof to the wife during her life and after her death shall hold the said fifteen such parts of the trust and and the income thereof upon the same trusts and with and subject to the same powers and provisions as are hereinafter declared and contained concerning the share in the trust fund which is hereinafter directed to be held in trust for the said Maharaj Kumar Jagat Singh or as near thereto as circumstances will admit."Clause 7 : NOTWITHSTANDING the trusts hereinbefore declared the trustee if he in his absolute discretion thinks fit may at any time by writing under his hand declare that the whole or any part of the share (whether original or accruing) in the trust fund to the income whereof any beneficiary shall then be entitled in possession or any property appropriated in or towards the satisfaction of such share shall thenceforth be held IN TRUST for such beneficiary absolutely and thereupon the trusts hereinbefore declared concerning such share or the part thereof or the property to which such declaration relates shall forthwith determine and the trustee may at any time thereafter transfer such share or the part thereof or the property to which such declaration relates to such beneficiary absolutely"6. From these clauses it is clear that the intention of the Maharaja was that the assessee should get a half share in the income of the trust fund. Neither the trust fund was fixed nor the amount payable to the assessee was fixed. The only thing certain is that she is entitled to a 15/30 share from out of the income of the trust fund. That being so, it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fundMr. Setalvad, learned counsel for the assessee, contended that during the year with which we are concerned, there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth-tax, we would be justified in holding that the amount receivable by the assessee in the year concerned was an annuity. We see no force in this contention. The question whether a particular income is an annuity or not does not depend on the amount received in a particular year. What we have to see is what exactly was the intention of the Maharaja in creating the trust. Did he intend to give the assessee a pre-determined sum every year or did he intend to give her an aliquot share in the income of a fund ? On that question, there can be only one answer and that is that he intended to give her an aliquot share in the income of the trust fund. An income cannot be an annuity in one year and an aliquot share in another year. It cannot change its character year after year. From the facts found, it is clear that the assessee has a life interest in the trust fund.7. ### Response: 1 ### Explanation: If it is considered as an annuity, there is no dispute that the terms and conditions relating to the assessees right relating to annuity precluded commutation of any part thereof into a lump sum grant. Therefore, all that we have to see is whether the income received by the assessee was an annuity or an aliquot share in the income arising from the fund. As seen earlier, the High Court has taken the view that the income in question was an annuity. In arriving at that conclusion, it has referred to various decisions of the English courts as well as the courts in this country. But, in view of the two recent decisions of this court, it is not necessary for us to examine thosethese clauses it is clear that the intention of the Maharaja was that the assessee should get a half share in the income of the trust fund. Neither the trust fund was fixed nor the amount payable to the assessee was fixed. The only thing certain is that she is entitled to a 15/30 share from out of the income of the trust fund. That being so, it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fundMr. Setalvad, learned counsel for the assessee, contended that during the year with which we are concerned, there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth-tax, we would be justified in holding that the amount receivable by the assessee in the year concerned was an annuity. We see no force in this contention. The question whether a particular income is an annuity or not does not depend on the amount received in a particular year. What we have to see is what exactly was the intention of the Maharaja in creating the trust. Did he intend to give the assessee a pre-determined sum every year or did he intend to give her an aliquot share in the income of a fund ? On that question, there can be only one answer and that is that he intended to give her an aliquot share in the income of the trust fund. An income cannot be an annuity in one year and an aliquot share in another year. It cannot change its character year after year. From the facts found, it is clear that the assessee has a life interest in the trustthis clause, it is clear that the "trust fund" is not a fixed sum. It is capable of being augmented in severalthe time of creation of the trust, the only assets mentioned in the schedule to the trust deed was pound 300, 000 3 1/2 % War Loan. But as seen earlier this fund was capable of being augmented

S.N.D.P. Sakhayogam Vs. Kerala Atmavidya Sangham

declaration in the reliefs.9) The appellant (defendant No.1) denied the claim set up in the plaint and defended the sale deed executed in their favour by defendant No. 2. It was contended that the sale deed dated 09.02.1978 is legal and proper. According to defendant No.1, both (plaintiff and defendant No. 1) were always independent organizations having no connection between them in any manner. Some more facts were also averred in the written statement, which are not necessary to mention here. The Trial Court framed several issues on merits arising in the case.10) The plaintiff (respondent No. 1) then applied under Order 1 Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) and sought permission of the Court to allow them to prosecute the suit as a representative suit. Defendant No. 1 (appellant) did not oppose the prayer and hence sanction to prosecute the suit seemed to have been granted to the plaintiff. (See- Issue No. 1). Parties adduced evidence.11) The Trial Court, by judgment/decree dated 21.08.1980 dismissed the suit. The plaintiff, felt aggrieved, filed first appeal being A.S. No.77 of 1981 before the Additional District Judge, Mavelikkara. The first Appellate Court, by judgment/decree dated 02.09.1986, dismissed the appeal and affirmed the judgment/decree of the Trial Court. The plaintiff, felt aggrieved, filed Second Appeal being S.A. No.299 of 1987 before the High Court.12) By judgment/decree dated 29.05.1995, the High Court allowed the appeal and decreed the suit.13) Defendant No. 1, felt aggrieved, filed special leave petition (SLP(c) No.24439 of 1995) before this Court. This Court by order dated 30.10.2003 after granting leave, allowed the appeal, set aside the order of the High Court and remanded the case to the High Court for deciding the second appeal afresh. This Court remanded the case to the High Court essentially on the ground that it was noticed that the High Court allowed the second appeal without framing any substantial question(s) of law arising in the case.14) On remand, the High Court framed three substantial questions and, by impugned order 27.01.2005, again allowed the appeal and decreed the plaintiffs suit. Against this order, defendant No. 1 felt aggrieved and filed this appeal by way of special leave before this Court.15) We have heard Mr. Jayanth Muth Raj, learned counsel, for the appellant and Mr. C.S. Rajan, learned senior counsel for the respondents.16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside all the judgment/decrees of the Courts below remand the case to the Trial Court for disposal of the suit afresh.17) In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have conceded it.18) Be that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.19) As mentioned above, the plaintiff had sought permission to prosecute the suit by taking recourse to the provisions of Order 1 Rule 8 of the Code. In other words, the plaintiff treated their suit to be in the nature of a "representative suit" within the meaning of Order 1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code seeking permission to prosecute the suit in the representative capacity. This permission appears to have been granted to the plaintiff by the Trial Court (see discussion on issue No. 1) without any objection from the side of the defendants and, therefore, Issue No.1 was answered in plaintiff?s favour.20) This is how issue no 1 was answered by the Trial Court:?Issue No.1:- This is not pressed by the defendant?s counsel as sanction was obtained by the Plaintiff from Court to file the suit in a representative capacity under or Rule 8 C.P.C.?21) In our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely, whether the plaintiff, who is a juristic person, i.e., ?Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity?. In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes ?juristic person".22) Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land.23) Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law.

1[ds]16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside all the judgment/decrees of the Courts below remand the case to the Trial Court for disposal of the suit afresh.17)In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have concededBe that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.19) As mentioned above, the plaintiff had sought permission to prosecute the suit by taking recourse to the provisions of Order 1 Rule 8 of the Code. In other words, the plaintiff treated their suit to be in the nature of a "representative suit" within the meaning of Order 1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code seeking permission to prosecute the suit in the representative capacity. This permission appears to have been granted to the plaintiff by the Trial Court (see discussion on issue No. 1) without any objection from the side of the defendants and, therefore, Issue No.1 was answered in plaintiff?sIn our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely, whether the plaintiff, who is a juristic person, i.e., ?Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity?. In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes ?juristic person".22) Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land.23) Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law.

### 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: declaration in the reliefs.9) The appellant (defendant No.1) denied the claim set up in the plaint and defended the sale deed executed in their favour by defendant No. 2. It was contended that the sale deed dated 09.02.1978 is legal and proper. According to defendant No.1, both (plaintiff and defendant No. 1) were always independent organizations having no connection between them in any manner. Some more facts were also averred in the written statement, which are not necessary to mention here. The Trial Court framed several issues on merits arising in the case.10) The plaintiff (respondent No. 1) then applied under Order 1 Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) and sought permission of the Court to allow them to prosecute the suit as a representative suit. Defendant No. 1 (appellant) did not oppose the prayer and hence sanction to prosecute the suit seemed to have been granted to the plaintiff. (See- Issue No. 1). Parties adduced evidence.11) The Trial Court, by judgment/decree dated 21.08.1980 dismissed the suit. The plaintiff, felt aggrieved, filed first appeal being A.S. No.77 of 1981 before the Additional District Judge, Mavelikkara. The first Appellate Court, by judgment/decree dated 02.09.1986, dismissed the appeal and affirmed the judgment/decree of the Trial Court. The plaintiff, felt aggrieved, filed Second Appeal being S.A. No.299 of 1987 before the High Court.12) By judgment/decree dated 29.05.1995, the High Court allowed the appeal and decreed the suit.13) Defendant No. 1, felt aggrieved, filed special leave petition (SLP(c) No.24439 of 1995) before this Court. This Court by order dated 30.10.2003 after granting leave, allowed the appeal, set aside the order of the High Court and remanded the case to the High Court for deciding the second appeal afresh. This Court remanded the case to the High Court essentially on the ground that it was noticed that the High Court allowed the second appeal without framing any substantial question(s) of law arising in the case.14) On remand, the High Court framed three substantial questions and, by impugned order 27.01.2005, again allowed the appeal and decreed the plaintiffs suit. Against this order, defendant No. 1 felt aggrieved and filed this appeal by way of special leave before this Court.15) We have heard Mr. Jayanth Muth Raj, learned counsel, for the appellant and Mr. C.S. Rajan, learned senior counsel for the respondents.16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside all the judgment/decrees of the Courts below remand the case to the Trial Court for disposal of the suit afresh.17) In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have conceded it.18) Be that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.19) As mentioned above, the plaintiff had sought permission to prosecute the suit by taking recourse to the provisions of Order 1 Rule 8 of the Code. In other words, the plaintiff treated their suit to be in the nature of a "representative suit" within the meaning of Order 1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code seeking permission to prosecute the suit in the representative capacity. This permission appears to have been granted to the plaintiff by the Trial Court (see discussion on issue No. 1) without any objection from the side of the defendants and, therefore, Issue No.1 was answered in plaintiff?s favour.20) This is how issue no 1 was answered by the Trial Court:?Issue No.1:- This is not pressed by the defendant?s counsel as sanction was obtained by the Plaintiff from Court to file the suit in a representative capacity under or Rule 8 C.P.C.?21) In our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely, whether the plaintiff, who is a juristic person, i.e., ?Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity?. In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes ?juristic person".22) Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land.23) Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law. ### Response: 1 ### Explanation: 16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside all the judgment/decrees of the Courts below remand the case to the Trial Court for disposal of the suit afresh.17)In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have concededBe that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.19) As mentioned above, the plaintiff had sought permission to prosecute the suit by taking recourse to the provisions of Order 1 Rule 8 of the Code. In other words, the plaintiff treated their suit to be in the nature of a "representative suit" within the meaning of Order 1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code seeking permission to prosecute the suit in the representative capacity. This permission appears to have been granted to the plaintiff by the Trial Court (see discussion on issue No. 1) without any objection from the side of the defendants and, therefore, Issue No.1 was answered in plaintiff?sIn our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely, whether the plaintiff, who is a juristic person, i.e., ?Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity?. In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes ?juristic person".22) Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land.23) Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law.

M/s. Arihant Udhyog Vs. State of Rajasthan & Others

Sale and agreement to sell(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.(2) A contract of sale may be absolute or conditional.(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." The very distinction between the sale and agreement to sell enumerated in the aforesaid provision points out that a sale takes place when the property in goods is transferred from the seller to the buyer. If transfer of property in the case is to take place at a future time or subject to conditions that are stipulated in the contract of sale of goods, then the contract is merely an agreement to sell. Section 19 is contained in Chapter-III of the Sale of Goods Act, title whereof is "Effects of the Contract (Transfer of Property as between Seller and Buyer)". As per this provision, property passes from seller to buyer when it is intended to pass and such an intention is to be gathered from contract for the sale when it pertains to sale of specific or ascertained goods. To understand fully the implication of this provision, we reproduce hereunder the provisions of Section 19: "19. Property passes when intended to pass(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.(3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer." 16. Sub-section (3) of Section 19 is another significant provision which mentions that rules contained in Sections 20 to 24 are the rules for ascertaining the intention of the parties, unless a different intention appears in the contract for the sale of specific or ascertained goods. It means, if such an intention as to when the parties to the contract intend the property in goods to be transferred cannot be gathered from the contract, rules contained in Sections 20 to 24 would be applied. 17. Section 20 deals with a situation where specific goods are in a deliverable state. In that case property in goods passes to the buyer when the contract is made, even when time of payment of the price or the time of delivery of the goods or both is postponed. In order that Section 20 is attracted, two conditions have to be fulfilled: (i) the contract of sale is for specific goods which are in a deliverable state; and (ii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable {See - Shalimar Chemical Works Ltd.. 18. However, Section 21 is exception to Section 20 which states that where there is a contract for sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such a thing is done and the buyer has notice thereof. Likewise, Section 22 carves out another exception and mentions that even when the specific goods are in a deliverable state but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such Act or thing is done and the buyer has notice thereof. 19. Section 23 deals with sale of uncertain goods and appropriation, with which we are not concerned here. Likewise, Section 24 deals with a situation where goods are sent on approval or `on sale or return basis, which is also not relevant for our purposes. 20. A conjoint reading of the aforesaid provisions makes it clear that title in goods is transferred from the seller to buyer only on the sale of goods. As to when such a sale fructifies and the property passes is to be ascertained from the intention of the parties having regard to the terms of the contract. If no such intention can be gathered from the terms of the contract, the property in goods passes where the goods are in a deliverable state and there is unconditional contract for sale of specific goods.21. In the case of Arihant Udhyog, intention is to be gathered from the terms and conditions, which have already been noted above. It mentions that responsibility of the seller ceases as soon as goods are delivered, which means the seller remained responsible till the delivery of goods. Therefore, intention was to retain the title in the goods till its delivery inasmuch as till that time it is the seller who was responsible for the goods. This condition would clearly spell out that if the goods are destroyed or lost in transit, i.e. before their delivery, responsibility will be that of the seller. Such a responsibility can be only if the ownership remains of the seller. No other document was produced by Arihant Udhoyg which could demonstrate the intention that property in goods passed in their favour before these goods were delivered.

0[ds]14. From the aforesaid arguments it becomes clear that applicability of Section 17 of the Act read with Rule 58 of the Rules would depend upon the question as to whether agricultural produce is bought and sold by the licensee in the market area. It is also the common case of the parties that the answer to the aforesaid issue would depend upon the question as to when and at what stage the title in the goods passes. If the entire transaction takes place outside the State of Rajasthan and the ownership in the goods also passes outside Rajasthan, then the market fee is not payable. It is also the common case of the parties that answer to the aforesaid question would depend upon the applicability of Section 4 read with Section 19 of the Sale of Goods Act, 1930, which provisions are to be applied keeping in view the terms and conditions on which the goods are sold. That is the exercise which is done by the High Court by looking into the terms on which the goods were sold by Jawahar Exim Ltd. to Arihant Udyog. Insofar as Arihant Udhyog is concerned, this was the only invoice produced before the High Court and is also made Annexurein the present proceedings. On going through the same, we do not find any fault in the approach of the High Court.A conjoint reading of the aforesaid provisions makes it clear that title in goods is transferred from the seller to buyer only on the sale of goods. As to when such a sale fructifies and the property passes is to be ascertained from the intention of the parties having regard to the terms of the contract. If no such intention can be gathered from the terms of the contract, the property in goods passes where the goods are in a deliverable state and there is unconditional contract for sale of specific goods.21. In the case of Arihant Udhyog, intention is to be gathered from the terms and conditions, which have already been noted above. It mentions that responsibility of the seller ceases as soon as goods are delivered, which means the seller remained responsible till the delivery of goods. Therefore, intention was to retain the title in the goods till its delivery inasmuch as till that time it is the seller who was responsible for the goods. This condition would clearly spell out that if the goods are destroyed or lost in transit, i.e. before their delivery, responsibility will be that of the seller. Such a responsibility can be only if the ownership remains of the seller. No other document was produced by Arihant Udhoyg which could demonstrate the intention that property in goods passed in their favour before these goods were delivered.Having said so, we find that the High Court has passed impugned common judgment deciding as many as fifteen writ petitions. Other writ petitions are also dismissed taking into consideration the terms and conditions of the contract of sale between Arihant Udhyog and its seller. This is clearly a wrong approach. In each case the High Court was supposed to go into the contract for sale between the licensees and their sellers and in view of the terms and conditions contained in each of the case, the High Court was supposed to decide as to whether in their cases also ownership in goods transferred only in the market area within the State of Rajasthan.We have gone through the said judgment and find that no such principle, as sought to be advanced by the appellants, is laid down therein. That was a case where the respondent had purchased castor seeds from suppliers outside the market area but weighment and payment whereof was made at the mill site within the market area. The Court concluded that the respondent company had become owner of the goods only once the exact weight of the castor seeds was ascertained and purchase voucher was obtained and, therefore, the sale had taken place within the market area and the respondent was liable to pay market fee thereon. To that extent, the aforesaid judgment is against the appellants. However, there was one more issue involved in the said case. The respondent industry was using the castor seeds for manufacturing of oil therefrom. In this manufacturing,seed cake emerged as aThe Market Committee wanted to levy market fee on thisalso, which was held to be impermissible. The Court also held that the item mentioned in Schedule to the Act was `oil cake which is different and distinct fromcake.27. This plea of the appellant, therefore, is of no consequence. In the impugned judgment the High Court has rightly repelled this argument by observing that once the goods bought are agricultural produce on which market fee is leviable in terms of Schedule attached to the Act, then the market fee is payable. If it is used as raw material for manufacturing purpose thereafter would be of no consequence.

### 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: Sale and agreement to sell(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.(2) A contract of sale may be absolute or conditional.(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." The very distinction between the sale and agreement to sell enumerated in the aforesaid provision points out that a sale takes place when the property in goods is transferred from the seller to the buyer. If transfer of property in the case is to take place at a future time or subject to conditions that are stipulated in the contract of sale of goods, then the contract is merely an agreement to sell. Section 19 is contained in Chapter-III of the Sale of Goods Act, title whereof is "Effects of the Contract (Transfer of Property as between Seller and Buyer)". As per this provision, property passes from seller to buyer when it is intended to pass and such an intention is to be gathered from contract for the sale when it pertains to sale of specific or ascertained goods. To understand fully the implication of this provision, we reproduce hereunder the provisions of Section 19: "19. Property passes when intended to pass(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.(3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer." 16. Sub-section (3) of Section 19 is another significant provision which mentions that rules contained in Sections 20 to 24 are the rules for ascertaining the intention of the parties, unless a different intention appears in the contract for the sale of specific or ascertained goods. It means, if such an intention as to when the parties to the contract intend the property in goods to be transferred cannot be gathered from the contract, rules contained in Sections 20 to 24 would be applied. 17. Section 20 deals with a situation where specific goods are in a deliverable state. In that case property in goods passes to the buyer when the contract is made, even when time of payment of the price or the time of delivery of the goods or both is postponed. In order that Section 20 is attracted, two conditions have to be fulfilled: (i) the contract of sale is for specific goods which are in a deliverable state; and (ii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable {See - Shalimar Chemical Works Ltd.. 18. However, Section 21 is exception to Section 20 which states that where there is a contract for sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such a thing is done and the buyer has notice thereof. Likewise, Section 22 carves out another exception and mentions that even when the specific goods are in a deliverable state but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such Act or thing is done and the buyer has notice thereof. 19. Section 23 deals with sale of uncertain goods and appropriation, with which we are not concerned here. Likewise, Section 24 deals with a situation where goods are sent on approval or `on sale or return basis, which is also not relevant for our purposes. 20. A conjoint reading of the aforesaid provisions makes it clear that title in goods is transferred from the seller to buyer only on the sale of goods. As to when such a sale fructifies and the property passes is to be ascertained from the intention of the parties having regard to the terms of the contract. If no such intention can be gathered from the terms of the contract, the property in goods passes where the goods are in a deliverable state and there is unconditional contract for sale of specific goods.21. In the case of Arihant Udhyog, intention is to be gathered from the terms and conditions, which have already been noted above. It mentions that responsibility of the seller ceases as soon as goods are delivered, which means the seller remained responsible till the delivery of goods. Therefore, intention was to retain the title in the goods till its delivery inasmuch as till that time it is the seller who was responsible for the goods. This condition would clearly spell out that if the goods are destroyed or lost in transit, i.e. before their delivery, responsibility will be that of the seller. Such a responsibility can be only if the ownership remains of the seller. No other document was produced by Arihant Udhoyg which could demonstrate the intention that property in goods passed in their favour before these goods were delivered. ### Response: 0 ### Explanation: 14. From the aforesaid arguments it becomes clear that applicability of Section 17 of the Act read with Rule 58 of the Rules would depend upon the question as to whether agricultural produce is bought and sold by the licensee in the market area. It is also the common case of the parties that the answer to the aforesaid issue would depend upon the question as to when and at what stage the title in the goods passes. If the entire transaction takes place outside the State of Rajasthan and the ownership in the goods also passes outside Rajasthan, then the market fee is not payable. It is also the common case of the parties that answer to the aforesaid question would depend upon the applicability of Section 4 read with Section 19 of the Sale of Goods Act, 1930, which provisions are to be applied keeping in view the terms and conditions on which the goods are sold. That is the exercise which is done by the High Court by looking into the terms on which the goods were sold by Jawahar Exim Ltd. to Arihant Udyog. Insofar as Arihant Udhyog is concerned, this was the only invoice produced before the High Court and is also made Annexurein the present proceedings. On going through the same, we do not find any fault in the approach of the High Court.A conjoint reading of the aforesaid provisions makes it clear that title in goods is transferred from the seller to buyer only on the sale of goods. As to when such a sale fructifies and the property passes is to be ascertained from the intention of the parties having regard to the terms of the contract. If no such intention can be gathered from the terms of the contract, the property in goods passes where the goods are in a deliverable state and there is unconditional contract for sale of specific goods.21. In the case of Arihant Udhyog, intention is to be gathered from the terms and conditions, which have already been noted above. It mentions that responsibility of the seller ceases as soon as goods are delivered, which means the seller remained responsible till the delivery of goods. Therefore, intention was to retain the title in the goods till its delivery inasmuch as till that time it is the seller who was responsible for the goods. This condition would clearly spell out that if the goods are destroyed or lost in transit, i.e. before their delivery, responsibility will be that of the seller. Such a responsibility can be only if the ownership remains of the seller. No other document was produced by Arihant Udhoyg which could demonstrate the intention that property in goods passed in their favour before these goods were delivered.Having said so, we find that the High Court has passed impugned common judgment deciding as many as fifteen writ petitions. Other writ petitions are also dismissed taking into consideration the terms and conditions of the contract of sale between Arihant Udhyog and its seller. This is clearly a wrong approach. In each case the High Court was supposed to go into the contract for sale between the licensees and their sellers and in view of the terms and conditions contained in each of the case, the High Court was supposed to decide as to whether in their cases also ownership in goods transferred only in the market area within the State of Rajasthan.We have gone through the said judgment and find that no such principle, as sought to be advanced by the appellants, is laid down therein. That was a case where the respondent had purchased castor seeds from suppliers outside the market area but weighment and payment whereof was made at the mill site within the market area. The Court concluded that the respondent company had become owner of the goods only once the exact weight of the castor seeds was ascertained and purchase voucher was obtained and, therefore, the sale had taken place within the market area and the respondent was liable to pay market fee thereon. To that extent, the aforesaid judgment is against the appellants. However, there was one more issue involved in the said case. The respondent industry was using the castor seeds for manufacturing of oil therefrom. In this manufacturing,seed cake emerged as aThe Market Committee wanted to levy market fee on thisalso, which was held to be impermissible. The Court also held that the item mentioned in Schedule to the Act was `oil cake which is different and distinct fromcake.27. This plea of the appellant, therefore, is of no consequence. In the impugned judgment the High Court has rightly repelled this argument by observing that once the goods bought are agricultural produce on which market fee is leviable in terms of Schedule attached to the Act, then the market fee is payable. If it is used as raw material for manufacturing purpose thereafter would be of no consequence.

Municipal Council, Kota, Rajasthan Vs. The Delhi Cloth & General Mills Co.Ltd

of 1956. Nor is there any other enactment which interdicts such taxation. It is true that Section 3 is the general charging section. Even if Section 23(5) provides for the machinery for collection and recovery of the tax, once the legislature has, in clear terms, indicated that the income of the firm can be taxed in accordance with the Finance Act of 1956 as also the income in the hands of the partners, the distinction between a charging and a machinery section is of no consequence. But the sections have to be read together and construed harmoniously. It is significant that similar provisions have also been enacted in the Act of 1961. Sections 182 and 183 correspond substantially to Section 23(5) except that the old section did not have a provision similar to sub-section (4) of Section 182. After 1956, therefore, so far as registered firms are concerned the tax payable by the firm itself has to be assessed and the share of each partner in the income of the firm has to be included in his total income and assessed to tax accordingly. If any double taxation is involved the legislature itself has, in express words, sanctioned it. It is not open to any one thereafter to involve the general principles that the subject cannot be stated twice over." 20. In Avinder Singh etc. v. State of Punjab and another, AIR 1979 SC 321 this Court has once again held as follows :- "A feeble plea that the tax is bad because of the vice of double taxation and is unreasonable because there are heavy prior levies was also voiced. Some of these contentions hardly merit consideration, but have been mentioned out of courtesy to counsel. The last one, for instance, deserves the least attention. There is nothing in Article 265 of the Constitution from which one can spin out the constitutional vice called double taxation. (Bad economics may be good law and vice versa). Dealing with a somewhat similar argument, the Bombay High Court gave short shrift to it in Western India Theatres, AIR 1952 Bom. 261 . Some undeserving contentions die hard, rather survive after death. The only epitaph we may inscribe is : Rest in peace and dont be re-born ! If on the same subject-matter the legislature chooses to levy tax twice over there is no inherent invalidity in the fiscal adventure save where other prohibitions exist." 21. In Sri Krishna Das v. Town Area Committee, Chirgaon, 1990(3) SCC 645 and Radhakishan Rathi v. Additional Collector, Durg and others, 1995(4) SCC 309 the same position is found reiterated. 22. Though taxation of the same thing under different names is nonetheless `double taxation in popular sense, the expertise exposition of the topic seem to also lean in favour of the revenue, in that the legislature has been considered to possess the power to levy one or more tax or rates of tax on the same taxable event and since in these areas large latitude and wide discretion has always been allowed to the State to choose its own method or kind of tax or mode and purpose of levy and recovery, unless there is any prohibition in the Constitution or the very law enacted by the legislature itself prevents such a thing happening no infirmity can be said to vitiate such a levy. Wherever the taxes are imposed by different legislatures or authorities or where one of the two alone is a tax or where it is for altogether different purposes or when it is indirect rather than direct, there is no scope even for making any grievance of double taxation, at all. In the absence of any impediment specifically created in the Constitution of a country or the legislative enactment itself, the desirability or need otherwise to avoid such levies has been held to pertain to areas of political wisdom of policy making and adjusting of public finances of the State, and not for the Law Courts, though courts would unless there is clear and specific mandate of law in favour of such multiple levies more than once, in construing general statutory provisions lean in favour of an interpretation to avoid double taxation. So much are the principles or statement of law governing a challenge to any levy on the ground of Double Taxation. 23. Now coming to the facts and circumstances of the cases before us, we find that the levy is specific, definite and positive in terms, with a definitely disclosed object leaving no room for any double or any exercise to clear such assumed doubts. We have carefully gone through the original Notification in vernacular published in the Gazette dated 13.5.1968, noticed supra, and we find that the rates of the levy under challenge have been notified as part and parcel of one and the same schedule to the said notification and not by any different or more than one Schedule and that too by means of a simultaneous exercise of powers under Section 104(2) of the Act and not on different occasion or time. Though it is seen that some of the classified items or commodities enumerated in various Entries overlap those found in the other Entries under different captions including Dharmada, they are not mere mechanical repetitions in toto, viewed either from their classification, enumeration or determination of the rates as well as the measure or quantity with reference to which the actual levy is to be made and collected. Therefore, the mere stipulation of plurality of rates in respect of some or the other of the commodities/goods under different classified groups for different purposes by itself will not render it to be doubbed or castigated as `Double Taxation for spearheading a challenge on them. The notification under consideration cannot, in our view, be said to involve the imposition of any double tax and the High Court has gone wrong in proceeding upon such an erroneous assumption and declaring thereby the levy for Dharmada purposes to be bad and illegal.

1[ds]18. We affirm the statement of law thus made above to be correct and in our view it is not the nomenclature used or chosen to christen the levy that is really relevant or determinative of the real character or the nature of the levy, for the purpose of adjudging a challenge to the competency or the power and authority to legislate or impose a levy. What really has to be seen is the pith and substance or the real nature and character of the levy which has to be adjudged, with reference to the charge viz., the taxable event and the incidence of the levy. We are convinced on the indisputable facts on record that the levy sought to be imposed and recovered as `Dharmada being only on the goods brought within the municipal limits of Kota for consumption, use or sale therein the same in truth, reality and substance is only an octroi for the purpose of carrying out the several public charitable objects statutorily enjoined upon the Municipal Board and enumerated in Sections 98 and 99 and those undertaken pursuant to the stipulations contained in Sections 101 and 102 of the Act. The mere fact that it is called by a different name (all the more so when the word `octroi itself is not found used in Entry 52 of List II of the Seventh Schedule) for historical reason and administrative needs or exigencies by the draftsmen of the notification does not in any manner either undermine the nature and character of the levy or render it any the less a levy envisaged under Entry 52 of List II of the Seventh Schedule. The various charitable objects and ameliorative schemes and projects for which the taxes realised under the classified head of Dharmada are claimed to be spent cannot as the provisions of the Act stand enacted be said to be either unauthorised or without the sanction of law. That, apart, the irregularity or illegality, if any involved in spending the sum after collection cannot have any impact on or adversely affect, the otherwise competency of the Authority concerned to impose a levy, well within its legislative competence and further not shown to be violative of any provisions of the Constitution of India. Neither the High Court has gone into any such question of illegality in the matter of spending the tax realised nor are there any materials on record placed before us to substantiate any such claim by the23. Now coming to the facts and circumstances of the cases before us, we find that the levy is specific, definite and positive in terms, with a definitely disclosed object leaving no room for any double or any exercise to clear such assumed doubts. We have carefully gone through the original Notification in vernacular published in the Gazette dated 13.5.1968, noticed supra, and we find that the rates of the levy under challenge have been notified as part and parcel of one and the same schedule to the said notification and not by any different or more than one Schedule and that too by means of a simultaneous exercise of powers under Section 104(2) of the Act and not on different occasion or time. Though it is seen that some of the classified items or commodities enumerated in various Entries overlap those found in the other Entries under different captions including Dharmada, they are not mere mechanical repetitions in toto, viewed either from their classification, enumeration or determination of the rates as well as the measure or quantity with reference to which the actual levy is to be made and collected. Therefore, the mere stipulation of plurality of rates in respect of some or the other of the commodities/goods under different classified groups for different purposes by itself will not render it to be doubbed or castigated as `Double Taxation for spearheading a challenge on them. The notification under consideration cannot, in our view, be said to involve the imposition of any double tax and the High Court has gone wrong in proceeding upon such an erroneous assumption and declaring thereby the levy for Dharmada purposes to be bad and illegal.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: of 1956. Nor is there any other enactment which interdicts such taxation. It is true that Section 3 is the general charging section. Even if Section 23(5) provides for the machinery for collection and recovery of the tax, once the legislature has, in clear terms, indicated that the income of the firm can be taxed in accordance with the Finance Act of 1956 as also the income in the hands of the partners, the distinction between a charging and a machinery section is of no consequence. But the sections have to be read together and construed harmoniously. It is significant that similar provisions have also been enacted in the Act of 1961. Sections 182 and 183 correspond substantially to Section 23(5) except that the old section did not have a provision similar to sub-section (4) of Section 182. After 1956, therefore, so far as registered firms are concerned the tax payable by the firm itself has to be assessed and the share of each partner in the income of the firm has to be included in his total income and assessed to tax accordingly. If any double taxation is involved the legislature itself has, in express words, sanctioned it. It is not open to any one thereafter to involve the general principles that the subject cannot be stated twice over." 20. In Avinder Singh etc. v. State of Punjab and another, AIR 1979 SC 321 this Court has once again held as follows :- "A feeble plea that the tax is bad because of the vice of double taxation and is unreasonable because there are heavy prior levies was also voiced. Some of these contentions hardly merit consideration, but have been mentioned out of courtesy to counsel. The last one, for instance, deserves the least attention. There is nothing in Article 265 of the Constitution from which one can spin out the constitutional vice called double taxation. (Bad economics may be good law and vice versa). Dealing with a somewhat similar argument, the Bombay High Court gave short shrift to it in Western India Theatres, AIR 1952 Bom. 261 . Some undeserving contentions die hard, rather survive after death. The only epitaph we may inscribe is : Rest in peace and dont be re-born ! If on the same subject-matter the legislature chooses to levy tax twice over there is no inherent invalidity in the fiscal adventure save where other prohibitions exist." 21. In Sri Krishna Das v. Town Area Committee, Chirgaon, 1990(3) SCC 645 and Radhakishan Rathi v. Additional Collector, Durg and others, 1995(4) SCC 309 the same position is found reiterated. 22. Though taxation of the same thing under different names is nonetheless `double taxation in popular sense, the expertise exposition of the topic seem to also lean in favour of the revenue, in that the legislature has been considered to possess the power to levy one or more tax or rates of tax on the same taxable event and since in these areas large latitude and wide discretion has always been allowed to the State to choose its own method or kind of tax or mode and purpose of levy and recovery, unless there is any prohibition in the Constitution or the very law enacted by the legislature itself prevents such a thing happening no infirmity can be said to vitiate such a levy. Wherever the taxes are imposed by different legislatures or authorities or where one of the two alone is a tax or where it is for altogether different purposes or when it is indirect rather than direct, there is no scope even for making any grievance of double taxation, at all. In the absence of any impediment specifically created in the Constitution of a country or the legislative enactment itself, the desirability or need otherwise to avoid such levies has been held to pertain to areas of political wisdom of policy making and adjusting of public finances of the State, and not for the Law Courts, though courts would unless there is clear and specific mandate of law in favour of such multiple levies more than once, in construing general statutory provisions lean in favour of an interpretation to avoid double taxation. So much are the principles or statement of law governing a challenge to any levy on the ground of Double Taxation. 23. Now coming to the facts and circumstances of the cases before us, we find that the levy is specific, definite and positive in terms, with a definitely disclosed object leaving no room for any double or any exercise to clear such assumed doubts. We have carefully gone through the original Notification in vernacular published in the Gazette dated 13.5.1968, noticed supra, and we find that the rates of the levy under challenge have been notified as part and parcel of one and the same schedule to the said notification and not by any different or more than one Schedule and that too by means of a simultaneous exercise of powers under Section 104(2) of the Act and not on different occasion or time. Though it is seen that some of the classified items or commodities enumerated in various Entries overlap those found in the other Entries under different captions including Dharmada, they are not mere mechanical repetitions in toto, viewed either from their classification, enumeration or determination of the rates as well as the measure or quantity with reference to which the actual levy is to be made and collected. Therefore, the mere stipulation of plurality of rates in respect of some or the other of the commodities/goods under different classified groups for different purposes by itself will not render it to be doubbed or castigated as `Double Taxation for spearheading a challenge on them. The notification under consideration cannot, in our view, be said to involve the imposition of any double tax and the High Court has gone wrong in proceeding upon such an erroneous assumption and declaring thereby the levy for Dharmada purposes to be bad and illegal. ### Response: 1 ### Explanation: 18. We affirm the statement of law thus made above to be correct and in our view it is not the nomenclature used or chosen to christen the levy that is really relevant or determinative of the real character or the nature of the levy, for the purpose of adjudging a challenge to the competency or the power and authority to legislate or impose a levy. What really has to be seen is the pith and substance or the real nature and character of the levy which has to be adjudged, with reference to the charge viz., the taxable event and the incidence of the levy. We are convinced on the indisputable facts on record that the levy sought to be imposed and recovered as `Dharmada being only on the goods brought within the municipal limits of Kota for consumption, use or sale therein the same in truth, reality and substance is only an octroi for the purpose of carrying out the several public charitable objects statutorily enjoined upon the Municipal Board and enumerated in Sections 98 and 99 and those undertaken pursuant to the stipulations contained in Sections 101 and 102 of the Act. The mere fact that it is called by a different name (all the more so when the word `octroi itself is not found used in Entry 52 of List II of the Seventh Schedule) for historical reason and administrative needs or exigencies by the draftsmen of the notification does not in any manner either undermine the nature and character of the levy or render it any the less a levy envisaged under Entry 52 of List II of the Seventh Schedule. The various charitable objects and ameliorative schemes and projects for which the taxes realised under the classified head of Dharmada are claimed to be spent cannot as the provisions of the Act stand enacted be said to be either unauthorised or without the sanction of law. That, apart, the irregularity or illegality, if any involved in spending the sum after collection cannot have any impact on or adversely affect, the otherwise competency of the Authority concerned to impose a levy, well within its legislative competence and further not shown to be violative of any provisions of the Constitution of India. Neither the High Court has gone into any such question of illegality in the matter of spending the tax realised nor are there any materials on record placed before us to substantiate any such claim by the23. Now coming to the facts and circumstances of the cases before us, we find that the levy is specific, definite and positive in terms, with a definitely disclosed object leaving no room for any double or any exercise to clear such assumed doubts. We have carefully gone through the original Notification in vernacular published in the Gazette dated 13.5.1968, noticed supra, and we find that the rates of the levy under challenge have been notified as part and parcel of one and the same schedule to the said notification and not by any different or more than one Schedule and that too by means of a simultaneous exercise of powers under Section 104(2) of the Act and not on different occasion or time. Though it is seen that some of the classified items or commodities enumerated in various Entries overlap those found in the other Entries under different captions including Dharmada, they are not mere mechanical repetitions in toto, viewed either from their classification, enumeration or determination of the rates as well as the measure or quantity with reference to which the actual levy is to be made and collected. Therefore, the mere stipulation of plurality of rates in respect of some or the other of the commodities/goods under different classified groups for different purposes by itself will not render it to be doubbed or castigated as `Double Taxation for spearheading a challenge on them. The notification under consideration cannot, in our view, be said to involve the imposition of any double tax and the High Court has gone wrong in proceeding upon such an erroneous assumption and declaring thereby the levy for Dharmada purposes to be bad and illegal.

V. M. Syed Mohammad & Company Vs. State of Andhara Pradesh & Others

arise out of W. P. Nos. 21 and 41 of 1952 filed in the High Court of Judicature at Madras under Article 226 questioning the validity of the Madras General Sales Tax Act (IX of 1939) and of the Turnover and Assessment Rules framed under that Act. 2. The petitioners are tanners carrying on business in Eluru, West Godawari District, which is now part of the newly created State of Andhra. They make large purchases of untanned hides and skins and after tanning them in their tanneries they export the tanned hides and skins or sell the same to local purchasers. In the High Court the appellants impugned the Act and the Rules on the following grounds:(a) the Provincial Legislatures had no power under the Government of India Act of 1935 to enact a law imposing a tax on purchasers; (b) The liability to pay tax on sales is thrown on the purchaser not by the statute but by the rules. This is an unconstitutional delegation by the legislature of its functions to the executive and the imposing of the tax is accordingly illegal; (c) The Act has become void under Article 14 of the Constitution, as it singles out for taxation purchasers in some trades and is, therefore discriminatory; and (d) The rules framed under the Act are inconsistent with the provisions enacted in the body of the Act and are void. The High Court repelled each of the aforesaid grounds except that under item (d) it held that Rule (16(5) was ultra vires in that it offended against S. 5 (vi) of the Act and dismissed their applications. Hence the present appeals by the appellants under the certificate granted by the High Court that it was a fit case for appeal to this Court. 3. Learned Advocate appearing in support of those appeals has not pressed the objection under item (b) but has insisted on the remaining grounds of objection. In our opinion, the decisions of the High Court on those grounds are substantially well-founded and correct. On the question of legislative competency, the learned Advocate drew our attention to entry 54 in List II of the seventh Schedule to the Constitution of India and argued that this entry clearly indicates that entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, under which the impugned Act was passed was much narrower in its scope and could not be read as authorising the making of a law with respect to taxes on the purchase of goods. This argument appears to us to be fallacious, for the intention of the Constituent Assembly as expressed in entry 54 in List II of the Seventh Schedule to the Constitution cannot be a guide for ascertaining the intention of a totally different body namely the British Parliament, in enacting entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935. Further, we agree with the High Court that entry 48 in list II of the Seventh Schedule to the Government of India Act, on a proper construction, was wide enough to cover a law imposing tax on the purchaser of goods as well and that the Constituent Assembly in entry 54 of List II in the Seventh Schedule to the Constitution accepted this liberal construction of the corresponding entry 48 and expressed in clearer language what was implicit in that corresponding entry. 4. The next point urged by the learned Advocate was founded on Article 14 of the Constitution. The Appellants grievance is that the impugned Act singles out for taxing purchasers of certain Specified commodities only but leaves out purchasers of all other commodities. The Principle underlying the equal protection clause of the Constitution has been dealt with and explained in ----- Charanjit Lal Chowdhury v. Union of India. AIR 1951 S. C. 41 (A), and several subsequent cases and need not be reiterated. It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Charanjitlal Chowdhurys case (A), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins. The majority decision in Charanjitlal Chowdhurys case (A) clearly applies to the case before us and there is, no getting away from the position that the appellants before us have not discharged the burden of proof that according to the majority decision, was upon them to do. 5. Lastly, the learned Advocate urges that R. 16(5) clearly contravenes the provisions of S. 5 (vi) of the Act. This sub-rule has been held to be ultra vires by the High Court and, indeed, the learned Advocate-General of Madras did not in the High Court, as before us, dispute that R. 16(5) was repugnant to S. 5 (vi). That sub-rule, however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule. Further, it has not been suggested before us that the appellants were ever called upon to pay any tax on purchase of the hides or skins in respect of which tax had been previously paid by some prior purchasers. That sub-rule is clearly severable and cannot affect that validity of the rules which may otherwise be within the ambit of the Act. Our attention has not been drawn to any other infirmity in the rules.

0[ds]In our opinion, the decisions of the High Court on those grounds are substantially well-founded and correct.On the question of legislative competency, the learned Advocate drew our attention to entry 54 in List II of the seventh Schedule to the Constitution of India and argued that this entry clearly indicates that entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, under which the impugned Act was passed was much narrower in its scope and could not be read as authorising the making of a law with respect to taxes on the purchase of goodsThis argument appears to us to be fallacious, for the intention of the Constituent Assembly as expressed in entry 54 in List II of the Seventh Schedule to the Constitution cannot be a guide for ascertaining the intention of a totally different body namely the British Parliament, in enacting entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935. Further, we agree with the High Court that entry 48 in list II of the Seventh Schedule to the Government of India Act, on a proper construction, was wide enough to cover a law imposing tax on the purchaser of goods as well and that the Constituent Assembly in entry 54 of List II in the Seventh Schedule to the Constitution accepted this liberal construction of the corresponding entry 48 and expressed in clearer language what was implicit in that corresponding entry4. The next point urged by the learned Advocate was founded on Article 14 of the Constitution. The Appellants grievance is that the impugned Act singles out for taxing purchasers of certain Specified commodities only but leaves out purchasers of all other commodities.The Principle underlying the equal protection clause of the Constitution has been dealt with and explained in ----- Charanjit Lal Chowdhury v. Union of India. AIR 1951 S. C. 41 (A), and several subsequent cases and need not be reiterated. It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Charanjitlal Chowdhurys case (A), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins. The majority decision in Charanjitlal Chowdhurys case (A) clearly applies to the case before us and there is, no getting away from the position that the appellants before us have not discharged the burden of proof that according to the majority decision, was upon them to do5. Lastly, the learned Advocate urges that R. 16(5) clearly contravenes the provisions of S. 5 (vi) of the Act. This sub-rule has been held to be ultra vires by the High Courtand, indeed, the learned Advocate-General of Madras did not in the High Court, as before us, dispute that R. 16(5) was repugnant to S. 5 (vi). That sub-rule, however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule. Further, it has not been suggested before us that the appellants were ever called upon to pay any tax on purchase of the hides or skins in respect of which tax had been previously paid by some prior purchasers. That sub-rule is clearly severable and cannot affect that validity of the rules which may otherwise be within the ambit of the Act. Our attention has not been drawn to any other infirmity in 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: arise out of W. P. Nos. 21 and 41 of 1952 filed in the High Court of Judicature at Madras under Article 226 questioning the validity of the Madras General Sales Tax Act (IX of 1939) and of the Turnover and Assessment Rules framed under that Act. 2. The petitioners are tanners carrying on business in Eluru, West Godawari District, which is now part of the newly created State of Andhra. They make large purchases of untanned hides and skins and after tanning them in their tanneries they export the tanned hides and skins or sell the same to local purchasers. In the High Court the appellants impugned the Act and the Rules on the following grounds:(a) the Provincial Legislatures had no power under the Government of India Act of 1935 to enact a law imposing a tax on purchasers; (b) The liability to pay tax on sales is thrown on the purchaser not by the statute but by the rules. This is an unconstitutional delegation by the legislature of its functions to the executive and the imposing of the tax is accordingly illegal; (c) The Act has become void under Article 14 of the Constitution, as it singles out for taxation purchasers in some trades and is, therefore discriminatory; and (d) The rules framed under the Act are inconsistent with the provisions enacted in the body of the Act and are void. The High Court repelled each of the aforesaid grounds except that under item (d) it held that Rule (16(5) was ultra vires in that it offended against S. 5 (vi) of the Act and dismissed their applications. Hence the present appeals by the appellants under the certificate granted by the High Court that it was a fit case for appeal to this Court. 3. Learned Advocate appearing in support of those appeals has not pressed the objection under item (b) but has insisted on the remaining grounds of objection. In our opinion, the decisions of the High Court on those grounds are substantially well-founded and correct. On the question of legislative competency, the learned Advocate drew our attention to entry 54 in List II of the seventh Schedule to the Constitution of India and argued that this entry clearly indicates that entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, under which the impugned Act was passed was much narrower in its scope and could not be read as authorising the making of a law with respect to taxes on the purchase of goods. This argument appears to us to be fallacious, for the intention of the Constituent Assembly as expressed in entry 54 in List II of the Seventh Schedule to the Constitution cannot be a guide for ascertaining the intention of a totally different body namely the British Parliament, in enacting entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935. Further, we agree with the High Court that entry 48 in list II of the Seventh Schedule to the Government of India Act, on a proper construction, was wide enough to cover a law imposing tax on the purchaser of goods as well and that the Constituent Assembly in entry 54 of List II in the Seventh Schedule to the Constitution accepted this liberal construction of the corresponding entry 48 and expressed in clearer language what was implicit in that corresponding entry. 4. The next point urged by the learned Advocate was founded on Article 14 of the Constitution. The Appellants grievance is that the impugned Act singles out for taxing purchasers of certain Specified commodities only but leaves out purchasers of all other commodities. The Principle underlying the equal protection clause of the Constitution has been dealt with and explained in ----- Charanjit Lal Chowdhury v. Union of India. AIR 1951 S. C. 41 (A), and several subsequent cases and need not be reiterated. It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Charanjitlal Chowdhurys case (A), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins. The majority decision in Charanjitlal Chowdhurys case (A) clearly applies to the case before us and there is, no getting away from the position that the appellants before us have not discharged the burden of proof that according to the majority decision, was upon them to do. 5. Lastly, the learned Advocate urges that R. 16(5) clearly contravenes the provisions of S. 5 (vi) of the Act. This sub-rule has been held to be ultra vires by the High Court and, indeed, the learned Advocate-General of Madras did not in the High Court, as before us, dispute that R. 16(5) was repugnant to S. 5 (vi). That sub-rule, however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule. Further, it has not been suggested before us that the appellants were ever called upon to pay any tax on purchase of the hides or skins in respect of which tax had been previously paid by some prior purchasers. That sub-rule is clearly severable and cannot affect that validity of the rules which may otherwise be within the ambit of the Act. Our attention has not been drawn to any other infirmity in the rules. ### Response: 0 ### Explanation: In our opinion, the decisions of the High Court on those grounds are substantially well-founded and correct.On the question of legislative competency, the learned Advocate drew our attention to entry 54 in List II of the seventh Schedule to the Constitution of India and argued that this entry clearly indicates that entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, under which the impugned Act was passed was much narrower in its scope and could not be read as authorising the making of a law with respect to taxes on the purchase of goodsThis argument appears to us to be fallacious, for the intention of the Constituent Assembly as expressed in entry 54 in List II of the Seventh Schedule to the Constitution cannot be a guide for ascertaining the intention of a totally different body namely the British Parliament, in enacting entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935. Further, we agree with the High Court that entry 48 in list II of the Seventh Schedule to the Government of India Act, on a proper construction, was wide enough to cover a law imposing tax on the purchaser of goods as well and that the Constituent Assembly in entry 54 of List II in the Seventh Schedule to the Constitution accepted this liberal construction of the corresponding entry 48 and expressed in clearer language what was implicit in that corresponding entry4. The next point urged by the learned Advocate was founded on Article 14 of the Constitution. The Appellants grievance is that the impugned Act singles out for taxing purchasers of certain Specified commodities only but leaves out purchasers of all other commodities.The Principle underlying the equal protection clause of the Constitution has been dealt with and explained in ----- Charanjit Lal Chowdhury v. Union of India. AIR 1951 S. C. 41 (A), and several subsequent cases and need not be reiterated. It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Charanjitlal Chowdhurys case (A), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins. The majority decision in Charanjitlal Chowdhurys case (A) clearly applies to the case before us and there is, no getting away from the position that the appellants before us have not discharged the burden of proof that according to the majority decision, was upon them to do5. Lastly, the learned Advocate urges that R. 16(5) clearly contravenes the provisions of S. 5 (vi) of the Act. This sub-rule has been held to be ultra vires by the High Courtand, indeed, the learned Advocate-General of Madras did not in the High Court, as before us, dispute that R. 16(5) was repugnant to S. 5 (vi). That sub-rule, however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule. Further, it has not been suggested before us that the appellants were ever called upon to pay any tax on purchase of the hides or skins in respect of which tax had been previously paid by some prior purchasers. That sub-rule is clearly severable and cannot affect that validity of the rules which may otherwise be within the ambit of the Act. Our attention has not been drawn to any other infirmity in the rules.

Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Anotherand Vice Versa

case here.10. After having heard arguments of learned Counsel for the election-petitioner on the two appeals which definitely involved allegations of misuse of power by the Prime Minister of this country, I was rather amazed to hear from learned Counsel arguing the application before us that no question of bona fides or mala fides was raised by him. It may be that the learned Counsel, without using any particular label to describe the issue raised by him, made all the allegations and suggestions necessary to raise it. If he did not mean to argue such an issue seriously I do not think that learned Counsel for the petitioner was justified in taking up so much of this Courts time in arguing what could be the purpose behind and the effects of the amendments assailed by learned Counsel. I do not think that I could, after the conclusion reached by me, as I have already mentioned above, properly deal with the issues raised by learned Counsel, whatever be the term employed to describe them, without examining the validity of findings fact and law on the only two questions involved in Appeal No. 887 of 1975. It became imperative and unavoidable on the view I took. Those who asked for justice got it even though it involved doing some justice to those who did not ask for it. The judicial process does not always produce the expected.11. Learned Counsel for the election-petitioner also seemed to complain that my judgment contained some remarks indicating that he did not discharge his professional duties towards his client satisfactorily. If that is so, I would like to remove this grievance by saying that he discharged his duty towards his client so well that he succeeded in averting a closer and more detailed scrutiny by all of us of the pleadings, the evidence, and the patently erroneous conclusions of the trial Judge in this case. I think that his client should be thankful for this success of his Counsel added to the successful attack on the relevant part of Thirty-ninth Constitutional Amendment. There is, however, also a duty towards this Court which has to be performed by trying to meet the possible point of view or requirements of every learned Judge hearing the appeals irrespective of whether this suits the party represented by Counsel.12. I was initially inclined even to let learned Counsel for the election-petitioner file written arguments on such other questions of law and fact as he may, have due to some misapprehension, failed to place before this Court so that I may consider these also now. But, I have, after giving the matter thought, reached the conclusion that the view of my learned brethren on this matter is correct and must be preferred to my initial desire to give learned Counsel a further opportunity. This view is that no useful purpose could be served by spending more time on this case which has already occupied enough of valuable time of this Court. The contents of the review petition also show that there is nothing overlooked which is worth considering upon any application for review. As already mentioned above, learned Counsel for the election-petitioner does not question at all the correctness of the common conclusions of all the learned Judges of the Constitution Bench.13. The application before us seems to be only an explanation of the reasons for which learned Counsel for the election-petitioner did not advance more detailed arguments on findings of fact. I am inclined to accept that explanation as bone fide and sufficient for whatever may be the reasons for the learned Counsels failure to submit more argument in support of the findings of the trial Court than he did offer in addition to those contained in the judgment under appeal. I am sure that the course adopted by the election-petitioners learned Counsel has not injured his clients case or interests at all even if it did not fully succeed in completely warding off a closer scrutiny of the pleadings, the evidence, and the findings of the trial Court than that which was good for the election-petitioners case. It is undoubtedly a feather in the cap of the learned Counsel, who conducted the case before the High Court also, that a case so flimsy as that of his client succeeded in the High Court. And, I do not think that the election-petitioners case could have been more skillfully conducted in this Court than it was done by his Counsel Mr. Shanti Bhushan.14. I have, however, closely gone through my judgment again as it had to, for reasons beyond our control, be dictated, typed, and cyclostyled in great hurry without sufficient opportunity for careful reading and necessary corrections of accidental slips and errors before and after it was cyclostyled. I have done so particularly because I found that a number of typing errors had crept into the cyclostyled copies of my judgment which had to be ordered by me to be corrected. I find that there are still two errors left in my judgment which call for correction. The first is at page 11 of my judgment (1975 Supp SCC 1, 150 (para 395)) where Section 116A(4) has been mentioned instead of Section 116B(3) due to some accidental slip or clerical error. Again, at page 23 of my judgment, (Ibid., p. 156 (para 405)) find that, while considering the provisions of Section 100(1) (d)(iii), it has gone down that the provision "postulates : firstly, a corrupt practice which can be committed only by an agent; and, secondly, the existence of such an agent". I think that the first postulate incorrectly by some error. It should be: "firstly, a corrupt practice which is committed only by an agent". I, therefore, order that my judgment be corrected in these two respects. I am unable to find any other error in the judgment which calls for correction.15. Subject to the correction in the two respects mentioned above, and the clarifications given above, this application is dismissed.

0[ds]The petition before us also contains statements showing that, so far as I was concerned, I had indicated to the parties that I regarded consideration of the merits of the case also to be essential for a just and proper decision and disposal of the appeals. Indeed, the direction given by His Lordship the Chief Justice to the parties to address their arguments on merits, after those on the constitutional amendment, necessarily meant, I think, that a consideration of merits could not be separated from questions of validity of the amendments of the electionwas, therefore, essential for the decision of this issue raised by the learned Counsel for the election-petitioner himself to convince us that the case of the election-petitioner, according to the laws as they stood at the time when the election was held, was bound to succeed on merits. It was only if it could be shown that the amendments of election laws, by additions to them, had really altered the law, and also that this had the effect of so changing "the rules of the game" (the very words used by the Counsel for the election-petitioner), as to remove disqualifications actually incurred, that this line of argument could possibly succeed. I, at any rate, am unable to understand how this issue, raised by the learned Counsel for the election-petitioner himself, could possibly be decided satisfactorily without going into the facts of the case. And, if raised, as it was, it did call for a decision.5. It is true that my learned brethren did not consider it necessary to go into either the above-mentioned issue or the merits of the case in such depth as I did possibly because of the concession of the learned Counsel for the election-petitioner that it was unnecessary to consider the merits at all if all the amendments of the election laws were valid and his interpretations of those amendments were not to behowever, not only concluded, in agreement with my learned brethren, that the amendment of election laws were valid but reached that conclusion by an alternative route. I found there was no alteration of the election laws, except in one respect, and, therefore, there could be no question of an alteration of "the rules of the game" to the disadvantage of the election-petitioner. Once I had reached this conclusion, it was not possible to avoid considering findings on merits. Learned Counsel for the election-petitioner had conceded, no doubt in the interests of his client, that the findings of the learned trial Judge were unsustainable if the amendments were valid and his interpretations of these amendments were rejected. I do not think that I could possibly decide the case on this concession after reaching a conclusion, possibly not anticipated by the learned Counsel for the election-petitioner, that the election laws were not really changed except in one respect. I came to the conclusions I reached after considering the findings on merits and the law applicable at the time when the election was held.6. I do not think that we are required, by any rule of natural justice, to intimate to learned Counsel what particular route or reasoning will finally appeal to us or be adopted by us in reaching a particular conclusion in our judgment. All I can say is that if a Counsel raises an issue which, in the opinion of any one of us, can only be answered by going into findings of fact, he should anticipate the possibility of such a view, I can also say that I gave enough indication, during the course of arguments, of the course I could and did finally adopt for reasons fully set out in mymy view was that a decision on questions of law relating to the validity of the amendments themselves necessitated consideration of all the findings given and the meanings of the laws applied by the trialis too late now for the learned Counsel to complain that he misunderstood the position despite the efforts made by me to make clear my desire to hear arguments on facts and findings on them. Speaking for myself, I can only say that I could not possibly do full justice in this case and satisfy my conscience without a consideration of all those findings and facts which I felt bound to consider and did consider and decide. That could not be avoided at all after the conclusion I reached - that the amendments did not amend the law except in onetherefore, the findings and the facts of the case were examined by me to greater extent than a party or his learned Counsel relish, so as to be able to decide these issues, I am unable to do anything about it on a petition such as the one now beforeCounsel had ample opportunity to make all his submissions, the case cannot be reopened particularly when nothing which could possibly affect the result is indicated even now.After having heard arguments of learned Counsel for the election-petitioner on the two appeals which definitely involved allegations of misuse of power by the Prime Minister of this country, I was rather amazed to hear from learned Counsel arguing the application before us that no question of bona fides or mala fides was raised by him. It may be that the learned Counsel, without using any particular label to describe the issue raised by him, made all the allegations and suggestions necessary to raise it. If he did not mean to argue such an issue seriously I do not think that learned Counsel for the petitioner was justified in taking up so much of this Courts time in arguing what could be the purpose behind and the effects of the amendments assailed by learned Counsel. I do not think that I could, after the conclusion reached by me, as I have already mentioned above, properly deal with the issues raised by learned Counsel, whatever be the term employed to describe them, without examining the validity of findings fact and law on the only two questions involved in Appeal No. 887 of 1975. It became imperative and unavoidable on the view I took. Those who asked for justice got it even though it involved doing some justice to those who did not ask for it. The judicial process does not always produce the expected.If that is so, I would like to remove this grievance by saying that he discharged his duty towards his client so well that he succeeded in averting a closer and more detailed scrutiny by all of us of the pleadings, the evidence, and the patently erroneous conclusions of the trial Judge in this case. I think that his client should be thankful for this success of his Counsel added to the successful attack on the relevant part of Thirty-ninth Constitutional Amendment. There is, however, also a duty towards this Court which has to be performed by trying to meet the possible point of view or requirements of every learned Judge hearing the appeals irrespective of whether this suits the party represented by Counsel.12. I was initially inclined even to let learned Counsel for the election-petitioner file written arguments on such other questions of law and fact as he may, have due to some misapprehension, failed to place before this Court so that I may consider these also now. But, I have, after giving the matter thought, reached the conclusion that the view of my learned brethren on this matter is correct and must be preferred to my initial desire to give learned Counsel a further opportunity. This view is that no useful purpose could be served by spending more time on this case which has already occupied enough of valuable time of this Court. The contents of the review petition also show that there is nothing overlooked which is worth considering upon any application for review.13. The application before us seems to be only an explanation of the reasons for which learned Counsel for the election-petitioner did not advance more detailed arguments on findings of fact. I am inclined to accept that explanation as bone fide and sufficient for whatever may be the reasons for the learned Counsels failure to submit more argument in support of the findings of the trial Court than he did offer in addition to those contained in the judgment under appeal. I am sure that the course adopted by the election-petitioners learned Counsel has not injured his clients case or interests at all even if it did not fully succeed in completely warding off a closer scrutiny of the pleadings, the evidence, and the findings of the trial Court than that which was good for the election-petitioners case. It is undoubtedly a feather in the cap of the learned Counsel, who conducted the case before the High Court also, that a case so flimsy as that of his client succeeded in the High Court. And, I do not think that the election-petitioners case could have been more skillfully conducted in this Court than it was done by his Counsel Mr. Shanti Bhushan.14. I have, however, closely gone through my judgment again as it had to, for reasons beyond our control, be dictated, typed, and cyclostyled in great hurry without sufficient opportunity for careful reading and necessary corrections of accidental slips and errors before and after it was cyclostyled. I have done so particularly because I found that a number of typing errors had crept into the cyclostyled copies of my judgment which had to be ordered by me to be corrected. I find that there are still two errors left in my judgment which call for correction. The first is at page 11 of my judgment (1975 Supp SCC 1, 150 (para 395)) where Section 116A(4) has been mentioned instead of Section 116B(3) due to some accidental slip or clerical error. Again, at page 23 of my judgment, (Ibid., p. 156 (para 405)) find that, while considering the provisions of Section 100(1) (d)(iii), it has gone down that the provision "postulates : firstly, a corrupt practice which can be committed only by an agent; and, secondly, the existence of such an agent". I think that the first postulate incorrectly by some error. It should be: "firstly, a corrupt practice which is committed only by an agent". I, therefore, order that my judgment be corrected in these two respects. I am unable to find any other error in the judgment which calls for correction.15. Subject to the correction in the two respects mentioned above, and the clarifications given above, this application is dismissed.

### 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: case here.10. After having heard arguments of learned Counsel for the election-petitioner on the two appeals which definitely involved allegations of misuse of power by the Prime Minister of this country, I was rather amazed to hear from learned Counsel arguing the application before us that no question of bona fides or mala fides was raised by him. It may be that the learned Counsel, without using any particular label to describe the issue raised by him, made all the allegations and suggestions necessary to raise it. If he did not mean to argue such an issue seriously I do not think that learned Counsel for the petitioner was justified in taking up so much of this Courts time in arguing what could be the purpose behind and the effects of the amendments assailed by learned Counsel. I do not think that I could, after the conclusion reached by me, as I have already mentioned above, properly deal with the issues raised by learned Counsel, whatever be the term employed to describe them, without examining the validity of findings fact and law on the only two questions involved in Appeal No. 887 of 1975. It became imperative and unavoidable on the view I took. Those who asked for justice got it even though it involved doing some justice to those who did not ask for it. The judicial process does not always produce the expected.11. Learned Counsel for the election-petitioner also seemed to complain that my judgment contained some remarks indicating that he did not discharge his professional duties towards his client satisfactorily. If that is so, I would like to remove this grievance by saying that he discharged his duty towards his client so well that he succeeded in averting a closer and more detailed scrutiny by all of us of the pleadings, the evidence, and the patently erroneous conclusions of the trial Judge in this case. I think that his client should be thankful for this success of his Counsel added to the successful attack on the relevant part of Thirty-ninth Constitutional Amendment. There is, however, also a duty towards this Court which has to be performed by trying to meet the possible point of view or requirements of every learned Judge hearing the appeals irrespective of whether this suits the party represented by Counsel.12. I was initially inclined even to let learned Counsel for the election-petitioner file written arguments on such other questions of law and fact as he may, have due to some misapprehension, failed to place before this Court so that I may consider these also now. But, I have, after giving the matter thought, reached the conclusion that the view of my learned brethren on this matter is correct and must be preferred to my initial desire to give learned Counsel a further opportunity. This view is that no useful purpose could be served by spending more time on this case which has already occupied enough of valuable time of this Court. The contents of the review petition also show that there is nothing overlooked which is worth considering upon any application for review. As already mentioned above, learned Counsel for the election-petitioner does not question at all the correctness of the common conclusions of all the learned Judges of the Constitution Bench.13. The application before us seems to be only an explanation of the reasons for which learned Counsel for the election-petitioner did not advance more detailed arguments on findings of fact. I am inclined to accept that explanation as bone fide and sufficient for whatever may be the reasons for the learned Counsels failure to submit more argument in support of the findings of the trial Court than he did offer in addition to those contained in the judgment under appeal. I am sure that the course adopted by the election-petitioners learned Counsel has not injured his clients case or interests at all even if it did not fully succeed in completely warding off a closer scrutiny of the pleadings, the evidence, and the findings of the trial Court than that which was good for the election-petitioners case. It is undoubtedly a feather in the cap of the learned Counsel, who conducted the case before the High Court also, that a case so flimsy as that of his client succeeded in the High Court. And, I do not think that the election-petitioners case could have been more skillfully conducted in this Court than it was done by his Counsel Mr. Shanti Bhushan.14. I have, however, closely gone through my judgment again as it had to, for reasons beyond our control, be dictated, typed, and cyclostyled in great hurry without sufficient opportunity for careful reading and necessary corrections of accidental slips and errors before and after it was cyclostyled. I have done so particularly because I found that a number of typing errors had crept into the cyclostyled copies of my judgment which had to be ordered by me to be corrected. I find that there are still two errors left in my judgment which call for correction. The first is at page 11 of my judgment (1975 Supp SCC 1, 150 (para 395)) where Section 116A(4) has been mentioned instead of Section 116B(3) due to some accidental slip or clerical error. Again, at page 23 of my judgment, (Ibid., p. 156 (para 405)) find that, while considering the provisions of Section 100(1) (d)(iii), it has gone down that the provision "postulates : firstly, a corrupt practice which can be committed only by an agent; and, secondly, the existence of such an agent". I think that the first postulate incorrectly by some error. It should be: "firstly, a corrupt practice which is committed only by an agent". I, therefore, order that my judgment be corrected in these two respects. I am unable to find any other error in the judgment which calls for correction.15. Subject to the correction in the two respects mentioned above, and the clarifications given above, this application is dismissed. ### Response: 0 ### Explanation: extent than a party or his learned Counsel relish, so as to be able to decide these issues, I am unable to do anything about it on a petition such as the one now beforeCounsel had ample opportunity to make all his submissions, the case cannot be reopened particularly when nothing which could possibly affect the result is indicated even now.After having heard arguments of learned Counsel for the election-petitioner on the two appeals which definitely involved allegations of misuse of power by the Prime Minister of this country, I was rather amazed to hear from learned Counsel arguing the application before us that no question of bona fides or mala fides was raised by him. It may be that the learned Counsel, without using any particular label to describe the issue raised by him, made all the allegations and suggestions necessary to raise it. If he did not mean to argue such an issue seriously I do not think that learned Counsel for the petitioner was justified in taking up so much of this Courts time in arguing what could be the purpose behind and the effects of the amendments assailed by learned Counsel. I do not think that I could, after the conclusion reached by me, as I have already mentioned above, properly deal with the issues raised by learned Counsel, whatever be the term employed to describe them, without examining the validity of findings fact and law on the only two questions involved in Appeal No. 887 of 1975. It became imperative and unavoidable on the view I took. Those who asked for justice got it even though it involved doing some justice to those who did not ask for it. The judicial process does not always produce the expected.If that is so, I would like to remove this grievance by saying that he discharged his duty towards his client so well that he succeeded in averting a closer and more detailed scrutiny by all of us of the pleadings, the evidence, and the patently erroneous conclusions of the trial Judge in this case. I think that his client should be thankful for this success of his Counsel added to the successful attack on the relevant part of Thirty-ninth Constitutional Amendment. There is, however, also a duty towards this Court which has to be performed by trying to meet the possible point of view or requirements of every learned Judge hearing the appeals irrespective of whether this suits the party represented by Counsel.12. I was initially inclined even to let learned Counsel for the election-petitioner file written arguments on such other questions of law and fact as he may, have due to some misapprehension, failed to place before this Court so that I may consider these also now. But, I have, after giving the matter thought, reached the conclusion that the view of my learned brethren on this matter is correct and must be preferred to my initial desire to give learned Counsel a further opportunity. This view is that no useful purpose could be served by spending more time on this case which has already occupied enough of valuable time of this Court. The contents of the review petition also show that there is nothing overlooked which is worth considering upon any application for review.13. The application before us seems to be only an explanation of the reasons for which learned Counsel for the election-petitioner did not advance more detailed arguments on findings of fact. I am inclined to accept that explanation as bone fide and sufficient for whatever may be the reasons for the learned Counsels failure to submit more argument in support of the findings of the trial Court than he did offer in addition to those contained in the judgment under appeal. I am sure that the course adopted by the election-petitioners learned Counsel has not injured his clients case or interests at all even if it did not fully succeed in completely warding off a closer scrutiny of the pleadings, the evidence, and the findings of the trial Court than that which was good for the election-petitioners case. It is undoubtedly a feather in the cap of the learned Counsel, who conducted the case before the High Court also, that a case so flimsy as that of his client succeeded in the High Court. And, I do not think that the election-petitioners case could have been more skillfully conducted in this Court than it was done by his Counsel Mr. Shanti Bhushan.14. I have, however, closely gone through my judgment again as it had to, for reasons beyond our control, be dictated, typed, and cyclostyled in great hurry without sufficient opportunity for careful reading and necessary corrections of accidental slips and errors before and after it was cyclostyled. I have done so particularly because I found that a number of typing errors had crept into the cyclostyled copies of my judgment which had to be ordered by me to be corrected. I find that there are still two errors left in my judgment which call for correction. The first is at page 11 of my judgment (1975 Supp SCC 1, 150 (para 395)) where Section 116A(4) has been mentioned instead of Section 116B(3) due to some accidental slip or clerical error. Again, at page 23 of my judgment, (Ibid., p. 156 (para 405)) find that, while considering the provisions of Section 100(1) (d)(iii), it has gone down that the provision "postulates : firstly, a corrupt practice which can be committed only by an agent; and, secondly, the existence of such an agent". I think that the first postulate incorrectly by some error. It should be: "firstly, a corrupt practice which is committed only by an agent". I, therefore, order that my judgment be corrected in these two respects. I am unable to find any other error in the judgment which calls for correction.15. Subject to the correction in the two respects mentioned above, and the clarifications given above, this application is dismissed.

Bar Council Of Delhi And Anr. Etc Vs. Surjeet Singh And Ors. Etc. Etc

question of estoppel we have already considered it and found that the petition under Art. 226 cannot be disposed on the question of estoppel. As regards delay, it is sufficient to state that it could not be said that the petition was unduly delayed. Apart from it, it is also clear than an election held on the basis of rolls which have not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.? The Madhya Pradesh High Court has taken a similar view in the case of Bhupendra Kumar Jain v. Y.S. Dharmadhikari and Others, AIR 1979, Madhaya Pradesh, 110 wherein it was held that the entire election could be challenged on the basis of certain types of illegalities committed in holding it. 30. Shri Bhoop Singh, an Advocate and a member of the Bar Associa-tion at Chandigarh was a candidate to the Bar Council of Punjab and Haryana. After being unsuccessful he challenged the election by filing a writ petition in the High Court. The Full Bench of the Punjab and Haryana High Court in Bhoop Singh v. Bar Council of Punjab and Haryana through its Secretary and Others, AIR 1977 Punjab and Haryana, 40 dismissed the writ petition on the particular facts of that case. Yet the view expressed at page 43 in para 9 was:?I am extremely doubtful whether the nature of the relief which the petitioner claims here, namely the setting aside of the whole of the election and the ordering of a repoll could be claimed by way of an election petition under Rule 34(1). No provision in the said rule was brought to our notice which in express terms empowers or warrants the setting aside of the whole of the election (in contradistinc-tion to the election of individual candidates) or to direct a repoll. In any case it is well settled that the existence of an alternative remedy is not an absolute legal bar to the issuance of a writ.? 31. Reliance was placed for the appellants upon the decision of this Court in K.K. Shrivastava etc. v. Bhupendra Kumar Jain and Others, AIR 1977 SC 1703 that because of Rule 34(8) of the Delhi Bar Council Election Rules the writ petitions ought to have been held to be not maintainable. It would be noticed from the facts of that case that an election petition had already been filed. About four months later a writ petition was also filed to challenge the election. At page 1704, column 1 Krishna Iyer J., speaking for the Court said:?One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is rrore particularly so where the dispute relates to an election. Still more so where there is a statutorily pres-cribed remedy which almost reads in mandatory terms.? But he added:?While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition.? Finally the view expressed in K.K. Shrivastava?s case is:?There is no foundation whatever for thinking that where the challenge is to an ?entire election? then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise.? 32. We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election than that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is on remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all. 33. Appellants heavily relied upon an unreported decision of the Calcutta High Court in Suryya Kumar Ray v. The Bar Council of India and Ors., Matter No. 304 of 1976 decided on December 17, 1976. The challenge to the election to the Bar Council of West Bengal was almost on grounds which are similar to those in the present case. The Calcutta High Court upheld the validity of the Rule and the election held on the basis of electoral roll pre-pared in accordance with that Rule and dissented from the view of the Gujarat High Court in Harish Sambhu Prasad v. Bar Council of Gujarat, Special Civil Application Nos. 542 and 551 of 1S69. The learned Judge said with reference to the decision of the Gujarat High Court thus:?It appears to me that this decision will not be of much assistance to the petitioner in the instant case inasmuch the electoral rules which are before me have duly approved by the Bar Council of India itself. Such approval confers upon these rules the authority and sanction of the Bar Council of India and may be deemed to be the rules framed by the Bar Council of India.? The enunciation of the law as made above, in our opinion, is not correct. We have held to the contrary. 34.

0[ds]It is true that the power to make rules conferred by Section 15 is both for the Bar Council of India as also for the Bar Council of a State. But no provision of Section 15 can override the specific provision made in Section 3(4) and Section 49(1)(a) of the Act. Sub-section (1) of Section 15 says; ?A Bar Council may make rules to carry out the purposes of this Chapter? which means Chapter II including Section 3. But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India Section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaidThe State Bar Council can frame rules for the preparation and revision of electoral rolls under Section 15(2)(a). That would be in confor-mity with the latter part of Sub-section (4) of Section 3 also. But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election. In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll. Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under Sections 3(4) and 49(1) (a) of the Advocates ActThe State Bar Council had no such powerWe, therefore, hold that the impugned proviso to Rule 3(j) to the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law. We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names. For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play. But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said ruleThe illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a caseThe contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case. A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that accountwe are of theview that neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into service in this case18. Inthe instant case the electoral roll was prepared on the basis of a rule which has been found to be void and ultra vires. That being so, even though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll. Dani?s case (supra) was followed by the Patna High Court in two decisionsWe may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election than that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is on remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at allThe enunciation of the law as made above, in our opinion, is not correct. We have held to the contraryThere is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ peti-tioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.

### 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: question of estoppel we have already considered it and found that the petition under Art. 226 cannot be disposed on the question of estoppel. As regards delay, it is sufficient to state that it could not be said that the petition was unduly delayed. Apart from it, it is also clear than an election held on the basis of rolls which have not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.? The Madhya Pradesh High Court has taken a similar view in the case of Bhupendra Kumar Jain v. Y.S. Dharmadhikari and Others, AIR 1979, Madhaya Pradesh, 110 wherein it was held that the entire election could be challenged on the basis of certain types of illegalities committed in holding it. 30. Shri Bhoop Singh, an Advocate and a member of the Bar Associa-tion at Chandigarh was a candidate to the Bar Council of Punjab and Haryana. After being unsuccessful he challenged the election by filing a writ petition in the High Court. The Full Bench of the Punjab and Haryana High Court in Bhoop Singh v. Bar Council of Punjab and Haryana through its Secretary and Others, AIR 1977 Punjab and Haryana, 40 dismissed the writ petition on the particular facts of that case. Yet the view expressed at page 43 in para 9 was:?I am extremely doubtful whether the nature of the relief which the petitioner claims here, namely the setting aside of the whole of the election and the ordering of a repoll could be claimed by way of an election petition under Rule 34(1). No provision in the said rule was brought to our notice which in express terms empowers or warrants the setting aside of the whole of the election (in contradistinc-tion to the election of individual candidates) or to direct a repoll. In any case it is well settled that the existence of an alternative remedy is not an absolute legal bar to the issuance of a writ.? 31. Reliance was placed for the appellants upon the decision of this Court in K.K. Shrivastava etc. v. Bhupendra Kumar Jain and Others, AIR 1977 SC 1703 that because of Rule 34(8) of the Delhi Bar Council Election Rules the writ petitions ought to have been held to be not maintainable. It would be noticed from the facts of that case that an election petition had already been filed. About four months later a writ petition was also filed to challenge the election. At page 1704, column 1 Krishna Iyer J., speaking for the Court said:?One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is rrore particularly so where the dispute relates to an election. Still more so where there is a statutorily pres-cribed remedy which almost reads in mandatory terms.? But he added:?While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition.? Finally the view expressed in K.K. Shrivastava?s case is:?There is no foundation whatever for thinking that where the challenge is to an ?entire election? then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise.? 32. We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election than that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is on remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all. 33. Appellants heavily relied upon an unreported decision of the Calcutta High Court in Suryya Kumar Ray v. The Bar Council of India and Ors., Matter No. 304 of 1976 decided on December 17, 1976. The challenge to the election to the Bar Council of West Bengal was almost on grounds which are similar to those in the present case. The Calcutta High Court upheld the validity of the Rule and the election held on the basis of electoral roll pre-pared in accordance with that Rule and dissented from the view of the Gujarat High Court in Harish Sambhu Prasad v. Bar Council of Gujarat, Special Civil Application Nos. 542 and 551 of 1S69. The learned Judge said with reference to the decision of the Gujarat High Court thus:?It appears to me that this decision will not be of much assistance to the petitioner in the instant case inasmuch the electoral rules which are before me have duly approved by the Bar Council of India itself. Such approval confers upon these rules the authority and sanction of the Bar Council of India and may be deemed to be the rules framed by the Bar Council of India.? The enunciation of the law as made above, in our opinion, is not correct. We have held to the contrary. 34. ### Response: 0 ### Explanation: conditions aforesaidThe State Bar Council can frame rules for the preparation and revision of electoral rolls under Section 15(2)(a). That would be in confor-mity with the latter part of Sub-section (4) of Section 3 also. But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election. In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll. Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under Sections 3(4) and 49(1) (a) of the Advocates ActThe State Bar Council had no such powerWe, therefore, hold that the impugned proviso to Rule 3(j) to the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law. We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names. For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play. But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said ruleThe illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a caseThe contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case. A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that accountwe are of theview that neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into service in this case18. Inthe instant case the electoral roll was prepared on the basis of a rule which has been found to be void and ultra vires. That being so, even though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll. Dani?s case (supra) was followed by the Patna High Court in two decisionsWe may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election than that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is on remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at allThe enunciation of the law as made above, in our opinion, is not correct. We have held to the contraryThere is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ peti-tioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.

JAIPUR VIDYUT VITRAN NIGAM LTD. & ORS. Vs. ADANI POWER RAJASTHAN LTD. & ANR

that the imported coal as alternate coal was available for 5 years, as such no relief could have been granted to APRL on the basis of change in law. As we have already discussed that there was a change in law as per Article 10.1; thus, the submission to the contrary is untenable. 62. It was argued that APRL unconditionally accepted stipulations in the LoI dated 17.12.2009 on 18.12.2009. The submission is equally futile as the PPA under Article 1.1 and Schedule V provide for domestic coal as primary fuel and imported coal as a fallback arrangement. Whereas change in law was provided in Article 10. Article 15.6.2 of the PPA supersedes all prior written or oral understanding. The same is extracted hereunder: 15.6.2 Except as provided in this Agreement, all prior written or oral understandings, offers or other communications of every kind pertaining to this Agreement or supply of power up to the Contracted Capacity under this Agreement to the Procurers by the Seller shall stand superseded and abrogated. 63. Article 10 of the PPA is clearly attracted that the change in law was in contemplation. Article 10 cannot be made redundant; the agreement is binding and must prevail. 64. The argument raised by Shri C. Aryama Sundaram that carrying cost is a penal provision, cannot be accepted in view of the decision of this Court in Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL), in which with respect to carrying cost, it was held that carrying cost was payable in terms of restitution principle. The carrying cost is to be paid on the same basis as provided for other dues in the PPA. 65. It was argued that the RERC and the APTEL had not determined the amount. It is apparent that the principle has been worked out by the RERC as well as the APTEL. The quantification directions have been issued to Rajasthan Discoms to verify the documents submitted by APRL and make payment in terms of the judgment and order. Nothing further was required to be done by the RERC as well as the APTEL. 66. Considering the facts of this case and keeping in view that the RERC and APTEL have given concurrent findings in favour of the respondent with regard to change in law, with which we also concur, we may now deal with the question of liability of appellants-Rajasthan Discoms with regard to late payment surcharge. In this regard, the following Articles 8.3.5 and 8.8 of PPA, which are relevant for the present purpose, are extracted hereunder: 8.3.5. In the event of delay in payment of a Monthly Bill by the Procurers beyond its Due Date, a Late Payment Surcharge shall be payable by such Procurers to the Seller at the rate of two percent (2%) in excess of the applicable SBAR per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest), for each day of the delay. The Late Payment Surcharge shall be claimed by the Seller through the Supplementary Bill. 8.8 Payment of Supplementary Bill 8.8.1 Either Party may raise a bill on the other Party (supplementary bill) for payment on account of: i) Adjustments required by the Regional Energy Account (if applicable); ii) Tariff Payment for change in parameters, pursuant to provisions in Schedule 4; or iii) Change in Law as provided in Article 10, and such Supplementary Bill shall be paid by the others party. 8.8.2 The Procurers shall remit all amounts due under a Supplementary Bill raised by the Seller to the Sellers Designated Account by the Due Date and notify the Seller of such remittance on the same day or the Seller shall be eligible to draw such amounts through the Letter of Credit. Similarly, the Seller shall pay all amounts due under a Supplementary Bill raised by Procurer(s) by the Due Date to concerned Procurers designated bank account and notify such Procurer(s) of such payment on the same day. For such payments by the Procurer(s), Rebate as applicable to Monthly Bills pursuant to Article 8.3.6 shall equally apply. 8.8.3 In the event of delay in payment of a Supplementary Bill by either Party beyond its Due Date, a Late Payment Surcharge shall be payable at the same terms applicable to the Monthly Bill in Article 8.3.5. 8.9 The copies of all; notices/offers which are required to be sent as per the provisions of this Article 8, shall be sent by a party, simultaneously to all parties. Liability of the Late Payment Surcharge which has been saddled upon the appellants is at the rate of 2% in excess of applicable SBAR per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest) for each day of the delay. Therefore, there shall be huge liability of payment of Late Payment Surcharge upon the appellants-Rajasthan Discoms. 67. With regard to the question of interest/late payment surcharge, we notice that the plea of change in law was initially raised by APRL in the year 2013. A case was also filed by APRL in the year 2013 itself raising its claim on such basis. However, the appellants-Rajasthan Discoms did not allow the claim regarding change in law, because of which APRL was deprived of raising the bills with effect from the date of change in law in the year 2013. We are, thus, of the opinion that considering the totality of the facts of this case and in order to do complete justice and to reduce the liability of the appellants-Rajasthan Discoms, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the appellants-Rajasthan Discoms to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum.

1[ds]When we consider the documents on record, it is apparent that APRLs bid was premised only on domestic coal. It was evaluated as such, and the PPA also records the same. In para 2 of the bid with respect to coal, the bid of APRL was premised on the domestic coal. It is apparent that APRL relied upon MoU entered into with the Government of Rajasthan for development of the Kawai Power Project and other projects, and the Government assured its support for allocation of the captive coal block or coal linkage. An arrangement of FSA relating to imported coal for at least 50 percent of the total requirement was relied upon; however, the bid was premised and accepted on domestic coal, which did not change the bids nature. A query was made by the Rajasthan Discoms on 7.9.2009 from APRL to indicate whether the bid should be evaluated on domestic coal or imported coal. It was made clear by APRL in its letter dated 12.9.2009 quoted above, that bid should be evaluated on the basis of domestic coal tie-up, and an undertaking was given that domestic coal escalations would be acceptable to it during the term of the PPA. In the LoI dated 17.12.2009, the offer was accepted, and escalations thereof on domestic coal was based on the commitment that the quoted rates would be applicable even in case of coal requirement being met by APRL by way of a backup arrangement with imported coal. APRL sent an unconditional acceptance on 18.12.2009. Thus, the parties agreed ad idem that bid was evaluated based on domestic coal, and escalations were also based on domestic coal. Accordingly, the PPA was entered into, and primary fuel in the PPA was mentioned to be domestic coal from captive coal block/coal linkage and imported coal as a fallback support arrangement. It was binding on both the parties.40. APRL applied for long term coal linkage with the Government of Rajasthan on 2.7.2009, i.e., prior to the submission of bid on 6.8.2009. It submitted the bid by adopting linkage coal format, and the tariff was quoted in Rs./Kwh. It submitted the bid as per RFP of April 2009 Para IX under Format 4.10, clause 2.4.1, which related to linkage coal format bid, i.e., domestic coal. Under Article 1.1 of the PPA, the primary fuel was mentioned as domestic coal. The FSA was submitted for imported coal to assess bid eligibility for meeting the technical criteria. The domestic coal was primary fuel as such the submission cannot be accepted that the bid and the PPA were based on imported coal.41. The PPA is final and binding on parties, and approval of tariff by the RERC was based on domestic coal as apparent from para 39 of the order dated 31.5.2010. Rajasthan Discoms agreed to use domestic coal on account of likely advantage of lower escalation in tariff on a bid based on domestic coal than that of imported coal. The decision of the Bid Evaluation Committee was found to be in their best interest. Thus, APRL bid was not based on imported coal, that would not have been in favour of Rajasthan Discoms and would have resulted in more escalations in the tariff. Thus, APRL could not be denied the benefit of the very foundational basis on which the RERC approved its bid. APRL could not be made to suffer from both the ends. Various documents and the PPA make it clear that its bid was premised on domestic coal and approved tariff was based on domestic coal, the order of RERC is final, conclusive, and binding on the parties; it has not been questioned and attained finality. No stand contrary to the same was permissible to be taken by the Rajasthan Discoms.42. It is further apparent that reply dated 31.7.2013 filed by the Rajasthan Discoms before the RERC in which it was clearly admitted that non-availability of domestic coal from the Central Government would put the case of APRL within the scope of change in law. Rajasthan Discoms before the RERC admitted that the bid was based on domestic coal, non-availability of which entitles APRL to claim compensation under the change in law as provided in Article 10 of the PPA.43. It was argued that incorrect admissions made could not have been relied upon. It could not be said to be incorrect and stated factually correct position in view of the aforesaid material and order of the RERC.44. Apart from that, an eligibility to get coal linkage under the SHAKTI Policy was based upon the fact that the Generators, who were not within the coal linkage and their PPAs were based on domestic linkage coal, were eligible for grant of coal linkage. In case, the PPA was not based on domestic coal, the case of APRL would not have been recommended to include the Kawai Project under 4660 MW capacity to receive domestic coal under special dispensation.45. It is apparent that the concurrent findings recorded by the RERC, as well as the APTEL, in this regard, do not suffer from any infirmity or perversity, and they are binding. As the scope of appeal under Section 125 of the Electricity Act is akin to Section 100 of the CPC and the concurrent findings based upon the facts cannot be disturbed in the appeal as held in DSR Steel (Private) Ltd. v. State of Rajasthan and Ors., (2012) 6 SCC 782 , Tamil Nadu Generation and Distribution Corporation Limited v. PPN Power Generating Company Private Limited, (2014) 11 SCC 53 and Wardha Power Company Limited v. Maharashtra State Electricity Distribution Company Limited and Anr., (2016) 16 SCC 541. 46. We also note that once having admitted before the RERC at the time of approval of tariff and evaluated the tariff of domestic coal and making admissions again on 31.7.2013 and 4.8.2017, it is not open to reprobate as parties are not permitted to approbate and reprobate at different stages as laid down in Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) and Ors., (2018) 10 SCC 707 and R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683. 47. It was argued that FSA was appended to demonstrate the raw materials readiness for the supply of contracted electricity by the Generator. It did not change the basis of the bid, whether it was based upon the domestic coal or imported coal. In case the bid was based upon the imported coal, the tariff would have been differently fixed as observed by the RERC, and it was not advantageous to Rajasthan Discoms to fix tariff on imported coal. The RERC observed that the FSA was only to demonstrate the raw materials readiness and was not determinative of terms and conditions of the contract. The FSA for imported coal was a standby arrangement, but the entire bid, tariff, and the agreement were based on domestic coal. Thus, the consequences of non-availability due to change in law could not be escaped. In Energy Watchdog, it was observed that the FSA is only for demonstrating the raw materials readiness and is not determinative of the terms and conditions of the contract.48. Shri C. Aryama Sundaram argued that the FSA related approximately 61 per cent of the fuel requirement. Thus, the change in law claim may be confined to 35 to 40 per cent. The argument cannot be accepted as bidding was not based on dual fuel, but was evaluated on domestic coal. There was no such stipulation that evaluation of bidding was done on domestic basis; the tariff was to be worked out in the aforesaid ratio of 60:40 per cent of imported coal and domestic coal respectively. Apart from that, we find from the order of the APTEL, that change in law provision would be limited to a shortfall in the supply of domestic linkage coal.The finding recorded by the APTEL is extracted hereunder:12.5 In the instant case, we have found in the previous paragraphs that Adani Rajasthans bid was premised on domestic coal on the basis of the 100% domestic coal supply assurance contained in NCDP 2007. Since SHAKTI Policy and the FSA executed thereunder still do not meet the assurance of 100% supply of domestic coal to Adani Rajasthan, it would follow that Adani Rajasthan would need to be compensated for any shortfall in supply of domestic linkage coal even post grant of coal linkage under the SHAKTI Policy. Rajasthan Discoms have not disputed that the introduction of SHAKTI Policy constitutes a Change in Law under the PPA. Their contention is that any shortfall of coal under the SHAKTI FSA by the coal companies is a contractual matter to be sorted out between Adani Rajasthan and the coal companies. We are not persuaded by this argument for the reason that we have already held in GMR Kamalanga case that the contractual conditions or limitations were not present in NCDP 2007 at the time of bid submission by Adani Rajasthan. This contention of Rajasthan Discoms is also against the principle laid down in Energy Watchdog judgment. The SHAKTI Policy continues the earlier coal supply restriction to 75% of ACQ. If actual supply of domestic linkage coal under the SHAKTI FSA is higher, it goes without saying that the generators relief or compensation under the Change in Law provisions would be limited to the actual shortfall in supply of domestic linkage coal. We also note that there is no rational basis to assume that the supply under the SHAKTI FSAs would be higher or better than that under the pre-SHAKTI FSAs.12.6 The Supreme Court in Energy Watchdog judgment has already concluded as follows:57. …… This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sourcesis cut down, the PPA read with these documents provides in Clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred……(emphasis supplied)49. It was clarified that APRL would be entitled to relief under the change in law provision to the extent of shortage in supply in domestic linkage coal. Thus, we find no merit in the submission raised. We find the findings of the APTEL to be reasonable, proper, and unexceptional.50. Our attention was also invited to para 3.2 of the Statutory Guidelines of 2005. It provided with respect to fuel arrangements. The same provided that in case of domestic coal, the bidder shall have made firm arrangements for fuel tie-up either by way of coal block allocation or fuel linkage. There is no doubt about it that the Government of Rajasthan entered into an MoU with APRL in 2008 to ensure supply of domestic coal and it had undertaken to facilitate the implementation of the Kawai Project for getting the coal block from the Central Government or coal from any other source for the project. Once the Government of Rajasthan entered into MoU dated 20.3.2008, containing Article 2.2 quoted above, it was incumbent upon the State of Rajasthan to provide coal from any other source for the project, in case the Central Government could not allot coal linkage/coal block. The Central Government had even written to the Government of Rajasthan to provide coal to APRL from the coal mine, but due to paucity, it could not be supplied to APRL. Thus, there was a failure on the part of the Government of Rajasthan to provide coal from any other source. The NCDP of 2007 prevailed as law 7 days prior to the bid with respect to the supply of coal, the cut-off date of the bid was 30.7.2009. It was provided in Clauses 2.1 and 2.2 of NCDP of 2007 dated 18.10.2007 that 100 per cent of the quantity as per the normative requirement of the consumers would be considered for supply of coal through FSA by CIL. Para 5.2 of the NCDP of 2007 provided that for power utilities, including Independent Power Producers (IPPs) and Captive Power Plants, cement sector and sponge iron sector, the present system of linkage committee at the level of the Government would continue. CIL will issue LoA after approval of applications by the Standing Linkage Committee (Long-term). Clause 6.1 provides that new consumers from the State/Central power utilities, CPPs, Independent Power Producers (IPPs), Fertilizers, Cement, and Sponge Iron units may be issued LoA based on prevailing norms and recommendations of the Administrative Ministry.It is apparent that 100 percent of the quantity as per the consumers normative requirement was to be made by CIL, obviously on the approval of the application by the Standing Linkage Committee. It was kept pending due to a shortage of coal supplies and was ultimately processed under the SHAKTI Policy, and linkage for 100 percent was given from January 2018. Thus, earlier as the quantity of coal was not available, sufficient supply could not be made. It is not a case where APRL was adjudged ineligible, but prior commitments and the non-availability of coal came in the way of failure to obtain domestic coal linkage under the NCDP of 2007, which itself was changed with effect from 26.7.2013.52. APRLs claim is based on the date of change of law in 2013. Admittedly, earlier NCDP of 2007 prevailed on the appointed date, i.e., 7 days before submission of the bid. In Energy Watchdog also, similar was the position. Though the application was submitted, coal linkage was not provided, and then there was a change in law in terms of the NCDP of 2013. This Court held that the benefit of change in law w.e.f. 2013 was available. The PPA was based upon the domestic coal, and its availability was based upon NCDP of 2007. The application was filed before submitting the bid. The application for linkage was filed in terms of the agreement when the bid was premised and accepted, and the agreement was entered into on the basis of domestic coal, the change in law of 2007 in 2013 has to be applied. Thus, the submission raised that even in the absence of any LoA or FSA granted to APRL by CIL, there was an impact of change of law on the PPA on account of NCDP of 2013.53. It was argued that there was no domestic coal linkage under which supply was cut down due to any law, and APRL was not allocated coal block, and its bid was premised on the imported coal. In Energy Watchdog, it was opined that only changes in Indian law could be considered under the PPA and not in foreign law. In NCDP dated 26.7.2013, the NCDP of 2007 was modified to the effect that power projects would only get a certain percentage of what was earlier allowable.54. It is apparent from the decision dated 31.5.2013 of the Standing Linkage Committee (Long-Term) that the application of APRL was kept in abeyance. It applied for coal linkage on 2.7.2009 on the basis of NCDP of 2007. The bid cut-off date was 30.7.2009, 7 days prior to the bid deadline, the NCDP of 2007 was applicable. A decision was taken by the Standing Linkage Committee on 14.2.2012 read with the decision dated 31.5.2013 indicating a shortage in domestic coal and dependence on imported coal. For the shortage of coal, APRL could not have been made to suffer, on that it had no control. It was decided not to issue fresh LoAs, and all pending applications were kept in abeyance. The Cabinet Committee on Economic Affairs decided on 21.6.2013 to reduce coal supply to 65 percent and 75 percent of ACQ for the remaining four years of the 12 th Five Year Plan. It allowed passing through of higher cost of imported coal. The Ministry of Coal was directed to suitably amend the NCDP. The Ministry of Coal on 26.7.2013 amended the NCDP of 2007, and the Ministry of Power issued a letter on 31.7.2013, which provided for pass-through of additional cost incurred to meet the coal requirements. The Cabinet Committee on Economic Affairs in its decision dated 21.6.2013, recognised coal supply, subject to availability, to 4660 MW having no fuel linkage. The Kawai Project was included in the same. The Policy was revised, thus assurance given by the Government of India under the NCDP of 2007 was taken away. The provision of 100 per cent supply was taken away.In Energy Watchdog, it was laid down that change in law is applicable to change in domestic law, not change in foreign law. It is not applicable to imported coal/change in foreign law. It was urged that application for grant of coal linkage was submitted to the Ministry of Coal for the supply of coal in the light of assurance given under the NCDP of 2007 in both the cases and those assurances, which were given in the Policy, were diluted or taken away by the subsequent scheme of the Government instrumentality. Consequently, no coal linkage or LoA or FSA was available in the hands of the Generator in Energy Watchdog. The cut-off date for applicability of law was 7 days prior to the bid deadline and change in law provision of Article 10 of the PPA in question is similar to Article 13 of the PPA in Energy Watchdog.56. The change in policy and in the terms and conditions prescribed for obtaining any consents, clearances and permits or the inclusion of any new terms or conditions for obtaining such consents, clearances, and permits are also included. The submission raised on behalf of appellant that there is no question seeking benefit due to change in foreign law is based on wrong factual premise. The relief was not claimed on the basis of change in foreign law. Apart from that, admission has been relied upon change in law. The PPA was based on the domestic law and there was a change in domestic law. Thus, consequences must follow. The Government of Rajasthan entered into a MoU with APRL with respect to coal linkage in 2008 to provide coal linkage or coal from other sources.57. We find similarity in the present case as well as the Energy Watchdog. The factual matrix was similar with the present case. We find that the RERC and the APTEL have recorded the concurrent finding on facts. We find no ground to interfere. No substantial question of law is involved. It was held in Energy Watchdog, that change in law was brought about in the NCDP of 2007 by the decision of 26.7.2013. It is provided in Article 10.2.1 how the change in law is to be applied to compensate for the impact.58. The purpose of change in law is to restore through monthly tariff payment to the extent contemplated that the affected party is placed in the same economic position as if such a change in law has not occurred. As monthly tariff was worked out on domestic law, the requirement is to compensate on that basis due to change in law. The same is based on the principle of restitution. Article 10.2.1 of the PPA in question is similar to Article 13.2 considered in Energy Watchdog. The carrying cost is nothing but a compensation towards the time value of month/deferred payment. Article 8.3.5 provides for methodology in case of delayed payment.59. When there was a change in policy with respect to obtaining coal itself, which was agreed to in the PPA, the change in law would be applicable.In Energy Watchdog it was observed thus:56. However, insofar as the applicability of Clause 13 to a change in Indian law is concerned, the respondents are on firm ground. It will be seen that under Clause 13.1.1 if there is a change in any consent, approval or licence available or obtained for the project, otherwise than for the default of the seller, which results in any change in any cost of the business of selling electricity, then the said seller will be governed under Clause 13.1.1. It is clear from a reading of the Resolution dated 21-6-2013, which resulted in the letter of 31-7-2013, issued by the Ministry of Power, that the earlier coal distribution policy contained in the letter dated 18-3-2007 stands modified as the Government has now approved a revised arrangement for supply of coal. It has been decided that, seeing the overall domestic availability and the likely requirement of power projects, the power projects will only be entitled to a certain percentage of what was earlier allowable. This being the case, on 31-7-2013, the following letter, which is set out in extenso states as follows:FU-12/2011-IPC (Vol-III)Government of IndiaMinistry of PowerShram Shakti Bhawan, New DelhiDated: 31-7-2013The Secretary,Central Electricity Regulatory Commission,Chanderlok Building, Janpath,New DelhiSubject: Impact on tariff in the concluded PPAs due to shortage in domestic coal availability and consequent changes in NCDP.Ref. CERCs D.O. No. 10/5/2013-Statutory Advice/CERC dated 20-5-2013.In view of the demand for coal of power plants that were provided coal linkage by Govt. of India and CIL not signing any fuel supply agreement (FSA) after March 2009, several meetings at different levels in the Government were held to review the situation. In February 2012, it was decided that FSAs will be signed for full quantity of coal mentioned in the letter of assurance (LoAs) for a period of 20 years with a trigger level of 80% for levy of disincentive and 90% for levy of incentive. Subsequently, MoC indicated that CIL will not be able to supply domestic coal at 80% level of ACQ and coal will have to be imported by CIL to bridge the gap. The issue of increased cost of power due to import of coal/e-auction and its impact on the tariff of concluded PPAs were also discussed and CERCs advice sought.2. After considering all aspects and the advice of CERC in this regard, Government has decided the following in June 2013:(i) taking into account the overall domestic availability and actual requirements, FSAs to be signed for domestic coal component for the levy of disincentive at the quantity of 65%, 65%, 67% and 75% of annual contracted quantity (ACQ) for the remaining four years of the 12th Plan.(ii) to meet its balance FSA obligations, CIL may import coal and supply the same to the willing TPPs on cost plus basis. TPPs may also import coal themselves if they so opt.(iii) higher cost of imported coal to be considered for pass through as per modalities suggested by CERC.3. Ministry of Coal vide letter dated 26-7-2013 has notified the changes in the New Coal Distribution Policy (NCDP) as approved by the CCEA in relation to the coal supply for the next four years of the 12th Plan (copy enclosed).4. As per decision of the Government, the higher cost of import/market based e-auction coal be considered for being made a pass through on a case-to-case basis by CERC/SERC to the extent of shortfall in the quantity indicated in the LoA/FSA and the CIL supply of domestic coal which would be minimum of 65%, 65%, 67% and 75% of LoA for the remaining four years of the 12th Plan for the already concluded PPAs based on tariff based competitive bidding.5. The ERCs are advised to consider the request of individual power producers in this regard as per due process on a case-to-case basis in public interest. The appropriate Commissions are requested to take immediate steps for the implementation of the above decision of the Government.This issues with the approval of MOS(P)I/C. Encl:As above.Yours faithfully,(V. Apparao)This is further reflected in the revised Tariff Policy dated 28-1-2016, which in Para 1.1 states as under:1.1. In compliance with Section 3 of the Electricity Act, 2003, the Central Government notified the Tariff Policy on 6-1-2006. Further amendments to the Tariff Policy were notified on 31-3-2008, 20-1-2011 and 8-7- 2011. In exercise of powers conferred under Section 3(3) of the Electricity Act, 2003, the Central Government hereby notifies the revised Tariff Policy to be effective from the date of publication of the resolution in the Gazette of India.Notwithstanding anything done or any action taken or purported to have been done or taken under the provisions of the Tariff Policy notified on 6-1-2006 and amendments made thereunder, shall, insofar as it is not inconsistent with this Policy, be deemed to have been done or taken under provisions of this revised policy.Clause 6.1 states:6.1. Procurement of powerAs stipulated in Para 5.1, power procurement for future requirements should be through a transparent competitive bidding mechanism using the guidelines issued by the Central Government from time to time. These guidelines provide for procurement of electricity separately for base load requirements and for peak load requirements. This would facilitate setting up of generation capacities specifically for meeting such requirements.However, some of the competitively bid projects as per the guidelines dated 19-1-2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis-à-vis the assured quantity or quantity indicated in letter of assurance/FSA the cost of imported/market based e- auction coal procured for making up the shortfall, shall be considered for being made a pass through by appropriate Commission on a case-to-case basis, as per advisory issued bydated 31-7-2013.In the aforesaid para, a discussion was made with respect to change in terms and conditions prescribed for obtaining any consents, clearances, and permits. The change in law does not provide that letter of approval should be issued by CIL, as provided in Article 10.1 relating to change in law. Even if the procedure is changed, that is to be given effect to.60. Under the SHAKTI Policy notified on 22.5.2017, those Independent Power Producers (IPPs), who were having PPAs based on domestic coal, but were not having LoA or FSA for coal supply either under NCDP of 2007 or NCDP of 2013, could participate in the auction to get 100 per cent of the normative requirement of coal supply. The eligibility was based upon the fact that the PPA was based upon the domestic supply. Under the SHAKTI Policy, APRL was given coal supply to the full extent of the normative requirements for generating and supplying electricity to the Rajasthan Discoms due to aforesaid significant terms in the PPA.61. It was argued that the imported coal as alternate coal was available for 5 years, as such no relief could have been granted to APRL on the basis of change in law. As we have already discussed that there was a change in law as per Article 10.1; thus, the submission to the contrary is untenable.62. It was argued that APRL unconditionally accepted stipulations in the LoI dated 17.12.2009 on 18.12.2009. The submission is equally futile as the PPA under Article 1.1 and Schedule V provide for domestic coal as primary fuel and imported coal as a fallback arrangement. Whereas change in law was provided in Article 10. Article 15.6.2 of the PPA supersedes all prior written or oral understanding.63. Article 10 of the PPA is clearly attracted that the change in law was in contemplation. Article 10 cannot be made redundant; the agreement is binding and must prevail.64. The argument raised by Shri C. Aryama Sundaram that carrying cost is a penal provision, cannot be accepted in view of the decision of this Court in Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL), in which with respect to carrying cost, it was held that carrying cost was payable in terms of restitution principle. The carrying cost is to be paid on the same basis as provided for other dues in the PPA.65. It was argued that the RERC and the APTEL had not determined the amount. It is apparent that the principle has been worked out by the RERC as well as the APTEL. The quantification directions have been issued to Rajasthan Discoms to verify the documents submitted by APRL and make payment in terms of the judgment and order. Nothing further was required to be done by the RERC as well as the APTEL.Liability of the Late Payment Surcharge which has been saddled upon the appellants is at the rate of 2% in excess of applicable SBAR per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest) for each day of the delay. Therefore, there shall be huge liability of payment of Late Payment Surcharge upon the appellants-Rajasthan Discoms.67. With regard to the question of interest/late payment surcharge, we notice that the plea of change in law was initially raised by APRL in the year 2013. A case was also filed by APRL in the year 2013 itself raising its claim on such basis. However, the appellants-Rajasthan Discoms did not allow the claim regarding change in law, because of which APRL was deprived of raising the bills with effect from the date of change in law in the year 2013. We are, thus, of the opinion that considering the totality of the facts of this case and in order to do complete justice and to reduce the liability of the appellants-Rajasthan Discoms, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the appellants-Rajasthan Discoms to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum.69. Before we part with the case, we may notice that Shri Prashant Bhushan, raised the submission with respect to over-invoicing. He attracted our attention to the investigation pending before the DRI. He has submitted that 40 importers of coal are under investigation by the DRI concerning alleged over-invoicing. The letter of rogatory was issued. However, learned counsel conceded that there is no ultimate conclusion in the investigation reached so far. Thus, we are of the opinion that until and unless there is a finding recorded by the competent court as to invoicing, the submission cannot be accepted. At this stage, it cannot be said that there is over-invoicing. We have examined the case on merits with abundant caution, and we find that there are concurrent findings of facts recorded by the RERC and the APTEL. With respect to the aspect that bid was premised on domestic coal, we find that findings recorded do not call for any interference.70. A question was raised concerning the maintainability of the appeal of the Federation. It is important to mention that the Federation was not the party before the RERC, and the APTEL rejected its intervention application. The order was not interfered with by this 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: that the imported coal as alternate coal was available for 5 years, as such no relief could have been granted to APRL on the basis of change in law. As we have already discussed that there was a change in law as per Article 10.1; thus, the submission to the contrary is untenable. 62. It was argued that APRL unconditionally accepted stipulations in the LoI dated 17.12.2009 on 18.12.2009. The submission is equally futile as the PPA under Article 1.1 and Schedule V provide for domestic coal as primary fuel and imported coal as a fallback arrangement. Whereas change in law was provided in Article 10. Article 15.6.2 of the PPA supersedes all prior written or oral understanding. The same is extracted hereunder: 15.6.2 Except as provided in this Agreement, all prior written or oral understandings, offers or other communications of every kind pertaining to this Agreement or supply of power up to the Contracted Capacity under this Agreement to the Procurers by the Seller shall stand superseded and abrogated. 63. Article 10 of the PPA is clearly attracted that the change in law was in contemplation. Article 10 cannot be made redundant; the agreement is binding and must prevail. 64. The argument raised by Shri C. Aryama Sundaram that carrying cost is a penal provision, cannot be accepted in view of the decision of this Court in Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL), in which with respect to carrying cost, it was held that carrying cost was payable in terms of restitution principle. The carrying cost is to be paid on the same basis as provided for other dues in the PPA. 65. It was argued that the RERC and the APTEL had not determined the amount. It is apparent that the principle has been worked out by the RERC as well as the APTEL. The quantification directions have been issued to Rajasthan Discoms to verify the documents submitted by APRL and make payment in terms of the judgment and order. Nothing further was required to be done by the RERC as well as the APTEL. 66. Considering the facts of this case and keeping in view that the RERC and APTEL have given concurrent findings in favour of the respondent with regard to change in law, with which we also concur, we may now deal with the question of liability of appellants-Rajasthan Discoms with regard to late payment surcharge. In this regard, the following Articles 8.3.5 and 8.8 of PPA, which are relevant for the present purpose, are extracted hereunder: 8.3.5. In the event of delay in payment of a Monthly Bill by the Procurers beyond its Due Date, a Late Payment Surcharge shall be payable by such Procurers to the Seller at the rate of two percent (2%) in excess of the applicable SBAR per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest), for each day of the delay. The Late Payment Surcharge shall be claimed by the Seller through the Supplementary Bill. 8.8 Payment of Supplementary Bill 8.8.1 Either Party may raise a bill on the other Party (supplementary bill) for payment on account of: i) Adjustments required by the Regional Energy Account (if applicable); ii) Tariff Payment for change in parameters, pursuant to provisions in Schedule 4; or iii) Change in Law as provided in Article 10, and such Supplementary Bill shall be paid by the others party. 8.8.2 The Procurers shall remit all amounts due under a Supplementary Bill raised by the Seller to the Sellers Designated Account by the Due Date and notify the Seller of such remittance on the same day or the Seller shall be eligible to draw such amounts through the Letter of Credit. Similarly, the Seller shall pay all amounts due under a Supplementary Bill raised by Procurer(s) by the Due Date to concerned Procurers designated bank account and notify such Procurer(s) of such payment on the same day. For such payments by the Procurer(s), Rebate as applicable to Monthly Bills pursuant to Article 8.3.6 shall equally apply. 8.8.3 In the event of delay in payment of a Supplementary Bill by either Party beyond its Due Date, a Late Payment Surcharge shall be payable at the same terms applicable to the Monthly Bill in Article 8.3.5. 8.9 The copies of all; notices/offers which are required to be sent as per the provisions of this Article 8, shall be sent by a party, simultaneously to all parties. Liability of the Late Payment Surcharge which has been saddled upon the appellants is at the rate of 2% in excess of applicable SBAR per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest) for each day of the delay. Therefore, there shall be huge liability of payment of Late Payment Surcharge upon the appellants-Rajasthan Discoms. 67. With regard to the question of interest/late payment surcharge, we notice that the plea of change in law was initially raised by APRL in the year 2013. A case was also filed by APRL in the year 2013 itself raising its claim on such basis. However, the appellants-Rajasthan Discoms did not allow the claim regarding change in law, because of which APRL was deprived of raising the bills with effect from the date of change in law in the year 2013. We are, thus, of the opinion that considering the totality of the facts of this case and in order to do complete justice and to reduce the liability of the appellants-Rajasthan Discoms, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the appellants-Rajasthan Discoms to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum. ### Response: 1 ### Explanation: requirements.However, some of the competitively bid projects as per the guidelines dated 19-1-2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis-à-vis the assured quantity or quantity indicated in letter of assurance/FSA the cost of imported/market based e- auction coal procured for making up the shortfall, shall be considered for being made a pass through by appropriate Commission on a case-to-case basis, as per advisory issued bydated 31-7-2013.In the aforesaid para, a discussion was made with respect to change in terms and conditions prescribed for obtaining any consents, clearances, and permits. The change in law does not provide that letter of approval should be issued by CIL, as provided in Article 10.1 relating to change in law. Even if the procedure is changed, that is to be given effect to.60. Under the SHAKTI Policy notified on 22.5.2017, those Independent Power Producers (IPPs), who were having PPAs based on domestic coal, but were not having LoA or FSA for coal supply either under NCDP of 2007 or NCDP of 2013, could participate in the auction to get 100 per cent of the normative requirement of coal supply. The eligibility was based upon the fact that the PPA was based upon the domestic supply. Under the SHAKTI Policy, APRL was given coal supply to the full extent of the normative requirements for generating and supplying electricity to the Rajasthan Discoms due to aforesaid significant terms in the PPA.61. It was argued that the imported coal as alternate coal was available for 5 years, as such no relief could have been granted to APRL on the basis of change in law. As we have already discussed that there was a change in law as per Article 10.1; thus, the submission to the contrary is untenable.62. It was argued that APRL unconditionally accepted stipulations in the LoI dated 17.12.2009 on 18.12.2009. The submission is equally futile as the PPA under Article 1.1 and Schedule V provide for domestic coal as primary fuel and imported coal as a fallback arrangement. Whereas change in law was provided in Article 10. Article 15.6.2 of the PPA supersedes all prior written or oral understanding.63. Article 10 of the PPA is clearly attracted that the change in law was in contemplation. Article 10 cannot be made redundant; the agreement is binding and must prevail.64. The argument raised by Shri C. Aryama Sundaram that carrying cost is a penal provision, cannot be accepted in view of the decision of this Court in Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL), in which with respect to carrying cost, it was held that carrying cost was payable in terms of restitution principle. The carrying cost is to be paid on the same basis as provided for other dues in the PPA.65. It was argued that the RERC and the APTEL had not determined the amount. It is apparent that the principle has been worked out by the RERC as well as the APTEL. The quantification directions have been issued to Rajasthan Discoms to verify the documents submitted by APRL and make payment in terms of the judgment and order. Nothing further was required to be done by the RERC as well as the APTEL.Liability of the Late Payment Surcharge which has been saddled upon the appellants is at the rate of 2% in excess of applicable SBAR per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest) for each day of the delay. Therefore, there shall be huge liability of payment of Late Payment Surcharge upon the appellants-Rajasthan Discoms.67. With regard to the question of interest/late payment surcharge, we notice that the plea of change in law was initially raised by APRL in the year 2013. A case was also filed by APRL in the year 2013 itself raising its claim on such basis. However, the appellants-Rajasthan Discoms did not allow the claim regarding change in law, because of which APRL was deprived of raising the bills with effect from the date of change in law in the year 2013. We are, thus, of the opinion that considering the totality of the facts of this case and in order to do complete justice and to reduce the liability of the appellants-Rajasthan Discoms, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the appellants-Rajasthan Discoms to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum.69. Before we part with the case, we may notice that Shri Prashant Bhushan, raised the submission with respect to over-invoicing. He attracted our attention to the investigation pending before the DRI. He has submitted that 40 importers of coal are under investigation by the DRI concerning alleged over-invoicing. The letter of rogatory was issued. However, learned counsel conceded that there is no ultimate conclusion in the investigation reached so far. Thus, we are of the opinion that until and unless there is a finding recorded by the competent court as to invoicing, the submission cannot be accepted. At this stage, it cannot be said that there is over-invoicing. We have examined the case on merits with abundant caution, and we find that there are concurrent findings of facts recorded by the RERC and the APTEL. With respect to the aspect that bid was premised on domestic coal, we find that findings recorded do not call for any interference.70. A question was raised concerning the maintainability of the appeal of the Federation. It is important to mention that the Federation was not the party before the RERC, and the APTEL rejected its intervention application. The order was not interfered with by this Court.

Anand Parkash Saksena Vs. Union of India & Others

25 per cent quota the appointments of officers from List II will be excluded.19. There were vacancies in the 25 per cent quota which were filled up by promotion of respondents, Nos. 14, 15 and 16 from the Madhya Bharat State Service. Respondents Nos. 4, 6, 11, 12, 13, 17 and 18 were from the former Madhya Pradesh State Service. Some of them were promoted to the Indian Administrative Service against the 25 per cent quota in the State cadres before the integration of the cadres on November 1, 1956. No appointments were made between November 1, 1956 and November 17, 1956 when the petitioner was appointed to officiate in a senior post. Other respondents were appointed after November 17, 1956. None of the appointments is open to any challenge. It is surprising that the petitioner seeks to challenge the appointments after a long lapse of time. He has not given any adequate explanation as to the delay in filing the writ petition.20. The petitioner next challenge the seniority assigned to the respondents. In the gradation list, all the respondents are shown as senior to him. Respondents Nos. 10, 11, 12 and 13 are special recruits and their seniority has been fixed under Regulation 3 (3) of the I. A S. (Seniority of Special Recruits) Regulation, 1960 read with R. 3 (3) (b) of the Regulation of Seniority Rules, 1954. The other respondents are promotees and their seniority has been fixed under R. 3(3) (b) of the Regulation of Seniority Rules and the proviso thereto.21. The petitioner challenges the vires of R. 4 (3) of the Recruitment Rules under which the Central Government framed the Special Recruitment Regulations. The Recruitment Rules were made under S. 3 of the All India Services Act, 1951. In D. S. Garewal v. State of Punjab, 1959 Supp (1) SCR 792 = (AIR 1959 SC 512 ) this Court held that S. 3 was not bad on the ground of excessive delegation of Legislative power. The petitioner submits that R 4 (3) of the Recruitment Rules is bad on the ground of excessive delegation of legislative power. Assuming that the doctrine of excessive delegation of legislative power applies to rules. we think that Rule 4 (3) does not suffer from the vice of excessive delegation. Rule 4 (3) authorises the Central Government to make regulations for special recruitment;22. In making the regulations, the Central Government is to be guided by the exigencies of the service and the advice of the State Governments and the Union Public Service Commission. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter of fact, the Special Recruitment Regulations, 1960 framed under R. 4 (3) have adapted for the purposes of special recruitment the regulations for recruitment by competitive examination, promotion and selection with appropriate modifications.23. The petitioner next contends that R. 3 (3) (b) of the Regulation of Seniority Rules makes unjust discrimination between a promotee and a direct recruit in the matter of seniority by arbitrarily assigning a lower year of allotment to a promotee and is violative of Articles 14 and 16 of the Constitution. This contention is devoid of merit.The seniority of direct recruits inter se and promotees inter se is fixed by R. 4. The object of R. 3 (3) (b) is to fix the seniority of the promotees in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service. From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Rule 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the juniormost direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Articles 14 and 16 of the Constitution.24. The petitioner next challenges the validity of Regulation 3 (3) of the Special Recruitment Seniority Regulations, 1960 on the ground that it offends Articles 14 and 16 of the Constitution. According to the petitioner, the relevant rules and regulations have set up an arbitrary double standard for a special recruit enlisted by promotion because Regulation 3 (3) of the Special Recruitment Seniority Regulations read with R. 3 (b) (b) of the Regulation of Seniority Rules treats him as a promotee for the purpose of seniority while R. 9 (3) (b) (iv) of the Recruitment Rules treats him as a direct recruit for the purpose of recruitment. There is no substance in this contention. Special recruits form a distinct class. They are neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion, so that in the matter of seniority all officers recruited from the State Civil Service are placed on the same footing. The regulation is not arbitrary nor violative of Articles 14 and 16 of the Constitution.25. The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, R. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.26.

0[ds]The decision in P. C. Wadhwas case, 1964 (4) SCR 598 = (AIR 1964 SC 423 ) is distinguishable. There a cadre Officer in the junior scale of pay was promoted to officiate in a post in the senior scale of pay and was thereafter reverted to his substantive post while other cadre officers junior to him continued to officiate in posts in the senior scale of pay. As against cadre officers junior to him, he had the right to hold the post in the senior scale of pay. The reversion while cadre officers junior to him continued in the senior scale amounted to not only reduction in rank but also withholding of promotion. This is all that P. C Wadhwas case, 1964 (4) SCR 598 = (AIR 1964 SC 423 ) decided. The facts in the present case are entirely different. The petitioner was not suitable to fill the vacancies in the senior post and non-cadre officers were appointed to fill the vacancies under Rule 9 of the Cadre Rules. No cadre officer junior to the petitioner was promoted to the cadre post before his promotion on November 17, 1956. Nor was he reverted after his promotion, while officers junior to him continued to hold senior posts. The petitioner was not reduced in rank, nor was his promotion withheld. He had no right to fill a vacancy in the senior posts or to draw salary in the senior scale between April 2, 1952 and November 17,making the regulations, the Central Government is to be guided by the exigencies of the service and the advice of the State Governments and the Union Public Service Commission. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter of fact, the Special Recruitment Regulations, 1960 framed under R. 4 (3) have adapted for the purposes of special recruitment the regulations for recruitment by competitive examination, promotion and selection with appropriatecontention is devoid of merit.The seniority of direct recruits inter se and promotees inter se is fixed by R. 4. The object of R. 3 (3) (b) is to fix the seniority of the promotees in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service. From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Rule 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the juniormost direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Articles 14 and 16 of theis no substance in this contention. Special recruits form a distinctare neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion, so that in the matter of seniority all officers recruited from the State Civil Service are placed on the same footing. The regulation is not arbitrary nor violative of Articles 14 and 16 of the Constitution.The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, R. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.

### 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: 25 per cent quota the appointments of officers from List II will be excluded.19. There were vacancies in the 25 per cent quota which were filled up by promotion of respondents, Nos. 14, 15 and 16 from the Madhya Bharat State Service. Respondents Nos. 4, 6, 11, 12, 13, 17 and 18 were from the former Madhya Pradesh State Service. Some of them were promoted to the Indian Administrative Service against the 25 per cent quota in the State cadres before the integration of the cadres on November 1, 1956. No appointments were made between November 1, 1956 and November 17, 1956 when the petitioner was appointed to officiate in a senior post. Other respondents were appointed after November 17, 1956. None of the appointments is open to any challenge. It is surprising that the petitioner seeks to challenge the appointments after a long lapse of time. He has not given any adequate explanation as to the delay in filing the writ petition.20. The petitioner next challenge the seniority assigned to the respondents. In the gradation list, all the respondents are shown as senior to him. Respondents Nos. 10, 11, 12 and 13 are special recruits and their seniority has been fixed under Regulation 3 (3) of the I. A S. (Seniority of Special Recruits) Regulation, 1960 read with R. 3 (3) (b) of the Regulation of Seniority Rules, 1954. The other respondents are promotees and their seniority has been fixed under R. 3(3) (b) of the Regulation of Seniority Rules and the proviso thereto.21. The petitioner challenges the vires of R. 4 (3) of the Recruitment Rules under which the Central Government framed the Special Recruitment Regulations. The Recruitment Rules were made under S. 3 of the All India Services Act, 1951. In D. S. Garewal v. State of Punjab, 1959 Supp (1) SCR 792 = (AIR 1959 SC 512 ) this Court held that S. 3 was not bad on the ground of excessive delegation of Legislative power. The petitioner submits that R 4 (3) of the Recruitment Rules is bad on the ground of excessive delegation of legislative power. Assuming that the doctrine of excessive delegation of legislative power applies to rules. we think that Rule 4 (3) does not suffer from the vice of excessive delegation. Rule 4 (3) authorises the Central Government to make regulations for special recruitment;22. In making the regulations, the Central Government is to be guided by the exigencies of the service and the advice of the State Governments and the Union Public Service Commission. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter of fact, the Special Recruitment Regulations, 1960 framed under R. 4 (3) have adapted for the purposes of special recruitment the regulations for recruitment by competitive examination, promotion and selection with appropriate modifications.23. The petitioner next contends that R. 3 (3) (b) of the Regulation of Seniority Rules makes unjust discrimination between a promotee and a direct recruit in the matter of seniority by arbitrarily assigning a lower year of allotment to a promotee and is violative of Articles 14 and 16 of the Constitution. This contention is devoid of merit.The seniority of direct recruits inter se and promotees inter se is fixed by R. 4. The object of R. 3 (3) (b) is to fix the seniority of the promotees in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service. From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Rule 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the juniormost direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Articles 14 and 16 of the Constitution.24. The petitioner next challenges the validity of Regulation 3 (3) of the Special Recruitment Seniority Regulations, 1960 on the ground that it offends Articles 14 and 16 of the Constitution. According to the petitioner, the relevant rules and regulations have set up an arbitrary double standard for a special recruit enlisted by promotion because Regulation 3 (3) of the Special Recruitment Seniority Regulations read with R. 3 (b) (b) of the Regulation of Seniority Rules treats him as a promotee for the purpose of seniority while R. 9 (3) (b) (iv) of the Recruitment Rules treats him as a direct recruit for the purpose of recruitment. There is no substance in this contention. Special recruits form a distinct class. They are neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion, so that in the matter of seniority all officers recruited from the State Civil Service are placed on the same footing. The regulation is not arbitrary nor violative of Articles 14 and 16 of the Constitution.25. The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, R. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.26. ### Response: 0 ### Explanation: The decision in P. C. Wadhwas case, 1964 (4) SCR 598 = (AIR 1964 SC 423 ) is distinguishable. There a cadre Officer in the junior scale of pay was promoted to officiate in a post in the senior scale of pay and was thereafter reverted to his substantive post while other cadre officers junior to him continued to officiate in posts in the senior scale of pay. As against cadre officers junior to him, he had the right to hold the post in the senior scale of pay. The reversion while cadre officers junior to him continued in the senior scale amounted to not only reduction in rank but also withholding of promotion. This is all that P. C Wadhwas case, 1964 (4) SCR 598 = (AIR 1964 SC 423 ) decided. The facts in the present case are entirely different. The petitioner was not suitable to fill the vacancies in the senior post and non-cadre officers were appointed to fill the vacancies under Rule 9 of the Cadre Rules. No cadre officer junior to the petitioner was promoted to the cadre post before his promotion on November 17, 1956. Nor was he reverted after his promotion, while officers junior to him continued to hold senior posts. The petitioner was not reduced in rank, nor was his promotion withheld. He had no right to fill a vacancy in the senior posts or to draw salary in the senior scale between April 2, 1952 and November 17,making the regulations, the Central Government is to be guided by the exigencies of the service and the advice of the State Governments and the Union Public Service Commission. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter of fact, the Special Recruitment Regulations, 1960 framed under R. 4 (3) have adapted for the purposes of special recruitment the regulations for recruitment by competitive examination, promotion and selection with appropriatecontention is devoid of merit.The seniority of direct recruits inter se and promotees inter se is fixed by R. 4. The object of R. 3 (3) (b) is to fix the seniority of the promotees in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service. From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Rule 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the juniormost direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Articles 14 and 16 of theis no substance in this contention. Special recruits form a distinctare neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion, so that in the matter of seniority all officers recruited from the State Civil Service are placed on the same footing. The regulation is not arbitrary nor violative of Articles 14 and 16 of the Constitution.The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, R. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.

Mamta Vs. National Insurance Co.Ltd.

1. Leave granted. 2. One Radheyshyam Sharma, the predecessor in interest of the appellants herein, died in an accident which took place on 22.10.2003. He was an agriculturist. He was aged 22 years on the date of accident. 3. The Motor Accident Claims Tribunal believed the evidence adduced on behalf of the claimants - appellants that the monthly income of the deceased was Rs. 5000-6000 per month. To that effect two witnesses, namely, PW-1 and PW-2 testified. From the award passed by the learned Tribunal, it appears that the exhibits throwing a suggestion that the said witnesses were not cross-examined on the aforementioned statement. The age of the deceased was also not disputed. In the aforementioned premise the Tribunal awarded a sum of Rs.6,72,880/- to the claimants, stating: "16. At the time of death the date of the deceased was 22 years therefore, for sake of compensation for the dependents this Court fixes the multiplier as 15 therefore, compensation for the defendants is determined as 40x15 = 6,00,000/- (Rupees six lacs only). Rs. 2000/- were spent during the last rites and for applicant No.1 Mamtabai in view of her age Rs. 10,000/- is determined for her because of her deprivation from the comforts of her husband and Rs. 5,000/- to each of applicant Kanhaiyalal and Sajanbai for their deprivation form the comforts of their son.17. Thus the amount spent on the treatment of deceased Radheyshyam prior to his death by the applicants is Rs.50,880/-, for dependents compensation Rs. 6,00,000/-, Rs. 2,000/- for last rites and Rs 10,000/- for Mamtabai wife of the deceased and Rs. 5,000/- for each of the Kanhaiyalal and Sajanbai for the deprivation of their son." 4. The respondent - National Insurance Company preferred an appeal thereagainst. The High Court opining that there was no evidence, whether oral or documentary evidence, as produced by the claimants to prove the income of the deceased, held that the notional income as stipulated in the Second Schedule appended to the Motor Vehicles Act, i.e. Rs. 15,000/- per annum, should be taken to be the income of the deceased Radheyshyam Sharma. On that basis, the amount of compensation towards loss of income was calculated at Rs. 1,70,000/-. For the said purpose, a multiplier of 17 was applied and 1/3 rd of the income was deducted. 5. Our attention was drawn to paragraph 8 of the impugned judgment wherein the High Court proceeded on the basis that no evidence has been adduced by the respondent that the land was owned by the said Radheyshyam Sharma. 6. The High Court, in our opinion, was clearly wrong. As noticed hereinbefore, in paragraph 7 of its judgment the High Court held that neither any oral nor documentary evidence was adduced by the claimants to prove the income of the deceased. Two witnesses testified to the income of the deceased Radheyshyam. It was in the aforementioned premises obligatory on the part of the respondent to test the correctness or otherwise of the statement made by the two witnesses, by cross-examining them. The High Court does not say that under no circumstances, the income of an agriculturist can be Rs.5000-6000 per month. Had the said two witnesses been cross-examined, they could have produced documentary evidence. The respondent, in our opinion, cannot take advantage of their own wrong. 7. The High Court, in our opinion, was not correct in arriving at the conclusion that that no evidence has been adduced by the claimants whatsoever. In view of Section 59 of the Evidence Act, the term evidence would include oral evidence. The Tribunal has relied on such oral evidence. It is now a well settled law, in view of a large number of decisions of the Federal Court as also this Court, that the Appellate Court shall not disturb the finding of fact arrived at by the Trial Court on the basis of the evidence as it had the occasion to notice the demeanour of the witnesses. Unfortunately, the High Court has not adverted to any of the aforementioned questions. Having regard to the fact that the deceased was an agriculturist, we are of the opinion that the multiplier of 17 should have been used. 8. We, however, agree with the High Court that as some medical bills were not in the name of the deceased, the medical expenses incurred by the claimants to the extent of Rs.50,000/- have not been proved. We, therefore, uphold the order of the High Court that the claim towards medical expenses should be confined to Rs. 40,000/-. In that view of the matter, the claimants are held to be entitled to a sum of Rs. 6,62,880/- towards compensation plus they may also be entitled to the interest as awarded by the Tribunal. 9.

1[ds]The High Court, in our opinion, was clearly wrong. As noticed hereinbefore, in paragraph 7 of its judgment the High Court held that neither any oral nor documentary evidence was adduced by the claimants to prove the income of the deceased. Two witnesses testified to the income of the deceased Radheyshyam. It was in the aforementioned premises obligatory on the part of the respondent to test the correctness or otherwise of the statement made by the two witnesses, bythem. The High Court does not say that under no circumstances, the income of an agriculturist can beper month. Had the said two witnesses beenthey could have produced documentary evidence. The respondent, in our opinion, cannot take advantage of their ownHigh Court, in our opinion, was not correct in arriving at the conclusion that that no evidence has been adduced by the claimants whatsoever. In view of Section 59 of the Evidence Act, the term evidence would include oral evidence. The Tribunal has relied on such oral evidence. It is now a well settled law, in view of a large number of decisions of the Federal Court as also this Court, that the Appellate Court shall not disturb the finding of fact arrived at by the Trial Court on the basis of the evidence as it had the occasion to notice the demeanour of the witnesses. Unfortunately, the High Court has not adverted to any of the aforementioned questions. Having regard to the fact that the deceased was an agriculturist, we are of the opinion that the multiplier of 17 should have beenhowever, agree with the High Court that as some medical bills were not in the name of the deceased, the medical expenses incurred by the claimants to the extent of Rs.50,000/have not been proved. We, therefore, uphold the order of the High Court that the claim towards medical expenses should be confined to Rs.In that view of the matter, the claimants are held to be entitled to a sum of Rs. 6,62,880/towards compensation plus they may also be entitled to the interest as awarded by the Tribunal.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: 1. Leave granted. 2. One Radheyshyam Sharma, the predecessor in interest of the appellants herein, died in an accident which took place on 22.10.2003. He was an agriculturist. He was aged 22 years on the date of accident. 3. The Motor Accident Claims Tribunal believed the evidence adduced on behalf of the claimants - appellants that the monthly income of the deceased was Rs. 5000-6000 per month. To that effect two witnesses, namely, PW-1 and PW-2 testified. From the award passed by the learned Tribunal, it appears that the exhibits throwing a suggestion that the said witnesses were not cross-examined on the aforementioned statement. The age of the deceased was also not disputed. In the aforementioned premise the Tribunal awarded a sum of Rs.6,72,880/- to the claimants, stating: "16. At the time of death the date of the deceased was 22 years therefore, for sake of compensation for the dependents this Court fixes the multiplier as 15 therefore, compensation for the defendants is determined as 40x15 = 6,00,000/- (Rupees six lacs only). Rs. 2000/- were spent during the last rites and for applicant No.1 Mamtabai in view of her age Rs. 10,000/- is determined for her because of her deprivation from the comforts of her husband and Rs. 5,000/- to each of applicant Kanhaiyalal and Sajanbai for their deprivation form the comforts of their son.17. Thus the amount spent on the treatment of deceased Radheyshyam prior to his death by the applicants is Rs.50,880/-, for dependents compensation Rs. 6,00,000/-, Rs. 2,000/- for last rites and Rs 10,000/- for Mamtabai wife of the deceased and Rs. 5,000/- for each of the Kanhaiyalal and Sajanbai for the deprivation of their son." 4. The respondent - National Insurance Company preferred an appeal thereagainst. The High Court opining that there was no evidence, whether oral or documentary evidence, as produced by the claimants to prove the income of the deceased, held that the notional income as stipulated in the Second Schedule appended to the Motor Vehicles Act, i.e. Rs. 15,000/- per annum, should be taken to be the income of the deceased Radheyshyam Sharma. On that basis, the amount of compensation towards loss of income was calculated at Rs. 1,70,000/-. For the said purpose, a multiplier of 17 was applied and 1/3 rd of the income was deducted. 5. Our attention was drawn to paragraph 8 of the impugned judgment wherein the High Court proceeded on the basis that no evidence has been adduced by the respondent that the land was owned by the said Radheyshyam Sharma. 6. The High Court, in our opinion, was clearly wrong. As noticed hereinbefore, in paragraph 7 of its judgment the High Court held that neither any oral nor documentary evidence was adduced by the claimants to prove the income of the deceased. Two witnesses testified to the income of the deceased Radheyshyam. It was in the aforementioned premises obligatory on the part of the respondent to test the correctness or otherwise of the statement made by the two witnesses, by cross-examining them. The High Court does not say that under no circumstances, the income of an agriculturist can be Rs.5000-6000 per month. Had the said two witnesses been cross-examined, they could have produced documentary evidence. The respondent, in our opinion, cannot take advantage of their own wrong. 7. The High Court, in our opinion, was not correct in arriving at the conclusion that that no evidence has been adduced by the claimants whatsoever. In view of Section 59 of the Evidence Act, the term evidence would include oral evidence. The Tribunal has relied on such oral evidence. It is now a well settled law, in view of a large number of decisions of the Federal Court as also this Court, that the Appellate Court shall not disturb the finding of fact arrived at by the Trial Court on the basis of the evidence as it had the occasion to notice the demeanour of the witnesses. Unfortunately, the High Court has not adverted to any of the aforementioned questions. Having regard to the fact that the deceased was an agriculturist, we are of the opinion that the multiplier of 17 should have been used. 8. We, however, agree with the High Court that as some medical bills were not in the name of the deceased, the medical expenses incurred by the claimants to the extent of Rs.50,000/- have not been proved. We, therefore, uphold the order of the High Court that the claim towards medical expenses should be confined to Rs. 40,000/-. In that view of the matter, the claimants are held to be entitled to a sum of Rs. 6,62,880/- towards compensation plus they may also be entitled to the interest as awarded by the Tribunal. 9. ### Response: 1 ### Explanation: The High Court, in our opinion, was clearly wrong. As noticed hereinbefore, in paragraph 7 of its judgment the High Court held that neither any oral nor documentary evidence was adduced by the claimants to prove the income of the deceased. Two witnesses testified to the income of the deceased Radheyshyam. It was in the aforementioned premises obligatory on the part of the respondent to test the correctness or otherwise of the statement made by the two witnesses, bythem. The High Court does not say that under no circumstances, the income of an agriculturist can beper month. Had the said two witnesses beenthey could have produced documentary evidence. The respondent, in our opinion, cannot take advantage of their ownHigh Court, in our opinion, was not correct in arriving at the conclusion that that no evidence has been adduced by the claimants whatsoever. In view of Section 59 of the Evidence Act, the term evidence would include oral evidence. The Tribunal has relied on such oral evidence. It is now a well settled law, in view of a large number of decisions of the Federal Court as also this Court, that the Appellate Court shall not disturb the finding of fact arrived at by the Trial Court on the basis of the evidence as it had the occasion to notice the demeanour of the witnesses. Unfortunately, the High Court has not adverted to any of the aforementioned questions. Having regard to the fact that the deceased was an agriculturist, we are of the opinion that the multiplier of 17 should have beenhowever, agree with the High Court that as some medical bills were not in the name of the deceased, the medical expenses incurred by the claimants to the extent of Rs.50,000/have not been proved. We, therefore, uphold the order of the High Court that the claim towards medical expenses should be confined to Rs.In that view of the matter, the claimants are held to be entitled to a sum of Rs. 6,62,880/towards compensation plus they may also be entitled to the interest as awarded by the Tribunal.

Malti Sahu & Anr Vs. Rahul & Anr

has reversed the conviction and thereby has acquitted the accused, it is prayed not to interfere with the same in exercise of the powers under Article 136 of the Constitution of India. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. We have perused, considered and gone through the judgment and order passed by the Trial Court convicting the accused for the offence under Section 302 IPC and the impugned judgment and order passed by the High Court acquitting the accused. 7. In the present case, the prosecution has been successful in proving the motive so far as the accused is concerned. Though, PW-8 initially made a statement before the Police that he had seen the accused alongwith the deceased going to their house, but before the Court, he turned hostile. However, he had been cross-examined by the Public Prosecutor and during the course of cross-examination, he has stated that Kavita Sahu - deceased alias Kimi, a few days before the incident had disclosed to him that accused Rahul had made some obscene gestures at her. He has further stated that Kavita alias Kimi used to often confide with him regarding her personal matters. He has also stated that he felt bad when Kimi disclosed to him about the activities of Rahul. He has also stated that Kimi disclosed to him about the behaviour of accused Rahul on 4th and 5th December, 2011. As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, prosecution has established and proved the motive to that extent. 7.1 Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence. During the course of investigation and on a thorough inspection of the spot, a knife in three pieces was found lying on the floor in the room, where dead body of Kavita was lying. On the knife, the word Glare was engraved. The prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one Ravi Mittal, PW-9. The witness PW-9 had not only identified the knife purchased by the accused, but he has also clearly stated that the knife (which was found in three pieces) is the same, which was purchased by the accused. He has also identified the accused. As per the medical report and the post-mortem report, the cause of death was a result of hemorrhage and shock consequent upon slitting of the throat. Thirteen ante mortem injuries were found on the person of Gaurang and eight injuries on the body of Kavita. It was opined that the same could have been caused by a sharp-edged weapon. PW-3, who was one of the members of the Board, which conducted the post-mortem also stated in her evidence that the injuries could be possible with the weapon examined when taken as a whole. i.e., single weapon. She stated that even the throat injury was possible with three pieces and it was possible that the weapon might have broken during the process. The knife in three broken pieces was recovered from the place of occurrence having blood stains and it has been established and proved that during the use of the weapon, i.e., knife, in commission of the offence, the same might have broken. 7.2 The next link in the chain of evidence is the recovery of Loi having blood stains of the deceased Kavita as well as of the accused, which Loi was recovered on the basis of the disclosure statement made by the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has proved the same through the I.O. However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, the human hair in the hands of Kavita was not examined; blood stains were not properly presented. However, the High Court has not gone in the detailed discussion of the CFSL Report on record. Having gone through the CFSL Report as well as the depositions of the witnesses from the CFSL, we are of the opinion that the blood on the Loi was found to be matching with that of Kavita and the accused. 7.3 One another circumstance, which will go against the accused would be that an injury on the ring finger of the left hand of the accused was found, which was treated by PW-20, Dr. Davinder Kapil. He stated in his evidence that accused came to his clinic in December, 2011 and disclosed his name; he had injury over ring finger of his left hand and came to him for first aid; the finger was already covered by accused with handkerchief; on removing the same, he found an injury over ring finger of his left hand; when he asked about the injury, he disclosed that he suffered the aforesaid injury by some iron bar. He also stated that on seeing the injury, he found it could be happened due to a sharp-edged weapon. The accused has failed to explain the injury on him. On the contrary, he has come out with a false case that the injury was caused by some iron bar, which has not been established and proved. 8. Considering the aforesaid overall facts of the case and evidence on record, the High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused. The findings recorded by the High Court are perverse. The High Court has not properly appreciated the entire evidence on record, more particularly, the findings recorded by the Trial Court, which as such were on appreciation of the entire evidence on record.

1[ds]6. We have perused, considered and gone through the judgment and order passed by the Trial Court convicting the accused for the offence under Section 302 IPC and the impugned judgment and order passed by the High Court acquitting the accused.7. In the present case, the prosecution has been successful in proving the motive so far as the accused is concerned. Though, PW-8 initially made a statement before the Police that he had seen the accused alongwith the deceased going to their house, but before the Court, he turned hostile. However, he had been cross-examined by the Public Prosecutor and during the course of cross-examination, he has stated that Kavita Sahu - deceased alias Kimi, a few days before the incident had disclosed to him that accused Rahul had made some obscene gestures at her. He has further stated that Kavita alias Kimi used to often confide with him regarding her personal matters. He has also stated that he felt bad when Kimi disclosed to him about the activities of Rahul. He has also stated that Kimi disclosed to him about the behaviour of accused Rahul on 4th and 5th December, 2011.As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, prosecution has established and proved the motive to that extent.7.1 Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence. During the course of investigation and on a thorough inspection of the spot, a knife in three pieces was found lying on the floor in the room, where dead body of Kavita was lying. On the knife, the word Glare was engraved. The prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one Ravi Mittal, PW-9. The witness PW-9 had not only identified the knife purchased by the accused, but he has also clearly stated that the knife (which was found in three pieces) is the same, which was purchased by the accused. He has also identified the accused. As per the medical report and the post-mortem report, the cause of death was a result of hemorrhage and shock consequent upon slitting of the throat. Thirteen ante mortem injuries were found on the person of Gaurang and eight injuries on the body of Kavita. It was opined that the same could have been caused by a sharp-edged weapon. PW-3, who was one of the members of the Board, which conducted the post-mortem also stated in her evidence that the injuries could be possible with the weapon examined when taken as a whole. i.e., single weapon. She stated that even the throat injury was possible with three pieces and it was possible that the weapon might have broken during the process.The knife in three broken pieces was recovered from the place of occurrence having blood stains and it has been established and proved that during the use of the weapon, i.e., knife, in commission of the offence, the same might have broken.7.2 The next link in the chain of evidence is the recovery of Loi having blood stains of the deceased Kavita as well as of the accused, which Loi was recovered on the basis of the disclosure statement made by the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has proved the same through the I.O. However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, the human hair in the hands of Kavita was not examined; blood stains were not properly presented. However, the High Court has not gone in the detailed discussion of the CFSL Report on record.Having gone through the CFSL Report as well as the depositions of the witnesses from the CFSL, we are of the opinion that the blood on the Loi was found to be matching with that of Kavita and the accused.7.3 One another circumstance, which will go against the accused would be that an injury on the ring finger of the left hand of the accused was found, which was treated by PW-20, Dr. Davinder Kapil. He stated in his evidence that accused came to his clinic in December, 2011 and disclosed his name; he had injury over ring finger of his left hand and came to him for first aid; the finger was already covered by accused with handkerchief; on removing the same, he found an injury over ring finger of his left hand; when he asked about the injury, he disclosed that he suffered the aforesaid injury by some iron bar. He also stated that on seeing the injury, he found it could be happened due to a sharp-edged weapon. The accused has failed to explain the injury on him. On the contrary, he has come out with a false case that the injury was caused by some iron bar, which has not been established and proved.8. Considering the aforesaid overall facts of the case and evidence on record, the High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused. The findings recorded by the High Court are perverse. The High Court has not properly appreciated the entire evidence on record, more particularly, the findings recorded by the Trial Court, which as such were on appreciation of the entire evidence on record.

### 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: has reversed the conviction and thereby has acquitted the accused, it is prayed not to interfere with the same in exercise of the powers under Article 136 of the Constitution of India. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. We have perused, considered and gone through the judgment and order passed by the Trial Court convicting the accused for the offence under Section 302 IPC and the impugned judgment and order passed by the High Court acquitting the accused. 7. In the present case, the prosecution has been successful in proving the motive so far as the accused is concerned. Though, PW-8 initially made a statement before the Police that he had seen the accused alongwith the deceased going to their house, but before the Court, he turned hostile. However, he had been cross-examined by the Public Prosecutor and during the course of cross-examination, he has stated that Kavita Sahu - deceased alias Kimi, a few days before the incident had disclosed to him that accused Rahul had made some obscene gestures at her. He has further stated that Kavita alias Kimi used to often confide with him regarding her personal matters. He has also stated that he felt bad when Kimi disclosed to him about the activities of Rahul. He has also stated that Kimi disclosed to him about the behaviour of accused Rahul on 4th and 5th December, 2011. As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, prosecution has established and proved the motive to that extent. 7.1 Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence. During the course of investigation and on a thorough inspection of the spot, a knife in three pieces was found lying on the floor in the room, where dead body of Kavita was lying. On the knife, the word Glare was engraved. The prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one Ravi Mittal, PW-9. The witness PW-9 had not only identified the knife purchased by the accused, but he has also clearly stated that the knife (which was found in three pieces) is the same, which was purchased by the accused. He has also identified the accused. As per the medical report and the post-mortem report, the cause of death was a result of hemorrhage and shock consequent upon slitting of the throat. Thirteen ante mortem injuries were found on the person of Gaurang and eight injuries on the body of Kavita. It was opined that the same could have been caused by a sharp-edged weapon. PW-3, who was one of the members of the Board, which conducted the post-mortem also stated in her evidence that the injuries could be possible with the weapon examined when taken as a whole. i.e., single weapon. She stated that even the throat injury was possible with three pieces and it was possible that the weapon might have broken during the process. The knife in three broken pieces was recovered from the place of occurrence having blood stains and it has been established and proved that during the use of the weapon, i.e., knife, in commission of the offence, the same might have broken. 7.2 The next link in the chain of evidence is the recovery of Loi having blood stains of the deceased Kavita as well as of the accused, which Loi was recovered on the basis of the disclosure statement made by the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has proved the same through the I.O. However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, the human hair in the hands of Kavita was not examined; blood stains were not properly presented. However, the High Court has not gone in the detailed discussion of the CFSL Report on record. Having gone through the CFSL Report as well as the depositions of the witnesses from the CFSL, we are of the opinion that the blood on the Loi was found to be matching with that of Kavita and the accused. 7.3 One another circumstance, which will go against the accused would be that an injury on the ring finger of the left hand of the accused was found, which was treated by PW-20, Dr. Davinder Kapil. He stated in his evidence that accused came to his clinic in December, 2011 and disclosed his name; he had injury over ring finger of his left hand and came to him for first aid; the finger was already covered by accused with handkerchief; on removing the same, he found an injury over ring finger of his left hand; when he asked about the injury, he disclosed that he suffered the aforesaid injury by some iron bar. He also stated that on seeing the injury, he found it could be happened due to a sharp-edged weapon. The accused has failed to explain the injury on him. On the contrary, he has come out with a false case that the injury was caused by some iron bar, which has not been established and proved. 8. Considering the aforesaid overall facts of the case and evidence on record, the High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused. The findings recorded by the High Court are perverse. The High Court has not properly appreciated the entire evidence on record, more particularly, the findings recorded by the Trial Court, which as such were on appreciation of the entire evidence on record. ### Response: 1 ### Explanation: 6. We have perused, considered and gone through the judgment and order passed by the Trial Court convicting the accused for the offence under Section 302 IPC and the impugned judgment and order passed by the High Court acquitting the accused.7. In the present case, the prosecution has been successful in proving the motive so far as the accused is concerned. Though, PW-8 initially made a statement before the Police that he had seen the accused alongwith the deceased going to their house, but before the Court, he turned hostile. However, he had been cross-examined by the Public Prosecutor and during the course of cross-examination, he has stated that Kavita Sahu - deceased alias Kimi, a few days before the incident had disclosed to him that accused Rahul had made some obscene gestures at her. He has further stated that Kavita alias Kimi used to often confide with him regarding her personal matters. He has also stated that he felt bad when Kimi disclosed to him about the activities of Rahul. He has also stated that Kimi disclosed to him about the behaviour of accused Rahul on 4th and 5th December, 2011.As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, prosecution has established and proved the motive to that extent.7.1 Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence. During the course of investigation and on a thorough inspection of the spot, a knife in three pieces was found lying on the floor in the room, where dead body of Kavita was lying. On the knife, the word Glare was engraved. The prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one Ravi Mittal, PW-9. The witness PW-9 had not only identified the knife purchased by the accused, but he has also clearly stated that the knife (which was found in three pieces) is the same, which was purchased by the accused. He has also identified the accused. As per the medical report and the post-mortem report, the cause of death was a result of hemorrhage and shock consequent upon slitting of the throat. Thirteen ante mortem injuries were found on the person of Gaurang and eight injuries on the body of Kavita. It was opined that the same could have been caused by a sharp-edged weapon. PW-3, who was one of the members of the Board, which conducted the post-mortem also stated in her evidence that the injuries could be possible with the weapon examined when taken as a whole. i.e., single weapon. She stated that even the throat injury was possible with three pieces and it was possible that the weapon might have broken during the process.The knife in three broken pieces was recovered from the place of occurrence having blood stains and it has been established and proved that during the use of the weapon, i.e., knife, in commission of the offence, the same might have broken.7.2 The next link in the chain of evidence is the recovery of Loi having blood stains of the deceased Kavita as well as of the accused, which Loi was recovered on the basis of the disclosure statement made by the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has proved the same through the I.O. However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, the human hair in the hands of Kavita was not examined; blood stains were not properly presented. However, the High Court has not gone in the detailed discussion of the CFSL Report on record.Having gone through the CFSL Report as well as the depositions of the witnesses from the CFSL, we are of the opinion that the blood on the Loi was found to be matching with that of Kavita and the accused.7.3 One another circumstance, which will go against the accused would be that an injury on the ring finger of the left hand of the accused was found, which was treated by PW-20, Dr. Davinder Kapil. He stated in his evidence that accused came to his clinic in December, 2011 and disclosed his name; he had injury over ring finger of his left hand and came to him for first aid; the finger was already covered by accused with handkerchief; on removing the same, he found an injury over ring finger of his left hand; when he asked about the injury, he disclosed that he suffered the aforesaid injury by some iron bar. He also stated that on seeing the injury, he found it could be happened due to a sharp-edged weapon. The accused has failed to explain the injury on him. On the contrary, he has come out with a false case that the injury was caused by some iron bar, which has not been established and proved.8. Considering the aforesaid overall facts of the case and evidence on record, the High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused. The findings recorded by the High Court are perverse. The High Court has not properly appreciated the entire evidence on record, more particularly, the findings recorded by the Trial Court, which as such were on appreciation of the entire evidence on record.

M/S PREM COTTEX Vs. UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ORS

the period from July-2009 to September-2011. But after audit, it was discovered that a different tariff code should have been applied. Therefore, a show cause notice was issued on 18.03.2014 raising an additional demand for the period from July-2009 to September-2011. Then a bill was raised on 25.05.2015 for the aforesaid period. Therefore, the consumer successfully challenged the demand before the District Consumer Forum, but the Order of the District Forum was reversed by the State Commission on an appeal by the licensee. The National Commission on a revision filed by the consumer, set aside the order of the State Commission and restored the order of the District Forum. It was this Order of the National Commission that was under challenge before this Court in Rahamatullah Khan (supra). 18. Eventually, this Court disposed of the appeals, preventing the licensee from taking recourse to disconnection of supply, but giving them liberty to take recourse to any remedy available in law for recovery of the additional demand. Therefore, the decision in Rahamatullah Khan (supra) is distinguishable on facts. 19. Even otherwise there are two things in this case, which we cannot overlook. The first is that the question whether the raising of an additional demand, by itself would tantamount to any deficiency in service, clothing the consumer fora with a power to deal with the dispute, was not raised or considered in Rahamatullah Khan (supra). The second is the impact of Sub-section (1) of Section 56 on Sub-section (2) thereto. 20. The fora constituted under the Consumer Protection Act, 1986 is entitled to deal with the complaint of a consumer, either in relation to defective goods or in relation to deficiency in services. The word deficiency is defined in Section 2(1)(g) of the Consumer Protection Act, 1986 as follows:- 2(1)(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; 21. The raising of an additional demand in the form of short assessment notice, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of escaped assessment and not deficiency in service. 22. In fact, even before going into the question of Section 56(2), the consumer forum is obliged to find out at the threshold whether there was any deficiency in service. It is only then that the recourse taken by the licensee for recovery of the amount, can be put to test in terms of Section 56. If the case on hand is tested on this parameter, it will be clear that the respondents cannot be held guilty of any deficiency in service and hence dismissal of the complaint by the National Commission is perfectly in order. 23. Coming to the second aspect, namely, the impact of Sub-section (1) on Sub-section (2) of Section 56, it is seen that the bottom line of Sub- section (1) is the negligence of any person to pay any charge for electricity. Sub-section (1) starts with the words where any person neglects to pay any charge for electricity or any some other than a charge for electricity due from him. 24. Sub-section (2) uses the words no sum due from any consumer under this Section. Therefore, the bar under Sub-section (2) is relatable to the sum due under Section 56. This naturally takes us to Sub-section (1) which deals specifically with the negligence on the part of a person to pay any charge for electricity or any sum other than a charge for electricity. What is covered by section 56, under sub-section (1), is the negligence on the part of a person to pay for electricity and not anything else nor any negligence on the part of the licensee. 25. In other words, the negligence on the part of the licensee which led to short billing in the first instance and the rectification of the same after the mistake is detected, is not covered by Sub-section (1) of Section 56. Consequently, any claim so made by a licensee after the detection of their mistake, may not fall within the mischief, namely, no sum due from any consumer under this Section, appearing in Sub-section (2). 26. The matter can be examined from another angle as well. Sub- section (1) of Section 56 as discussed above, deals with the disconnection of electric supply if any person neglects to pay any charge for electricity. The question of neglect to pay would arise only after a demand is raised by the licensee. If the demand is not raised, there is no occasion for a consumer to neglect to pay any charge for electricity. Sub-section (2) of Section 56 has a non-obstante clause with respect to what is contained in any other law, regarding the right to recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under Sub-section (2) will not start running. So long as limitation has not started running, the bar for recovery and disconnection will not come into effect. Hence the decision in Rahamatullah Khan and Section 56(2) will not go to the rescue of the appellant.

0[ds]9. Before we proceed to consider the statutory provision and the decision of this Court relied upon by the appellant, it is relevant to take note of the fact that the appellant never disputed the correctness of the claim of the respondents that the multiply factor (MF) to be applied was 10, but it was wrongly applied as 5. The only grievance raised by the appellant both in their representation and in their consumer complaint was that they cannot be made to suffer on account of the negligence on the part of the respondents and that on the basis of the bill already raised, they have charged their customers and that it may not be possible for them to go back to their customers with an additional demand now. In addition, the bar under Section 56 was also pleaded.11. In Rahamatullah Khan (supra), three issues arose for the consideration of this Court. They were (i) what is the meaning to be ascribed to the term first due in Section 56(2) of the Act; (ii) in the case of a wrong billing tariff having been applied on account of a mistake, when would the amount become first due; and (iii) whether recourse to disconnection may be taken by the licensee after the lapse of two years in the case of a mistake.12. On the first two issues, this Court held that though the liability to pay arises on the consumption of electricity, the obligation to pay would arise only when the bill is raised by the licensee and that, therefore, electricity charges would become first due only after the bill is issued, even though the liability would have arisen on consumption. On the third issue, this Court held in Rahamatullah Khan (supra), that the period of limitation of two years would commence from the date on which the electricity charges became first due under Section 56(2). This Court also held that Section 56(2) does not preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation in the case of a mistake or bonafide error. To come to such a conclusion, this Court also referred to Section 17(1)(c) of the Limitation Act, 1963 and the decision of this Court in Mahabir Kishore & Ors. vs. State of Madhya Pradesh (1989) 4 SCC 1 .13. Despite holding that electricity charges would become first due only after the bill is issued to the consumer (para 6.9 of the SCC Report) and despite holding that Section 56(2) does not preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation prescribed therein in the case of a mistake or bonafide error (Para 9.1 of the SCC Report), this Court came to the conclusion that what is barred under Section 56(2) is only the disconnection of supply of electricity. In other words, it was held by this Court in the penultimate paragraph that the licensee may take recourse to any remedy available in law for the recovery of the additional demand, but is barred from taking recourse to disconnection of supply under Section 56(2).14. But a careful reading of Section 56(2) would show that the bar contained therein is not merely with respect to disconnection of supply but also with respect to recovery.16. Be that as it may, once it is held that the term first due would mean the date on which a bill is issued, (as held in para 6.9 of Rahamatullah Khan) and once it is held that the period of limitation would commence from the date of discovery of the mistake (as held in paragraphs 9.1 to 9.3 of Rahamatullah Khan), then the question of allowing licensee to recover the amount by any other mode but not take recourse to disconnection of supply would not arise. But Rahamatullah Khan says in the penultimate paragraph that the licensee may take recourse to any remedy available in law for recovery of the additional demand, but barred from taking recourse to disconnection of supply under sub-section (2) of section 56 of the Act.17. It appears from the narration of facts in paragraph 2 of Rahamatullah Khan (supra) that this Court was persuaded to take the view that it did, on account of certain peculiar facts. The consumer in that case was billed under a particular tariff code for the period from July-2009 to September-2011. But after audit, it was discovered that a different tariff code should have been applied. Therefore, a show cause notice was issued on 18.03.2014 raising an additional demand for the period from July-2009 to September-2011. Then a bill was raised on 25.05.2015 for the aforesaid period. Therefore, the consumer successfully challenged the demand before the District Consumer Forum, but the Order of the District Forum was reversed by the State Commission on an appeal by the licensee. The National Commission on a revision filed by the consumer, set aside the order of the State Commission and restored the order of the District Forum. It was this Order of the National Commission that was under challenge before this Court in Rahamatullah Khan (supra).18. Eventually, this Court disposed of the appeals, preventing the licensee from taking recourse to disconnection of supply, but giving them liberty to take recourse to any remedy available in law for recovery of the additional demand. Therefore, the decision in Rahamatullah Khan (supra) is distinguishable on facts.19. Even otherwise there are two things in this case, which we cannot overlook. The first is that the question whether the raising of an additional demand, by itself would tantamount to any deficiency in service, clothing the consumer fora with a power to deal with the dispute, was not raised or considered in Rahamatullah Khan (supra). The second is the impact of Sub-section (1) of Section 56 on Sub-section (2) thereto.21. The raising of an additional demand in the form of short assessment notice, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of escaped assessment and not deficiency in service.22. In fact, even before going into the question of Section 56(2), the consumer forum is obliged to find out at the threshold whether there was any deficiency in service. It is only then that the recourse taken by the licensee for recovery of the amount, can be put to test in terms of Section 56. If the case on hand is tested on this parameter, it will be clear that the respondents cannot be held guilty of any deficiency in service and hence dismissal of the complaint by the National Commission is perfectly in order.23. Coming to the second aspect, namely, the impact of Sub-section (1) on Sub-section (2) of Section 56, it is seen that the bottom line of Sub- section (1) is the negligence of any person to pay any charge for electricity. Sub-section (1) starts with the words where any person neglects to pay any charge for electricity or any some other than a charge for electricity due from him.25. In other words, the negligence on the part of the licensee which led to short billing in the first instance and the rectification of the same after the mistake is detected, is not covered by Sub-section (1) of Section 56. Consequently, any claim so made by a licensee after the detection of their mistake, may not fall within the mischief, namely, no sum due from any consumer under this Section, appearing in Sub-section (2).26. The matter can be examined from another angle as well. Sub- section (1) of Section 56 as discussed above, deals with the disconnection of electric supply if any person neglects to pay any charge for electricity. The question of neglect to pay would arise only after a demand is raised by the licensee. If the demand is not raised, there is no occasion for a consumer to neglect to pay any charge for electricity. Sub-section (2) of Section 56 has a non-obstante clause with respect to what is contained in any other law, regarding the right to recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under Sub-section (2) will not start running. So long as limitation has not started running, the bar for recovery and disconnection will not come into effect. Hence the decision in Rahamatullah Khan and Section 56(2) will not go to the rescue of the appellant.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: the period from July-2009 to September-2011. But after audit, it was discovered that a different tariff code should have been applied. Therefore, a show cause notice was issued on 18.03.2014 raising an additional demand for the period from July-2009 to September-2011. Then a bill was raised on 25.05.2015 for the aforesaid period. Therefore, the consumer successfully challenged the demand before the District Consumer Forum, but the Order of the District Forum was reversed by the State Commission on an appeal by the licensee. The National Commission on a revision filed by the consumer, set aside the order of the State Commission and restored the order of the District Forum. It was this Order of the National Commission that was under challenge before this Court in Rahamatullah Khan (supra). 18. Eventually, this Court disposed of the appeals, preventing the licensee from taking recourse to disconnection of supply, but giving them liberty to take recourse to any remedy available in law for recovery of the additional demand. Therefore, the decision in Rahamatullah Khan (supra) is distinguishable on facts. 19. Even otherwise there are two things in this case, which we cannot overlook. The first is that the question whether the raising of an additional demand, by itself would tantamount to any deficiency in service, clothing the consumer fora with a power to deal with the dispute, was not raised or considered in Rahamatullah Khan (supra). The second is the impact of Sub-section (1) of Section 56 on Sub-section (2) thereto. 20. The fora constituted under the Consumer Protection Act, 1986 is entitled to deal with the complaint of a consumer, either in relation to defective goods or in relation to deficiency in services. The word deficiency is defined in Section 2(1)(g) of the Consumer Protection Act, 1986 as follows:- 2(1)(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; 21. The raising of an additional demand in the form of short assessment notice, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of escaped assessment and not deficiency in service. 22. In fact, even before going into the question of Section 56(2), the consumer forum is obliged to find out at the threshold whether there was any deficiency in service. It is only then that the recourse taken by the licensee for recovery of the amount, can be put to test in terms of Section 56. If the case on hand is tested on this parameter, it will be clear that the respondents cannot be held guilty of any deficiency in service and hence dismissal of the complaint by the National Commission is perfectly in order. 23. Coming to the second aspect, namely, the impact of Sub-section (1) on Sub-section (2) of Section 56, it is seen that the bottom line of Sub- section (1) is the negligence of any person to pay any charge for electricity. Sub-section (1) starts with the words where any person neglects to pay any charge for electricity or any some other than a charge for electricity due from him. 24. Sub-section (2) uses the words no sum due from any consumer under this Section. Therefore, the bar under Sub-section (2) is relatable to the sum due under Section 56. This naturally takes us to Sub-section (1) which deals specifically with the negligence on the part of a person to pay any charge for electricity or any sum other than a charge for electricity. What is covered by section 56, under sub-section (1), is the negligence on the part of a person to pay for electricity and not anything else nor any negligence on the part of the licensee. 25. In other words, the negligence on the part of the licensee which led to short billing in the first instance and the rectification of the same after the mistake is detected, is not covered by Sub-section (1) of Section 56. Consequently, any claim so made by a licensee after the detection of their mistake, may not fall within the mischief, namely, no sum due from any consumer under this Section, appearing in Sub-section (2). 26. The matter can be examined from another angle as well. Sub- section (1) of Section 56 as discussed above, deals with the disconnection of electric supply if any person neglects to pay any charge for electricity. The question of neglect to pay would arise only after a demand is raised by the licensee. If the demand is not raised, there is no occasion for a consumer to neglect to pay any charge for electricity. Sub-section (2) of Section 56 has a non-obstante clause with respect to what is contained in any other law, regarding the right to recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under Sub-section (2) will not start running. So long as limitation has not started running, the bar for recovery and disconnection will not come into effect. Hence the decision in Rahamatullah Khan and Section 56(2) will not go to the rescue of the appellant. ### Response: 0 ### Explanation: disconnection of supply under Section 56(2).14. But a careful reading of Section 56(2) would show that the bar contained therein is not merely with respect to disconnection of supply but also with respect to recovery.16. Be that as it may, once it is held that the term first due would mean the date on which a bill is issued, (as held in para 6.9 of Rahamatullah Khan) and once it is held that the period of limitation would commence from the date of discovery of the mistake (as held in paragraphs 9.1 to 9.3 of Rahamatullah Khan), then the question of allowing licensee to recover the amount by any other mode but not take recourse to disconnection of supply would not arise. But Rahamatullah Khan says in the penultimate paragraph that the licensee may take recourse to any remedy available in law for recovery of the additional demand, but barred from taking recourse to disconnection of supply under sub-section (2) of section 56 of the Act.17. It appears from the narration of facts in paragraph 2 of Rahamatullah Khan (supra) that this Court was persuaded to take the view that it did, on account of certain peculiar facts. The consumer in that case was billed under a particular tariff code for the period from July-2009 to September-2011. But after audit, it was discovered that a different tariff code should have been applied. Therefore, a show cause notice was issued on 18.03.2014 raising an additional demand for the period from July-2009 to September-2011. Then a bill was raised on 25.05.2015 for the aforesaid period. Therefore, the consumer successfully challenged the demand before the District Consumer Forum, but the Order of the District Forum was reversed by the State Commission on an appeal by the licensee. The National Commission on a revision filed by the consumer, set aside the order of the State Commission and restored the order of the District Forum. It was this Order of the National Commission that was under challenge before this Court in Rahamatullah Khan (supra).18. Eventually, this Court disposed of the appeals, preventing the licensee from taking recourse to disconnection of supply, but giving them liberty to take recourse to any remedy available in law for recovery of the additional demand. Therefore, the decision in Rahamatullah Khan (supra) is distinguishable on facts.19. Even otherwise there are two things in this case, which we cannot overlook. The first is that the question whether the raising of an additional demand, by itself would tantamount to any deficiency in service, clothing the consumer fora with a power to deal with the dispute, was not raised or considered in Rahamatullah Khan (supra). The second is the impact of Sub-section (1) of Section 56 on Sub-section (2) thereto.21. The raising of an additional demand in the form of short assessment notice, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of escaped assessment and not deficiency in service.22. In fact, even before going into the question of Section 56(2), the consumer forum is obliged to find out at the threshold whether there was any deficiency in service. It is only then that the recourse taken by the licensee for recovery of the amount, can be put to test in terms of Section 56. If the case on hand is tested on this parameter, it will be clear that the respondents cannot be held guilty of any deficiency in service and hence dismissal of the complaint by the National Commission is perfectly in order.23. Coming to the second aspect, namely, the impact of Sub-section (1) on Sub-section (2) of Section 56, it is seen that the bottom line of Sub- section (1) is the negligence of any person to pay any charge for electricity. Sub-section (1) starts with the words where any person neglects to pay any charge for electricity or any some other than a charge for electricity due from him.25. In other words, the negligence on the part of the licensee which led to short billing in the first instance and the rectification of the same after the mistake is detected, is not covered by Sub-section (1) of Section 56. Consequently, any claim so made by a licensee after the detection of their mistake, may not fall within the mischief, namely, no sum due from any consumer under this Section, appearing in Sub-section (2).26. The matter can be examined from another angle as well. Sub- section (1) of Section 56 as discussed above, deals with the disconnection of electric supply if any person neglects to pay any charge for electricity. The question of neglect to pay would arise only after a demand is raised by the licensee. If the demand is not raised, there is no occasion for a consumer to neglect to pay any charge for electricity. Sub-section (2) of Section 56 has a non-obstante clause with respect to what is contained in any other law, regarding the right to recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under Sub-section (2) will not start running. So long as limitation has not started running, the bar for recovery and disconnection will not come into effect. Hence the decision in Rahamatullah Khan and Section 56(2) will not go to the rescue of the appellant.

Bhola Nath Mukherjee and Ors Vs. Govt. of W.B. and Ors

sub-section (1), have preference to all other debts and obligations except mortgage, and shall be payable out of the purchase price after deduction therefrom of the amount that may be due from the licence under mortgage, if any. (3) If, however, the purchase price, after deduction therefrom of the amount that may be due under mortgage, if any, falls short, wholly or in part, of the debt due on adjustment to the employee, the purchaser or the intending purchaser, as the case may be, shall be liable to pay such debt due to the employee to the extent of such shortage. (11) The provisions of this section shall also apply to an undertaking which has been sold under Section 5 or Section 6 but the sale has not been completed prior to the date of commencement of the Indian Electricity (West Bengal Amendment) Act, 1980. Provided that the sale of the undertaking shall not be deemed to be completed if the purchase price, if payable after deducting the claim of the employees of the licensee from the consideration money, has not been paid to the licensee in full and final settlement of his claim." * 9. The effect of sub-section (1) of Section 7-B is to protect the dues on account of salary, wages, leave salary or leave wages, bonus, gratuity, retrenchment compensation, contribution to general provident fund, etc. to be a debt due to the employee. That means such debt shall attach to the purchase money which was paid by the Board for the undertaking of the Company. But the undertaking shall vest in the Board free from any debt, mortgage or similar obligation under Section 7 of the Act. In other words, if the purchase price paid by the Board is sufficiently large to pay the claims of the workmen, then the dues of the workmen should be paid out of the purchase money. It is not the case of the workmen here that money paid by the Board was not sufficient to pay the erstwhile employees of the Company. Therefore, in the facts of this case, it cannot be said that the Board has any liability to pay the workmen any amount on account of retrenchment compensation. 10. On behalf of the employees, our attention was drawn to Section 25-FF of the Industrial Disputes Act, which provides. "25-FF. Compensation to workmen in case of transfer of undertakings. - Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-S, as if the workman had been retrenched Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if - (a) the service of the workman has not been interrupted by such transfer(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and (c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has been interrupted by the transfer." 11. This section declares the right of the workman, who has been in continuous service for not less than one year in an undertaking, to notice and compensation in accordance with the provisions of Section 25-F in a case where the ownership and management of an undertaking is transferred by agreement or operation of law to a new employer. In such a case, by legal fiction, the workman is treated as if he had been retrenched. The proviso to Section 25-FF lays down that nothing in Section 25-FF will apply to a workman where there has been a change of employer by reason of the transfer of the undertaking if there conditions laid down in the proviso are fulfilled. The three conditions are; "(a) the service of the workman has not been interrupted by such transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and (c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has been interrupted by the transfer." 12. None of these conditions has been fulfilled in this case. The service of the workmen has been interrupted. Fresh employment has been offered by the transferee. The workmen, who had previously been permanently employed, were offered temporary employment by the Board. The workmen accepted the offer. There is no legal obligation case upon the Board under the terms of the transfer or otherwise to pay any retrenchment compensation to the workmen. Therefore, the employees have no right under Section 25-FF to claim any compensation from the Board. Nor do they have any right to claim any to be in continuous employment on the same terms and conditions, even after the purchase of the undertaking by the Board. The High Court in appeal was right in holding that the employees were entitled to retrenchment compensation under the provisions of Section 25-FF. But the High Court was in error in holding that the Board even payment of the purchase price to the transferor-Company was liable to pay retrenchment compensation to the employees. The assertion of the Board that the purchase money was more than adequate to pay retrenchment compensation to the employees has not been denied.

1[ds]7. In our view, the contention of the Board must be upheld in the facts of this case9. The effect of sub-section (1) of Section 7-B is to protect the dues on account of salary, wages, leave salary or leave wages, bonus, gratuity, retrenchment compensation, contribution to general provident fund, etc. to be a debt due to the employee. That means such debt shall attach to the purchase money which was paid by the Board for the undertaking of the Company. But the undertaking shall vest in the Board free from any debt, mortgage or similar obligation under Section 7 of the Act. In other words, if the purchase price paid by the Board is sufficiently large to pay the claims of the workmen, then the dues of the workmen should be paid out of the purchase money. It is not the case of the workmen here that money paid by the Board was not sufficient to pay the erstwhile employees of the Company. Therefore, in the facts of this case, it cannot be said that the Board has any liability to pay the workmen any amount on account of retrenchment compensation11. This section declares the right of the workman, who has been in continuous service for not less than one year in an undertaking, to notice and compensation in accordance with the provisions of Section 25-F in a case where the ownership and management of an undertaking is transferred by agreement or operation of law to a new employer. In such a case, by legal fiction, the workman is treated as if he had been retrenched. The proviso to Section 25-FF lays down that nothing in Section 25-FF will apply to a workman where there has been a change of employer by reason of the transfer of the undertaking if there conditions laid down in the proviso are fulfilled. The three conditions are;(a) the service of the workman has not been interrupted by such transfer;(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and(c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has been interrupted by the transfer."12. None of these conditions has been fulfilled in this case. The service of the workmen has been interrupted. Fresh employment has been offered by the transferee. The workmen, who had previously been permanently employed, were offered temporary employment by the Board. The workmen accepted the offer. There is no legal obligation case upon the Board under the terms of the transfer or otherwise to pay any retrenchment compensation to the workmen. Therefore, the employees have no right under Section 25-FF to claim any compensation from the Board. Nor do they have any right to claim any to be in continuous employment on the same terms and conditions, even after the purchase of the undertaking by the Board. The High Court in appeal was right in holding that the employees were entitled to retrenchment compensation under the provisions of Section 25-FF. But the High Court was in error in holding that the Board even payment of the purchase price to the transferor-Company was liable to pay retrenchment compensation to the employees. The assertion of the Board that the purchase money was more than adequate to pay retrenchment compensation to the employees has not been denied

### 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: sub-section (1), have preference to all other debts and obligations except mortgage, and shall be payable out of the purchase price after deduction therefrom of the amount that may be due from the licence under mortgage, if any. (3) If, however, the purchase price, after deduction therefrom of the amount that may be due under mortgage, if any, falls short, wholly or in part, of the debt due on adjustment to the employee, the purchaser or the intending purchaser, as the case may be, shall be liable to pay such debt due to the employee to the extent of such shortage. (11) The provisions of this section shall also apply to an undertaking which has been sold under Section 5 or Section 6 but the sale has not been completed prior to the date of commencement of the Indian Electricity (West Bengal Amendment) Act, 1980. Provided that the sale of the undertaking shall not be deemed to be completed if the purchase price, if payable after deducting the claim of the employees of the licensee from the consideration money, has not been paid to the licensee in full and final settlement of his claim." * 9. The effect of sub-section (1) of Section 7-B is to protect the dues on account of salary, wages, leave salary or leave wages, bonus, gratuity, retrenchment compensation, contribution to general provident fund, etc. to be a debt due to the employee. That means such debt shall attach to the purchase money which was paid by the Board for the undertaking of the Company. But the undertaking shall vest in the Board free from any debt, mortgage or similar obligation under Section 7 of the Act. In other words, if the purchase price paid by the Board is sufficiently large to pay the claims of the workmen, then the dues of the workmen should be paid out of the purchase money. It is not the case of the workmen here that money paid by the Board was not sufficient to pay the erstwhile employees of the Company. Therefore, in the facts of this case, it cannot be said that the Board has any liability to pay the workmen any amount on account of retrenchment compensation. 10. On behalf of the employees, our attention was drawn to Section 25-FF of the Industrial Disputes Act, which provides. "25-FF. Compensation to workmen in case of transfer of undertakings. - Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-S, as if the workman had been retrenched Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if - (a) the service of the workman has not been interrupted by such transfer(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and (c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has been interrupted by the transfer." 11. This section declares the right of the workman, who has been in continuous service for not less than one year in an undertaking, to notice and compensation in accordance with the provisions of Section 25-F in a case where the ownership and management of an undertaking is transferred by agreement or operation of law to a new employer. In such a case, by legal fiction, the workman is treated as if he had been retrenched. The proviso to Section 25-FF lays down that nothing in Section 25-FF will apply to a workman where there has been a change of employer by reason of the transfer of the undertaking if there conditions laid down in the proviso are fulfilled. The three conditions are; "(a) the service of the workman has not been interrupted by such transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and (c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has been interrupted by the transfer." 12. None of these conditions has been fulfilled in this case. The service of the workmen has been interrupted. Fresh employment has been offered by the transferee. The workmen, who had previously been permanently employed, were offered temporary employment by the Board. The workmen accepted the offer. There is no legal obligation case upon the Board under the terms of the transfer or otherwise to pay any retrenchment compensation to the workmen. Therefore, the employees have no right under Section 25-FF to claim any compensation from the Board. Nor do they have any right to claim any to be in continuous employment on the same terms and conditions, even after the purchase of the undertaking by the Board. The High Court in appeal was right in holding that the employees were entitled to retrenchment compensation under the provisions of Section 25-FF. But the High Court was in error in holding that the Board even payment of the purchase price to the transferor-Company was liable to pay retrenchment compensation to the employees. The assertion of the Board that the purchase money was more than adequate to pay retrenchment compensation to the employees has not been denied. ### Response: 1 ### Explanation: 7. In our view, the contention of the Board must be upheld in the facts of this case9. The effect of sub-section (1) of Section 7-B is to protect the dues on account of salary, wages, leave salary or leave wages, bonus, gratuity, retrenchment compensation, contribution to general provident fund, etc. to be a debt due to the employee. That means such debt shall attach to the purchase money which was paid by the Board for the undertaking of the Company. But the undertaking shall vest in the Board free from any debt, mortgage or similar obligation under Section 7 of the Act. In other words, if the purchase price paid by the Board is sufficiently large to pay the claims of the workmen, then the dues of the workmen should be paid out of the purchase money. It is not the case of the workmen here that money paid by the Board was not sufficient to pay the erstwhile employees of the Company. Therefore, in the facts of this case, it cannot be said that the Board has any liability to pay the workmen any amount on account of retrenchment compensation11. This section declares the right of the workman, who has been in continuous service for not less than one year in an undertaking, to notice and compensation in accordance with the provisions of Section 25-F in a case where the ownership and management of an undertaking is transferred by agreement or operation of law to a new employer. In such a case, by legal fiction, the workman is treated as if he had been retrenched. The proviso to Section 25-FF lays down that nothing in Section 25-FF will apply to a workman where there has been a change of employer by reason of the transfer of the undertaking if there conditions laid down in the proviso are fulfilled. The three conditions are;(a) the service of the workman has not been interrupted by such transfer;(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and(c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has been interrupted by the transfer."12. None of these conditions has been fulfilled in this case. The service of the workmen has been interrupted. Fresh employment has been offered by the transferee. The workmen, who had previously been permanently employed, were offered temporary employment by the Board. The workmen accepted the offer. There is no legal obligation case upon the Board under the terms of the transfer or otherwise to pay any retrenchment compensation to the workmen. Therefore, the employees have no right under Section 25-FF to claim any compensation from the Board. Nor do they have any right to claim any to be in continuous employment on the same terms and conditions, even after the purchase of the undertaking by the Board. The High Court in appeal was right in holding that the employees were entitled to retrenchment compensation under the provisions of Section 25-FF. But the High Court was in error in holding that the Board even payment of the purchase price to the transferor-Company was liable to pay retrenchment compensation to the employees. The assertion of the Board that the purchase money was more than adequate to pay retrenchment compensation to the employees has not been denied

Naunihal Kishan And Others Vs. R. S. Ch. Pratap Singh And Another

the creditor (sic) (debtor?) and that it was incompetent for a debtor to invoke the jurisdiction of the Tribunal to effect the scaling down and adjustment by an application under S. 5. We do not consider that this argument merits serious consideration. Section 5(1) of the Act which we have extracted enables a "debtor" to make an application to the tribunal to the adjustment of his debts. In view of what we have stated earlier the amount due on or secured by the mortgage is a "debt" within the meaning of S. 5 to settle which an application could be filed and the debt being a secured debt answering to the description contained in the main part of S. 16(4), the applicants were entitled to have an adjustment in terms of that specified in the proviso to that section. Though this point about the locus standi of the respondent-debtors to file the application has been persisted in by the appellants at every stage of these proceedings, we consider that there is no merit in it and it has to be rejected on the plain terms of S. 5 read with S. 16.9. (3) The third and last objection urged by the learned Counsel turns on the language of the proviso to S. 16(4) which we shall extract once again :"Provided that in either case the amount of the debt shall be only that amount as bears to the total debt the same proportion as the value of the lands allotted to the creditor in India bears to the value of the lands left behind by him in the West Pakistan and to that extent the debt shall be deemed to have been reduced."Learned Counsel pointed out that the scaling down effected in the present case was on the following basis. The total mortgage-debt under the mortgage deed was computed at Rs. 51,700/- calculating interest as permitted by the relevant statutory provisions and taking into account S. 29 which we have already extracted. The correctness of this figure was not disputed. The quarrel of learned Counsel was in regard to what follows and that is stated in the order of the Tribunal which has been confirmed by the appellate Court in these terms :"The total mortgaged land now belonging to the petitioner (Pratap Singh) and respondent No. 5 (Sham Singh) has been assessed as equivalent to 359 standard acres 14 3/4 units (329 standard acres 13 3/4 units of the petitioner plus 22 standard acres 61/2 units of the respondent No. 5) and in lieu thereof the mortgagors have been given in all 51 standard acres 9 units (37.4 to the petitioners and 14.5 to the respondent No. 5). As provided under S. 16(4) of the Act the amount of the debt payable to respondents 1 and 4 has been reduced in the same proportion in which the land has been allotted to the mortgagors. For the land belonging to them the mortgage debt amounting to Rs. 51,700/- when reduced to this proportion comes approximately to Rs. 7,420/-."10. It is this reduction that learned Counsel complains as not justified by the proviso. The argument is that under the proviso to S. 16(4) the reduction of the debt has to bear the same proportion as "the value of the lands" allotted to the creditor in India bears to "the value of the lands" left by him in Pakistan. "Value" learned Counsel says, means market value. It is urged that value of neither of the lands was computed on that basis but that the Tribunal took into account merely the proportion between the two extents or areas i. e., the standard acres left in Pakistan compared to the standard acres allotted in India in lieu thereof. This contention that the procedure adopted does not accord with the requirements of the proviso has been rejected by all the Courts and, in our opinion, correctly.The fallacy in the argument of learned Counsel consists in ignoring the fact that in computing the standard acres left by a displaced person in Pakistan the rehabilitation authorities are, under the relevant rules and instructions, directed to take into account the income yield of the two sets of lands and thus the "value" of the land left behind is reflected in ascertaining the "standard acres". Thus though market value in the sense of what a willing purchaser would pay for the land left behind was not ascertained - it was obviously not practicable to ascertain it - the rules etc. made sufficient provision for such a valuation to be reflected in the computation of the area to be allotted instead. The nature of the land left behind - whether it was canal-irrigated, well-irrigated, or dry or merely rain-fed - was taken into account and numerical factors were prescribed based on these criteria for ascertaining the equivalent of those lands in India. It was after such a computation was made that the 7531 Kanals and odd of land which belonged to the respondents was equated to 359 and odd standard acres. If therefore 359 standard acres were the equivalent in value of the land left behind, regard being had to the circumstances we have indicated, there cannot be any complaint that there has been a departure from the method of adjustment specified in the proviso to S. 16(4) when the debt as ascertained and computed in accordance with S. 29 of the Act and other relevant statutory provisions was scaled down under S. 16(4) by multiplaying it by 51/359, or 1/7th. We are further of the opinion that when the provision in proviso to S. 16(1) spoke of "value" it must have had in contemplation the value as determined by the procedure for fixing the same under the relevant rules for the computation of equivalents of property of displaced persons left behind in Pakistan and the allotment of evacuee property to them in India. There is no substance, therefore, in this point either. These were the only points urged before us.

0[ds]It is this reduction that learned Counsel complains as not justified by the proviso. The argument is that under the proviso to S. 16(4) the reduction of the debt has to bear the same proportion as "the value of the lands" allotted to the creditor in India bears to "the value of the lands" left by him in Pakistan. "Value" learned Counsel says, means market value. It is urged that value of neither of the lands was computed on that basis but that the Tribunal took into account merely the proportion between the two extents or areas i. e., the standard acres left in Pakistan compared to the standard acres allotted in India in lieu thereof. This contention that the procedure adopted does not accord with the requirements of the proviso has been rejected by all the Courts and, in our opinion, correctly.The fallacy in the argument of learned Counsel consists in ignoring the fact that in computing the standard acres left by a displaced person in Pakistan the rehabilitation authorities are, under the relevant rules and instructions, directed to take into account the income yield of the two sets of lands and thus the "value" of the land left behind is reflected in ascertaining the "standard acres". Thus though market value in the sense of what a willing purchaser would pay for the land left behind was not ascertained - it was obviously not practicable to ascertain it - the rules etc. made sufficient provision for such a valuation to be reflected in the computation of the area to be allotted instead. The nature of the land left behind - whether it was canal-irrigated, well-irrigated, or dry or merely rain-fed - was taken into account and numerical factors were prescribed based on these criteria for ascertaining the equivalent of those lands in India. It was after such a computation was made that the 7531 Kanals and odd of land which belonged to the respondents was equated to 359 and odd standard acres. If therefore 359 standard acres were the equivalent in value of the land left behind, regard being had to the circumstances we have indicated, there cannot be any complaint that there has been a departure from the method of adjustment specified in the proviso to S. 16(4) when the debt as ascertained and computed in accordance with S. 29 of the Act and other relevant statutory provisions was scaled down under S. 16(4) by multiplaying it by 51/359, or 1/7th. We are further of the opinion that when the provision in proviso to S. 16(1) spoke of "value" it must have had in contemplation the value as determined by the procedure for fixing the same under the relevant rules for the computation of equivalents of property of displaced persons left behind in Pakistan and the allotment of evacuee property to them in India. There is no substance, therefore, in this point either. These were the only points urged before us.

### 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: the creditor (sic) (debtor?) and that it was incompetent for a debtor to invoke the jurisdiction of the Tribunal to effect the scaling down and adjustment by an application under S. 5. We do not consider that this argument merits serious consideration. Section 5(1) of the Act which we have extracted enables a "debtor" to make an application to the tribunal to the adjustment of his debts. In view of what we have stated earlier the amount due on or secured by the mortgage is a "debt" within the meaning of S. 5 to settle which an application could be filed and the debt being a secured debt answering to the description contained in the main part of S. 16(4), the applicants were entitled to have an adjustment in terms of that specified in the proviso to that section. Though this point about the locus standi of the respondent-debtors to file the application has been persisted in by the appellants at every stage of these proceedings, we consider that there is no merit in it and it has to be rejected on the plain terms of S. 5 read with S. 16.9. (3) The third and last objection urged by the learned Counsel turns on the language of the proviso to S. 16(4) which we shall extract once again :"Provided that in either case the amount of the debt shall be only that amount as bears to the total debt the same proportion as the value of the lands allotted to the creditor in India bears to the value of the lands left behind by him in the West Pakistan and to that extent the debt shall be deemed to have been reduced."Learned Counsel pointed out that the scaling down effected in the present case was on the following basis. The total mortgage-debt under the mortgage deed was computed at Rs. 51,700/- calculating interest as permitted by the relevant statutory provisions and taking into account S. 29 which we have already extracted. The correctness of this figure was not disputed. The quarrel of learned Counsel was in regard to what follows and that is stated in the order of the Tribunal which has been confirmed by the appellate Court in these terms :"The total mortgaged land now belonging to the petitioner (Pratap Singh) and respondent No. 5 (Sham Singh) has been assessed as equivalent to 359 standard acres 14 3/4 units (329 standard acres 13 3/4 units of the petitioner plus 22 standard acres 61/2 units of the respondent No. 5) and in lieu thereof the mortgagors have been given in all 51 standard acres 9 units (37.4 to the petitioners and 14.5 to the respondent No. 5). As provided under S. 16(4) of the Act the amount of the debt payable to respondents 1 and 4 has been reduced in the same proportion in which the land has been allotted to the mortgagors. For the land belonging to them the mortgage debt amounting to Rs. 51,700/- when reduced to this proportion comes approximately to Rs. 7,420/-."10. It is this reduction that learned Counsel complains as not justified by the proviso. The argument is that under the proviso to S. 16(4) the reduction of the debt has to bear the same proportion as "the value of the lands" allotted to the creditor in India bears to "the value of the lands" left by him in Pakistan. "Value" learned Counsel says, means market value. It is urged that value of neither of the lands was computed on that basis but that the Tribunal took into account merely the proportion between the two extents or areas i. e., the standard acres left in Pakistan compared to the standard acres allotted in India in lieu thereof. This contention that the procedure adopted does not accord with the requirements of the proviso has been rejected by all the Courts and, in our opinion, correctly.The fallacy in the argument of learned Counsel consists in ignoring the fact that in computing the standard acres left by a displaced person in Pakistan the rehabilitation authorities are, under the relevant rules and instructions, directed to take into account the income yield of the two sets of lands and thus the "value" of the land left behind is reflected in ascertaining the "standard acres". Thus though market value in the sense of what a willing purchaser would pay for the land left behind was not ascertained - it was obviously not practicable to ascertain it - the rules etc. made sufficient provision for such a valuation to be reflected in the computation of the area to be allotted instead. The nature of the land left behind - whether it was canal-irrigated, well-irrigated, or dry or merely rain-fed - was taken into account and numerical factors were prescribed based on these criteria for ascertaining the equivalent of those lands in India. It was after such a computation was made that the 7531 Kanals and odd of land which belonged to the respondents was equated to 359 and odd standard acres. If therefore 359 standard acres were the equivalent in value of the land left behind, regard being had to the circumstances we have indicated, there cannot be any complaint that there has been a departure from the method of adjustment specified in the proviso to S. 16(4) when the debt as ascertained and computed in accordance with S. 29 of the Act and other relevant statutory provisions was scaled down under S. 16(4) by multiplaying it by 51/359, or 1/7th. We are further of the opinion that when the provision in proviso to S. 16(1) spoke of "value" it must have had in contemplation the value as determined by the procedure for fixing the same under the relevant rules for the computation of equivalents of property of displaced persons left behind in Pakistan and the allotment of evacuee property to them in India. There is no substance, therefore, in this point either. These were the only points urged before us. ### Response: 0 ### Explanation: It is this reduction that learned Counsel complains as not justified by the proviso. The argument is that under the proviso to S. 16(4) the reduction of the debt has to bear the same proportion as "the value of the lands" allotted to the creditor in India bears to "the value of the lands" left by him in Pakistan. "Value" learned Counsel says, means market value. It is urged that value of neither of the lands was computed on that basis but that the Tribunal took into account merely the proportion between the two extents or areas i. e., the standard acres left in Pakistan compared to the standard acres allotted in India in lieu thereof. This contention that the procedure adopted does not accord with the requirements of the proviso has been rejected by all the Courts and, in our opinion, correctly.The fallacy in the argument of learned Counsel consists in ignoring the fact that in computing the standard acres left by a displaced person in Pakistan the rehabilitation authorities are, under the relevant rules and instructions, directed to take into account the income yield of the two sets of lands and thus the "value" of the land left behind is reflected in ascertaining the "standard acres". Thus though market value in the sense of what a willing purchaser would pay for the land left behind was not ascertained - it was obviously not practicable to ascertain it - the rules etc. made sufficient provision for such a valuation to be reflected in the computation of the area to be allotted instead. The nature of the land left behind - whether it was canal-irrigated, well-irrigated, or dry or merely rain-fed - was taken into account and numerical factors were prescribed based on these criteria for ascertaining the equivalent of those lands in India. It was after such a computation was made that the 7531 Kanals and odd of land which belonged to the respondents was equated to 359 and odd standard acres. If therefore 359 standard acres were the equivalent in value of the land left behind, regard being had to the circumstances we have indicated, there cannot be any complaint that there has been a departure from the method of adjustment specified in the proviso to S. 16(4) when the debt as ascertained and computed in accordance with S. 29 of the Act and other relevant statutory provisions was scaled down under S. 16(4) by multiplaying it by 51/359, or 1/7th. We are further of the opinion that when the provision in proviso to S. 16(1) spoke of "value" it must have had in contemplation the value as determined by the procedure for fixing the same under the relevant rules for the computation of equivalents of property of displaced persons left behind in Pakistan and the allotment of evacuee property to them in India. There is no substance, therefore, in this point either. These were the only points urged before us.

Smt. Sarla Narula Vs. Smt. Raghbir Kaur Rehal and Another

the premises in question in Greater Kailash, New Delhi. The tenant was a company called M/s Bharat Carbons &Ribbons Manufacturing Company. The husband of the appellant Late T.R. Narula was an employee of the said Company. He retired in 1973. The rent in respect of the premises had been deposited. It is, however, not certain as to on whose account the rent was deposited. On the one hand, the appellant contends that the rent was deposited on account of the appellants husband, and after the death of Shri T.R. Narula on account of heirs of said T.R. Narula, deceased individually and not on account of or on behalf of the erstwhile tenant of the premises in question. It appears from the record that respondent No. 1 was in England at the relevant time. The respondent No. 1 described himself as a permanent settlee in England. The said respondent was at all relevant times represented by her attorney. The respondent No. 1 is the landlady of the premises in question is still in England. Their case is that both the husband and wife are fairly well advance d in age and wish to come back and settle down in India and want to live their last days of life in their own house. They bonafide, require the premises in question. This question of bonafide need has been held in their favour and appropriate proceedings instituted by the landlady against the tenant-Company to which the appellant was not a party. Indeed, the tenant did not really oppose the eviction petition because as, according to their version, the tenant had left the premise s and Shri T.R. Narula had become the tenant, in his own right. The respondents did not accept that position. There was an application made by the widow of Late T.R. Narula to be joined as a party in the suit. This was refused by learned Judge for which reasons have been given. 3. The learned Judge of the High Court has noted that it was the admitted position that M/s Bharat Carbons &Ribbons Manufacturing Company was the tenant and the appellants husband was an employee of the said company. He retired in 1973. The rent has been paid since then. However, the landlady was residing out of India and she closed her account when she came back to India and in respect of that the rent was being deposited according to the appellant which appears at page 126 of the Paper Book. The landlady protested by a letter written to the Bank. The High Court has noted that admittedly there was no receipt in possession of the appellant regarding payment of rent. Counsel for the appellant drew our attention to a document which is described as a receipt for the rent for the month July 1973. Counsel states that this was filed in the High Court. Counsel further states that there are subsequent receipts. As against these versions of the appellants herein it is asserted that these receipts were not genuine documents put in. Subsequent receipts that had not been, according to the respondents, produced before the High Court and at least relied before the High Court, were not there. 4. The learned Judge of the High Court proceeded on the basis that there was no evidence that there was receipt in possession of the appellant regarding payment of rent. A strong point was made before us that if money was received from the appellant or on behalf of the appellant, it must be presumed that there was surrender of tenancy by M/s Bharat Carbons &Ribbons Manufacturing Company and there was tenancy agreement between Late T.R. Narula or his wife and the landlady. No such evidence of the acceptance of rent was advanced before the High Court or before us to sustain that ground.The tenancy was originally entered into between the landlady or on her behalf and the company of which T.R. Narula, since deceased, was an employee. There was no evidence adduced and no averment made that the tenancy was for the then tenant. Admittedly that tenancy, as it appears from the records and the evidence, came to an end after the tenant -company abandoned the premises, and that it was so done was not seriously disputed and T.R. Narula, since deceased or after his death his heirs could not continue unless there was a fresh agreement of tenancy in their favour or novation of the original agreement of tenancy. There is no cogent, reliable or dependable evidence of the same. 5. In view of the categorical finding of the High Court it is difficult to accept the submissions on behalf of the appellant. Apart from t hat there are no other cogent or available materials to show that there was actually a new contract entered into between Late T. R. Narula and the landlady. On the other hand the contention of the landlady and her representative since she w as staying away has been to deny any connection with the appellant. Furthermore, the alleged notice of the termination of surrender of tenancy was sent to the landlady in rather suspicious circumstances. It is not necessary to dilate in detail on those. The evidence on record advanced in support of the appellant on this aspect cannot and does not inspire any credence or confidence. If that is the position than after the surrender of tenancy by the company, late T.R. Narula or his heirs had no locus-standi and had no right to be joined as party. The High Court notes that there was genuine evidence to show that the landlady needed the premises bona fide. There were concurrent findings of facts of the two courts below and the appellant d id not raise any contentions at this belated stage.In the aforesaid view of the matter and in the facts and circumstances of the case we find no ground under Article 136 of the Constitution to interfere with the conclusion arrived at by the High Court. 6. The appea

0[ds]such evidence of the acceptance of rent was advanced before the High Court or before us to sustain that ground.The tenancy was originally entered into between the landlady or on her behalf and the company of which T.R. Narula, since deceased, was an employee. There was no evidence adduced and no averment made that the tenancy was for the then tenant. Admittedly that tenancy, as it appears from the records and the evidence, came to an end after the tenantcompany abandoned the premises, and that it was so done was not seriously disputed and T.R. Narula, since deceased or after his death his heirs could not continue unless there was a fresh agreement of tenancy in their favour or novation of the original agreement of tenancy. There is no cogent, reliable or dependable evidence of theview of the categorical finding of the High Court it is difficult to accept the submissions on behalf of the appellant. Apart from t hat there are no other cogent or available materials to show that there was actually a new contract entered into between Late T. R. Narula and the landlady. On the other hand the contention of the landlady and her representative since she w as staying away has been to deny any connection with the appellant. Furthermore, the alleged notice of the termination of surrender of tenancy was sent to the landlady in rather suspicious circumstances. It is not necessary to dilate in detail on those. The evidence on record advanced in support of the appellant on this aspect cannot and does not inspire any credence or confidence. If that is the position than after the surrender of tenancy by the company, late T.R. Narula or his heirs had noand had no right to be joined as party. The High Court notes that there was genuine evidence to show that the landlady needed the premises bona fide. There were concurrent findings of facts of the two courts below and the appellant d id not raise any contentions at this belated stage.In the aforesaid view of the matter and in the facts and circumstances of the case we find no ground under Article 136 of the Constitution to interfere with the conclusion arrived at by the Highappeal must, therefore, fail and is accordingly dismissed, specially in view of the fact that the landlady needs the premises for her family and for her own bona fide need. Parties will pay their own costs

### 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 premises in question in Greater Kailash, New Delhi. The tenant was a company called M/s Bharat Carbons &Ribbons Manufacturing Company. The husband of the appellant Late T.R. Narula was an employee of the said Company. He retired in 1973. The rent in respect of the premises had been deposited. It is, however, not certain as to on whose account the rent was deposited. On the one hand, the appellant contends that the rent was deposited on account of the appellants husband, and after the death of Shri T.R. Narula on account of heirs of said T.R. Narula, deceased individually and not on account of or on behalf of the erstwhile tenant of the premises in question. It appears from the record that respondent No. 1 was in England at the relevant time. The respondent No. 1 described himself as a permanent settlee in England. The said respondent was at all relevant times represented by her attorney. The respondent No. 1 is the landlady of the premises in question is still in England. Their case is that both the husband and wife are fairly well advance d in age and wish to come back and settle down in India and want to live their last days of life in their own house. They bonafide, require the premises in question. This question of bonafide need has been held in their favour and appropriate proceedings instituted by the landlady against the tenant-Company to which the appellant was not a party. Indeed, the tenant did not really oppose the eviction petition because as, according to their version, the tenant had left the premise s and Shri T.R. Narula had become the tenant, in his own right. The respondents did not accept that position. There was an application made by the widow of Late T.R. Narula to be joined as a party in the suit. This was refused by learned Judge for which reasons have been given. 3. The learned Judge of the High Court has noted that it was the admitted position that M/s Bharat Carbons &Ribbons Manufacturing Company was the tenant and the appellants husband was an employee of the said company. He retired in 1973. The rent has been paid since then. However, the landlady was residing out of India and she closed her account when she came back to India and in respect of that the rent was being deposited according to the appellant which appears at page 126 of the Paper Book. The landlady protested by a letter written to the Bank. The High Court has noted that admittedly there was no receipt in possession of the appellant regarding payment of rent. Counsel for the appellant drew our attention to a document which is described as a receipt for the rent for the month July 1973. Counsel states that this was filed in the High Court. Counsel further states that there are subsequent receipts. As against these versions of the appellants herein it is asserted that these receipts were not genuine documents put in. Subsequent receipts that had not been, according to the respondents, produced before the High Court and at least relied before the High Court, were not there. 4. The learned Judge of the High Court proceeded on the basis that there was no evidence that there was receipt in possession of the appellant regarding payment of rent. A strong point was made before us that if money was received from the appellant or on behalf of the appellant, it must be presumed that there was surrender of tenancy by M/s Bharat Carbons &Ribbons Manufacturing Company and there was tenancy agreement between Late T.R. Narula or his wife and the landlady. No such evidence of the acceptance of rent was advanced before the High Court or before us to sustain that ground.The tenancy was originally entered into between the landlady or on her behalf and the company of which T.R. Narula, since deceased, was an employee. There was no evidence adduced and no averment made that the tenancy was for the then tenant. Admittedly that tenancy, as it appears from the records and the evidence, came to an end after the tenant -company abandoned the premises, and that it was so done was not seriously disputed and T.R. Narula, since deceased or after his death his heirs could not continue unless there was a fresh agreement of tenancy in their favour or novation of the original agreement of tenancy. There is no cogent, reliable or dependable evidence of the same. 5. In view of the categorical finding of the High Court it is difficult to accept the submissions on behalf of the appellant. Apart from t hat there are no other cogent or available materials to show that there was actually a new contract entered into between Late T. R. Narula and the landlady. On the other hand the contention of the landlady and her representative since she w as staying away has been to deny any connection with the appellant. Furthermore, the alleged notice of the termination of surrender of tenancy was sent to the landlady in rather suspicious circumstances. It is not necessary to dilate in detail on those. The evidence on record advanced in support of the appellant on this aspect cannot and does not inspire any credence or confidence. If that is the position than after the surrender of tenancy by the company, late T.R. Narula or his heirs had no locus-standi and had no right to be joined as party. The High Court notes that there was genuine evidence to show that the landlady needed the premises bona fide. There were concurrent findings of facts of the two courts below and the appellant d id not raise any contentions at this belated stage.In the aforesaid view of the matter and in the facts and circumstances of the case we find no ground under Article 136 of the Constitution to interfere with the conclusion arrived at by the High Court. 6. The appea ### Response: 0 ### Explanation: such evidence of the acceptance of rent was advanced before the High Court or before us to sustain that ground.The tenancy was originally entered into between the landlady or on her behalf and the company of which T.R. Narula, since deceased, was an employee. There was no evidence adduced and no averment made that the tenancy was for the then tenant. Admittedly that tenancy, as it appears from the records and the evidence, came to an end after the tenantcompany abandoned the premises, and that it was so done was not seriously disputed and T.R. Narula, since deceased or after his death his heirs could not continue unless there was a fresh agreement of tenancy in their favour or novation of the original agreement of tenancy. There is no cogent, reliable or dependable evidence of theview of the categorical finding of the High Court it is difficult to accept the submissions on behalf of the appellant. Apart from t hat there are no other cogent or available materials to show that there was actually a new contract entered into between Late T. R. Narula and the landlady. On the other hand the contention of the landlady and her representative since she w as staying away has been to deny any connection with the appellant. Furthermore, the alleged notice of the termination of surrender of tenancy was sent to the landlady in rather suspicious circumstances. It is not necessary to dilate in detail on those. The evidence on record advanced in support of the appellant on this aspect cannot and does not inspire any credence or confidence. If that is the position than after the surrender of tenancy by the company, late T.R. Narula or his heirs had noand had no right to be joined as party. The High Court notes that there was genuine evidence to show that the landlady needed the premises bona fide. There were concurrent findings of facts of the two courts below and the appellant d id not raise any contentions at this belated stage.In the aforesaid view of the matter and in the facts and circumstances of the case we find no ground under Article 136 of the Constitution to interfere with the conclusion arrived at by the Highappeal must, therefore, fail and is accordingly dismissed, specially in view of the fact that the landlady needs the premises for her family and for her own bona fide need. Parties will pay their own costs

Viswesardas Gokuldas Vs. B. K. Narayan Singh & Anr

did not accept the offer either orally or by any letter sent to the defendant.4. On November 1, 1957, the plaintiffs filed a suit (O. S. No. 46 of 1957) against the defendant claiming a declaration that they were entitled to remain in possession of the mining area. The primary object of the suit was to enforce the plaintiffs rights under the contract dated August 3, 1957. The defendant filed his written statement in that suit on November 5, 1957. The High Court held that the plaintiffs accepted the offer of September 2, 1957 by their plaint in O. S. No. 46 of 1957 and that this acceptance was communicated to the defendant before November 6, 1957. We are unable to agree with this finding.5. We pleadings and issues raised the question whether a contract was made on September 2, 1957. If the plaintiffs desired to set up a new case that the contract was concluded in November 1957 they should have amended their pleadings accordingly. We need not say anything more on this point because we find that the plaintiffs have failed to establish the new case.6. In paragraphs 14 and 19 of the plaint in O. S. No. 46 of 1957 the plaintiffs alleged that by the letter dated September 2, 1957 the defendant agreed to assign the mining lease, that they were ready and willing to perform the contract and that they reserved their right to file a suit for specific performance. The suggestion was that the contract was concluded on September 2, 1957 and that in breach of the contract the defendant failed to apply for and obtain the necessary consent of the Central Government to the assignment of the mining lease. Paragraph 17 and the prayer portion of the plaint suggested that by virtue of this contract and the earlier contract dated August 3, 1957 they were entitled to remain in possession of the mining area. The suggestion was an attempt to add to the terms of the offer of September 2, 1957. On acceptance of the offer according to its terms the plaintiffs could not get a possessory right before execution of a conveyance of the mining lease.In point of law, the plaint was not an acceptance of the offer, nor was it intended to be an acceptance.It is not usual to accept a business offer by a plaint; nor is it usual to communicate an acceptance by serving a copy, of the plaint through the medium of the Court. We shall be straining the language of Sections 2 (b), 3 and 7 of the Contract Act if we were to hold that the plaint was an acceptance and that the service of a copy of the plaint along with the writ of summons was a communication of the acceptance.7. Under the old chancery practice the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendants offer unless the offer had been withdrawn before the filing of the suit, see Boys v. Ayerst, (1822) 6 Madd 316 (324) = 56 ER 1112 (1115), Agar v. Biden, (1833) 2 LJ Ch 3, Fry on Specific Performance, 8th Article 306 page 142, Pomeroy on Specific Performance, 3rd Ed., Art. 66, pp. 169-170. It may well be doubted whether this rule can apply under our present practice and procedure.A plaint in a suit for specific performance should allege a concluded contract, see the Code of Civil Procedure 1st Schedule Appendix A, Form No. 48. The offer as well as the acceptance should precede the institution of the suit. However, the precise point does not arise in this case.O. S. No. 46 of 1957 was not a suit for specific performance of the contract. Before the present suit for specific performance of the contract was instituted , the offer bad been withdrawn.8. Counsel for the appellant relying on Bloxams Case, (1864) 33 Beav 529 submitted that the communication of an acceptance was not necessary. The argument is misconceived. We have held at the plaint in O. S. No. 46 of 1957 was not an acceptance. There was no other acceptance either oral or in writing. Mere mental assent of the plaintiffs to the defendants proposal is not sufficient. In the peculiar facts of Bloxams Case, (1864) 33 Beav 529 a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant. Ordinarily there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to the applicant, see In re: Pellatts Case, (1867) 2 Ch A 527. In the last case Lord Cairns, L. J., pointed out that Bloxams case, (1864) 88 Beav 529 turned on its own special facts. Bloxam was orally informed that if he did not receive an answer within a certain time he was to consider his application granted. In the peculiar circumstances, Bloxam could be regarded as having dispensed with the necessity of the communication of the acceptance. In the present case we are not concerned with a contract to take shares. The defendant made an offer to assign a mining lease. No acceptance was made or communicated to the defendant before he withdrew the offer. There was no concluded contract and the appeal must fail on this ground.9. The High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval, the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit. We do not think it necessary to express any opinion on this question. The appeal is liable to be dismissed in view of our conclusion that there was no concluded contract between the parties.

0[ds]We need not say anything more on this point because we find that the plaintiffs have failed to establish the newargument is misconceived. We have held at the plaint in O. S. No. 46 of 1957 was not an acceptance. There was no other acceptance either oral or in writing. Mere mental assent of the plaintiffs to the defendants proposal is not sufficient. In the peculiar facts ofBloxams Case, (1864) 33 Beav529 a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant. Ordinarily there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to theThe High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval, the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit. We do not think it necessary to express any opinion on this question. The appeal is liable to be dismissed in view of our conclusion that there was no concluded contract between the parties.

### 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: did not accept the offer either orally or by any letter sent to the defendant.4. On November 1, 1957, the plaintiffs filed a suit (O. S. No. 46 of 1957) against the defendant claiming a declaration that they were entitled to remain in possession of the mining area. The primary object of the suit was to enforce the plaintiffs rights under the contract dated August 3, 1957. The defendant filed his written statement in that suit on November 5, 1957. The High Court held that the plaintiffs accepted the offer of September 2, 1957 by their plaint in O. S. No. 46 of 1957 and that this acceptance was communicated to the defendant before November 6, 1957. We are unable to agree with this finding.5. We pleadings and issues raised the question whether a contract was made on September 2, 1957. If the plaintiffs desired to set up a new case that the contract was concluded in November 1957 they should have amended their pleadings accordingly. We need not say anything more on this point because we find that the plaintiffs have failed to establish the new case.6. In paragraphs 14 and 19 of the plaint in O. S. No. 46 of 1957 the plaintiffs alleged that by the letter dated September 2, 1957 the defendant agreed to assign the mining lease, that they were ready and willing to perform the contract and that they reserved their right to file a suit for specific performance. The suggestion was that the contract was concluded on September 2, 1957 and that in breach of the contract the defendant failed to apply for and obtain the necessary consent of the Central Government to the assignment of the mining lease. Paragraph 17 and the prayer portion of the plaint suggested that by virtue of this contract and the earlier contract dated August 3, 1957 they were entitled to remain in possession of the mining area. The suggestion was an attempt to add to the terms of the offer of September 2, 1957. On acceptance of the offer according to its terms the plaintiffs could not get a possessory right before execution of a conveyance of the mining lease.In point of law, the plaint was not an acceptance of the offer, nor was it intended to be an acceptance.It is not usual to accept a business offer by a plaint; nor is it usual to communicate an acceptance by serving a copy, of the plaint through the medium of the Court. We shall be straining the language of Sections 2 (b), 3 and 7 of the Contract Act if we were to hold that the plaint was an acceptance and that the service of a copy of the plaint along with the writ of summons was a communication of the acceptance.7. Under the old chancery practice the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendants offer unless the offer had been withdrawn before the filing of the suit, see Boys v. Ayerst, (1822) 6 Madd 316 (324) = 56 ER 1112 (1115), Agar v. Biden, (1833) 2 LJ Ch 3, Fry on Specific Performance, 8th Article 306 page 142, Pomeroy on Specific Performance, 3rd Ed., Art. 66, pp. 169-170. It may well be doubted whether this rule can apply under our present practice and procedure.A plaint in a suit for specific performance should allege a concluded contract, see the Code of Civil Procedure 1st Schedule Appendix A, Form No. 48. The offer as well as the acceptance should precede the institution of the suit. However, the precise point does not arise in this case.O. S. No. 46 of 1957 was not a suit for specific performance of the contract. Before the present suit for specific performance of the contract was instituted , the offer bad been withdrawn.8. Counsel for the appellant relying on Bloxams Case, (1864) 33 Beav 529 submitted that the communication of an acceptance was not necessary. The argument is misconceived. We have held at the plaint in O. S. No. 46 of 1957 was not an acceptance. There was no other acceptance either oral or in writing. Mere mental assent of the plaintiffs to the defendants proposal is not sufficient. In the peculiar facts of Bloxams Case, (1864) 33 Beav 529 a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant. Ordinarily there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to the applicant, see In re: Pellatts Case, (1867) 2 Ch A 527. In the last case Lord Cairns, L. J., pointed out that Bloxams case, (1864) 88 Beav 529 turned on its own special facts. Bloxam was orally informed that if he did not receive an answer within a certain time he was to consider his application granted. In the peculiar circumstances, Bloxam could be regarded as having dispensed with the necessity of the communication of the acceptance. In the present case we are not concerned with a contract to take shares. The defendant made an offer to assign a mining lease. No acceptance was made or communicated to the defendant before he withdrew the offer. There was no concluded contract and the appeal must fail on this ground.9. The High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval, the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit. We do not think it necessary to express any opinion on this question. The appeal is liable to be dismissed in view of our conclusion that there was no concluded contract between the parties. ### Response: 0 ### Explanation: We need not say anything more on this point because we find that the plaintiffs have failed to establish the newargument is misconceived. We have held at the plaint in O. S. No. 46 of 1957 was not an acceptance. There was no other acceptance either oral or in writing. Mere mental assent of the plaintiffs to the defendants proposal is not sufficient. In the peculiar facts ofBloxams Case, (1864) 33 Beav529 a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant. Ordinarily there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to theThe High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval, the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit. We do not think it necessary to express any opinion on this question. The appeal is liable to be dismissed in view of our conclusion that there was no concluded contract between the parties.

Kalidindi Venkata Subbaraju & Others Vs. Chintalapati Subbaraju & Others

litem motam by persons who are dead. i. e., before the commencement of any controversy actual or legal upon the same point. The words "before the question in issue was raised" do not necessarily mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence.The principle on which this restriction is based is succinctly stated in Halsburys Laws of England, 3rd Ed. Vol. 15, p. 308 in these words:"To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations".In Kalka Prasad v. Mathura Prasad, (1908) 35 Ind App 166 (PC) a dispute arose in 1896 on the death of one Parbati. In 1898 in a suit brought by one Sheo Sahai a pedigree was filed. After this, the suit from which the appeal went up to the Privy Council was instituted in 1901. It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam. As a contrast there is the decision in Bahadur Singh v. Mohan Singh, (1902) 29 Ind App 1 (PC) where the Privy Council held certain statements made in 1847 to be admissible as the heirship of the then claimants was not then really in dispute. (See also Field on the Law of Evidence, 9th Ed. Vol. III; p. 1847).13. There can be no controversy that when Surayamma filed her written statement a dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged that Somaraju was a minor at the time he executed his will and Surayamma had in denial of that averment asserted that Somaraju was a major at the relevant time. The controversy therefore having existed at the time when the said statement was made it was inadmissible both under sub-section (5) and sub-section (6) and could not be availed of by the respondents.14. As regards the subsequent conduct of the parties it is clear that both Sitaramaraju who was then the only reversioner under the law as it stood prior to 1929 and the said Surayamma conducted themselves on the footing that the said will was competently made and by virtue of that will Surayamma had become the absolute owner of the properties left by him. Similarly, the three daughters of Surayamma, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayamma in favour of her daughters and took possession of and enjoyed the lands in suit. Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will. The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants. Such a conduct is only consistent with the fact that it was understood amongst the members of the family that Somaraju was a major at the time of the execution of the will and the will was validly made. In our view there being the statement of Somaraju admissible under S. 32 (5) coupled with the evidence of D. W. 4 as also the evidence as to the conduct of the parties before the Court there was ample evidence on which the trial Court and the High Court could rightly found their conclusion that the will was made at the time when Somaraju was a major. Such a conclusion was obviously fatal to the appellants claim in the suit.15. In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desais contentions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.16. The argument that Somaraju did not dispose of land admeasuring about 15 acres 14 cents by the said will and that there was a resultant intestacy is founded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents a portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12. The said will, however, in para 1 expressly states that the testator thereby was disposing of his entire property, movable and immovable in favour of his mother. It also states that the total area of land possessed of by him was 60 acres 9 cents and that he was bequeathing to his mother the said entire area. The fact that the total area comprised of the several survey numbers mentioned in the Schedule does not aggregate 60 acres 9 cents appears to be the result of some mistake. It appears from the record that the survey numbers in vogue in 1902 were altered in 1912. It is not possible to say what record was with Somaraju when he described the said land by its survey numbers in the said Schedule and whether he had at that time the old or the new record of the revised survey numbers. It is possible that if the revised record was not before him at that time a mistake in describing the land by its survey numbers might occur and that would explain the discrepancy between the total measurement mentioned in the body of the will and that in the Schedule. In face, however, of the expressly declared intention in the body of the will that he was disposing of the entire property including the land measuring 60 acres 9 cents it is impossible to hold that he desired to hold back a portion thereof from his mother and intended to leave it intestate. We do not therefore find any justification for interfering with the conclusion of the trial Court and the High Court that Somaraju disposed of the entire property. Consequently we must reject Mr. Desais contention.

0[ds]5. As aforesaid, the respondents did not produce the original will but produced only its certified copy, Ex. B. 9, which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement. The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will. Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants custody, that they had deliberately withheld it as it was in their interest not to produce it. The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will. Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attestedHigh Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the saidwar thus ample evidence from which the High Court could conclude and in our view rightly that Somaraju executed the said will and was at the time a sound disposing state of mind. The effect of the certified copy of the will having been thus rightly admitted was as if the contents of the will were before the Court and the Court should proceed to construe those contents. We are supported in this conclusion byHigh Court was therefore quite competent in construing the contents of the said will and in holding that the terms of the said will were natural and rational and proved that Somaraju was in a sound disposing state ofis not necessary for us to go, as the High Court did, into the question whether such extracts were admissible under S. 35 of the Evidence Act orthe writer of Exs. A-8 nor of A-9 was examined to testify, to the contents of the said memo and the said endorsement and to establish that notwithstanding their diligent efforts the original registers were not traceable Exs. A-8 and A-9 could not be admitted in evidence without the formal proof of the entries and were rightly held inadmissible. We need not consider the rest of the documentary evidence viz., Exs. A-3 and A-7 produced by the appellants neither of them was relied upon before us.It is clear from sub-s. (5) that if construed literally it is possible to contend that a statement regarding the age of the person concerned is not one relating to the existence of any relationship by blood or marriage or adoption. But such a literal construction is not a proper one as has been ruled in more than onebeing the position under S. 32(5) the statement made by Somaraju in his will that he was 19 years of age at the time of its execution was admissible and was rightly relied upon by both the trial Court and the High Court as establishing that Somaraju was a major and was competent to make the said will.There can be no controversy that when Surayamma filed her written statement a dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged that Somaraju was a minor at the time he executed his will and Surayamma had in denial of that averment asserted that Somaraju was a major at the relevant time. The controversy therefore having existed at the time when the said statement was made it was inadmissible both under sub-section (5) and sub-section (6) and could not be availed of by the respondents.14. As regards the subsequent conduct of the parties it is clear that both Sitaramaraju who was then the only reversioner under the law as it stood prior to 1929 and the said Surayamma conducted themselves on the footing that the said will was competently made and by virtue of that will Surayamma had become the absolute owner of the properties left by him. Similarly, the three daughters of Surayamma, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayamma in favour of her daughters and took possession of and enjoyed the lands in suit. Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will. The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants. Such a conduct is only consistent with the fact that it was understood amongst the members of the family that Somaraju was a major at the time of the execution of the will and the will was validly made. In our view there being the statement of Somaraju admissible under S. 32 (5) coupled with the evidence of D. W. 4 as also the evidence as to the conduct of the parties before the Court there was ample evidence on which the trial Court and the High Court could rightly found their conclusion that the will was made at the time when Somaraju was a major. Such a conclusion was obviously fatal to the appellants claim in the suit.15. In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desais contentions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.16. The argument that Somaraju did not dispose of land admeasuring about 15 acres 14 cents by the said will and that there was a resultant intestacy is founded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents a portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12. The said will, however, in para 1 expressly states that the testator thereby was disposing of his entire property, movable and immovable in favour of his mother. It also states that the total area of land possessed of by him was 60 acres 9 cents and that he was bequeathing to his mother the said entire area. The fact that the total area comprised of the several survey numbers mentioned in the Schedule does not aggregate 60 acres 9 cents appears to be the result of some mistake. It appears from the record that the survey numbers in vogue in 1902 were altered in 1912. It is not possible to say what record was with Somaraju when he described the said land by its survey numbers in the said Schedule and whether he had at that time the old or the new record of the revised survey numbers. It is possible that if the revised record was not before him at that time a mistake in describing the land by its survey numbers might occur and that would explain the discrepancy between the total measurement mentioned in the body of the will and that in the Schedule. In face, however, of the expressly declared intention in the body of the will that he was disposing of the entire property including the land measuring 60 acres 9 cents it is impossible to hold that he desired to hold back a portion thereof from his mother and intended to leave it intestate. We do not therefore find any justification for interfering with the conclusion of the trial Court and the High Court that Somaraju disposed of the entire property. Consequently we must reject Mr. Desais contention.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: litem motam by persons who are dead. i. e., before the commencement of any controversy actual or legal upon the same point. The words "before the question in issue was raised" do not necessarily mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence.The principle on which this restriction is based is succinctly stated in Halsburys Laws of England, 3rd Ed. Vol. 15, p. 308 in these words:"To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations".In Kalka Prasad v. Mathura Prasad, (1908) 35 Ind App 166 (PC) a dispute arose in 1896 on the death of one Parbati. In 1898 in a suit brought by one Sheo Sahai a pedigree was filed. After this, the suit from which the appeal went up to the Privy Council was instituted in 1901. It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam. As a contrast there is the decision in Bahadur Singh v. Mohan Singh, (1902) 29 Ind App 1 (PC) where the Privy Council held certain statements made in 1847 to be admissible as the heirship of the then claimants was not then really in dispute. (See also Field on the Law of Evidence, 9th Ed. Vol. III; p. 1847).13. There can be no controversy that when Surayamma filed her written statement a dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged that Somaraju was a minor at the time he executed his will and Surayamma had in denial of that averment asserted that Somaraju was a major at the relevant time. The controversy therefore having existed at the time when the said statement was made it was inadmissible both under sub-section (5) and sub-section (6) and could not be availed of by the respondents.14. As regards the subsequent conduct of the parties it is clear that both Sitaramaraju who was then the only reversioner under the law as it stood prior to 1929 and the said Surayamma conducted themselves on the footing that the said will was competently made and by virtue of that will Surayamma had become the absolute owner of the properties left by him. Similarly, the three daughters of Surayamma, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayamma in favour of her daughters and took possession of and enjoyed the lands in suit. Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will. The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants. Such a conduct is only consistent with the fact that it was understood amongst the members of the family that Somaraju was a major at the time of the execution of the will and the will was validly made. In our view there being the statement of Somaraju admissible under S. 32 (5) coupled with the evidence of D. W. 4 as also the evidence as to the conduct of the parties before the Court there was ample evidence on which the trial Court and the High Court could rightly found their conclusion that the will was made at the time when Somaraju was a major. Such a conclusion was obviously fatal to the appellants claim in the suit.15. In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desais contentions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.16. The argument that Somaraju did not dispose of land admeasuring about 15 acres 14 cents by the said will and that there was a resultant intestacy is founded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents a portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12. The said will, however, in para 1 expressly states that the testator thereby was disposing of his entire property, movable and immovable in favour of his mother. It also states that the total area of land possessed of by him was 60 acres 9 cents and that he was bequeathing to his mother the said entire area. The fact that the total area comprised of the several survey numbers mentioned in the Schedule does not aggregate 60 acres 9 cents appears to be the result of some mistake. It appears from the record that the survey numbers in vogue in 1902 were altered in 1912. It is not possible to say what record was with Somaraju when he described the said land by its survey numbers in the said Schedule and whether he had at that time the old or the new record of the revised survey numbers. It is possible that if the revised record was not before him at that time a mistake in describing the land by its survey numbers might occur and that would explain the discrepancy between the total measurement mentioned in the body of the will and that in the Schedule. In face, however, of the expressly declared intention in the body of the will that he was disposing of the entire property including the land measuring 60 acres 9 cents it is impossible to hold that he desired to hold back a portion thereof from his mother and intended to leave it intestate. We do not therefore find any justification for interfering with the conclusion of the trial Court and the High Court that Somaraju disposed of the entire property. Consequently we must reject Mr. Desais contention. ### Response: 0 ### Explanation: in holding that the terms of the said will were natural and rational and proved that Somaraju was in a sound disposing state ofis not necessary for us to go, as the High Court did, into the question whether such extracts were admissible under S. 35 of the Evidence Act orthe writer of Exs. A-8 nor of A-9 was examined to testify, to the contents of the said memo and the said endorsement and to establish that notwithstanding their diligent efforts the original registers were not traceable Exs. A-8 and A-9 could not be admitted in evidence without the formal proof of the entries and were rightly held inadmissible. We need not consider the rest of the documentary evidence viz., Exs. A-3 and A-7 produced by the appellants neither of them was relied upon before us.It is clear from sub-s. (5) that if construed literally it is possible to contend that a statement regarding the age of the person concerned is not one relating to the existence of any relationship by blood or marriage or adoption. But such a literal construction is not a proper one as has been ruled in more than onebeing the position under S. 32(5) the statement made by Somaraju in his will that he was 19 years of age at the time of its execution was admissible and was rightly relied upon by both the trial Court and the High Court as establishing that Somaraju was a major and was competent to make the said will.There can be no controversy that when Surayamma filed her written statement a dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged that Somaraju was a minor at the time he executed his will and Surayamma had in denial of that averment asserted that Somaraju was a major at the relevant time. The controversy therefore having existed at the time when the said statement was made it was inadmissible both under sub-section (5) and sub-section (6) and could not be availed of by the respondents.14. As regards the subsequent conduct of the parties it is clear that both Sitaramaraju who was then the only reversioner under the law as it stood prior to 1929 and the said Surayamma conducted themselves on the footing that the said will was competently made and by virtue of that will Surayamma had become the absolute owner of the properties left by him. Similarly, the three daughters of Surayamma, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayamma in favour of her daughters and took possession of and enjoyed the lands in suit. Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will. The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants. Such a conduct is only consistent with the fact that it was understood amongst the members of the family that Somaraju was a major at the time of the execution of the will and the will was validly made. In our view there being the statement of Somaraju admissible under S. 32 (5) coupled with the evidence of D. W. 4 as also the evidence as to the conduct of the parties before the Court there was ample evidence on which the trial Court and the High Court could rightly found their conclusion that the will was made at the time when Somaraju was a major. Such a conclusion was obviously fatal to the appellants claim in the suit.15. In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desais contentions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.16. The argument that Somaraju did not dispose of land admeasuring about 15 acres 14 cents by the said will and that there was a resultant intestacy is founded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents a portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12. The said will, however, in para 1 expressly states that the testator thereby was disposing of his entire property, movable and immovable in favour of his mother. It also states that the total area of land possessed of by him was 60 acres 9 cents and that he was bequeathing to his mother the said entire area. The fact that the total area comprised of the several survey numbers mentioned in the Schedule does not aggregate 60 acres 9 cents appears to be the result of some mistake. It appears from the record that the survey numbers in vogue in 1902 were altered in 1912. It is not possible to say what record was with Somaraju when he described the said land by its survey numbers in the said Schedule and whether he had at that time the old or the new record of the revised survey numbers. It is possible that if the revised record was not before him at that time a mistake in describing the land by its survey numbers might occur and that would explain the discrepancy between the total measurement mentioned in the body of the will and that in the Schedule. In face, however, of the expressly declared intention in the body of the will that he was disposing of the entire property including the land measuring 60 acres 9 cents it is impossible to hold that he desired to hold back a portion thereof from his mother and intended to leave it intestate. We do not therefore find any justification for interfering with the conclusion of the trial Court and the High Court that Somaraju disposed of the entire property. Consequently we must reject Mr. Desais contention.

New Horizons Ltd. Vs. Union Of India

should possess such experience" would mean the experience of the tenderer itself and not that of its collaborator. It has been pointed out that SLP(C) No. 1484 of 1994 filed against the said judgment has been dismissed by this court by order dated January 28, 1994. It has been urged that on the same logic the experience of a shareholder would not be included within the expression "experience of the tenderer". We fail to appreciate the relevance of this judgment. There can be no comparison between a collaborator who has no stake in the business of the company and a constituent of a company, such as NHL, constituted as a joint venture, wherein the constituents in the joint venture have a substantial stake in the success of the venture. 45. Thus the approach from the legal standpoint also leads to the conclusion that for the purpose of considering whether NHL has the experience as contemplated by the advertisement for inviting tenders dated April 22, 1993, the experience of the constituents of NHL, i.e., the Indian group of companies (TPI, LMI and WML) and the Singapore---based company, (IIPL) has to be taken into consideration. As per the tender of NHL, one of its Indian constituents (LMI) had printed and bound the telephone directories of Delhi and Bombay for the years 1992 and its Singapore---based constituent (IIPL) has 25 years experience in printing the telephone directories with "yellow pages" in Singapore. The said experience has been ignored by the tender evaluation committee on an erroneous view that the said experience was not in the name of NHL and that NHL did not fulfil the conditions about eligibility for the award of the contract. In proceeding on that basis the tender evaluation committee has misguided itself about the true legal position as well as the terms and conditions prescribed for submission of tenders contained in the notice for inviting tenders dated April 26, 1993. The non-consideration of the tender submitted by NHL has resulted in acceptance of the tender of respondent No. 4. The total amount of royalty offered by respondent No. 4 for three years was Rs. 95 lakhs whereas NHL had offered Rs. 459.90 lakhs, i.e., nearly five times the amount offered by respondent No. 4. Having regard to this large margin in the amount of royalty offered by NHL and that offered by respondent No. 4, it must be held that the decision of the tender evaluation committee to refuse to consider the tender of NHL and to accept the tender of respondent No. 4 suffers from the vice of arbitrariness and irrationality and is liable to be quashed. 46.In the reWe have been informed that while the matter was pending in the High Court and in this court the telephone directory for the year 1993 has been printed and supplied to the department by respondent No. 4 as per terms of the contract. In so far as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the department would suffer loss of revenue which it would otherwise earn by way of royalty from respondent No. 4 for the directory for the year 1994. In so far as the contract in respect of the year 1995 is concerned there is sufficient time for the department to award a fresh contract if the contract awarded to respondent No. 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by respondent No. 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends itself to us is that, while maintaining the contract awarded to respondent No. 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must, therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing C. M. No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition, the application for interim relief has become infructuous and the appeal against the order dismissing C. M. No. 6120 of 1993 must, therefore, be dismissed as infructuous. 47.In the result, the appeal against the judgment and order of the Delhi High Court dated October 15, 1993, in C. W. P. No. 3837 of 1993 is allowed, the said judgment is set aside and Writ Petition No. 3837 of 1993 filed by the appellant is disposed of with the direction that the award of the contract for printing and publishing the telephone directories for Hyderabad for the years 1993, 1994 and 1995 is set aside to the extent it relates to the directory for the year 1995. 48.

0[ds]Having regard to this large margin in the amount of royalty offered by NHL and that offered by respondent No. 4, it must be held that the decision of the tender evaluation committee to refuse to consider the tender of NHL and to accept the tender of respondent No. 4 suffers from the vice of arbitrariness and irrationality and is liable to behave been informed that while the matter was pending in the High Court and in this court the telephone directory for the year 1993 has been printed and supplied to the department by respondent No. 4 as per terms of the contract. In so far as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the department would suffer loss of revenue which it would otherwise earn by way of royalty from respondent No. 4 for the directory for the year 1994. In so far as the contract in respect of the year 1995 is concerned there is sufficient time for the department to award a fresh contract if the contract awarded to respondent No. 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by respondent No. 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends itself to us is that, while maintaining the contract awarded to respondent No. 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must, therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing C. M. No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition, the application for interim relief has become infructuous and the appeal against the order dismissing C. M. No. 6120 of 1993 must, therefore, be dismissed asthe result, the appeal against the judgment and order of the Delhi High Court dated October 15, 1993, in C. W. P. No. 3837 of 1993 is allowed, the said judgment is set aside and Writ Petition No. 3837 of 1993 filed by the appellant is disposed of with the direction that the award of the contract for printing and publishing the telephone directories for Hyderabad for the years 1993, 1994 and 1995 is set aside to the extent it relates to the directory for the year 1995.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: should possess such experience" would mean the experience of the tenderer itself and not that of its collaborator. It has been pointed out that SLP(C) No. 1484 of 1994 filed against the said judgment has been dismissed by this court by order dated January 28, 1994. It has been urged that on the same logic the experience of a shareholder would not be included within the expression "experience of the tenderer". We fail to appreciate the relevance of this judgment. There can be no comparison between a collaborator who has no stake in the business of the company and a constituent of a company, such as NHL, constituted as a joint venture, wherein the constituents in the joint venture have a substantial stake in the success of the venture. 45. Thus the approach from the legal standpoint also leads to the conclusion that for the purpose of considering whether NHL has the experience as contemplated by the advertisement for inviting tenders dated April 22, 1993, the experience of the constituents of NHL, i.e., the Indian group of companies (TPI, LMI and WML) and the Singapore---based company, (IIPL) has to be taken into consideration. As per the tender of NHL, one of its Indian constituents (LMI) had printed and bound the telephone directories of Delhi and Bombay for the years 1992 and its Singapore---based constituent (IIPL) has 25 years experience in printing the telephone directories with "yellow pages" in Singapore. The said experience has been ignored by the tender evaluation committee on an erroneous view that the said experience was not in the name of NHL and that NHL did not fulfil the conditions about eligibility for the award of the contract. In proceeding on that basis the tender evaluation committee has misguided itself about the true legal position as well as the terms and conditions prescribed for submission of tenders contained in the notice for inviting tenders dated April 26, 1993. The non-consideration of the tender submitted by NHL has resulted in acceptance of the tender of respondent No. 4. The total amount of royalty offered by respondent No. 4 for three years was Rs. 95 lakhs whereas NHL had offered Rs. 459.90 lakhs, i.e., nearly five times the amount offered by respondent No. 4. Having regard to this large margin in the amount of royalty offered by NHL and that offered by respondent No. 4, it must be held that the decision of the tender evaluation committee to refuse to consider the tender of NHL and to accept the tender of respondent No. 4 suffers from the vice of arbitrariness and irrationality and is liable to be quashed. 46.In the reWe have been informed that while the matter was pending in the High Court and in this court the telephone directory for the year 1993 has been printed and supplied to the department by respondent No. 4 as per terms of the contract. In so far as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the department would suffer loss of revenue which it would otherwise earn by way of royalty from respondent No. 4 for the directory for the year 1994. In so far as the contract in respect of the year 1995 is concerned there is sufficient time for the department to award a fresh contract if the contract awarded to respondent No. 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by respondent No. 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends itself to us is that, while maintaining the contract awarded to respondent No. 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must, therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing C. M. No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition, the application for interim relief has become infructuous and the appeal against the order dismissing C. M. No. 6120 of 1993 must, therefore, be dismissed as infructuous. 47.In the result, the appeal against the judgment and order of the Delhi High Court dated October 15, 1993, in C. W. P. No. 3837 of 1993 is allowed, the said judgment is set aside and Writ Petition No. 3837 of 1993 filed by the appellant is disposed of with the direction that the award of the contract for printing and publishing the telephone directories for Hyderabad for the years 1993, 1994 and 1995 is set aside to the extent it relates to the directory for the year 1995. 48. ### Response: 0 ### Explanation: Having regard to this large margin in the amount of royalty offered by NHL and that offered by respondent No. 4, it must be held that the decision of the tender evaluation committee to refuse to consider the tender of NHL and to accept the tender of respondent No. 4 suffers from the vice of arbitrariness and irrationality and is liable to behave been informed that while the matter was pending in the High Court and in this court the telephone directory for the year 1993 has been printed and supplied to the department by respondent No. 4 as per terms of the contract. In so far as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the department would suffer loss of revenue which it would otherwise earn by way of royalty from respondent No. 4 for the directory for the year 1994. In so far as the contract in respect of the year 1995 is concerned there is sufficient time for the department to award a fresh contract if the contract awarded to respondent No. 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by respondent No. 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends itself to us is that, while maintaining the contract awarded to respondent No. 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must, therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing C. M. No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition, the application for interim relief has become infructuous and the appeal against the order dismissing C. M. No. 6120 of 1993 must, therefore, be dismissed asthe result, the appeal against the judgment and order of the Delhi High Court dated October 15, 1993, in C. W. P. No. 3837 of 1993 is allowed, the said judgment is set aside and Writ Petition No. 3837 of 1993 filed by the appellant is disposed of with the direction that the award of the contract for printing and publishing the telephone directories for Hyderabad for the years 1993, 1994 and 1995 is set aside to the extent it relates to the directory for the year 1995.

The Commissioner Of Excess Profits Tax, West Bengal Vs. The Ruby General Insurance Co. Ltd

1912 A.C. 443: 6 Tax Cas 59 (A) that it should be allowed as a deduction was based on two grounds. One was that it should be regarded as unearned income, and for the reasons already stated, it cannot avail when the question is one of determining capital under that Act. And the other was that the reserve represents a liability in the nature of unpaid price of property included in the trading assets. But apart from the fact that we have to strain the analogy in applying it to the present situation, can that liability be held to be of the character contemplated by R. 2? Can it be said that the reserve for unexpired risk was, like borrowed money and debt, part of the real trading assets of the business? The answer must clearly be in the negative.The reserve liability could not factually be said to have contributed to the running of the business or the earning of profits. It was something in the air, and could have had no effect in the working of the concern, during the chargeable accounting period. It cannot therefore be held to be an accruing liability within R. 2 of Sch. II to the Act.17. A case very much in point is the decision in Northern Aluminium Co. Ltd. v. Inland Revenue Commrs., 1946-1 ALL E R 546 at p. 554 (H). There the question arose whether a conditional liability under a contract was an accruing liability within the corresponding provision in the English Excess Profits Tax Act. The facts were that on December 16, 1939, an agreement was entered into between the Ministry of Aircraft Production and a company engaged in manufacturing aluminium products and supplying them to manufacturers of aircraft for the Government, wherein it was provided that the prices which the latter was then charging to its customers should be reduced for the period July 1, 1939 to June 30, 1940, and that the amount by which the prices paid to the company were in excess of the reduced prices should be paid by the company to the Ministry. The agreement further provided that negotiations should be started not later than June 30, 1940, for determining the rates to be charged for the periods following June 30, 1940. The agreement was, in fact, concluded only on October 12, 1942, whereby the prices to be charged by the company were fixed for the years, 1941, 1942 and 1943. In accordance with the agreement entered into on October 12, 1942, a sum of ? 2, 743, 469 was repaid by the company to the Ministry in 1943 being the difference between the price paid by the customers and that fixed in the agreement. This amount was actually allowed as a deduction in the assessment of the business income for purpose of income tax, and the dispute related to the question whether it could be deducted in assessing the excess profits tax as an accruing liability of the company for the chargeable accounting period which was January 1 to December 31, 1941. It was held by the Court of appeal that there was, in fact, no agreement between the parties during the chargeable accounting period and that therefore no liability was incurred. In the alternative, it was held that even if the agreement dated December 16, 1939, could be construed as amounting to a conditional agreement for the period subsequent to June 30, 1940, the obligation created thereby could not be regarded as an accruing liability within the rule in question. Lord Greene, M. R., Stated the reason thus:"A purely conditional liability, which may or may not mature, is not one which falls within that language, for this reason: Quite apart from the actual words it would be contrary to the whole conception underlying these capital provisions because a purely conditional liability which may or may not eventuate, is not a thing which affects a companys capital position, any more than a conditional receipt can affect its capital position. A receipt which may or may not be received, according as some agent does or does not happen, is not a thing with which you can earn profits. It is the possibility of earning profits on your real capital that these capital provisions are concerned with. Therefore, in my opinion, even if one could spell such a hypothetical and conditional contract out of these words, the result would not give rise to an accruing liability within the meaning of the section."This decision was taken in appeal to the House of Lords and was affirmed. Vide Inland Revenue Commissioners v. Northern Aluminium Co. Ltd., 147-1 ALL E. R. 608 (I).18.This decision establishes that a conditional liability under a concluded contract - it is on that footing that the second point arose for decision - was not an accruing liability for the purpose of the Excess Profits Tax Act, as the same had no effect on the actual capital position of the company, and the fact that it was allowed for purposes of income-tax did not affect the position under the Excess Profits Tax Act. The learned Solicitor-General sought to distinguish this decision on the ground that it did not relate to an insurance business, whereas it was contended that 1912 A. C. 443: 6 Tax Cas 59 (A), directly dealt with the question now under consideration whether reserves for unexpired risks in pending policies were liabilities which could be deducted. We do not see how it makes any difference in the construction of R. 2 of Sch. II to the Act that the liability sought to be deducted arises under an insurance policy and not under some other contract. We are of opinion that the principles laid down in 1946 1 ALL. E.R. 546 (H), and 1947-1 ALL. E.R, 608 (1), are applicable to the decision of the present case, and that a contingent liability in respect of unexpired risk is not an "accruing liability" within R. 2 of Sch. II to the Act.

1[ds]This decision was taken in appeal to the House of Lords and was affirmed. Vide InlandRevenue Commissioners v. Northern Aluminium Co. Ltd., 147-1 ALL E. R. 608(I).18.This decision establishes that a conditional liability under a concluded contract - it is on that footing that the second point arose for decision - was not an accruing liability for the purpose of the Excess Profits Tax Act, as the same had no effect on the actual capital position of the company, and the fact that it was allowed for purposes of income-tax did not affect the position under the Excess Profits Taxlearned Solicitor-General sought to distinguish this decision on the ground that it did not relate to an insurance business, whereas it was contended that 1912 A. C. 443: 6 Tax Cas 59 (A), directly dealt with the question now under consideration whether reserves for unexpired risks in pending policies were liabilities which could be deducted. We do not see how it makes any difference in the construction of R. 2 of Sch. II to the Act that the liability sought to be deducted arises under an insurance policy and not under some otherare of opinion that the principles laid down in 1946 1 ALL. E.R. 546 (H), and 1947-1 ALL. E.R, 608 (1), are applicable to the decision of the present case, and that a contingent liability in respect of unexpired risk is not an "accruing liability" within R. 2 of Sch. II to the Act.

### 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: 1912 A.C. 443: 6 Tax Cas 59 (A) that it should be allowed as a deduction was based on two grounds. One was that it should be regarded as unearned income, and for the reasons already stated, it cannot avail when the question is one of determining capital under that Act. And the other was that the reserve represents a liability in the nature of unpaid price of property included in the trading assets. But apart from the fact that we have to strain the analogy in applying it to the present situation, can that liability be held to be of the character contemplated by R. 2? Can it be said that the reserve for unexpired risk was, like borrowed money and debt, part of the real trading assets of the business? The answer must clearly be in the negative.The reserve liability could not factually be said to have contributed to the running of the business or the earning of profits. It was something in the air, and could have had no effect in the working of the concern, during the chargeable accounting period. It cannot therefore be held to be an accruing liability within R. 2 of Sch. II to the Act.17. A case very much in point is the decision in Northern Aluminium Co. Ltd. v. Inland Revenue Commrs., 1946-1 ALL E R 546 at p. 554 (H). There the question arose whether a conditional liability under a contract was an accruing liability within the corresponding provision in the English Excess Profits Tax Act. The facts were that on December 16, 1939, an agreement was entered into between the Ministry of Aircraft Production and a company engaged in manufacturing aluminium products and supplying them to manufacturers of aircraft for the Government, wherein it was provided that the prices which the latter was then charging to its customers should be reduced for the period July 1, 1939 to June 30, 1940, and that the amount by which the prices paid to the company were in excess of the reduced prices should be paid by the company to the Ministry. The agreement further provided that negotiations should be started not later than June 30, 1940, for determining the rates to be charged for the periods following June 30, 1940. The agreement was, in fact, concluded only on October 12, 1942, whereby the prices to be charged by the company were fixed for the years, 1941, 1942 and 1943. In accordance with the agreement entered into on October 12, 1942, a sum of ? 2, 743, 469 was repaid by the company to the Ministry in 1943 being the difference between the price paid by the customers and that fixed in the agreement. This amount was actually allowed as a deduction in the assessment of the business income for purpose of income tax, and the dispute related to the question whether it could be deducted in assessing the excess profits tax as an accruing liability of the company for the chargeable accounting period which was January 1 to December 31, 1941. It was held by the Court of appeal that there was, in fact, no agreement between the parties during the chargeable accounting period and that therefore no liability was incurred. In the alternative, it was held that even if the agreement dated December 16, 1939, could be construed as amounting to a conditional agreement for the period subsequent to June 30, 1940, the obligation created thereby could not be regarded as an accruing liability within the rule in question. Lord Greene, M. R., Stated the reason thus:"A purely conditional liability, which may or may not mature, is not one which falls within that language, for this reason: Quite apart from the actual words it would be contrary to the whole conception underlying these capital provisions because a purely conditional liability which may or may not eventuate, is not a thing which affects a companys capital position, any more than a conditional receipt can affect its capital position. A receipt which may or may not be received, according as some agent does or does not happen, is not a thing with which you can earn profits. It is the possibility of earning profits on your real capital that these capital provisions are concerned with. Therefore, in my opinion, even if one could spell such a hypothetical and conditional contract out of these words, the result would not give rise to an accruing liability within the meaning of the section."This decision was taken in appeal to the House of Lords and was affirmed. Vide Inland Revenue Commissioners v. Northern Aluminium Co. Ltd., 147-1 ALL E. R. 608 (I).18.This decision establishes that a conditional liability under a concluded contract - it is on that footing that the second point arose for decision - was not an accruing liability for the purpose of the Excess Profits Tax Act, as the same had no effect on the actual capital position of the company, and the fact that it was allowed for purposes of income-tax did not affect the position under the Excess Profits Tax Act. The learned Solicitor-General sought to distinguish this decision on the ground that it did not relate to an insurance business, whereas it was contended that 1912 A. C. 443: 6 Tax Cas 59 (A), directly dealt with the question now under consideration whether reserves for unexpired risks in pending policies were liabilities which could be deducted. We do not see how it makes any difference in the construction of R. 2 of Sch. II to the Act that the liability sought to be deducted arises under an insurance policy and not under some other contract. We are of opinion that the principles laid down in 1946 1 ALL. E.R. 546 (H), and 1947-1 ALL. E.R, 608 (1), are applicable to the decision of the present case, and that a contingent liability in respect of unexpired risk is not an "accruing liability" within R. 2 of Sch. II to the Act. ### Response: 1 ### Explanation: This decision was taken in appeal to the House of Lords and was affirmed. Vide InlandRevenue Commissioners v. Northern Aluminium Co. Ltd., 147-1 ALL E. R. 608(I).18.This decision establishes that a conditional liability under a concluded contract - it is on that footing that the second point arose for decision - was not an accruing liability for the purpose of the Excess Profits Tax Act, as the same had no effect on the actual capital position of the company, and the fact that it was allowed for purposes of income-tax did not affect the position under the Excess Profits Taxlearned Solicitor-General sought to distinguish this decision on the ground that it did not relate to an insurance business, whereas it was contended that 1912 A. C. 443: 6 Tax Cas 59 (A), directly dealt with the question now under consideration whether reserves for unexpired risks in pending policies were liabilities which could be deducted. We do not see how it makes any difference in the construction of R. 2 of Sch. II to the Act that the liability sought to be deducted arises under an insurance policy and not under some otherare of opinion that the principles laid down in 1946 1 ALL. E.R. 546 (H), and 1947-1 ALL. E.R, 608 (1), are applicable to the decision of the present case, and that a contingent liability in respect of unexpired risk is not an "accruing liability" within R. 2 of Sch. II to the Act.

Chennai Metropolitan Water Sup.&Sew.&Ors Vs. T.T. Murali Babu

open for interference under limited scope of judicial review.20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” 30. After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment. It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will. Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of “habitual absenteeism” is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate. 31. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip [(2006) 13 SCC 1] : - “In a case involving overstay of leave and absence from duty, granting six months’ time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same.” 32. We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.

1[ds]10. On a keen scrutiny of the decision rendered by the learned single Judge as well as that of the Division Bench it is clearly demonstrable that there has been no advertence with regard to the issue whether the charges levelled against the respondent had been proved or not. It is manifest that there had been no argument on the said score before the writ court or in intra- court appeal and hence, we are obliged to state that the only aspect which was really proponed before the High Court pertains to the nature of charges and proportionality of punishment. Therefore, we shall confine our analysis with regard to said limited sphere and an added facet which the learned counsel for the appellant has emphatically urged before us, that is, the belated approach by the respondent in invoking the extraordinary jurisdiction of the Highthe case at hand, though there has been fourdelay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact onripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete withor for that matter ‘Rip VanIn our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the veryare disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.

### 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: open for interference under limited scope of judicial review.20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” 30. After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment. It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will. Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of “habitual absenteeism” is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate. 31. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip [(2006) 13 SCC 1] : - “In a case involving overstay of leave and absence from duty, granting six months’ time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same.” 32. We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do. ### Response: 1 ### Explanation: 10. On a keen scrutiny of the decision rendered by the learned single Judge as well as that of the Division Bench it is clearly demonstrable that there has been no advertence with regard to the issue whether the charges levelled against the respondent had been proved or not. It is manifest that there had been no argument on the said score before the writ court or in intra- court appeal and hence, we are obliged to state that the only aspect which was really proponed before the High Court pertains to the nature of charges and proportionality of punishment. Therefore, we shall confine our analysis with regard to said limited sphere and an added facet which the learned counsel for the appellant has emphatically urged before us, that is, the belated approach by the respondent in invoking the extraordinary jurisdiction of the Highthe case at hand, though there has been fourdelay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact onripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete withor for that matter ‘Rip VanIn our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the veryare disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.

Ranganatha Reddiar Vs. The State Of Kerala

Rupees one hundred and eighty-three and N. P. sixty only. One case (1d) (Id) 1/4/64 (Sd.) 147542 18/5/64. He further stated that it is written on the packet as Extra Superior in English and as Compounded misky full of quality and flavour in Tamil. 4. The relevant statutory provisions are; The Prevention of Food Adulteration Act, 1954. S. 14. Manufacturers, distributors and dealers to give warranty:- No manufacturer, distributor or dealer of any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. S. 19 (2). A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proved:- (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer. (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. The Prevention of Food Adulteration Rules, 1955. Rule 12-A. Warranty - Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A: Provided that no warranty in such form shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Explanation - The term trader shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. 5. We are not concerned with the question whether Rule 12A is contrary to the provisions of the Act. We take it that it is valid and if the appellant s case falls within the proviso he is entitled to acquittal. 6. It was contended before us on behalf of the respondent that the warranty must state expressly that the food mentioned in the cash memo was the same in nature, substance and quality as demanded by the vendor, and if these words did not exist in the cash memo, the proviso would not apply. We are unable to accede to this contention. It may be that if the warranty is not contained in a label or cash memo the warranty must be in Form VI-A, which uses these words: We hereby certify that the food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor. But we do not decide this as it is not necessary to do so.In our view when the proviso expressly says that no warranty in such form shall be necessary in certain eventualities it would be rewriting the rule to hold that nevertheless the same things must exist in the label or the cash memo. It seems to us that if the words in the warranty can reasonably be interpreted to have the same effect as certifying the nature, substance and quality of an article of food, the warranty will fall within the proviso. The Act is of wide application and millions of small traders have to comply with the provisions of the Act and the Rules. The learned counsel for the State says that if they are not able to comply with the provisions they should stop carrying on their trade. But if the object underlying the Act can be achieved without disorganising the trade by giving a reasonable interpretation to Rule 12A, it is our duty to do so. 7. A number of English cases were referred to us, but we do not find it necessary to refer to them as they interpret the State of Food and Drugs Act, 1875, and the later Food and Drugs Act 1955. The language of the relevant sections dealing with defences is different and warranties employing different words have been interpreted.But they do at least show this that trade can be carried on and the object of the Act is not defeated even if traders use ordinary language of the trade or popular language in warranties. 8. Coming now to the language used in the cash memo it seems to us that the words quality is up to the mark mean that the quality of the article is up to the standard required by the Act and the vendee. Quality in this context would include nature and substance because the name of the article is given in the cash memo. It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. The offence, if any, has been committed by the seller and not the appellant. 9. There was some argument before us as to the difference in the meaning of the words nature, substance and quality. It was pointed out that Section 14 only uses two words nature and quality and not substance. But it is not necessary to express our views on this point. Reference was made to the case of Baburally v. Corporation of Calcutta, 1966-2 SCR 815 = (AIR 1966 SC 1569 ). This Court held that the words on the label and the so-called cash memo in that case did not contain the requisite warranty. But we are unable to see how that case assists either the appellant or the State.

1[ds]5. We are not concerned with the question whether Rule 12A is contrary to the provisions of the Act. We take it that it is valid and if the appellant s case falls within the proviso he is entitled to acquittalWe are unable to accede to this contention. It may be that if the warranty is not contained in a label or cash memo the warranty must be in Form VI-A8. Coming now to the language used in the cash memo it seems to us that the words quality is up to the mark mean that the quality of the article is up to the standard required by the Act and the vendee. Quality in this context would include nature and substance because the name of the article is given in the cash memo. It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. The offence, if any, has been committed by the seller and not the appellant5. We are not concerned with the question whether Rule 12A is contrary to the provisions of the Act. We take it that it is valid and if the appellant s case falls within the proviso he is entitled to acquittal9. There was some argument before us as to the difference in the meaning of the words nature, substance and quality. It was pointed out that Section 14 only uses two words nature and quality and not substance. But it is not necessary to express our views on this point. Reference was made to the case of Baburally v. Corporation of Calcutta,2 SCR 815 = (AIR 1966 SC 1569 ). This Court held that the words on the label and thed cash memo in that case did not contain the requisite warranty. But we are unable to see how that case assists either the appellant or the State.

### 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: Rupees one hundred and eighty-three and N. P. sixty only. One case (1d) (Id) 1/4/64 (Sd.) 147542 18/5/64. He further stated that it is written on the packet as Extra Superior in English and as Compounded misky full of quality and flavour in Tamil. 4. The relevant statutory provisions are; The Prevention of Food Adulteration Act, 1954. S. 14. Manufacturers, distributors and dealers to give warranty:- No manufacturer, distributor or dealer of any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. S. 19 (2). A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proved:- (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer. (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. The Prevention of Food Adulteration Rules, 1955. Rule 12-A. Warranty - Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A: Provided that no warranty in such form shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Explanation - The term trader shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. 5. We are not concerned with the question whether Rule 12A is contrary to the provisions of the Act. We take it that it is valid and if the appellant s case falls within the proviso he is entitled to acquittal. 6. It was contended before us on behalf of the respondent that the warranty must state expressly that the food mentioned in the cash memo was the same in nature, substance and quality as demanded by the vendor, and if these words did not exist in the cash memo, the proviso would not apply. We are unable to accede to this contention. It may be that if the warranty is not contained in a label or cash memo the warranty must be in Form VI-A, which uses these words: We hereby certify that the food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor. But we do not decide this as it is not necessary to do so.In our view when the proviso expressly says that no warranty in such form shall be necessary in certain eventualities it would be rewriting the rule to hold that nevertheless the same things must exist in the label or the cash memo. It seems to us that if the words in the warranty can reasonably be interpreted to have the same effect as certifying the nature, substance and quality of an article of food, the warranty will fall within the proviso. The Act is of wide application and millions of small traders have to comply with the provisions of the Act and the Rules. The learned counsel for the State says that if they are not able to comply with the provisions they should stop carrying on their trade. But if the object underlying the Act can be achieved without disorganising the trade by giving a reasonable interpretation to Rule 12A, it is our duty to do so. 7. A number of English cases were referred to us, but we do not find it necessary to refer to them as they interpret the State of Food and Drugs Act, 1875, and the later Food and Drugs Act 1955. The language of the relevant sections dealing with defences is different and warranties employing different words have been interpreted.But they do at least show this that trade can be carried on and the object of the Act is not defeated even if traders use ordinary language of the trade or popular language in warranties. 8. Coming now to the language used in the cash memo it seems to us that the words quality is up to the mark mean that the quality of the article is up to the standard required by the Act and the vendee. Quality in this context would include nature and substance because the name of the article is given in the cash memo. It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. The offence, if any, has been committed by the seller and not the appellant. 9. There was some argument before us as to the difference in the meaning of the words nature, substance and quality. It was pointed out that Section 14 only uses two words nature and quality and not substance. But it is not necessary to express our views on this point. Reference was made to the case of Baburally v. Corporation of Calcutta, 1966-2 SCR 815 = (AIR 1966 SC 1569 ). This Court held that the words on the label and the so-called cash memo in that case did not contain the requisite warranty. But we are unable to see how that case assists either the appellant or the State. ### Response: 1 ### Explanation: 5. We are not concerned with the question whether Rule 12A is contrary to the provisions of the Act. We take it that it is valid and if the appellant s case falls within the proviso he is entitled to acquittalWe are unable to accede to this contention. It may be that if the warranty is not contained in a label or cash memo the warranty must be in Form VI-A8. Coming now to the language used in the cash memo it seems to us that the words quality is up to the mark mean that the quality of the article is up to the standard required by the Act and the vendee. Quality in this context would include nature and substance because the name of the article is given in the cash memo. It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. The offence, if any, has been committed by the seller and not the appellant5. We are not concerned with the question whether Rule 12A is contrary to the provisions of the Act. We take it that it is valid and if the appellant s case falls within the proviso he is entitled to acquittal9. There was some argument before us as to the difference in the meaning of the words nature, substance and quality. It was pointed out that Section 14 only uses two words nature and quality and not substance. But it is not necessary to express our views on this point. Reference was made to the case of Baburally v. Corporation of Calcutta,2 SCR 815 = (AIR 1966 SC 1569 ). This Court held that the words on the label and thed cash memo in that case did not contain the requisite warranty. But we are unable to see how that case assists either the appellant or the State.

Shantilal Thakordas & Ors Vs. Chimanlal Maganlal Telwala

Rent Controller, Delhi on the ground that the notices to quit were not valid. Plaintiff filed an appeal but died during its pendency. His widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribunal where the appeal was pending. The case was remanded by the Tribunal and after remand the Additional Rent Controller held that so me of the substituted persons require the premises bona-fide for their occupation. The tenants appeal to the Tribunal failed. The High Court of Delhi on a further appeal by the tenant took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application. The case came up to this Court. The view of the High Court was affirmed. The relevant words of personal requirement of the premises in section 14(1)(e) of the Delhi Act are:"for occupation as a residence for himself and members of his family." The original plaintiff had pleaded:"The premises are required bonafide by the petitioner for occupation as a residence for himself and members of his family and that the petitioner has no other reasonably suitable residential accommodation."This Court took the view:"Thus, the requirement pleaded in the ejectment application and on which the plaintiff has rounded his right to relief is his requirement , or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds--we will forget for a moment that the plaintiff is dead the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff."4. In our considered opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view expressed in Phul Ranis case, as stated above, is no t correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord.But even so the appellants cannot succeed in this appeal. Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to "occupation by himself" i.e. by the landlord. Certain decisions of some High Courts were brought to our notice taking the view that it is so. We refrain from expressing our opinion in that regard. We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 13(1)(g) of the Bombay Act. Yet on the facts of this case there is an insurmountable difficulty in the way of the appellants. From the judgment dated March 31, 1970 of the First Appellate Court it would appear that on the death of Thakordas in June, 1965 a new partnership was constituted. One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership along with Thakordass another son Dhanvantlal Thakordas, appellant No. 2. There were some outsider partners. Harish Thakordas, appellant No. 3, a minor son of Thakordas had not been admitted to the benefits of the partnership. He had, therefore, no interest in the partnership firm Jai Hind Silk Weaving Works. The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for , the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership. This in no sense could be the requirement of appellant Harish even assuming that it could be said to be the requirement of his two cider brothers appellants 1 and 2. In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Ranis case.Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Ranis case. He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision. We do not accept the contention as sound or correct. In Phul Ranis case no final opinion was expressed on this question. Moreover, we find that on the earlier occasion the High Court had set aside the decree and remanded the suit to the First Appellate Court for a fresh decision. There was, therefore, no decree in existence to attract the exception.5.

0[ds]In our considered opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view expressed in Phul Ranis case, as stated above, is no t correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord.But even so the appellants cannot succeed in this appeal. Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to "occupation by himself" i.e. by the landlord. Certain decisions of some High Courts were brought to our notice taking the view that it is so. We refrain from expressing our opinion in that regard. We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 13(1)(g) of the Bombay Act. Yet on the facts of this case there is an insurmountable difficulty in the way of the appellants. From the judgment dated March 31, 1970 of the First Appellate Court it would appear that on the death of Thakordas in June, 1965 a new partnership was constituted. One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership along with Thakordass another son Dhanvantlal Thakordas, appellant No. 2. There were some outsider partners. Harish Thakordas, appellant No. 3, a minor son of Thakordas had not been admitted to the benefits of the partnership. He had, therefore, no interest in the partnership firm Jai Hind Silk Weaving Works. The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for , the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership. This in no sense could be the requirement of appellant Harish even assuming that it could be said to be the requirement of his two cider brothers appellants 1 and 2. In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Ranis case.Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Ranis case. He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision. We do not accept the contention as sound or correct. In Phul Ranis case no final opinion was expressed on this question. Moreover, we find that on the earlier occasion the High Court had set aside the decree and remanded the suit to the First Appellate Court for a fresh decision. There was, therefore, no decree in existence to attract the exception.

### 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: Rent Controller, Delhi on the ground that the notices to quit were not valid. Plaintiff filed an appeal but died during its pendency. His widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribunal where the appeal was pending. The case was remanded by the Tribunal and after remand the Additional Rent Controller held that so me of the substituted persons require the premises bona-fide for their occupation. The tenants appeal to the Tribunal failed. The High Court of Delhi on a further appeal by the tenant took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application. The case came up to this Court. The view of the High Court was affirmed. The relevant words of personal requirement of the premises in section 14(1)(e) of the Delhi Act are:"for occupation as a residence for himself and members of his family." The original plaintiff had pleaded:"The premises are required bonafide by the petitioner for occupation as a residence for himself and members of his family and that the petitioner has no other reasonably suitable residential accommodation."This Court took the view:"Thus, the requirement pleaded in the ejectment application and on which the plaintiff has rounded his right to relief is his requirement , or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds--we will forget for a moment that the plaintiff is dead the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff."4. In our considered opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view expressed in Phul Ranis case, as stated above, is no t correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord.But even so the appellants cannot succeed in this appeal. Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to "occupation by himself" i.e. by the landlord. Certain decisions of some High Courts were brought to our notice taking the view that it is so. We refrain from expressing our opinion in that regard. We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 13(1)(g) of the Bombay Act. Yet on the facts of this case there is an insurmountable difficulty in the way of the appellants. From the judgment dated March 31, 1970 of the First Appellate Court it would appear that on the death of Thakordas in June, 1965 a new partnership was constituted. One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership along with Thakordass another son Dhanvantlal Thakordas, appellant No. 2. There were some outsider partners. Harish Thakordas, appellant No. 3, a minor son of Thakordas had not been admitted to the benefits of the partnership. He had, therefore, no interest in the partnership firm Jai Hind Silk Weaving Works. The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for , the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership. This in no sense could be the requirement of appellant Harish even assuming that it could be said to be the requirement of his two cider brothers appellants 1 and 2. In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Ranis case.Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Ranis case. He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision. We do not accept the contention as sound or correct. In Phul Ranis case no final opinion was expressed on this question. Moreover, we find that on the earlier occasion the High Court had set aside the decree and remanded the suit to the First Appellate Court for a fresh decision. There was, therefore, no decree in existence to attract the exception.5. ### Response: 0 ### Explanation: In our considered opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view expressed in Phul Ranis case, as stated above, is no t correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord.But even so the appellants cannot succeed in this appeal. Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to "occupation by himself" i.e. by the landlord. Certain decisions of some High Courts were brought to our notice taking the view that it is so. We refrain from expressing our opinion in that regard. We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 13(1)(g) of the Bombay Act. Yet on the facts of this case there is an insurmountable difficulty in the way of the appellants. From the judgment dated March 31, 1970 of the First Appellate Court it would appear that on the death of Thakordas in June, 1965 a new partnership was constituted. One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership along with Thakordass another son Dhanvantlal Thakordas, appellant No. 2. There were some outsider partners. Harish Thakordas, appellant No. 3, a minor son of Thakordas had not been admitted to the benefits of the partnership. He had, therefore, no interest in the partnership firm Jai Hind Silk Weaving Works. The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for , the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership. This in no sense could be the requirement of appellant Harish even assuming that it could be said to be the requirement of his two cider brothers appellants 1 and 2. In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Ranis case.Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Ranis case. He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision. We do not accept the contention as sound or correct. In Phul Ranis case no final opinion was expressed on this question. Moreover, we find that on the earlier occasion the High Court had set aside the decree and remanded the suit to the First Appellate Court for a fresh decision. There was, therefore, no decree in existence to attract the exception.

Mahindra Bt Investment Company (Mauritius) Limited Vs. The Director of Income Tax (International Taxation) - 11 & Others

breach of the SEBI Guidelines and therefore based on an illegal act. 8. We now have the communication dated 7 May 2013 received by the Director of Income Tax from SEBI. On examination of the letter dated 7 May 2013 we are of the view that it states that the agreement entered into in 2004 between TIL and AT&T was not acted upon due to commercial reasons and that the Draft Prospectus filed with SEBI in 2006 while coming out with the IPO had disclosed the agreement entered into by it with AT&T. From the above, it is clear that on examination of the facts of the Petitioners case SEBI has concluded that there has been no breach of SEBI guidelines. In case there had been any breach of its guidelines and/or an illegal act as suggested by the Authority in its impugned order, SEBI would have issued to the petitioner a notice to show cause. In these circumstances, it must be held that there is in fact no contravention of the SEBI Guidelines even according to SEBI. 9. The Counsel for the respondents does not dispute the above position but his submission is that on the basis of the communication of SEBI dated 7 May 2013, the petitioner move the Authority for either modification or rectification. We see no reason to direct the petitioner to move the Authority for modification and/or rectification as we have already held that in the present facts no application for modification or rectification under Rule 18 or 19 of the Advance Ruling Rules would lie. In the above circumstances the entire controversy can be resolved by setting aside the impugned Order dated 27 August 2012 of the Authority and directing the Authority to give a ruling on the question as framed by the petitioner. 10. In view of the above, we need not examine the other issues with regard to jurisdiction raised by the petitioner. The larger question posed in the petition are whether the Authority after having admitted the questions can refuse to give a ruling on the question of law formulated at the final hearing without there being any change in facts or circumstances and whether an Authority being a creature of the statue can refuse to rule on the question raised before it even if the same is not hit by the proviso under Section 245R(2) of the Act. The above issues are left open to be decided in an appropriate case. 11. However, before parting it, needs to be pointed out that even if it is assumed that in an appropriate case the Authority has a discretion to refuse to give a ruling on a question of law even in respect of matters outside the proviso to Section 245R(2) of the Act, yet this discretion of refusing to rule on a question cannot be arbitrary. The Authority can exercise its discretion not to give a ruling only in cases where fraud and/or illegality is ex facie evident or the fraud or illegality has been established in some proceedings. Such a discretion is not to be exercised on a mere suspicion of illegality or fraud having taken place. Reliance by the Authority on its own decision in the matter of Microsoft Operations Private Limited reported in 310 ITR 408 to conclude that the Authority has discretion even outside the proviso to Section 245R(2) of the Act to refuse to give a ruling in an appropriate case does not apply to the present facts. In Microsoft Operations (supra) the Authority has observed that:- However, as said earlier, the exercise of discretion must be canalized on proper lines. Avoiding abuse of legal process, incompatible decisions concerning the same parties and anomalous situations are relevant considerations that guide the exercise of discretionary power to reject the application. For instance, in spite of a direct decision of the Supreme Court settling the point against an applicant, if the applicant seek advance rulings with a view to stall further proceedings, it may then be a fit case to reject the application at the stage of consideration under section 245R(2). Another instance that can be visualized is in a case where the applicant raises frivolous or hypothetical legal issues without factual foundation. The above observations would have no application to the present facts. None of the situations contemplated in the above case arise here. Moreover, it may be pointed out that the Authority in the Microsoft Operations (supra) exercised its discretion at the time of admission. 12. In this case, we find that the Authority has refused to give a ruling merely on the assumption that an illegality has been committed by the applicant by circumventing SEBI Guidelines. The authorities administering the SEBI provision did not find it so, as is evident from the fact that no show cause notice or adjudication order for contravention of the SEBI Guidelines has been issued to /or against the petitioner. In these circumstances, the Authority is not correct in refusing to give a ruling at the time of final hearing in the absence of any fresh material, merely on the basis of the suspicion. The Authority may be entitled to consider questions of public interest and not answer the questions when the foundation of the transaction is on the face of it coloured by illegality/or misrepresentation of facts in making the application to the Authority. However, where it is not so, then the revenue must bring on record facts to establish the same, failing which, it would not be open to the Authority to proceed on a suspicion that an illegality has taken place and refuse to give a ruling. 13. In view of the letter dated 7 May 2013 of SEBI to the Director of Income Tax (International Taxation), we set aside the impugned order dated 27 August 2012. We further restore the questions formulated to the Authority and direct the Authority to give a ruling on the question framed by them on the petitioners application for Advance Ruling.

1[ds]We find that the Authority has proceeded to refuse to give a ruling on the basis that the petitioner had contravened the SEBI Guidelines. The Authority has conceded in the impugned order that the issue whether or not there is a circumvention of the SEBI Guidelines is to be determined by the authorities implementing the SEBI Guidelines. In spite of the above, the Authority refused to give a ruling on the ground that the transactions underlying the questions formulated were in breach of the SEBI Guidelines and therefore based on an illegal actWe now have the communication dated 7 May 2013 received by the Director of Income Tax from SEBI. On examination of the letter dated 7 May 2013 we are of the view that it states that the agreement entered into in 2004 between TIL and AT&T was not acted upon due to commercial reasons and that the Draft Prospectus filed with SEBI in 2006 while coming out with the IPO had disclosed the agreement entered into by it with AT&T. From the above, it is clear that on examination of the facts of thes case SEBI has concluded that there has been no breach of SEBI guidelines. In case there had been any breach of its guidelines and/or an illegal act as suggested by the Authority in its impugned order, SEBI would have issued to the petitioner a notice to show cause. In these circumstances, it must be held that there is in fact no contravention of the SEBI Guidelines even according to SEBIThe Counsel for the respondents does not dispute the above position but his submission is that on the basis of the communication of SEBI dated 7 May 2013, the petitioner move the Authority for either modification or rectification. We see no reason to direct the petitioner to move the Authority for modification and/or rectification as we have already held that in the present facts no application for modification or rectification under Rule 18 or 19 of the Advance Ruling Rules would lie. In the above circumstances the entire controversy can be resolved by setting aside the impugned Order dated 27 August 2012 of the Authority and directing the Authority to give a ruling on the question as framed by the petitionerIn view of the above, we need not examine the other issues with regard to jurisdiction raised by the petitioner. The larger question posed in the petition are whether the Authority after having admitted the questions can refuse to give a ruling on the question of law formulated at the final hearing without there being any change in facts or circumstances and whether an Authority being a creature of the statue can refuse to rule on the question raised before it even if the same is not hit by the proviso under Section 245Rabove issues are left open to be decided in an appropriate caseIn this case, we find that the Authority has refused to give a ruling merely on the assumption that an illegality has been committed by the applicant by circumventing SEBI Guidelines. The authorities administering the SEBI provision did not find it so, as is evident from the fact that no show cause notice or adjudication order for contravention of the SEBI Guidelines has been issued to /or against the petitioner. In these circumstances, the Authority is not correct in refusing to give a ruling at the time of final hearing in the absence of any fresh material, merely on the basis of the suspicion. The Authority may be entitled to consider questions of public interest and not answer the questions when the foundation of the transaction is on the face of it coloured by illegality/or misrepresentation of facts in making the application to the Authority. However, where it is not so, then the revenue must bring on record facts to establish the same, failing which, it would not be open to the Authority to proceed on a suspicion that an illegality has taken place and refuse to give a rulingIn view of the letter dated 7 May 2013 of SEBI to the Director of IncomeInternational Taxation), we set aside the impugned order dated 27 August 2012. We further restore the questions formulated to the Authority and direct the Authority to give a ruling on the question framed by them on the petitioners application for Advance Ruling.

### 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: breach of the SEBI Guidelines and therefore based on an illegal act. 8. We now have the communication dated 7 May 2013 received by the Director of Income Tax from SEBI. On examination of the letter dated 7 May 2013 we are of the view that it states that the agreement entered into in 2004 between TIL and AT&T was not acted upon due to commercial reasons and that the Draft Prospectus filed with SEBI in 2006 while coming out with the IPO had disclosed the agreement entered into by it with AT&T. From the above, it is clear that on examination of the facts of the Petitioners case SEBI has concluded that there has been no breach of SEBI guidelines. In case there had been any breach of its guidelines and/or an illegal act as suggested by the Authority in its impugned order, SEBI would have issued to the petitioner a notice to show cause. In these circumstances, it must be held that there is in fact no contravention of the SEBI Guidelines even according to SEBI. 9. The Counsel for the respondents does not dispute the above position but his submission is that on the basis of the communication of SEBI dated 7 May 2013, the petitioner move the Authority for either modification or rectification. We see no reason to direct the petitioner to move the Authority for modification and/or rectification as we have already held that in the present facts no application for modification or rectification under Rule 18 or 19 of the Advance Ruling Rules would lie. In the above circumstances the entire controversy can be resolved by setting aside the impugned Order dated 27 August 2012 of the Authority and directing the Authority to give a ruling on the question as framed by the petitioner. 10. In view of the above, we need not examine the other issues with regard to jurisdiction raised by the petitioner. The larger question posed in the petition are whether the Authority after having admitted the questions can refuse to give a ruling on the question of law formulated at the final hearing without there being any change in facts or circumstances and whether an Authority being a creature of the statue can refuse to rule on the question raised before it even if the same is not hit by the proviso under Section 245R(2) of the Act. The above issues are left open to be decided in an appropriate case. 11. However, before parting it, needs to be pointed out that even if it is assumed that in an appropriate case the Authority has a discretion to refuse to give a ruling on a question of law even in respect of matters outside the proviso to Section 245R(2) of the Act, yet this discretion of refusing to rule on a question cannot be arbitrary. The Authority can exercise its discretion not to give a ruling only in cases where fraud and/or illegality is ex facie evident or the fraud or illegality has been established in some proceedings. Such a discretion is not to be exercised on a mere suspicion of illegality or fraud having taken place. Reliance by the Authority on its own decision in the matter of Microsoft Operations Private Limited reported in 310 ITR 408 to conclude that the Authority has discretion even outside the proviso to Section 245R(2) of the Act to refuse to give a ruling in an appropriate case does not apply to the present facts. In Microsoft Operations (supra) the Authority has observed that:- However, as said earlier, the exercise of discretion must be canalized on proper lines. Avoiding abuse of legal process, incompatible decisions concerning the same parties and anomalous situations are relevant considerations that guide the exercise of discretionary power to reject the application. For instance, in spite of a direct decision of the Supreme Court settling the point against an applicant, if the applicant seek advance rulings with a view to stall further proceedings, it may then be a fit case to reject the application at the stage of consideration under section 245R(2). Another instance that can be visualized is in a case where the applicant raises frivolous or hypothetical legal issues without factual foundation. The above observations would have no application to the present facts. None of the situations contemplated in the above case arise here. Moreover, it may be pointed out that the Authority in the Microsoft Operations (supra) exercised its discretion at the time of admission. 12. In this case, we find that the Authority has refused to give a ruling merely on the assumption that an illegality has been committed by the applicant by circumventing SEBI Guidelines. The authorities administering the SEBI provision did not find it so, as is evident from the fact that no show cause notice or adjudication order for contravention of the SEBI Guidelines has been issued to /or against the petitioner. In these circumstances, the Authority is not correct in refusing to give a ruling at the time of final hearing in the absence of any fresh material, merely on the basis of the suspicion. The Authority may be entitled to consider questions of public interest and not answer the questions when the foundation of the transaction is on the face of it coloured by illegality/or misrepresentation of facts in making the application to the Authority. However, where it is not so, then the revenue must bring on record facts to establish the same, failing which, it would not be open to the Authority to proceed on a suspicion that an illegality has taken place and refuse to give a ruling. 13. In view of the letter dated 7 May 2013 of SEBI to the Director of Income Tax (International Taxation), we set aside the impugned order dated 27 August 2012. We further restore the questions formulated to the Authority and direct the Authority to give a ruling on the question framed by them on the petitioners application for Advance Ruling. ### Response: 1 ### Explanation: We find that the Authority has proceeded to refuse to give a ruling on the basis that the petitioner had contravened the SEBI Guidelines. The Authority has conceded in the impugned order that the issue whether or not there is a circumvention of the SEBI Guidelines is to be determined by the authorities implementing the SEBI Guidelines. In spite of the above, the Authority refused to give a ruling on the ground that the transactions underlying the questions formulated were in breach of the SEBI Guidelines and therefore based on an illegal actWe now have the communication dated 7 May 2013 received by the Director of Income Tax from SEBI. On examination of the letter dated 7 May 2013 we are of the view that it states that the agreement entered into in 2004 between TIL and AT&T was not acted upon due to commercial reasons and that the Draft Prospectus filed with SEBI in 2006 while coming out with the IPO had disclosed the agreement entered into by it with AT&T. From the above, it is clear that on examination of the facts of thes case SEBI has concluded that there has been no breach of SEBI guidelines. In case there had been any breach of its guidelines and/or an illegal act as suggested by the Authority in its impugned order, SEBI would have issued to the petitioner a notice to show cause. In these circumstances, it must be held that there is in fact no contravention of the SEBI Guidelines even according to SEBIThe Counsel for the respondents does not dispute the above position but his submission is that on the basis of the communication of SEBI dated 7 May 2013, the petitioner move the Authority for either modification or rectification. We see no reason to direct the petitioner to move the Authority for modification and/or rectification as we have already held that in the present facts no application for modification or rectification under Rule 18 or 19 of the Advance Ruling Rules would lie. In the above circumstances the entire controversy can be resolved by setting aside the impugned Order dated 27 August 2012 of the Authority and directing the Authority to give a ruling on the question as framed by the petitionerIn view of the above, we need not examine the other issues with regard to jurisdiction raised by the petitioner. The larger question posed in the petition are whether the Authority after having admitted the questions can refuse to give a ruling on the question of law formulated at the final hearing without there being any change in facts or circumstances and whether an Authority being a creature of the statue can refuse to rule on the question raised before it even if the same is not hit by the proviso under Section 245Rabove issues are left open to be decided in an appropriate caseIn this case, we find that the Authority has refused to give a ruling merely on the assumption that an illegality has been committed by the applicant by circumventing SEBI Guidelines. The authorities administering the SEBI provision did not find it so, as is evident from the fact that no show cause notice or adjudication order for contravention of the SEBI Guidelines has been issued to /or against the petitioner. In these circumstances, the Authority is not correct in refusing to give a ruling at the time of final hearing in the absence of any fresh material, merely on the basis of the suspicion. The Authority may be entitled to consider questions of public interest and not answer the questions when the foundation of the transaction is on the face of it coloured by illegality/or misrepresentation of facts in making the application to the Authority. However, where it is not so, then the revenue must bring on record facts to establish the same, failing which, it would not be open to the Authority to proceed on a suspicion that an illegality has taken place and refuse to give a rulingIn view of the letter dated 7 May 2013 of SEBI to the Director of IncomeInternational Taxation), we set aside the impugned order dated 27 August 2012. We further restore the questions formulated to the Authority and direct the Authority to give a ruling on the question framed by them on the petitioners application for Advance Ruling.

G.Govindan Vs. New India Insurance Co. Ltd.

Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect of the third party risks are concerned. It must be deemed that the transferor allowed the purchaser to use the vehicle in a public place in the said transitional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far it relates to the third party risks. We answer the second question accordingly. (Emphasis supplied) 10. In Complete Insulations (P) Ltd. v. New India Insurance Co. Ltd., 1996(1) SCC 221 a three Judge Bench of this Court had considered the scope of Section 103-A and Sections 94 and 95 of the 1939 Act and compared the same with Sections 157 and 146, 147 and 156 of the Motor Vehicles Act, 1988. In that case the transferee of the vehicle contended inter alia that he was entitled to get the compensation for the damage caused to the vehicle in an accident that took place after the transfer notwithstanding the fact that the insurance policy was not transferred in his name. The Consumer Disputes Redressal Commission, Chandigarh directed the insurer to pay a sum of Rs. 83,000 i.e. the insured value of the vehicle. The insurer preferred an appeal to the National Consumer Disputes Redressal Commission which set aside the order of the Commission at Chandigarh and dismissed the claim of the transferee. The National Commission after referring to the Full Bench judgment in particular the separate concurring judgment of Kodandaramayya, J. of Andhra Pradesh High Court applied the ratio in that judgment in support of its decision. The transferee preferred an appeal to this Court by Special Leave. This Court after refering to the separate judgment of Kodandaramayya, J. approved the principle laid down therein, applied the same and upheld the decision of the National Commission. 11. This Court in the said judgment held that the provisions under the new Act and the old Act are substantially the same in relation to liability in regard to third party. This Court also recognised the view taken in the separate judgment in Kondaiahs case a that the transferee-insured could not be said to be a third party qua the vehicle in question. In other words, a victim or the legal representatives of the victim cannot be denied the compensation by the insurer on the ground that the policy was not transferred in the name of the transferee. This Court further held as follows :- "Now, under the old Act although the insurer could refuse to transfer the certificate of insurance in certain circumstances and the transfer was not automatic as under the new Act, there was under the old law protection to third parties, that is victims of the accident. The protection was available by virtue of Sections 94 and 95 of the old Act." (Emphasis supplied). 12. The same view was taken in New India Assurance Co. Ltd. v. Sheela Rani (Smt.) and others, 1998(6) SCC 599 : 1998(4) RCR(Civil) 224 (SC). 13. The heading of Chapter VIII of the old Act reads as "Insurance of Motor Vehicles against Third Party Risks". A perusal of the provisions under Chapter VIII makes it clear that the legislature made insurance of motor vehicles compulsory against third party (victims) risks. This Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani and others, AIR 1964 SC 1736 after noticing the compulsory nature of insurance against third party observed that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. 14. In our opinion that both under the old Act and under the new Act the legislature was anxious to protect the third party (victim) interest. It appears that what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect among the various High Courts.15. Undoubtedly the Full Bench of the Delhi High Court in Anand Sarup Sharma v. P.P. Khurana and others, 1989 ACJ 577 and also the Full Bench decision of the Karnataka High in National Insurance Co. Ltd. v. Mallikarjun and others, AIR 1990 Karnataka 166 differed from the view taken by the Andhra Pradesh High Court in Kondaiahs case and held that the third party liability of the insurer comes to an end on transfer of vehicle by the insured to someone else unless the procedure prescribed for transfer of policy was fulfilled. As noticed earlier, learned counsel on both sides brought to our notice a number of judgments of different High Courts taking divergent views. We do not feel it necessary to refer to all those decisions in view of the Full Bench judgments of three High Courts noticed earlier.16. As between the two conflicting views of the Full Bench judgments noticed above, we prefer to approve the ratio laid down by the Andhra Pradesh High Court in Kondaiahs case as it advances the object of the legislature to protect the third party interest. We hasten to add that the third party here will not include a transferee whose transferor has not followed procedure for transfer of policy. In other words in accord with the well-settled rule of interpretation of statutes we are inclined to hold that the view taken by the Andhra Pradesh High Court in Kondaiahs case is preferable to the contrary views taken by the Karnataka and Delhi High Courts (supra) even assuming that two views are possible on the interpretation of relevant sections as it promotes the object of the legislature in protecting the third party (victim) interest. The ratio laid down in the judgment of Karnataka and Delhi High Courts (supra) differing from Andhra Pradesh High Court is not the correct one.

1[ds]This section is clearly based upon provisions of English statute. This section is analogous to the provisions in England where the third partys rights against Insurers Act 1930 was enacted to confer on third parties rights against the insurer of the third party risks. The present Act made a specific provision in case where the insurer becomes insolvent or dies (vide Sections 101 and 102 of the Act) to obviate any doubt or dispute in respect of such events. Section 95(5) intended to cover two legal objections, firstly that no one who was not a party to a contract could bring an action on a contract, secondly, that a person who has no interest in theof an insurance can claim the benefit of insurance. Thus this provision puts beyond doubt removing these two objections and making an exception to the general law of contract. Now the question is whether such rights secured to the third party by insuring the vehicle can be defeated by transferring the vehicle during the period when the policy is in force. It is significant to note that Section 95 requires the insurance of the vehicle. Once the vehicle is covered by the insurance not only the owner but any person can use the vehicle with his permission. Section 94 does not require that every person that uses the vehicle shall insure in respect of their separate use. The decided cases now held that on transfer the policy will lapse and a third party cannot enforce the policy against the insurance company. We must make it clear that there are two third parties when such transfer took place. One is a transferee who is a third party to the contract and the other for whose risk the vehicle is insured. We have no hesitation to hold that the transferee who is a third party to the contract cannot secure any personal benefit under the policy unless there is a novation i.e. the insurance company, the transferor of the vehicle, and the transferee must agree that the policy must be assigned to the transferee so that the benefit derivable, or derived under the policy by the original owner of the vehicle, the policy holder can be secured by the transferee. Thus, it is clear under a composite policy, covering the risk of property, person, third party risks, the transferee cannot enforce the policy without the assignment in his favour so far the policy covers the risk of the persons and property. He has no remedy against the Insuranceis incorrect to assume that the moment the title of the vehicle passes to the transferee the statutory obligation under Section 94 ceases and the original owner is no longer guilty of causing or allowing the purchaser to use the vehicle. The question is when does the statutory liability cease ? The mere passing of title in the vehicle to the transferee will not put an end to this liability. For this purpose we must examine two more provisions of the Act. Under Section 31 the transferor shall within 14 days of the transfer report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee and withindays of the transfer forward to the registering authority no objection certificate obtained by him under Sectioncontemplates issuing of no objection certificate both on the occasion of assignment of a new registration mark and also while transferring the motor vehicle. The registering authority is enjoined to issue a certificate within a period of thirty days and if no orders are passed the registering authority shall be deemed to have granted the no objection certificate. The failure to comply with section 31 is made punishable under Section 112. However, as an alternative measure it also provided under Sectionthat if the transferor or transferee fails to comply with the requirements of Section 31 they have to pay a fine of Rs. 100/or the prescribed amount considering the period of delay on their part by way of penalty. It is pertinent to note that Section 31 was amended by Act 100 of 1956. Under Section 31 as it stood prior to this amendment in 1956 only the transferee was required to report the transfer of the ownership and was expected to forward a certificate of registration to the registering authority within thirty days of the transfer. Prior to this amendment there was no statutory obligation on the transferor as is now provided inion (1) of Section 31 to notify the transfer to the registering authority within whose jurisdiction the transfer is effected. Thus we see till the transferor fulfils the statutory obligation under Section 31 his liability continues. Further he is the ostensible owner of the vehicle so long the registration is not changed. The liability to pay tax continues irrespective of his rights against the transferee for reimbursement. In fact it was ruled in Northern India General Insurance Company Ltd. v. Kamwarjit Singh, 1973 Acc CJ 119 : AIR 1973 All 357 , that a registered owner would have sufficient interest to effect insurance because he is the ostensible owner. The question raised in that case was whether the registration in favour of benamidar is valid when the registered owner of the vehicle is only benamidar when the real owner never obtained the insurance. It was held that the registered owner has sufficient interest to effect insurance because he is the ostensible owner and there is nothing in Section 94 which could be interpreted to meant that it is only the real owner who could effect the insurance. Any person who uses the vehicle or allows any other person to use the vehicle could also get the insurance effected. Thus, it is seen the public liability to notify the transfer and secure no objection certificate under Section 31 read with Section 94, would make the original owner retain the insurable interest. The insurable interest in this case is not the proprietary interest but the public liability, not to run the vehicle or cause or allow any person to run the vehicle without insurance and also to notify the transfer of such vehicle to the registered authority. So long such obligation continueswe are clearly fortified in our view that the insurable interest in the property is not necessary in the case of public liability insurance. The test is whether the liability under the statute ceased or not notwithstanding the passing of title and hence we respectfully dissent with the view expressed by various High Courts that on the sale of the vehicle the insurable interest ceases and the policy lapses. We agree that any claim of the transferee in respect of his property and his person cannot be enforced against the insurance company. He being a stranger he cannot have any claim against the insurance company. But the third party risk is concerned so long the obligations under the statute are not fulfilled, as contemplated under Section 31 read with Section 94, he continues to have the insurable interest till such obligations are fulfilled.Any prudent purchaser should take steps to get the policy transferred to him under Section 103. The insurer is bound to accept the transfer and can only refuse to consent on specified grounds. It is clearly an impracticable view to take that on passing of property in the vehicle, the policy lapses and the obligation under Section 94 of the Act ceases. In fact as observed by Supreme Court the policy is to the vehicle and hence normally it should run with the vehicle. It is just to expect a reasonable time for the transferor to make the necessary arrangement to notify the transfer under Section 31 and secure the certificate under Sectionwithin the time mentioned in those provisions. If this is not allowed, the moment the vendor receives the money and puts the vehicle in possession of the transferee, the latter is not in a position to use the vehicle in view of Section 94 till a fresh policy is obtained. He cannot take the vehicle to his house passing through any public place. When the transferor is liable to pay penalty under Section 31 and also liable to be prosecuted under Section 112 for not notifying the transfer, we are clearly of the opinion such statutory liability makes him to retain the insurable interest as the liability subsists till he discharges the statutory obligations. We disagree with the view expressed in (1972) 1 APLJregistration of the vehicle in the name of the transferee is not necessary to pass title in the vehicle. Payment of price and delivery of the vehicle makes the transaction complete and the title will pass to the purchaser. When the policy of insurance obtained by the original owner of the vehicle is composite one covering the risks for his person, property (vehicle) and the third party claim, on passing of title the transferee cannot enforce his claim in respect of any loss or damage to his person and vehicle unless there is a novation. So far the third party risk is concerned the proprietary interest in the vehicle is not necessary and the public liability continues till the transferor discharges the statutory obligation under Sectionsand 31 read with Section 94 of the Act. Till he complies with the requirement of Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect of the third party risks are concerned. It must be deemed that the transferor allowed the purchaser to use the vehicle in a public place in the said transitional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far it relates to the third party risks. We answer the second question accordingly.In our opinion that both under the old Act and under the new Act the legislature was anxious to protect the third party (victim) interest. It appears that what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect among the various High Courts.15. Undoubtedly the Full Bench of the Delhi High Court in Anand Sarup Sharma v. P.P. Khurana and others, 1989 ACJ 577 and also the Full Bench decision of the Karnataka High in National Insurance Co. Ltd. v. Mallikarjun and others, AIR 1990 Karnataka 166 differed from the view taken by the Andhra Pradesh High Court in Kondaiahs case and held that the third party liability of the insurer comes to an end on transfer of vehicle by the insured to someone else unless the procedure prescribed for transfer of policy was fulfilled. As noticed earlier, learned counsel on both sides brought to our notice a number of judgments of different High Courts taking divergent views. We do not feel it necessary to refer to all those decisions in view of the Full Bench judgments of three High Courts noticed earlier.16. As between the two conflicting views of the Full Bench judgments noticed above, we prefer to approve the ratio laid down by the Andhra Pradesh High Court in Kondaiahs case as it advances the object of the legislature to protect the third party interest. We hasten to add that the third party here will not include a transferee whose transferor has not followed procedure for transfer of policy. In other words in accord with therule of interpretation of statutes we are inclined to hold that the view taken by the Andhra Pradesh High Court in Kondaiahs case is preferable to the contrary views taken by the Karnataka and Delhi High Courts (supra) even assuming that two views are possible on the interpretation of relevant sections as it promotes the object of the legislature in protecting the third party (victim) interest. The ratio laid down in the judgment of Karnataka and Delhi High Courts (supra) differing from Andhra Pradesh High Court is not the correct one.

### 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: Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect of the third party risks are concerned. It must be deemed that the transferor allowed the purchaser to use the vehicle in a public place in the said transitional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far it relates to the third party risks. We answer the second question accordingly. (Emphasis supplied) 10. In Complete Insulations (P) Ltd. v. New India Insurance Co. Ltd., 1996(1) SCC 221 a three Judge Bench of this Court had considered the scope of Section 103-A and Sections 94 and 95 of the 1939 Act and compared the same with Sections 157 and 146, 147 and 156 of the Motor Vehicles Act, 1988. In that case the transferee of the vehicle contended inter alia that he was entitled to get the compensation for the damage caused to the vehicle in an accident that took place after the transfer notwithstanding the fact that the insurance policy was not transferred in his name. The Consumer Disputes Redressal Commission, Chandigarh directed the insurer to pay a sum of Rs. 83,000 i.e. the insured value of the vehicle. The insurer preferred an appeal to the National Consumer Disputes Redressal Commission which set aside the order of the Commission at Chandigarh and dismissed the claim of the transferee. The National Commission after referring to the Full Bench judgment in particular the separate concurring judgment of Kodandaramayya, J. of Andhra Pradesh High Court applied the ratio in that judgment in support of its decision. The transferee preferred an appeal to this Court by Special Leave. This Court after refering to the separate judgment of Kodandaramayya, J. approved the principle laid down therein, applied the same and upheld the decision of the National Commission. 11. This Court in the said judgment held that the provisions under the new Act and the old Act are substantially the same in relation to liability in regard to third party. This Court also recognised the view taken in the separate judgment in Kondaiahs case a that the transferee-insured could not be said to be a third party qua the vehicle in question. In other words, a victim or the legal representatives of the victim cannot be denied the compensation by the insurer on the ground that the policy was not transferred in the name of the transferee. This Court further held as follows :- "Now, under the old Act although the insurer could refuse to transfer the certificate of insurance in certain circumstances and the transfer was not automatic as under the new Act, there was under the old law protection to third parties, that is victims of the accident. The protection was available by virtue of Sections 94 and 95 of the old Act." (Emphasis supplied). 12. The same view was taken in New India Assurance Co. Ltd. v. Sheela Rani (Smt.) and others, 1998(6) SCC 599 : 1998(4) RCR(Civil) 224 (SC). 13. The heading of Chapter VIII of the old Act reads as "Insurance of Motor Vehicles against Third Party Risks". A perusal of the provisions under Chapter VIII makes it clear that the legislature made insurance of motor vehicles compulsory against third party (victims) risks. This Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani and others, AIR 1964 SC 1736 after noticing the compulsory nature of insurance against third party observed that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. 14. In our opinion that both under the old Act and under the new Act the legislature was anxious to protect the third party (victim) interest. It appears that what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect among the various High Courts.15. Undoubtedly the Full Bench of the Delhi High Court in Anand Sarup Sharma v. P.P. Khurana and others, 1989 ACJ 577 and also the Full Bench decision of the Karnataka High in National Insurance Co. Ltd. v. Mallikarjun and others, AIR 1990 Karnataka 166 differed from the view taken by the Andhra Pradesh High Court in Kondaiahs case and held that the third party liability of the insurer comes to an end on transfer of vehicle by the insured to someone else unless the procedure prescribed for transfer of policy was fulfilled. As noticed earlier, learned counsel on both sides brought to our notice a number of judgments of different High Courts taking divergent views. We do not feel it necessary to refer to all those decisions in view of the Full Bench judgments of three High Courts noticed earlier.16. As between the two conflicting views of the Full Bench judgments noticed above, we prefer to approve the ratio laid down by the Andhra Pradesh High Court in Kondaiahs case as it advances the object of the legislature to protect the third party interest. We hasten to add that the third party here will not include a transferee whose transferor has not followed procedure for transfer of policy. In other words in accord with the well-settled rule of interpretation of statutes we are inclined to hold that the view taken by the Andhra Pradesh High Court in Kondaiahs case is preferable to the contrary views taken by the Karnataka and Delhi High Courts (supra) even assuming that two views are possible on the interpretation of relevant sections as it promotes the object of the legislature in protecting the third party (victim) interest. The ratio laid down in the judgment of Karnataka and Delhi High Courts (supra) differing from Andhra Pradesh High Court is not the correct one. ### Response: 1 ### Explanation: run the vehicle or cause or allow any person to run the vehicle without insurance and also to notify the transfer of such vehicle to the registered authority. So long such obligation continueswe are clearly fortified in our view that the insurable interest in the property is not necessary in the case of public liability insurance. The test is whether the liability under the statute ceased or not notwithstanding the passing of title and hence we respectfully dissent with the view expressed by various High Courts that on the sale of the vehicle the insurable interest ceases and the policy lapses. We agree that any claim of the transferee in respect of his property and his person cannot be enforced against the insurance company. He being a stranger he cannot have any claim against the insurance company. But the third party risk is concerned so long the obligations under the statute are not fulfilled, as contemplated under Section 31 read with Section 94, he continues to have the insurable interest till such obligations are fulfilled.Any prudent purchaser should take steps to get the policy transferred to him under Section 103. The insurer is bound to accept the transfer and can only refuse to consent on specified grounds. It is clearly an impracticable view to take that on passing of property in the vehicle, the policy lapses and the obligation under Section 94 of the Act ceases. In fact as observed by Supreme Court the policy is to the vehicle and hence normally it should run with the vehicle. It is just to expect a reasonable time for the transferor to make the necessary arrangement to notify the transfer under Section 31 and secure the certificate under Sectionwithin the time mentioned in those provisions. If this is not allowed, the moment the vendor receives the money and puts the vehicle in possession of the transferee, the latter is not in a position to use the vehicle in view of Section 94 till a fresh policy is obtained. He cannot take the vehicle to his house passing through any public place. When the transferor is liable to pay penalty under Section 31 and also liable to be prosecuted under Section 112 for not notifying the transfer, we are clearly of the opinion such statutory liability makes him to retain the insurable interest as the liability subsists till he discharges the statutory obligations. We disagree with the view expressed in (1972) 1 APLJregistration of the vehicle in the name of the transferee is not necessary to pass title in the vehicle. Payment of price and delivery of the vehicle makes the transaction complete and the title will pass to the purchaser. When the policy of insurance obtained by the original owner of the vehicle is composite one covering the risks for his person, property (vehicle) and the third party claim, on passing of title the transferee cannot enforce his claim in respect of any loss or damage to his person and vehicle unless there is a novation. So far the third party risk is concerned the proprietary interest in the vehicle is not necessary and the public liability continues till the transferor discharges the statutory obligation under Sectionsand 31 read with Section 94 of the Act. Till he complies with the requirement of Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect of the third party risks are concerned. It must be deemed that the transferor allowed the purchaser to use the vehicle in a public place in the said transitional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far it relates to the third party risks. We answer the second question accordingly.In our opinion that both under the old Act and under the new Act the legislature was anxious to protect the third party (victim) interest. It appears that what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect among the various High Courts.15. Undoubtedly the Full Bench of the Delhi High Court in Anand Sarup Sharma v. P.P. Khurana and others, 1989 ACJ 577 and also the Full Bench decision of the Karnataka High in National Insurance Co. Ltd. v. Mallikarjun and others, AIR 1990 Karnataka 166 differed from the view taken by the Andhra Pradesh High Court in Kondaiahs case and held that the third party liability of the insurer comes to an end on transfer of vehicle by the insured to someone else unless the procedure prescribed for transfer of policy was fulfilled. As noticed earlier, learned counsel on both sides brought to our notice a number of judgments of different High Courts taking divergent views. We do not feel it necessary to refer to all those decisions in view of the Full Bench judgments of three High Courts noticed earlier.16. As between the two conflicting views of the Full Bench judgments noticed above, we prefer to approve the ratio laid down by the Andhra Pradesh High Court in Kondaiahs case as it advances the object of the legislature to protect the third party interest. We hasten to add that the third party here will not include a transferee whose transferor has not followed procedure for transfer of policy. In other words in accord with therule of interpretation of statutes we are inclined to hold that the view taken by the Andhra Pradesh High Court in Kondaiahs case is preferable to the contrary views taken by the Karnataka and Delhi High Courts (supra) even assuming that two views are possible on the interpretation of relevant sections as it promotes the object of the legislature in protecting the third party (victim) interest. The ratio laid down in the judgment of Karnataka and Delhi High Courts (supra) differing from Andhra Pradesh High Court is not the correct one.

Ishwari Prasad Mishra Vs. Mohammad Isa

with the pull and weight that would be harnessed from behind would be sufficient to carry him through." Similarly, in criticising the trial Court for accepting the evidence of Jamuna Singh, the High Court has observed that the presumption made by the trial Court that teacher, as a rule, is a respectable person, "is not any legal appreciation of the evidence but a way found to suit the convenience of the court for holding in favour of the plaintiff." It would thus be seen that in reversing the decision of the trial Court, the High Court has suggested that the trial Court, was persuaded by extraneous considerations and that some pull and weight had been, used in favour of the appellant from behind. We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. vidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reached. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often founded on a sense of infallibility should always be avoided. In the present case, the High Court has used intemperate language and has even gone to the length of suggesting a corrupt motive against the Judge who decided the suit in favour of the appellant.In our opinion, the use of such intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of Judicial poise and balance. We have carefully considered all the evidence to which our attention was drawn by the learned counsel on both the sides and we are satisfied that the imputations made by the High Court against the impartiality and the objectivity of the approach adopted by the trial Judge are wholly unjustified. It is very much to be regretted that the High Court should have persuaded itself to use such extravagant language in criticising the trial Court, particularly when our conclusion in the present appeal shows that the trial Court was right and the High Court was wrong.But even if we had not upheld the findings of the trial Court, we would not have approved of the unbalanced criticism made by the High Court against the trial Court. No doubt, if it is shown that the decision of the trial Court in a given case is a result of corrupt motive, the High Court must condemn it and must take due further steps in the matter.But the use of strong language and imputation of corrupt motives should not be made light heatedly because the Judge against whom the imputations are made has no remedy in law to vindicate, his position.28. What we have said about the extravagant criticism made by the High Court against the trial Judge needs to be repeated in respect of similar criticism made by the High Court against some of the witnesses examined in the case. There is no doubt that judicial administration should be fearless; judges must have full freedom to express their conclusions in respect of the evidence given by the witnesses before them without any favour or fear; and so, judicial power to express its appreciation about oral evidence is very wide. But the very width of the said power must inevitably impose some healthy restraints upon its exercise. Take, for instance, the criticism made by the High Court against the young lawyer Mr. Choudhary. In our opinion, that criticism is wholly unjustified. It is conceivable that in a given case, a court of facts may come to the conclusion that all the witnesses who have supported one party have conspired to give false evidence, and in such a case the court must unhesitatingly record its conclusion to that effect. But, before such a conclusion is reached, all the pros and cons must be carefully and scrupulously examined and a conscientious effort must always be made not to regard evidence which appears to be unreasonable or improbable as being false and perjured. We have noticed that the judgment of the High Court shows a tendency to regard every witness whose evidence the High Court did not feel inclined to accept as a perjuror and a conspirator. This approach again may tend to show with respect, either lack of experience or absence of judicial poise and balance. It is because the judgment of the High Court showed these glaring infirmities that Mr. Sastri told us at the very outset that in the present appeal, all that he proposed to do was to defend the respondent but not the judgment of the High Court which has been pronounced in his favour.

1[ds]No doubt, the High Court has come to the conclusion that there has been a conspiracy between all the witnesses, and if that conclusion is right, then the draft would, of course, have to be treated as a false document. But, for the moment, dealing with the argument about the failure of the appellant to mention the draft in the plaint by itself, we do not think there is any substance inis true that if the last recital "that the deed of contract shall be deemed to the deed of sale" is literally construed, it would be unusual. But, in the context, all that it seems to mean is that sale-deed would be executed in the same terms as the agreement of sale. It seems to us unreasonable to suggest that because this particular part of the clause is somewhat unusually worded, the court should draw the inference that the senior Mr. Choudhary could not have dictated it and the whole story about the draft isagain is an unusual provision. But it cannot sustain the argument that the story about the draft having been dictated by Mr. Choudhary is untrue. That fact will have to be decided in the light of the oral evidence adduced by the appellant to show that the draft was in fact dictated by the senior Mr. Choudhary. Therefore we do not think that the two clauses on which Mr. Sastri relies can justify the conclusion that the story about the draft is athe day when the agreement was entered into, the appellants father had gone to Lucknow and if the appellant is taking the oath in support of his case and he knows all the relevant facts which have to be proved in this case, there is no reason why his father should have stepped into the box or hiswould thus be seen that the statements made by this witness do not appear to be credible and the claim made by him that the construction work of the house spread over several years and that he spent Rs. 30,000/- for the improvements, cannot, therefore, be accepted as true. In our opinion, on the material as it stands, there was no justification for the High Court to have reversed the finding of the trial Court about the value of the property. Therefore, the argument that the value of the property was Rs. 30,000/- and that negatives the version about the agreement of sale, must beconsidering the broad features of the case on which the learned Counsel for the respective parties relied before us, it appears that these features are not inconsistent with the appellants case but are inconsistent with the version set out by thehave carefully considered the evidence of this young lawyer and we agree with the trial Court that the story deposed to by him is true and straightforward. Thus, the position is that the evidence led by the appellant satisfactorily proves the purchase of the stamps which bore the thumb marks of the respondent, the preparation of the draft and the engrossment of the draft on a stamp paper by the scribe Khakhan Singh, and its attestation by the three attesting witnesses. That is why we feel no difficulty in holding that the trial Court was right in coming to the conclusion that the suit agreement was genuine and valid and is supported by consideration. In our opinion, the High Court was not justified in interfering with this conclusion ingiven by experts of handwriting can never be conclusive, because it is, after all, opinion evidence. Since we have come to the conclusion that the evidence given by the attesting witnesses and the scribe and the appellant is wholly satisfactory, that evidence proved the execution of the document by the respondent and the said evidence does not really need to be corroborated by the opinion of experts. Even so, Mr. Bennett does support the appellants cases and though Mr. Nasrat Hussain supports the respondents case, it is significant that he has categorically admitted that what purports to be the writing of the respondent is simulated forgery. The writing in question purports to acknowledge the receipt of Rs. 10,000/; the appellant says that it is the writing of the respondent, whereas the respondent contends that it is forgery. The respondents expert calls it simulated forgery. After the respondents expert described the writing as simulated forgery he was asked a specific question as to whether it would be possible to have simulated forgery where there was no model before the forger of the respondents writing and the expert definitely stated that it would not be possible to bring out simulated forgery without the model of the respondents writing. This answer clearly means that the appellant or any of his alleged accomplices should have been in possession of a model writing of the respondent, and on this point, not even a suggestion has been made to the appellant that he was in possession of any writing of the respondent. That only shows that the expert evidence given by Mr. Nasrat Hussain does not really help the respondents case.27. Before we part with this appeal, it is necessary that we should make some observations about the approach adopted by the High Court in dealing with the judgment of the that court which was in appeal before it. In several places the High Court has passed severe strictures against the trial Court and has, in substance, suggested that the decision of the trial Court was not only perverse but was based on extraneous considerations. It has observed that the mind of the learned Subordinate Judge was already loaded with bias in favour of the plaintiff an that the plaintiff had calculated that such of the evidence as he would produce "long with the pull and weight that would be harnessed from behind would be sufficient to carry him through." Similarly, in criticising the trial Court for accepting the evidence of Jamuna Singh, the High Court has observed that the presumption made by the trial Court that teacher, as a rule, is a respectable person, "is not any legal appreciation of the evidence but a way found to suit the convenience of the court for holding in favour of the plaintiff." It would thus be seen that in reversing the decision of the trial Court, the High Court has suggested that the trial Court, was persuaded by extraneous considerations and that some pull and weight had been, used in favour of the appellant from behind. We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. vidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reached. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often founded on a sense of infallibility should always be avoided. In the present case, the High Court has used intemperate language and has even gone to the length of suggesting a corrupt motive against the Judge who decided the suit in favour of the appellant.In our opinion, the use of such intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of Judicial poise and balance. We have carefully considered all the evidence to which our attention was drawn by the learned counsel on both the sides and we are satisfied that the imputations made by the High Court against the impartiality and the objectivity of the approach adopted by the trial Judge are wholly unjustified. It is very much to be regretted that the High Court should have persuaded itself to use such extravagant language in criticising the trial Court, particularly when our conclusion in the present appeal shows that the trial Court was right and the High Court was wrong.But even if we had not upheld the findings of the trial Court, we would not have approved of the unbalanced criticism made by the High Court against the trial Court. No doubt, if it is shown that the decision of the trial Court in a given case is a result of corrupt motive, the High Court must condemn it and must take due further steps in the matter.But the use of strong language and imputation of corrupt motives should not be made light heatedly because the Judge against whom the imputations are made has no remedy in law to vindicate, his position.28. What we have said about the extravagant criticism made by the High Court against the trial Judge needs to be repeated in respect of similar criticism made by the High Court against some of the witnesses examined in the case. There is no doubt that judicial administration should be fearless; judges must have full freedom to express their conclusions in respect of the evidence given by the witnesses before them without any favour or fear; and so, judicial power to express its appreciation about oral evidence is very wide. But the very width of the said power must inevitably impose some healthy restraints upon its exercise. Take, for instance, the criticism made by the High Court against the young lawyer Mr. Choudhary. In our opinion, that criticism is wholly unjustified. It is conceivable that in a given case, a court of facts may come to the conclusion that all the witnesses who have supported one party have conspired to give false evidence, and in such a case the court must unhesitatingly record its conclusion to that effect. But, before such a conclusion is reached, all the pros and cons must be carefully and scrupulously examined and a conscientious effort must always be made not to regard evidence which appears to be unreasonable or improbable as being false and perjured. We have noticed that the judgment of the High Court shows a tendency to regard every witness whose evidence the High Court did not feel inclined to accept as a perjuror and a conspirator. This approach again may tend to show with respect, either lack of experience or absence of judicial poise and balance. It is because the judgment of the High Court showed these glaring infirmities that Mr. Sastri told us at the very outset that in the present appeal, all that he proposed to do was to defend the respondent but not the judgment of the High Court which has been pronounced in his favour.

### 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: with the pull and weight that would be harnessed from behind would be sufficient to carry him through." Similarly, in criticising the trial Court for accepting the evidence of Jamuna Singh, the High Court has observed that the presumption made by the trial Court that teacher, as a rule, is a respectable person, "is not any legal appreciation of the evidence but a way found to suit the convenience of the court for holding in favour of the plaintiff." It would thus be seen that in reversing the decision of the trial Court, the High Court has suggested that the trial Court, was persuaded by extraneous considerations and that some pull and weight had been, used in favour of the appellant from behind. We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. vidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reached. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often founded on a sense of infallibility should always be avoided. In the present case, the High Court has used intemperate language and has even gone to the length of suggesting a corrupt motive against the Judge who decided the suit in favour of the appellant.In our opinion, the use of such intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of Judicial poise and balance. We have carefully considered all the evidence to which our attention was drawn by the learned counsel on both the sides and we are satisfied that the imputations made by the High Court against the impartiality and the objectivity of the approach adopted by the trial Judge are wholly unjustified. It is very much to be regretted that the High Court should have persuaded itself to use such extravagant language in criticising the trial Court, particularly when our conclusion in the present appeal shows that the trial Court was right and the High Court was wrong.But even if we had not upheld the findings of the trial Court, we would not have approved of the unbalanced criticism made by the High Court against the trial Court. No doubt, if it is shown that the decision of the trial Court in a given case is a result of corrupt motive, the High Court must condemn it and must take due further steps in the matter.But the use of strong language and imputation of corrupt motives should not be made light heatedly because the Judge against whom the imputations are made has no remedy in law to vindicate, his position.28. What we have said about the extravagant criticism made by the High Court against the trial Judge needs to be repeated in respect of similar criticism made by the High Court against some of the witnesses examined in the case. There is no doubt that judicial administration should be fearless; judges must have full freedom to express their conclusions in respect of the evidence given by the witnesses before them without any favour or fear; and so, judicial power to express its appreciation about oral evidence is very wide. But the very width of the said power must inevitably impose some healthy restraints upon its exercise. Take, for instance, the criticism made by the High Court against the young lawyer Mr. Choudhary. In our opinion, that criticism is wholly unjustified. It is conceivable that in a given case, a court of facts may come to the conclusion that all the witnesses who have supported one party have conspired to give false evidence, and in such a case the court must unhesitatingly record its conclusion to that effect. But, before such a conclusion is reached, all the pros and cons must be carefully and scrupulously examined and a conscientious effort must always be made not to regard evidence which appears to be unreasonable or improbable as being false and perjured. We have noticed that the judgment of the High Court shows a tendency to regard every witness whose evidence the High Court did not feel inclined to accept as a perjuror and a conspirator. This approach again may tend to show with respect, either lack of experience or absence of judicial poise and balance. It is because the judgment of the High Court showed these glaring infirmities that Mr. Sastri told us at the very outset that in the present appeal, all that he proposed to do was to defend the respondent but not the judgment of the High Court which has been pronounced in his favour. ### Response: 1 ### Explanation: with the pull and weight that would be harnessed from behind would be sufficient to carry him through." Similarly, in criticising the trial Court for accepting the evidence of Jamuna Singh, the High Court has observed that the presumption made by the trial Court that teacher, as a rule, is a respectable person, "is not any legal appreciation of the evidence but a way found to suit the convenience of the court for holding in favour of the plaintiff." It would thus be seen that in reversing the decision of the trial Court, the High Court has suggested that the trial Court, was persuaded by extraneous considerations and that some pull and weight had been, used in favour of the appellant from behind. We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. vidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reached. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often founded on a sense of infallibility should always be avoided. In the present case, the High Court has used intemperate language and has even gone to the length of suggesting a corrupt motive against the Judge who decided the suit in favour of the appellant.In our opinion, the use of such intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of Judicial poise and balance. We have carefully considered all the evidence to which our attention was drawn by the learned counsel on both the sides and we are satisfied that the imputations made by the High Court against the impartiality and the objectivity of the approach adopted by the trial Judge are wholly unjustified. It is very much to be regretted that the High Court should have persuaded itself to use such extravagant language in criticising the trial Court, particularly when our conclusion in the present appeal shows that the trial Court was right and the High Court was wrong.But even if we had not upheld the findings of the trial Court, we would not have approved of the unbalanced criticism made by the High Court against the trial Court. No doubt, if it is shown that the decision of the trial Court in a given case is a result of corrupt motive, the High Court must condemn it and must take due further steps in the matter.But the use of strong language and imputation of corrupt motives should not be made light heatedly because the Judge against whom the imputations are made has no remedy in law to vindicate, his position.28. What we have said about the extravagant criticism made by the High Court against the trial Judge needs to be repeated in respect of similar criticism made by the High Court against some of the witnesses examined in the case. There is no doubt that judicial administration should be fearless; judges must have full freedom to express their conclusions in respect of the evidence given by the witnesses before them without any favour or fear; and so, judicial power to express its appreciation about oral evidence is very wide. But the very width of the said power must inevitably impose some healthy restraints upon its exercise. Take, for instance, the criticism made by the High Court against the young lawyer Mr. Choudhary. In our opinion, that criticism is wholly unjustified. It is conceivable that in a given case, a court of facts may come to the conclusion that all the witnesses who have supported one party have conspired to give false evidence, and in such a case the court must unhesitatingly record its conclusion to that effect. But, before such a conclusion is reached, all the pros and cons must be carefully and scrupulously examined and a conscientious effort must always be made not to regard evidence which appears to be unreasonable or improbable as being false and perjured. We have noticed that the judgment of the High Court shows a tendency to regard every witness whose evidence the High Court did not feel inclined to accept as a perjuror and a conspirator. This approach again may tend to show with respect, either lack of experience or absence of judicial poise and balance. It is because the judgment of the High Court showed these glaring infirmities that Mr. Sastri told us at the very outset that in the present appeal, all that he proposed to do was to defend the respondent but not the judgment of the High Court which has been pronounced in his favour.

Uptron India Ltd Vs. Shammi Bhanu

counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that "Learned counsel for the respondent rightly made no attempt to support this part of the High Courts order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place.24. It will also be significant to note that in the instant case the High Court did not hold that Clause 17(g) was ultra vires but it did hold that the action taken against the respondent to whom an opportunity of hearing was not given was bad. 25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "Production" in a Factory or Industrial Establishment, would be bad if it does not purport to provide an opportunity or hearing to the employee whose services are treated to have come to an end automatically. 26. We may now consider the question of "Retrenchment" which is defined in Section 2(oo) as under:- "2(oo) `retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -(a) voluntary retirement of the workman; or(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or(bb) termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or(c) termination of the service of a workman on the ground of continued ill- health." 27. The definition of "Retrenchment" was introduced in the Act 43 of 1953 with effect from 24th of October, 1953. Clause (bb) was inserted in the definition by Act 49 of 1984 with effect from 18.8.1984. 28. The definition is conclusive in the sense that "Retrenchment" has been defined to mean the termination of the service of a workman by the employer for any reason whatsoever. If the termination was by way of punishment as a consequence of disciplinary action, it would not amount to "Retrenchment". Originally, there were two other exceptions, namely, (i) voluntary retirement of the workman, and(ii) retirement of the workman on reaching the age of superannuation if the contract of employment contained a stipulation to that effect. 29. By the Amending Act 49 of 1984, two further exceptions were introduced in the definition by inserting Clause (bb) with effect from 18.8.84; one was the termination of service on the ground of continued ill-health of the workman and the other was termination of service on account of non-renewal of the contract of employment on the expiry of the term of that contract. If such contract of employment contained a stipulation for termination of service and the services of the workman are terminated in accordance with that stipulation, such termination, according to Clause (bb), would also not amount to "Retrenchment".30. What was contended before the Tribunal as also before the High Court was that the termination of the services of respondent was covered by Clause (bb) of Section 2(oo) and, therefore, it could not be treated as "Retrenchment" with the result that other statutory provisions, specially those contained in Section 25F of the Act were not required to be complied with. This argument which was not accepted by the Tribunal and the High Court has been stressed before us also and here also it must meet the same fate as it is without any substance or merit.31. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed-term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. In the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely, that the termination was in pursuance of a stipulation to that effect in the contract of employment, does not arise.32. The contract of employment referred to in the earlier part of Clause (bb) has to be the same as it referred to in the latter part. This is clear by the use of words "such contract" in the earlier part of this Clause. What the Clause, therefore, means is that there should have been a contract of employment for a fixed-term between the employer and the workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. If such contract, on the expiry of its original period, is not renewed and the services are terminated as a consequences of that period, it would not amount to "Retrenchment". Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case also, the termination would not amount to "retrenchment". This view finds support from a decision of this Court in Escorts Ltd. v. Presiding Officer, (1997) 11 SCC 621. 33. This case does not fall in either of the two situations contemplated by Clause (bb). The `Rule of exception, therefore, is not applicable in the instant case and consequently the finding recorded by the Tribunal on "retrenchment" cannot be disturbed.

0[ds]25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "Production" in a Factory or Industrial Establishment, would be bad if it does not purport to provide an opportunity or hearing to the employee whose services are treated to have come to an end automatically.By the Amending Act 49 of 1984, two further exceptions were introduced in the definition by inserting Clause (bb) with effect from 18.8.84; one was the termination of service on the ground of continued ill-health of the workman and the other was termination of service on account of non-renewal of the contract of employment on the expiry of the term of that contract. If such contract of employment contained a stipulation for termination of service and the services of the workman are terminated in accordance with that stipulation, such termination, according to Clause (bb), would also not amount to "Retrenchment".30. What was contended before the Tribunal as also before the High Court was that the termination of the services of respondent was covered by Clause (bb) of Section 2(oo) and, therefore, it could not be treated as "Retrenchment" with the result that other statutory provisions, specially those contained in Section 25F of the Act were not required to be complied with. This argument which was not accepted by the Tribunal and the High Court has been stressed before us also and here also it must meet the same fate as it is without any substance or merit.31. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed-term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. In the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely, that the termination was in pursuance of a stipulation to that effect in the contract of employment, does not arise.32. The contract of employment referred to in the earlier part of Clause (bb) has to be the same as it referred to in the latter part. This is clear by the use of words "such contract" in the earlier part of this Clause. What the Clause, therefore, means is that there should have been a contract of employment for a fixed-term between the employer and the workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. If such contract, on the expiry of its original period, is not renewed and the services are terminated as a consequences of that period, it would not amount to "Retrenchment". Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case also, the termination would not amount to "retrenchment". This view finds support from a decision of this Court in Escorts Ltd. v. Presiding Officer, (1997) 11 SCC 621. 33. This case does not fall in either of the two situations contemplated by Clause (bb). The `Rule of exception, therefore, is not applicable in the instant case and consequently the finding recorded by the Tribunal on "retrenchment" cannot be disturbed.This being the legal position, the action taken against the respondent, who, as pointed out earlier, was a permanent employee, was wholly illegal.In view of this observation, the question whether the stipulation for automatic termination of services for overstaying the leave would be legally bad or not, was not decided by this Court in the judgment relied upon by Mr. Manoj Swarup. In that judgment the grounds on which the interference was made were different. The judgment of the High Court was set aside on the ground that it could not decide the disputed question of fact in a writ petition and the matter should have been better left to be decided by the Industrial Tribunal. Further, the High Court was approached after more than six years of the date on which the cause of action had arisen without there being any cogent explanation for the delay. Mr. Manoj Swarup contended that it was conceded by the counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that "Learned counsel for the respondent rightly made no attempt to support this part of the High Courts order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place.24. It will also be significant to note that in the instant case the High Court did not hold that Clause 17(g) was ultra vires but it did hold that the action taken against the respondent to whom an opportunity of hearing was not given was bad.

### 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: counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that "Learned counsel for the respondent rightly made no attempt to support this part of the High Courts order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place.24. It will also be significant to note that in the instant case the High Court did not hold that Clause 17(g) was ultra vires but it did hold that the action taken against the respondent to whom an opportunity of hearing was not given was bad. 25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "Production" in a Factory or Industrial Establishment, would be bad if it does not purport to provide an opportunity or hearing to the employee whose services are treated to have come to an end automatically. 26. We may now consider the question of "Retrenchment" which is defined in Section 2(oo) as under:- "2(oo) `retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -(a) voluntary retirement of the workman; or(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or(bb) termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or(c) termination of the service of a workman on the ground of continued ill- health." 27. The definition of "Retrenchment" was introduced in the Act 43 of 1953 with effect from 24th of October, 1953. Clause (bb) was inserted in the definition by Act 49 of 1984 with effect from 18.8.1984. 28. The definition is conclusive in the sense that "Retrenchment" has been defined to mean the termination of the service of a workman by the employer for any reason whatsoever. If the termination was by way of punishment as a consequence of disciplinary action, it would not amount to "Retrenchment". Originally, there were two other exceptions, namely, (i) voluntary retirement of the workman, and(ii) retirement of the workman on reaching the age of superannuation if the contract of employment contained a stipulation to that effect. 29. By the Amending Act 49 of 1984, two further exceptions were introduced in the definition by inserting Clause (bb) with effect from 18.8.84; one was the termination of service on the ground of continued ill-health of the workman and the other was termination of service on account of non-renewal of the contract of employment on the expiry of the term of that contract. If such contract of employment contained a stipulation for termination of service and the services of the workman are terminated in accordance with that stipulation, such termination, according to Clause (bb), would also not amount to "Retrenchment".30. What was contended before the Tribunal as also before the High Court was that the termination of the services of respondent was covered by Clause (bb) of Section 2(oo) and, therefore, it could not be treated as "Retrenchment" with the result that other statutory provisions, specially those contained in Section 25F of the Act were not required to be complied with. This argument which was not accepted by the Tribunal and the High Court has been stressed before us also and here also it must meet the same fate as it is without any substance or merit.31. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed-term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. In the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely, that the termination was in pursuance of a stipulation to that effect in the contract of employment, does not arise.32. The contract of employment referred to in the earlier part of Clause (bb) has to be the same as it referred to in the latter part. This is clear by the use of words "such contract" in the earlier part of this Clause. What the Clause, therefore, means is that there should have been a contract of employment for a fixed-term between the employer and the workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. If such contract, on the expiry of its original period, is not renewed and the services are terminated as a consequences of that period, it would not amount to "Retrenchment". Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case also, the termination would not amount to "retrenchment". This view finds support from a decision of this Court in Escorts Ltd. v. Presiding Officer, (1997) 11 SCC 621. 33. This case does not fall in either of the two situations contemplated by Clause (bb). The `Rule of exception, therefore, is not applicable in the instant case and consequently the finding recorded by the Tribunal on "retrenchment" cannot be disturbed. ### Response: 0 ### Explanation: 25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "Production" in a Factory or Industrial Establishment, would be bad if it does not purport to provide an opportunity or hearing to the employee whose services are treated to have come to an end automatically.By the Amending Act 49 of 1984, two further exceptions were introduced in the definition by inserting Clause (bb) with effect from 18.8.84; one was the termination of service on the ground of continued ill-health of the workman and the other was termination of service on account of non-renewal of the contract of employment on the expiry of the term of that contract. If such contract of employment contained a stipulation for termination of service and the services of the workman are terminated in accordance with that stipulation, such termination, according to Clause (bb), would also not amount to "Retrenchment".30. What was contended before the Tribunal as also before the High Court was that the termination of the services of respondent was covered by Clause (bb) of Section 2(oo) and, therefore, it could not be treated as "Retrenchment" with the result that other statutory provisions, specially those contained in Section 25F of the Act were not required to be complied with. This argument which was not accepted by the Tribunal and the High Court has been stressed before us also and here also it must meet the same fate as it is without any substance or merit.31. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed-term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. In the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely, that the termination was in pursuance of a stipulation to that effect in the contract of employment, does not arise.32. The contract of employment referred to in the earlier part of Clause (bb) has to be the same as it referred to in the latter part. This is clear by the use of words "such contract" in the earlier part of this Clause. What the Clause, therefore, means is that there should have been a contract of employment for a fixed-term between the employer and the workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. If such contract, on the expiry of its original period, is not renewed and the services are terminated as a consequences of that period, it would not amount to "Retrenchment". Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case also, the termination would not amount to "retrenchment". This view finds support from a decision of this Court in Escorts Ltd. v. Presiding Officer, (1997) 11 SCC 621. 33. This case does not fall in either of the two situations contemplated by Clause (bb). The `Rule of exception, therefore, is not applicable in the instant case and consequently the finding recorded by the Tribunal on "retrenchment" cannot be disturbed.This being the legal position, the action taken against the respondent, who, as pointed out earlier, was a permanent employee, was wholly illegal.In view of this observation, the question whether the stipulation for automatic termination of services for overstaying the leave would be legally bad or not, was not decided by this Court in the judgment relied upon by Mr. Manoj Swarup. In that judgment the grounds on which the interference was made were different. The judgment of the High Court was set aside on the ground that it could not decide the disputed question of fact in a writ petition and the matter should have been better left to be decided by the Industrial Tribunal. Further, the High Court was approached after more than six years of the date on which the cause of action had arisen without there being any cogent explanation for the delay. Mr. Manoj Swarup contended that it was conceded by the counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that "Learned counsel for the respondent rightly made no attempt to support this part of the High Courts order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place.24. It will also be significant to note that in the instant case the High Court did not hold that Clause 17(g) was ultra vires but it did hold that the action taken against the respondent to whom an opportunity of hearing was not given was bad.

H.L. Sud, Income-Tax Officer, Bombay Vs. Tata Engineering & Locomotive Co. Ltd.Bombay

in respect of such transactions deal directly with or on behalf of a non-resident principal but deals with or through a non-resident broker who is carrying on such transactions in the ordinary course of his business and not as a principal, such first-mentioned broker shall not be deemed to be an agent under this section in respect of such transactions:Provided further that no person shall be deemed to be the agent of a non-resident person, unless he has had an opportunity of being heard by the Income-tax Officer as to his liability.Explanation:- A person, whether residing in or out of the taxable territories, who acquires, after the 28th day of February, 1947, whether by sale, exchange or transfer, a capital asset in the taxable territories from a person residing out of the taxable territories shall, for the purposes of charging to tax the capital gain arising from such sale, exchange or transfer, he deemed to have it business connection, within the meaning of this section, with such person residing out of the taxable territories."3. On behalf of the appellant Mr. Sukumar Mitra addressed the argument that an appointment made under S. 43 of the Act was good for all purposes of the Act and therefore also for the purpose of S. 18-A of the Act. It was said that under S. 18-A, advance payment of tax is liable to be made in the current financial year that the assessment year 1961-62 is the same as the financial year 1961-62 and that for the said financial year in which the advance payment of tax was called to be made by the respondent, there was already an appointment of the respondent as the statutory agents of the non-resident firms, the advance payment of tax was rightly demanded from the respondent. The appointment of the respondent under S. 43 of the Act made on October 21, 1961 and the notice of demand in the present case were issued on November 2/3, 1961 and therefore subsequent to the said appointment. It was therefore contended that the advance payment of tax was properly demanded from the respondent and the respondent could not challenge the notices issued to it. In our opinion, there is no warrant or justification for the argument advanced on behalf of the appellant.The liability imposed upon a person by his appointment as a statutory agent under S. 43 of the Act is only in respect of the liability for the assessment year for which the appointment is made. The appointment of the respondent for the assessment year 1961-62 was in respect of the liability of the non-resident firms for the income of the previous year for the said assessment year 1961-62. Having regard to the scheme of the Act, the assessment for each year is self-contained and the vicarious liability imposed by an appointment under S. 43 of the Act only extends to the liability for the assessment of the year for which the appointment is made and cannot extend to the liability for any other assessment. Nor can the expression "for all purposes" used in S. 43 of the Act extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made. The expression "For the purposes", in our opinion, only indicates that when an appointment is made for a particular assessment year it is good for all purposes as far as that assessment is concerned i. e. for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The liability sought to be imposed under S. 18-A of the Act is not in respect of the income-tax for the assessment year for which the appointment is made but for a subsequent assessment year. For the recovery of income tax of the said subsequent year unless there is a fresh appointment of the respondent under S. 43 of the Act as a statutory agent, no such liability can be imposed on the respondent by the Income-tax authorities. It is true, as Mr. Sukumar Mitra contends, that advance tax which is required to be paid under S. 18-A is charges during the financial year.But it must be remembered that it is charged not in respect of the previous year for which the financial year is the proper assessment yea but it is charges for the tax liability of the subsequent year. In the present case, it is admitted that there was no appointment of the respondent under S. 43 of the Act as statutory agent of the two German firms for the assessment year 1962-63. No notice was served upon the respondent under S. 43 of the Act intimating to the respondent that the appellant intended to treat it as the agent of the non-resident German firms for the assessment year 1962-63. No opportunity was given to the respondent to be heard in the matter, nor was any formal order passed under S. 43 of the Act by the appellant treating the respondent as the agent of the non-resident German firms for the assessment year 1962-63. Although a person may fail in a particular year to resist the claim that he is an agent, circumstances may alter in the next claim and be may be able to resist the claim then. Hence notice shall have to be given by the Income-tax Officer for each assessment year to appoint a person as agent.It follows therefore that the respondent could not be treated as an agent of the two German firms for the assessment year 1962-63 and advance tax could not be demanded under S. 18-A of the Act for that assessment year treating the respondent as such statutory agent.We are accordingly of the opinion that the notices of demand issued by the appellant to the respondent dated September 5, 1961 were illegal and ultra vires and rightly quashed by the High Court by the grant of a writ in the nature of certiorari under Article 226 of the Constitution.

0[ds]In our opinion, there is no warrant or justification for the argument advanced on behalf of the appellant.The liability imposed upon a person by his appointment as a statutory agent under S. 43 of the Act is only in respect of the liability for the assessment year for which the appointment is made. The appointment of the respondent for the assessment year 1961-62 was in respect of the liability of the non-resident firms for the income of the previous year for the said assessment year 1961-62. Having regard to the scheme of the Act, the assessment for each year is self-contained and the vicarious liability imposed by an appointment under S. 43 of the Act only extends to the liability for the assessment of the year for which the appointment is made and cannot extend to the liability for any other assessment. Nor can the expression "for all purposes" used in S. 43 of the Act extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made. The expression "For the purposes", in our opinion, only indicates that when an appointment is made for a particular assessment year it is good for all purposes as far as that assessment is concerned i. e. for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The liability sought to be imposed under S. 18-A of the Act is not in respect of the income-tax for the assessment year for which the appointment is made but for a subsequent assessment year. For the recovery of income tax of the said subsequent year unless there is a fresh appointment of the respondent under S. 43 of the Act as a statutory agent, no such liability can be imposed on the respondent by the Income-tax authorities. It is true, as Mr. Sukumar Mitra contends, that advance tax which is required to be paid under S. 18-A is charges during the financial year.But it must be remembered that it is charged not in respect of the previous year for which the financial year is the proper assessment yea but it is charges for the tax liability of the subsequent year. In the present case, it is admitted that there was no appointment of the respondent under S. 43 of the Act as statutory agent of the two German firms for the assessment year 1962-63. No notice was served upon the respondent under S. 43 of the Act intimating to the respondent that the appellant intended to treat it as the agent of the non-resident German firms for the assessment year 1962-63. No opportunity was given to the respondent to be heard in the matter, nor was any formal order passed under S. 43 of the Act by the appellant treating the respondent as the agent of the non-resident German firms for the assessment year 1962-63. Although a person may fail in a particular year to resist the claim that he is an agent, circumstances may alter in the next claim and be may be able to resist the claim then. Hence notice shall have to be given by the Income-tax Officer for each assessment year to appoint a person as agent.It follows therefore that the respondent could not be treated as an agent of the two German firms for the assessment year 1962-63 and advance tax could not be demanded under S. 18-A of the Act for that assessment year treating the respondent as such statutory agent.We are accordingly of the opinion that the notices of demand issued by the appellant to the respondent dated September 5, 1961 were illegal and ultra vires and rightly quashed by the High Court by the grant of a writ in the nature of certiorari under Article 226 of the Constitution.

### 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: in respect of such transactions deal directly with or on behalf of a non-resident principal but deals with or through a non-resident broker who is carrying on such transactions in the ordinary course of his business and not as a principal, such first-mentioned broker shall not be deemed to be an agent under this section in respect of such transactions:Provided further that no person shall be deemed to be the agent of a non-resident person, unless he has had an opportunity of being heard by the Income-tax Officer as to his liability.Explanation:- A person, whether residing in or out of the taxable territories, who acquires, after the 28th day of February, 1947, whether by sale, exchange or transfer, a capital asset in the taxable territories from a person residing out of the taxable territories shall, for the purposes of charging to tax the capital gain arising from such sale, exchange or transfer, he deemed to have it business connection, within the meaning of this section, with such person residing out of the taxable territories."3. On behalf of the appellant Mr. Sukumar Mitra addressed the argument that an appointment made under S. 43 of the Act was good for all purposes of the Act and therefore also for the purpose of S. 18-A of the Act. It was said that under S. 18-A, advance payment of tax is liable to be made in the current financial year that the assessment year 1961-62 is the same as the financial year 1961-62 and that for the said financial year in which the advance payment of tax was called to be made by the respondent, there was already an appointment of the respondent as the statutory agents of the non-resident firms, the advance payment of tax was rightly demanded from the respondent. The appointment of the respondent under S. 43 of the Act made on October 21, 1961 and the notice of demand in the present case were issued on November 2/3, 1961 and therefore subsequent to the said appointment. It was therefore contended that the advance payment of tax was properly demanded from the respondent and the respondent could not challenge the notices issued to it. In our opinion, there is no warrant or justification for the argument advanced on behalf of the appellant.The liability imposed upon a person by his appointment as a statutory agent under S. 43 of the Act is only in respect of the liability for the assessment year for which the appointment is made. The appointment of the respondent for the assessment year 1961-62 was in respect of the liability of the non-resident firms for the income of the previous year for the said assessment year 1961-62. Having regard to the scheme of the Act, the assessment for each year is self-contained and the vicarious liability imposed by an appointment under S. 43 of the Act only extends to the liability for the assessment of the year for which the appointment is made and cannot extend to the liability for any other assessment. Nor can the expression "for all purposes" used in S. 43 of the Act extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made. The expression "For the purposes", in our opinion, only indicates that when an appointment is made for a particular assessment year it is good for all purposes as far as that assessment is concerned i. e. for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The liability sought to be imposed under S. 18-A of the Act is not in respect of the income-tax for the assessment year for which the appointment is made but for a subsequent assessment year. For the recovery of income tax of the said subsequent year unless there is a fresh appointment of the respondent under S. 43 of the Act as a statutory agent, no such liability can be imposed on the respondent by the Income-tax authorities. It is true, as Mr. Sukumar Mitra contends, that advance tax which is required to be paid under S. 18-A is charges during the financial year.But it must be remembered that it is charged not in respect of the previous year for which the financial year is the proper assessment yea but it is charges for the tax liability of the subsequent year. In the present case, it is admitted that there was no appointment of the respondent under S. 43 of the Act as statutory agent of the two German firms for the assessment year 1962-63. No notice was served upon the respondent under S. 43 of the Act intimating to the respondent that the appellant intended to treat it as the agent of the non-resident German firms for the assessment year 1962-63. No opportunity was given to the respondent to be heard in the matter, nor was any formal order passed under S. 43 of the Act by the appellant treating the respondent as the agent of the non-resident German firms for the assessment year 1962-63. Although a person may fail in a particular year to resist the claim that he is an agent, circumstances may alter in the next claim and be may be able to resist the claim then. Hence notice shall have to be given by the Income-tax Officer for each assessment year to appoint a person as agent.It follows therefore that the respondent could not be treated as an agent of the two German firms for the assessment year 1962-63 and advance tax could not be demanded under S. 18-A of the Act for that assessment year treating the respondent as such statutory agent.We are accordingly of the opinion that the notices of demand issued by the appellant to the respondent dated September 5, 1961 were illegal and ultra vires and rightly quashed by the High Court by the grant of a writ in the nature of certiorari under Article 226 of the Constitution. ### Response: 0 ### Explanation: In our opinion, there is no warrant or justification for the argument advanced on behalf of the appellant.The liability imposed upon a person by his appointment as a statutory agent under S. 43 of the Act is only in respect of the liability for the assessment year for which the appointment is made. The appointment of the respondent for the assessment year 1961-62 was in respect of the liability of the non-resident firms for the income of the previous year for the said assessment year 1961-62. Having regard to the scheme of the Act, the assessment for each year is self-contained and the vicarious liability imposed by an appointment under S. 43 of the Act only extends to the liability for the assessment of the year for which the appointment is made and cannot extend to the liability for any other assessment. Nor can the expression "for all purposes" used in S. 43 of the Act extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made. The expression "For the purposes", in our opinion, only indicates that when an appointment is made for a particular assessment year it is good for all purposes as far as that assessment is concerned i. e. for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The liability sought to be imposed under S. 18-A of the Act is not in respect of the income-tax for the assessment year for which the appointment is made but for a subsequent assessment year. For the recovery of income tax of the said subsequent year unless there is a fresh appointment of the respondent under S. 43 of the Act as a statutory agent, no such liability can be imposed on the respondent by the Income-tax authorities. It is true, as Mr. Sukumar Mitra contends, that advance tax which is required to be paid under S. 18-A is charges during the financial year.But it must be remembered that it is charged not in respect of the previous year for which the financial year is the proper assessment yea but it is charges for the tax liability of the subsequent year. In the present case, it is admitted that there was no appointment of the respondent under S. 43 of the Act as statutory agent of the two German firms for the assessment year 1962-63. No notice was served upon the respondent under S. 43 of the Act intimating to the respondent that the appellant intended to treat it as the agent of the non-resident German firms for the assessment year 1962-63. No opportunity was given to the respondent to be heard in the matter, nor was any formal order passed under S. 43 of the Act by the appellant treating the respondent as the agent of the non-resident German firms for the assessment year 1962-63. Although a person may fail in a particular year to resist the claim that he is an agent, circumstances may alter in the next claim and be may be able to resist the claim then. Hence notice shall have to be given by the Income-tax Officer for each assessment year to appoint a person as agent.It follows therefore that the respondent could not be treated as an agent of the two German firms for the assessment year 1962-63 and advance tax could not be demanded under S. 18-A of the Act for that assessment year treating the respondent as such statutory agent.We are accordingly of the opinion that the notices of demand issued by the appellant to the respondent dated September 5, 1961 were illegal and ultra vires and rightly quashed by the High Court by the grant of a writ in the nature of certiorari under Article 226 of the Constitution.

Mysore State Road Transport Corporation Vs. Mirja Kasim Ali Beg & Another

311(1) of the Constitution. The argument seems to overlook that both at the time coming into force of the States Reorganisation Act, 1956 and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State. 17. The fourth contention raised by counsel for the appellant that the discretionary relief of declaration could not and should not have been granted by the lower Courts on the facts of the present suits is also devoid of merit. In Executive Committee of U.P. State Warehousing Corporation Limited v. Chandra Kiran Tyagi, [1970-I L.L.J. 32]; (1970) 2 S.C.R. 250 and Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, [1976-II L.L.J. 163]; (1976) 2 S.C.R. 1006, it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases;(i) Appropriate cases of public servants who have been dismissed from service in contravention of Art. 311; (ii) dismissed workers under industrial and labour law; and (iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute. 18. This takes us to second limb of the fourth contention raised on behalf of the appellant. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower Court in the spirit of the statute or fairly or honestly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court. Reference in this connection may usefully be made to a decision of the Privy Council in Charles Osenton & Company v. Johnston [1942] A.C. 130, where the legal post position was succinctly stated as follows :There remains the question whether, assuming that in the circumstances of this case Tucker, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal. So the respondent contends, while the appellants urged that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referees finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a Court of appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in Evans v. Bart am, [1937] A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows : It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court or Appeal. Thus in Gardner v. Jay, [1885] 29 Ch. D. 50, Bowen, L.J., in discussing the discretion of the Judge as regards mode of trial says : That discretion, like other judicial discretion, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed ? 19. Bearing in mind the well-settled principles regarding interference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled. 20. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation no decree could be passed against it. The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Transport Corporation and had transferred its rights and liabilities to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.

0[ds]6. A bare perusal of sub-s.(7) of S.115 ofthe States Reorganisation Act, 1956, reproduced above, makes it clear that nothing contained in that section could, after the appointed day, i.e., November 1, 1956 affect the operation of the provisions of Chapter 1 of Part XIV of the Constitution which includes Art. 311 thereof in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State and the conditions of service applicable immediately before the appointed day to any person who is allotted to another State could not be varied to his prejudice except with the previous approval of the Central government.It follows, therefore, that the protections including the constitutional protection enshrined in Art. 311(1) of the Constitution enjoyed by persons holding civil posts under the State like the first respondents prior to the coming into force ofthe States Reorganisation Act, 1956 could not, after the appointed day, i.e., November 1, 1956, be taken away, whittled down or impaired by any legislative enactment or rule.7. Sub-section(2) of S.116 ofthe States Reorganisation Act, 1956 which is the sheet anchor of the first contention raised on behalf of the appellants but on which no reliance was rightly placed on their behalf either in the Court of the first instance or in the trial Court is of no assistance to the appellants. As observed by the learned Chief Justice while speaking for the Constitution Bench of this Court in M/s. Gammon Indian Ltd. and others v. Union of India and others, (1974) 1 S.C.C. 596, every clause of a statute is to be construed with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject-matter. The interpretation of the words has to be by looking at the context, the collocation of the words and the object of the words relating to the matters. The words are not to be viewed detached from the context of the statute. The words are to be viewed in relation to the whole context. The expression competent authority occurring in sub-s.(2) of S.116 of the Act cannot, therefore, be considered in isolation apart from the rest of the provisions of the Act. It has to be read in connection with, construed and understood as having the same meaning as the expression appropriate authority contemplated by sub-s. (1) of that section which in turn according to Art. 311(1) of the Constitution means the appointing authority or an authority equivalent to or co-ordinate in rank with the appointing authority. The Constitution being the transcendental law, the Legislature by enacting S.115(7) ofthe States Reorganisation Act, 1956 took care to see that the constitutional guarantee enshrined in Art 311(1) of the Constitution which was available to the civil servants before the State Reorganisation Act, 1956 was not destroyed or wiped away on their allotment to a new State. That the construction placed by us on the expression competent authority is in consonance with the meaning and import of the word subordinate occurring in Art. 311(1) of the Constitution is apparent from a catena of decisions.13. In the instant cases, the first respondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State. On the coming into force ofthe States Reorganisation Act, 1956 on November 1, 1956, they were to be deemed by virtue of sub-s.(1) of S.116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by then on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or co-ordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or co-ordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellants own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the competent authority in terms of sub-s.(2) of S.116 ofthe States Reorganisation Act, 1956. The fact that there was no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Art. 311 of the Constitution read with S.115(7) of the States Reorganisation Act 1956.first contention urged on behalf of the appellants which runs counter not only to contention No. 4 raised by the Corporation in its statement of case before this Court and the admission made by it in answer to the aforesaid interrogatories but also to S.115(7) and S.116 ofthe States Reorganisation Act, 1956, is, therefore, rejected.14. The second contention urged on behalf of the appellants that as the General Manager of the Mysore Government Road Transport Department confirmed on appeal the orders of dismissal of the first respondent that should be considered as substantial compliance with the provisions of Art. 311(1) of the Constitution is, in our judgment, devoid of substance. The original order of dismissal of the first respondents being without jurisdiction and as such void and inoperative having been passed in contravention of the provisions of Art. 311(1) of the Constitution, the order passed on appeal by the General Manager could not cure the initial defect.In similar circumstances, the appellant order passed by the Director General of Prisons was not considered by the Madras High Court in N. Somasundarams case (supra) to remedy the invalidity of the original order passed by the Superintendent of Jails. To the same effect is the decision of the Nagpur High Court in Provincial Government, Central Provinces and Berar v. Shamshul Hussain Siraj Hussain, A.I.R. 1949 Nagpur 118.16. There is also no force in the third contention of counsel for the appellants that the posts held by the first respondents not being civil posts under the State, there could be no question of violation of Art. 311(1) of the Constitution. The argument seems to overlook that both at the time coming into force ofthe States Reorganisation Act, 1956 and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State.17. The fourth contention raised by counsel for the appellant that the discretionary relief of declaration could not and should not have been granted by the lower Courts on the facts of the present suits is also devoid of merit. In Executive Committee of U.P. State Warehousing Corporation Limited v. Chandra Kiran Tyagi, [1970-I L.L.J. 32]; (1970) 2 S.C.R. 250 and Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, [1976-II L.L.J. 163]; (1976) 2 S.C.R. 1006, it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases;(i) Appropriate cases of public servants who have been dismissed from service in contravention of Art. 311;(ii) dismissed workers under industrial and labour law; and(iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute.18. This takes us to second limb of the fourth contention raised on behalf of the appellant. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower Court in the spirit of the statute or fairly or honestly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court. Reference in this connection may usefully be made to a decision of the Privy Council in Charles OsentonCompany v. Johnston [1942] A.C. 130, where the legal post position was succinctly stated as follows :There remains the question whether, assuming that in the circumstances of this case Tucker, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal. So the respondent contends, while the appellants urged that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referees finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a Court of appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in Evans v. Bart am, [1937] A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows : It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court or Appeal. Thus in Gardner v. Jay, [1885] 29 Ch. D. 50, Bowen, L.J., in discussing the discretion of the Judge as regards mode of trial says : That discretion, like other judicial discretion, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed ?19. Bearing in mind the well-settled principles regarding interference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled20. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation no decree could be passed against it. The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Transport Corporation and had transferred its rights and liabilities to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.Reference in this connection may be made to two decisions of this Court in M. D. Shukla and others, v. State of Gujarat and others, (1970) 3 S.C.R. 515 and N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore, (1964) 7 S.C.R. 549. In the latter case, it was held by this Court that the effect of sub-s.(7) of S.115 of the States Reorganisation Act is to preserve the power of the State to make rules under Art. 309 of the Constitution but the proviso imposes a limitation on the exercise of that power, the limitation being that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of the person mentioned in sub-s.(1) and (2) of S.115 of the Act. In the view of the Court, the broad purpose underlying the proviso to S.115(7) of the Act was to ensure that the conditions of service of the aforesaid persons shall not be changed except with the prior approval of the Central Government, i.e., before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government. Now as pointed out by the Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand, (75 I.A. 343 A.I.R 1949 P.C. 112) and by this Court in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court, (1955) 2 S.C.R. 1331 and State of Madhya Pradesh and others v. Shardul Singh, (1970) 3 S.C.R. 302, the expression conditions of service is an expression of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants. It is also well-settled legislative provision or rule to take away the guarantee provided by Art 311(1) of the Constitution which lays down that no public servant shall be dismissed by an authority subordinate to that by which he was appointed and if any such legislative provision or rule lays down otherwise, it will clearly be ultra vires. (See Rangachari v. Secretary of State (64 I.A. 40 : A.I.R. 1937 P.C. 27), North West Frontier Province v. Suraj Narain Anand (supra) and The State of Uttar Pradesh and others v. Babu Ram Upadhya, (1961) 2 S.C.R. 679.

### 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: 311(1) of the Constitution. The argument seems to overlook that both at the time coming into force of the States Reorganisation Act, 1956 and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State. 17. The fourth contention raised by counsel for the appellant that the discretionary relief of declaration could not and should not have been granted by the lower Courts on the facts of the present suits is also devoid of merit. In Executive Committee of U.P. State Warehousing Corporation Limited v. Chandra Kiran Tyagi, [1970-I L.L.J. 32]; (1970) 2 S.C.R. 250 and Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, [1976-II L.L.J. 163]; (1976) 2 S.C.R. 1006, it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases;(i) Appropriate cases of public servants who have been dismissed from service in contravention of Art. 311; (ii) dismissed workers under industrial and labour law; and (iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute. 18. This takes us to second limb of the fourth contention raised on behalf of the appellant. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower Court in the spirit of the statute or fairly or honestly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court. Reference in this connection may usefully be made to a decision of the Privy Council in Charles Osenton & Company v. Johnston [1942] A.C. 130, where the legal post position was succinctly stated as follows :There remains the question whether, assuming that in the circumstances of this case Tucker, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal. So the respondent contends, while the appellants urged that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referees finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a Court of appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in Evans v. Bart am, [1937] A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows : It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court or Appeal. Thus in Gardner v. Jay, [1885] 29 Ch. D. 50, Bowen, L.J., in discussing the discretion of the Judge as regards mode of trial says : That discretion, like other judicial discretion, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed ? 19. Bearing in mind the well-settled principles regarding interference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled. 20. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation no decree could be passed against it. The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Transport Corporation and had transferred its rights and liabilities to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it. ### Response: 0 ### Explanation: with on appeal. So the respondent contends, while the appellants urged that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referees finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a Court of appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in Evans v. Bart am, [1937] A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows : It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court or Appeal. Thus in Gardner v. Jay, [1885] 29 Ch. D. 50, Bowen, L.J., in discussing the discretion of the Judge as regards mode of trial says : That discretion, like other judicial discretion, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed ?19. Bearing in mind the well-settled principles regarding interference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled20. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation no decree could be passed against it. The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Transport Corporation and had transferred its rights and liabilities to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.Reference in this connection may be made to two decisions of this Court in M. D. Shukla and others, v. State of Gujarat and others, (1970) 3 S.C.R. 515 and N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore, (1964) 7 S.C.R. 549. In the latter case, it was held by this Court that the effect of sub-s.(7) of S.115 of the States Reorganisation Act is to preserve the power of the State to make rules under Art. 309 of the Constitution but the proviso imposes a limitation on the exercise of that power, the limitation being that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of the person mentioned in sub-s.(1) and (2) of S.115 of the Act. In the view of the Court, the broad purpose underlying the proviso to S.115(7) of the Act was to ensure that the conditions of service of the aforesaid persons shall not be changed except with the prior approval of the Central Government, i.e., before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government. Now as pointed out by the Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand, (75 I.A. 343 A.I.R 1949 P.C. 112) and by this Court in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court, (1955) 2 S.C.R. 1331 and State of Madhya Pradesh and others v. Shardul Singh, (1970) 3 S.C.R. 302, the expression conditions of service is an expression of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants. It is also well-settled legislative provision or rule to take away the guarantee provided by Art 311(1) of the Constitution which lays down that no public servant shall be dismissed by an authority subordinate to that by which he was appointed and if any such legislative provision or rule lays down otherwise, it will clearly be ultra vires. (See Rangachari v. Secretary of State (64 I.A. 40 : A.I.R. 1937 P.C. 27), North West Frontier Province v. Suraj Narain Anand (supra) and The State of Uttar Pradesh and others v. Babu Ram Upadhya, (1961) 2 S.C.R. 679.

Commissioner of Income Tax, West Bengal III Vs. Pigot Chapman and Company

over the business and carried it on as from April 1, 1959, under the style of M/s. Pigot Chapman & Co. at the same place and, therefore, it could not be said that it was a case of a dissolution of the erstwhile firm and succession to the old business by a new firm and as such both the Tribunal and the High Court were in error in granting relief under s. 25(4) to the respondent-assessee. We might mention that in support of the aforesaid contention, counsel for the appellant relied upon few decided cases including a decision of this court in CIT v. A. W. Figgies & Company [1953] 24 ITR 405 , but in our view it is unnecessary to discuss the facts of those cases and the conclusions reached therein because the principle is well settled that it is on an examination of relevant documents and relevant facts and circumstances that the court has to be satisfied in each case as to whether there has been a succession or a mere change in the constitution of the partnership. It cannot be disputed that " dissolution " and " reconstitution " are two distinct legal concepts, for, a dissolution brings the partnership to an end while a reconstitution means the continuation of the partnership under altered circumstances but, in our view, in law there would be no difficulty in a dissolution of a firm being followed by the constitution of a new firm by some of the erstwhile partners who may take over the assets and liabilities of the dissolved firm. In other words it is not possible to accept the contention of counsel for the appellant that, upon a dissolution of a firm, succession to the old business by another person would arise only if a solitary partner takes over the assets and liabilities and carries on the business as a sole proprietor thereof or if some of the erstwhile partners along with some strangers take over the assets and liabilities of the old firm and carry on the business. The two instances mentioned by counsel for the appellant are undoubtedly clear cases of succession to the old business by another person or entity but succession to the old business contemplated under s. 25(4) need not be and cannot be confined to the instances mentioned by counsel for the appellant. Under s. 40 of the Partnership Act, 1932, a firm can be dissolved with the consent of all the partners or in accordance with the contract between the partners; under s. 43 a partnership at will can be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm and upon such notice being given the firm gets dissolved as from the date mentioned in the notice as the date of dissolution and, if no date is so mentioned, as from the date of the communication of the notice, while s. 44 contemplates dissolution of a firm by and under orders of the court in certain contingencies mentioned therein. It is quite conceivable that in cases of dissolution of the firm brought about by a notice under s. 43 or by an order of the court under s. 44 some of the erstwhile partners may take over the assets and liabilities and carry on the same business by constituting a new firm and even such cases would be cases of succession to the old business within the meaning of s. 25(4) of the 1922 Act. In our view, the question whether there has been a dissolution of the firm and upon such dissolution a new firm has succeeded to the business of the old firm, is a question which depends upon the intention of the parties to be gathered from the document or documents, if any, executed by and between the partners and other facts and surrounding circumstances of the caseIn the instant case, therefore, the question is whether there has been a dissolution of the old firm followed by the creation of a new firm which could be said to have succeeded to the business of the old firm? We have already summarised, while narrating the undisputed facts, the effect of the earlier documents commencing from the initial deed of partnership dated 18th May, 1953, right up to the deed dated 30th of March, 1959, with which we are principally concerned. On an examination of these documents the following facts emerge clearly: (a) that the initial partnership between Haywood, Blomenstok, Ablitt and Roy under the deed dated 18th May, 1953, was for a fixed term of six years from April 1, 1953, and as such the same would automatically stand dissolved under s. 42(a) of the Partnership Act on March 31, 1959; (b) under the deed dated 30th of March, 1959, the partnership between Mclean, Ablitt and Roy was in terms " dissolved by mutual consent as from 1st April, 1959 "; (c) the document expressly states both in the recital portion and in the operative part (vide cls. 1 and 2) that the firm has been dissolved by mutual consent; (d) the continuing partners were given the sole right to collect all the assets of the dissolved firm and to issue, recover and give full receipts for all debts of that firm; (e) each of the parties to the deed released the other from all proceedings, accounts, costs, claims and demands in respect of the dissolved firm; (f) the Tribunal found as a fact that the relevant account books clearly indicated that the old firm stood dissolved and its assets and liabilities were taken over by the new firm of the two continuing partners; and (g) within three months, another document was executed on 29th June, 1959, by and between the continuing partners recording the terms and conditions on which the continuing partners, to the exclusion of the retiring partner, were to carry on the business of the old firm with effect from April 1, 1959.

1[ds]According to counsel when a partnership is dissolved and only one of the erstwhile partners takes over the business and carries it on as the proprietor thereof or upon dissolution some of the erstwhile partners take some outsiders as partners and carry on the business, those would be the cases where another person (entity) could be said to have succeeded to the business within the meaning of s. 25(4) but in the instant case, after the retirement of Mclean, the two erstwile remaining partners, namely, Ablitt and Roy, jointly described as continuing partners by the deed dated 30th March, 1959, took over the business and carried it on as from April 1, 1959, under the style of M/s. Pigot Chapman & Co. at the same place and, therefore, it could not be said that it was a case of a dissolution of the erstwhile firm and succession to the old business by a new firm and as such both the Tribunal and the High Court were in error in granting relief under s. 25(4) to theWe might mention that in support of the aforesaid contention, counsel for the appellant relied upon few decided cases including a decision of this court in CIT v. A. W. Figgies & Company [1953] 24 ITR 405 , but in our view it is unnecessary to discuss the facts of those cases and the conclusions reached therein because the principle is well settled that it is on an examination of relevant documents and relevant facts and circumstances that the court has to be satisfied in each case as to whether there has been a succession or a mere change in the constitution of the partnership. It cannot be disputed that " dissolution " and " reconstitution " are two distinct legal concepts, for, a dissolution brings the partnership to an end while a reconstitution means the continuation of the partnership under altered circumstances but, in our view, in law there would be no difficulty in a dissolution of a firm being followed by the constitution of a new firm by some of the erstwhile partners who may take over the assets and liabilities of the dissolved firm. In other words it is not possible to accept the contention of counsel for the appellant that, upon a dissolution of a firm, succession to the old business by another person would arise only if a solitary partner takes over the assets and liabilities and carries on the business as a sole proprietor thereof or if some of the erstwhile partners along with some strangers take over the assets and liabilities of the old firm and carry on the business. The two instances mentioned by counsel for the appellant are undoubtedly clear cases of succession to the old business by another person or entity but succession to the old business contemplated under s. 25(4) need not be and cannot be confined to the instances mentioned by counsel for the appellant. Under s. 40 of the Partnership Act, 1932, a firm can be dissolved with the consent of all the partners or in accordance with the contract between the partners; under s. 43 a partnership at will can be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm and upon such notice being given the firm gets dissolved as from the date mentioned in the notice as the date of dissolution and, if no date is so mentioned, as from the date of the communication of the notice, while s. 44 contemplates dissolution of a firm by and under orders of the court in certain contingencies mentioned therein. It is quite conceivable that in cases of dissolution of the firm brought about by a notice under s. 43 or by an order of the court under s. 44 some of the erstwhile partners may take over the assets and liabilities and carry on the same business by constituting a new firm and even such cases would be cases of succession to the old business within the meaning of s. 25(4) of the 1922 Act. In our view, the question whether there has been a dissolution of the firm and upon such dissolution a new firm has succeeded to the business of the old firm, is a question which depends upon the intention of the parties to be gathered from the document or documents, if any, executed by and between the partners and other facts and surrounding circumstances of thethe instant case, therefore, the question is whether there has been a dissolution of the old firm followed by the creation of a new firm which could be said to have succeeded to the business of the old firm?We have already summarised, while narrating the undisputed facts, the effect of the earlier documents commencing from the initial deed of partnership dated 18th May, 1953, right up to the deed dated 30th of March, 1959, with which we are principally concerned. On an examination of these documents the following facts emerge clearly: (a) that the initial partnership between Haywood, Blomenstok, Ablitt and Roy under the deed dated 18th May, 1953, was for a fixed term of six years from April 1, 1953, and as such the same would automatically stand dissolved under s. 42(a) of the Partnership Act on March 31, 1959; (b) under the deed dated 30th of March, 1959, the partnership between Mclean, Ablitt and Roy was in terms " dissolved by mutual consent as from 1st April, 1959 "; (c) the document expressly states both in the recital portion and in the operative part (vide cls. 1 and 2) that the firm has been dissolved by mutual consent; (d) the continuing partners were given the sole right to collect all the assets of the dissolved firm and to issue, recover and give full receipts for all debts of that firm; (e) each of the parties to the deed released the other from all proceedings, accounts, costs, claims and demands in respect of the dissolved firm; (f) the Tribunal found as a fact that the relevant account books clearly indicated that the old firm stood dissolved and its assets and liabilities were taken over by the new firm of the two continuing partners; and (g) within three months, another document was executed on 29th June, 1959, by and between the continuing partners recording the terms and conditions on which the continuing partners, to the exclusion of the retiring partner, were to carry on the business of the old firm with effect from April 1, 1959.

### 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: over the business and carried it on as from April 1, 1959, under the style of M/s. Pigot Chapman & Co. at the same place and, therefore, it could not be said that it was a case of a dissolution of the erstwhile firm and succession to the old business by a new firm and as such both the Tribunal and the High Court were in error in granting relief under s. 25(4) to the respondent-assessee. We might mention that in support of the aforesaid contention, counsel for the appellant relied upon few decided cases including a decision of this court in CIT v. A. W. Figgies & Company [1953] 24 ITR 405 , but in our view it is unnecessary to discuss the facts of those cases and the conclusions reached therein because the principle is well settled that it is on an examination of relevant documents and relevant facts and circumstances that the court has to be satisfied in each case as to whether there has been a succession or a mere change in the constitution of the partnership. It cannot be disputed that " dissolution " and " reconstitution " are two distinct legal concepts, for, a dissolution brings the partnership to an end while a reconstitution means the continuation of the partnership under altered circumstances but, in our view, in law there would be no difficulty in a dissolution of a firm being followed by the constitution of a new firm by some of the erstwhile partners who may take over the assets and liabilities of the dissolved firm. In other words it is not possible to accept the contention of counsel for the appellant that, upon a dissolution of a firm, succession to the old business by another person would arise only if a solitary partner takes over the assets and liabilities and carries on the business as a sole proprietor thereof or if some of the erstwhile partners along with some strangers take over the assets and liabilities of the old firm and carry on the business. The two instances mentioned by counsel for the appellant are undoubtedly clear cases of succession to the old business by another person or entity but succession to the old business contemplated under s. 25(4) need not be and cannot be confined to the instances mentioned by counsel for the appellant. Under s. 40 of the Partnership Act, 1932, a firm can be dissolved with the consent of all the partners or in accordance with the contract between the partners; under s. 43 a partnership at will can be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm and upon such notice being given the firm gets dissolved as from the date mentioned in the notice as the date of dissolution and, if no date is so mentioned, as from the date of the communication of the notice, while s. 44 contemplates dissolution of a firm by and under orders of the court in certain contingencies mentioned therein. It is quite conceivable that in cases of dissolution of the firm brought about by a notice under s. 43 or by an order of the court under s. 44 some of the erstwhile partners may take over the assets and liabilities and carry on the same business by constituting a new firm and even such cases would be cases of succession to the old business within the meaning of s. 25(4) of the 1922 Act. In our view, the question whether there has been a dissolution of the firm and upon such dissolution a new firm has succeeded to the business of the old firm, is a question which depends upon the intention of the parties to be gathered from the document or documents, if any, executed by and between the partners and other facts and surrounding circumstances of the caseIn the instant case, therefore, the question is whether there has been a dissolution of the old firm followed by the creation of a new firm which could be said to have succeeded to the business of the old firm? We have already summarised, while narrating the undisputed facts, the effect of the earlier documents commencing from the initial deed of partnership dated 18th May, 1953, right up to the deed dated 30th of March, 1959, with which we are principally concerned. On an examination of these documents the following facts emerge clearly: (a) that the initial partnership between Haywood, Blomenstok, Ablitt and Roy under the deed dated 18th May, 1953, was for a fixed term of six years from April 1, 1953, and as such the same would automatically stand dissolved under s. 42(a) of the Partnership Act on March 31, 1959; (b) under the deed dated 30th of March, 1959, the partnership between Mclean, Ablitt and Roy was in terms " dissolved by mutual consent as from 1st April, 1959 "; (c) the document expressly states both in the recital portion and in the operative part (vide cls. 1 and 2) that the firm has been dissolved by mutual consent; (d) the continuing partners were given the sole right to collect all the assets of the dissolved firm and to issue, recover and give full receipts for all debts of that firm; (e) each of the parties to the deed released the other from all proceedings, accounts, costs, claims and demands in respect of the dissolved firm; (f) the Tribunal found as a fact that the relevant account books clearly indicated that the old firm stood dissolved and its assets and liabilities were taken over by the new firm of the two continuing partners; and (g) within three months, another document was executed on 29th June, 1959, by and between the continuing partners recording the terms and conditions on which the continuing partners, to the exclusion of the retiring partner, were to carry on the business of the old firm with effect from April 1, 1959. ### Response: 1 ### Explanation: dated 30th March, 1959, took over the business and carried it on as from April 1, 1959, under the style of M/s. Pigot Chapman & Co. at the same place and, therefore, it could not be said that it was a case of a dissolution of the erstwhile firm and succession to the old business by a new firm and as such both the Tribunal and the High Court were in error in granting relief under s. 25(4) to theWe might mention that in support of the aforesaid contention, counsel for the appellant relied upon few decided cases including a decision of this court in CIT v. A. W. Figgies & Company [1953] 24 ITR 405 , but in our view it is unnecessary to discuss the facts of those cases and the conclusions reached therein because the principle is well settled that it is on an examination of relevant documents and relevant facts and circumstances that the court has to be satisfied in each case as to whether there has been a succession or a mere change in the constitution of the partnership. It cannot be disputed that " dissolution " and " reconstitution " are two distinct legal concepts, for, a dissolution brings the partnership to an end while a reconstitution means the continuation of the partnership under altered circumstances but, in our view, in law there would be no difficulty in a dissolution of a firm being followed by the constitution of a new firm by some of the erstwhile partners who may take over the assets and liabilities of the dissolved firm. In other words it is not possible to accept the contention of counsel for the appellant that, upon a dissolution of a firm, succession to the old business by another person would arise only if a solitary partner takes over the assets and liabilities and carries on the business as a sole proprietor thereof or if some of the erstwhile partners along with some strangers take over the assets and liabilities of the old firm and carry on the business. The two instances mentioned by counsel for the appellant are undoubtedly clear cases of succession to the old business by another person or entity but succession to the old business contemplated under s. 25(4) need not be and cannot be confined to the instances mentioned by counsel for the appellant. Under s. 40 of the Partnership Act, 1932, a firm can be dissolved with the consent of all the partners or in accordance with the contract between the partners; under s. 43 a partnership at will can be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm and upon such notice being given the firm gets dissolved as from the date mentioned in the notice as the date of dissolution and, if no date is so mentioned, as from the date of the communication of the notice, while s. 44 contemplates dissolution of a firm by and under orders of the court in certain contingencies mentioned therein. It is quite conceivable that in cases of dissolution of the firm brought about by a notice under s. 43 or by an order of the court under s. 44 some of the erstwhile partners may take over the assets and liabilities and carry on the same business by constituting a new firm and even such cases would be cases of succession to the old business within the meaning of s. 25(4) of the 1922 Act. In our view, the question whether there has been a dissolution of the firm and upon such dissolution a new firm has succeeded to the business of the old firm, is a question which depends upon the intention of the parties to be gathered from the document or documents, if any, executed by and between the partners and other facts and surrounding circumstances of thethe instant case, therefore, the question is whether there has been a dissolution of the old firm followed by the creation of a new firm which could be said to have succeeded to the business of the old firm?We have already summarised, while narrating the undisputed facts, the effect of the earlier documents commencing from the initial deed of partnership dated 18th May, 1953, right up to the deed dated 30th of March, 1959, with which we are principally concerned. On an examination of these documents the following facts emerge clearly: (a) that the initial partnership between Haywood, Blomenstok, Ablitt and Roy under the deed dated 18th May, 1953, was for a fixed term of six years from April 1, 1953, and as such the same would automatically stand dissolved under s. 42(a) of the Partnership Act on March 31, 1959; (b) under the deed dated 30th of March, 1959, the partnership between Mclean, Ablitt and Roy was in terms " dissolved by mutual consent as from 1st April, 1959 "; (c) the document expressly states both in the recital portion and in the operative part (vide cls. 1 and 2) that the firm has been dissolved by mutual consent; (d) the continuing partners were given the sole right to collect all the assets of the dissolved firm and to issue, recover and give full receipts for all debts of that firm; (e) each of the parties to the deed released the other from all proceedings, accounts, costs, claims and demands in respect of the dissolved firm; (f) the Tribunal found as a fact that the relevant account books clearly indicated that the old firm stood dissolved and its assets and liabilities were taken over by the new firm of the two continuing partners; and (g) within three months, another document was executed on 29th June, 1959, by and between the continuing partners recording the terms and conditions on which the continuing partners, to the exclusion of the retiring partner, were to carry on the business of the old firm with effect from April 1, 1959.

P. H. Kalyani Vs. M/S. Air France Calcutta

by him,the Labour Court would be entitled to go into the question whether the dismissal was justified on the evidence led before it and this is exactly what the Labour Court did relying on the judgment of this Court in Phulbari Tea Estate, 1960 1 SCR 32 :(AIR 1959 SC 1111 ).The contention therefore on behalf of the appellant that the Labour Court was not entitled to go into the question whether the dismissal was justified once it held that the domestic inquiry was defective, must be rejected.7. Then it is urged that the Labour Court was wrong in holding that victimisation had not been proved. We however find no reason to differ from the finding of the Labour Court on the question of victimisation, apart from the fact that a finding of victimisation is generally a question of fact and cannot be agitated in this Court. The Labour Court has pointed out that the plea of victimisation on the ground that there was some delay in giving the charge sheet to the appellant cannot be sustained, because that Station Manager came to know about the mistakes only a few days before the charge sheet was given, though the mistakes had actually been committed in January and March, and also because the appellant admitted the mistakes and there could be no doubt therefore that he had committed them. We agree with the Labour Court that in the face of the appellants admission of the mistakes there could be no question of victimisation in this case.8. Finally it is urged that as the domestic inquiry was defective, there could be no approval of the action taken in consequence of such an inquiry and the Labour Court even if it held that the dismissal was justified should have ordered the dismissal from the date its award would become operative. In this connection reliance was placed on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd v. Shobrati Khan, (1959) Supp (2 SCR 836: (AIR 1959 SC 9233 were the following observations occur at p. 845 (of SCR): (at p. 928 of AIR):........as the management held no inquiry after suspending the workmen and proceedings under S. 33 were practically converted into the inquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in that proceedings under S. 33." We are of opinion the those observations can not be taken advantage of by the appellant. That was a case where an application had been made under S. 33 (1) of the Act for permission to dismiss the employees and such permission was asked for though no inquiry whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in those circumstances that a case for dismissal was made out only in the proceedings under S.33(1) and therefore the employees were held entitled to their wages till the decision of the application under S. 33. The matter would have been different if in that case an inquiry had been held and the employer had come to the conclusion that dismissal was the proper punishment and then had applied under S. 33 (l) for permission to dismiss. In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under S. 33 (1): (see management of Ranipur Colliery v. Bhuban Singh, (1959) Supp (2) SCR 719: (AIR 1959 SC 833 ). The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there as a prima facie case for dismissal, and whether the employer had come to the bonafide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations therefore in M/s. Sasa Musa Sugar Companys case, (1959) Supp (2) SCR 836: (AIR 1959 SC 923 ) on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court award came into operation must fail.

0[ds]In the present case the order of dismissal was passed by the Regional Representative on May 28,1960 and was communicated to the appellant on May 30th. The wages were offered to the appellant at the same time when the order was communicated to him, though he did not accept them. The respondent also made the application under S. 33 12) (b) to the industrial tribunal the same day. In these circumstances we are of opinion that the Labour Court was right in holding that the application under S. 33 (2) (b) was in accordance with the proviso to that section and was properlyare of opinion that the question whether a particular workman is a protected workman or not is a question of fact, and the finding of the Labour Court on such a question will generally be accepted by this Court asthe absence therefore of any evidence as to recognition the Labour Court rightly held that the appellant was not a protected workman and therefore previous permission under S. 33 (3) of the Act would not be necessary before hisis now well settled by a number of decisions of this Court that it is open to the tribunal to go into the propriety of an order of dismissal itself, when there is a defect in the domestic inquiry. In these circumstances even if it be held that the Station Manager was biased and therefore there was some violation of the principles of natural justice inasmuch as the inquiry was held by him,the Labour Court would be entitled to go into the question whether the dismissal was justified on the evidence led before it and this is exactly what the Labour Court did relying on the judgment of this Court in Phulbari Tea Estate, 1960 1 SCR 32 :(AIR 1959 SC 1111 ).The contention therefore on behalf of the appellant that the Labour Court was not entitled to go into the question whether the dismissal was justified once it held that the domestic inquiry was defective, must behowever find no reason to differ from the finding of the Labour Court on the question of victimisation, apart from the fact that a finding of victimisation is generally a question of fact and cannot be agitated in this Court. The Labour Court has pointed out that the plea of victimisation on the ground that there was some delay in giving the charge sheet to the appellant cannot be sustained, because that Station Manager came to know about the mistakes only a few days before the charge sheet was given, though the mistakes had actually been committed in January and March, and also because the appellant admitted the mistakes and there could be no doubt therefore that he had committed them. We agree with the Labour Court that in the face of the appellants admission of the mistakes there could be no question of victimisation in thispresent is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there as a prima facie case for dismissal, and whether the employer had come to the bonafide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations therefore in M/s. Sasa Musa Sugar Companys case, (1959) Supp (2) SCR 836: (AIR 1959 SC 923 ) on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court award came into operation must fail.

### 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: by him,the Labour Court would be entitled to go into the question whether the dismissal was justified on the evidence led before it and this is exactly what the Labour Court did relying on the judgment of this Court in Phulbari Tea Estate, 1960 1 SCR 32 :(AIR 1959 SC 1111 ).The contention therefore on behalf of the appellant that the Labour Court was not entitled to go into the question whether the dismissal was justified once it held that the domestic inquiry was defective, must be rejected.7. Then it is urged that the Labour Court was wrong in holding that victimisation had not been proved. We however find no reason to differ from the finding of the Labour Court on the question of victimisation, apart from the fact that a finding of victimisation is generally a question of fact and cannot be agitated in this Court. The Labour Court has pointed out that the plea of victimisation on the ground that there was some delay in giving the charge sheet to the appellant cannot be sustained, because that Station Manager came to know about the mistakes only a few days before the charge sheet was given, though the mistakes had actually been committed in January and March, and also because the appellant admitted the mistakes and there could be no doubt therefore that he had committed them. We agree with the Labour Court that in the face of the appellants admission of the mistakes there could be no question of victimisation in this case.8. Finally it is urged that as the domestic inquiry was defective, there could be no approval of the action taken in consequence of such an inquiry and the Labour Court even if it held that the dismissal was justified should have ordered the dismissal from the date its award would become operative. In this connection reliance was placed on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd v. Shobrati Khan, (1959) Supp (2 SCR 836: (AIR 1959 SC 9233 were the following observations occur at p. 845 (of SCR): (at p. 928 of AIR):........as the management held no inquiry after suspending the workmen and proceedings under S. 33 were practically converted into the inquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in that proceedings under S. 33." We are of opinion the those observations can not be taken advantage of by the appellant. That was a case where an application had been made under S. 33 (1) of the Act for permission to dismiss the employees and such permission was asked for though no inquiry whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in those circumstances that a case for dismissal was made out only in the proceedings under S.33(1) and therefore the employees were held entitled to their wages till the decision of the application under S. 33. The matter would have been different if in that case an inquiry had been held and the employer had come to the conclusion that dismissal was the proper punishment and then had applied under S. 33 (l) for permission to dismiss. In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under S. 33 (1): (see management of Ranipur Colliery v. Bhuban Singh, (1959) Supp (2) SCR 719: (AIR 1959 SC 833 ). The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there as a prima facie case for dismissal, and whether the employer had come to the bonafide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations therefore in M/s. Sasa Musa Sugar Companys case, (1959) Supp (2) SCR 836: (AIR 1959 SC 923 ) on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court award came into operation must fail. ### Response: 0 ### Explanation: In the present case the order of dismissal was passed by the Regional Representative on May 28,1960 and was communicated to the appellant on May 30th. The wages were offered to the appellant at the same time when the order was communicated to him, though he did not accept them. The respondent also made the application under S. 33 12) (b) to the industrial tribunal the same day. In these circumstances we are of opinion that the Labour Court was right in holding that the application under S. 33 (2) (b) was in accordance with the proviso to that section and was properlyare of opinion that the question whether a particular workman is a protected workman or not is a question of fact, and the finding of the Labour Court on such a question will generally be accepted by this Court asthe absence therefore of any evidence as to recognition the Labour Court rightly held that the appellant was not a protected workman and therefore previous permission under S. 33 (3) of the Act would not be necessary before hisis now well settled by a number of decisions of this Court that it is open to the tribunal to go into the propriety of an order of dismissal itself, when there is a defect in the domestic inquiry. In these circumstances even if it be held that the Station Manager was biased and therefore there was some violation of the principles of natural justice inasmuch as the inquiry was held by him,the Labour Court would be entitled to go into the question whether the dismissal was justified on the evidence led before it and this is exactly what the Labour Court did relying on the judgment of this Court in Phulbari Tea Estate, 1960 1 SCR 32 :(AIR 1959 SC 1111 ).The contention therefore on behalf of the appellant that the Labour Court was not entitled to go into the question whether the dismissal was justified once it held that the domestic inquiry was defective, must behowever find no reason to differ from the finding of the Labour Court on the question of victimisation, apart from the fact that a finding of victimisation is generally a question of fact and cannot be agitated in this Court. The Labour Court has pointed out that the plea of victimisation on the ground that there was some delay in giving the charge sheet to the appellant cannot be sustained, because that Station Manager came to know about the mistakes only a few days before the charge sheet was given, though the mistakes had actually been committed in January and March, and also because the appellant admitted the mistakes and there could be no doubt therefore that he had committed them. We agree with the Labour Court that in the face of the appellants admission of the mistakes there could be no question of victimisation in thispresent is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there as a prima facie case for dismissal, and whether the employer had come to the bonafide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations therefore in M/s. Sasa Musa Sugar Companys case, (1959) Supp (2) SCR 836: (AIR 1959 SC 923 ) on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court award came into operation must fail.

CHERIYATH JYOTHI Vs. SAINUDEEN

non working of the disputed shed. It is presume that there will be no damage or harm to the respondent at the present stage. The property of the petitioner is filled with yielding rubber which is not taking yield for the last 1.5 years. The number of trees is nearly 50.This report is submitting before Hon?ble family court nedumangad along with order and the rough plan.Dated this the 18th day of February 2015.sd.M.M. BashirAdvocate Commissioner?7. Indeed, the appellant contested the correctness of the said report. However, the High Court after taking into account the relevant material and including the report submitted by the Advocate Commissioner, concluded that the purport of the award passed by the Lok Adalat did not preclude the respondent from constructing a new structure after taking due permission from the competent authority in that regard. The High Court rejected the argument of the appellant that the award was in the nature of a permanent prohibition from putting up any construction on the plot occupied by the respondent. Having so held, the High Court, taking note of the apprehension of the appellant that the respondent may start operating Rubber Sheet¬making machinery, which would inevitably cause air and water pollution, granted liberty to the appellant to take recourse to the remedy as may be permissible in law. The High Court also observed that such proceedings be decided on its own merits and in accordance with law. The view so taken by the High Court is the subject matter of challenge in this appeal.8. The appellant has argued the matter in person. Although the respondents have been served and respondent No.2 is represented through counsel, none appeared when the matter was called out for hearing.9. We have considered the relevant material placed on record and on considering the same in its proper perspective, we find no reason to interfere with the final conclusion recorded by the High Court in allowing the writ petition and setting aside the order passed by the Executing Court. As noticed from the representation submitted by the appellant to the Gram Panchayath, the core grievance was with regard to the unauthorised structure erected on the plot occupied by the respondent and which was being used as a Plant for making Rubber Sheets on a commercial basis. The grievance essentially was that the structure was in complete violation of the provisions and conditions of the Kerala Panchayath Building Rules, 2011 and also contributed to severe health hazards to those living in the vicinity. However, the Panchayath was essentially concerned with the unauthorised structure erected on the subject plot by respondent No.1. That grievance stood redressed by the award passed by the Lok Adalat recording the assurance given by respondent No.1 that he would demolish the existing structure within a period of three months. The fact that the structure, as it existed on the date of making of the award, was removed by respondent No.1 is reinforced from the stand taken by the Panchayath in its affidavit. Furthermore, respondent No.1 admittedly, constructed a new building on the same plot after taking prior permission of the competent authority in that regard, which presupposes that the structure as existed thereat in August, 2013 was removed, without which the new building could not have been erected. The fact that permit was granted to respondent No.1 to construct the new building is not only supported by the permit dated 9 th October, 2013 (Annexure- P8), but also from the affidavit filed on behalf of the Gram Panchayath dated 9 th January, 2015 and including the factual position stated in the report of the Advocate Commissioner dated 18 th February, 2015.10. The moot question is the width of the award passed by the Lok Adalat dated 23 rd August, 2013. It is, in our opinion, obviously limited to removal of the existing structure on the stated plot occupied by respondent No.1 within three months. That structure, as aforesaid, came to be removed, which fact is reinforced from the circumstances discussed hitherto. The Executing Court, however, erroneously opined that the structure, as it existed at the time of making of the award, was still not demolished. That finding is in the teeth of the documentary evidence and the assertions made on affidavit by respondent No.1 as well as the Gram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejected the argument of the appellant that the effect of the award was to completely prohibit putting up of any structure/building on the stated plot occupied by respondent No.1, irrespective of the permission granted by the competent authority in that regard. The High Court was right in observing that whether respondent No.1 had constructed the structure as per the permit was a matter to be considered by the competent authority who had issued such a permit and it would be open to the appellant to approach that authority for appropriate reliefs, if so advised. Similarly, insofar as the nuisance likely to be caused to the appellant due to the activities of the respondent in the form of air pollution, water pollution, noise pollution or any other infringement of right, the appellant must take recourse to the appropriate remedy in that regard. Further, those proceedings will have to be decided on its own merits. The view so taken by the High Court is, in our opinion, unexceptional.11. We hold that the scope of the award was limited to removal of the structure as it existed at the relevant time. No direction has been issued to respondent No.1 to forebear from carrying on his legitimate activities, including business activities, from the stated plot occupied by him. If the activities of the respondent are in violation of any law or regulation, it would be open to the appellant to approach the concerned statutory authority or appropriate forum and seek relief in that regard as per law. Thus, we find no infirmity in the impugned judgment of the High Court.

0[ds]9. We have considered the relevant material placed on record and on considering the same in its proper perspective, we find no reason to interfere with the final conclusion recorded by the High Court in allowing the writ petition and setting aside the order passed by the Executing Court. As noticed from the representation submitted by the appellant to the Gram Panchayath, the core grievance was with regard to the unauthorised structure erected on the plot occupied by the respondent and which was being used as a Plant for making Rubber Sheets on a commercial basis. The grievance essentially was that the structure was in complete violation of the provisions and conditions of the Kerala Panchayath Building Rules, 2011 and also contributed to severe health hazards to those living in the vicinity. However, the Panchayath was essentially concerned with the unauthorised structure erected on the subject plot by respondent No.1. That grievance stood redressed by the award passed by the Lok Adalat recording the assurance given by respondent No.1 that he would demolish the existing structure within a period of three months. The fact that the structure, as it existed on the date of making of the award, was removed by respondent No.1 is reinforced from the stand taken by the Panchayath in its affidavit. Furthermore, respondent No.1 admittedly, constructed a new building on the same plot after taking prior permission of the competent authority in that regard, which presupposes that the structure as existed thereat in August, 2013 was removed, without which the new building could not have been erected. The fact that permit was granted to respondent No.1 to construct the new building is not only supported by the permit dated 9 th October, 2013 (Annexure- P8), but also from the affidavit filed on behalf of the Gram Panchayath dated 9 th January, 2015 and including the factual position stated in the report of the Advocate Commissioner dated 18 th February, 2015.The moot question is the width of the award passed by the Lok Adalat dated 23 rd August, 2013. It is, in our opinion, obviously limited to removal of the existing structure on the stated plot occupied by respondent No.1 within three months. That structure, as aforesaid, came to be removed, which fact is reinforced from the circumstances discussed hitherto. The Executing Court, however, erroneously opined that the structure, as it existed at the time of making of the award, was still not demolished. That finding is in the teeth of the documentary evidence and the assertions made on affidavit by respondent No.1 as well as the Gram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejected the argument of the appellant that the effect of the award was to completely prohibit putting up of any structure/building on the stated plot occupied by respondent No.1, irrespective of the permission granted by the competent authority in that regard. The High Court was right in observing that whether respondent No.1 had constructed the structure as per the permit was a matter to be considered by the competent authority who had issued such a permit and it would be open to the appellant to approach that authority for appropriate reliefs, if so advised. Similarly, insofar as the nuisance likely to be caused to the appellant due to the activities of the respondent in the form of air pollution, water pollution, noise pollution or any other infringement of right, the appellant must take recourse to the appropriate remedy in that regard. Further, those proceedings will have to be decided on its own merits. The view so taken by the High Court is, in our opinion, unexceptional.We hold that the scope of the award was limited to removal of the structure as it existed at the relevant time. No direction has been issued to respondent No.1 to forebear from carrying on his legitimate activities, including business activities, from the stated plot occupied by him. If the activities of the respondent are in violation of any law or regulation, it would be open to the appellant to approach the concerned statutory authority or appropriate forum and seek relief in that regard as per law. Thus, we find no infirmity in the impugned judgment of the High Court.

### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: non working of the disputed shed. It is presume that there will be no damage or harm to the respondent at the present stage. The property of the petitioner is filled with yielding rubber which is not taking yield for the last 1.5 years. The number of trees is nearly 50.This report is submitting before Hon?ble family court nedumangad along with order and the rough plan.Dated this the 18th day of February 2015.sd.M.M. BashirAdvocate Commissioner?7. Indeed, the appellant contested the correctness of the said report. However, the High Court after taking into account the relevant material and including the report submitted by the Advocate Commissioner, concluded that the purport of the award passed by the Lok Adalat did not preclude the respondent from constructing a new structure after taking due permission from the competent authority in that regard. The High Court rejected the argument of the appellant that the award was in the nature of a permanent prohibition from putting up any construction on the plot occupied by the respondent. Having so held, the High Court, taking note of the apprehension of the appellant that the respondent may start operating Rubber Sheet¬making machinery, which would inevitably cause air and water pollution, granted liberty to the appellant to take recourse to the remedy as may be permissible in law. The High Court also observed that such proceedings be decided on its own merits and in accordance with law. The view so taken by the High Court is the subject matter of challenge in this appeal.8. The appellant has argued the matter in person. Although the respondents have been served and respondent No.2 is represented through counsel, none appeared when the matter was called out for hearing.9. We have considered the relevant material placed on record and on considering the same in its proper perspective, we find no reason to interfere with the final conclusion recorded by the High Court in allowing the writ petition and setting aside the order passed by the Executing Court. As noticed from the representation submitted by the appellant to the Gram Panchayath, the core grievance was with regard to the unauthorised structure erected on the plot occupied by the respondent and which was being used as a Plant for making Rubber Sheets on a commercial basis. The grievance essentially was that the structure was in complete violation of the provisions and conditions of the Kerala Panchayath Building Rules, 2011 and also contributed to severe health hazards to those living in the vicinity. However, the Panchayath was essentially concerned with the unauthorised structure erected on the subject plot by respondent No.1. That grievance stood redressed by the award passed by the Lok Adalat recording the assurance given by respondent No.1 that he would demolish the existing structure within a period of three months. The fact that the structure, as it existed on the date of making of the award, was removed by respondent No.1 is reinforced from the stand taken by the Panchayath in its affidavit. Furthermore, respondent No.1 admittedly, constructed a new building on the same plot after taking prior permission of the competent authority in that regard, which presupposes that the structure as existed thereat in August, 2013 was removed, without which the new building could not have been erected. The fact that permit was granted to respondent No.1 to construct the new building is not only supported by the permit dated 9 th October, 2013 (Annexure- P8), but also from the affidavit filed on behalf of the Gram Panchayath dated 9 th January, 2015 and including the factual position stated in the report of the Advocate Commissioner dated 18 th February, 2015.10. The moot question is the width of the award passed by the Lok Adalat dated 23 rd August, 2013. It is, in our opinion, obviously limited to removal of the existing structure on the stated plot occupied by respondent No.1 within three months. That structure, as aforesaid, came to be removed, which fact is reinforced from the circumstances discussed hitherto. The Executing Court, however, erroneously opined that the structure, as it existed at the time of making of the award, was still not demolished. That finding is in the teeth of the documentary evidence and the assertions made on affidavit by respondent No.1 as well as the Gram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejected the argument of the appellant that the effect of the award was to completely prohibit putting up of any structure/building on the stated plot occupied by respondent No.1, irrespective of the permission granted by the competent authority in that regard. The High Court was right in observing that whether respondent No.1 had constructed the structure as per the permit was a matter to be considered by the competent authority who had issued such a permit and it would be open to the appellant to approach that authority for appropriate reliefs, if so advised. Similarly, insofar as the nuisance likely to be caused to the appellant due to the activities of the respondent in the form of air pollution, water pollution, noise pollution or any other infringement of right, the appellant must take recourse to the appropriate remedy in that regard. Further, those proceedings will have to be decided on its own merits. The view so taken by the High Court is, in our opinion, unexceptional.11. We hold that the scope of the award was limited to removal of the structure as it existed at the relevant time. No direction has been issued to respondent No.1 to forebear from carrying on his legitimate activities, including business activities, from the stated plot occupied by him. If the activities of the respondent are in violation of any law or regulation, it would be open to the appellant to approach the concerned statutory authority or appropriate forum and seek relief in that regard as per law. Thus, we find no infirmity in the impugned judgment of the High Court. ### Response: 0 ### Explanation: 9. We have considered the relevant material placed on record and on considering the same in its proper perspective, we find no reason to interfere with the final conclusion recorded by the High Court in allowing the writ petition and setting aside the order passed by the Executing Court. As noticed from the representation submitted by the appellant to the Gram Panchayath, the core grievance was with regard to the unauthorised structure erected on the plot occupied by the respondent and which was being used as a Plant for making Rubber Sheets on a commercial basis. The grievance essentially was that the structure was in complete violation of the provisions and conditions of the Kerala Panchayath Building Rules, 2011 and also contributed to severe health hazards to those living in the vicinity. However, the Panchayath was essentially concerned with the unauthorised structure erected on the subject plot by respondent No.1. That grievance stood redressed by the award passed by the Lok Adalat recording the assurance given by respondent No.1 that he would demolish the existing structure within a period of three months. The fact that the structure, as it existed on the date of making of the award, was removed by respondent No.1 is reinforced from the stand taken by the Panchayath in its affidavit. Furthermore, respondent No.1 admittedly, constructed a new building on the same plot after taking prior permission of the competent authority in that regard, which presupposes that the structure as existed thereat in August, 2013 was removed, without which the new building could not have been erected. The fact that permit was granted to respondent No.1 to construct the new building is not only supported by the permit dated 9 th October, 2013 (Annexure- P8), but also from the affidavit filed on behalf of the Gram Panchayath dated 9 th January, 2015 and including the factual position stated in the report of the Advocate Commissioner dated 18 th February, 2015.The moot question is the width of the award passed by the Lok Adalat dated 23 rd August, 2013. It is, in our opinion, obviously limited to removal of the existing structure on the stated plot occupied by respondent No.1 within three months. That structure, as aforesaid, came to be removed, which fact is reinforced from the circumstances discussed hitherto. The Executing Court, however, erroneously opined that the structure, as it existed at the time of making of the award, was still not demolished. That finding is in the teeth of the documentary evidence and the assertions made on affidavit by respondent No.1 as well as the Gram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejected the argument of the appellant that the effect of the award was to completely prohibit putting up of any structure/building on the stated plot occupied by respondent No.1, irrespective of the permission granted by the competent authority in that regard. The High Court was right in observing that whether respondent No.1 had constructed the structure as per the permit was a matter to be considered by the competent authority who had issued such a permit and it would be open to the appellant to approach that authority for appropriate reliefs, if so advised. Similarly, insofar as the nuisance likely to be caused to the appellant due to the activities of the respondent in the form of air pollution, water pollution, noise pollution or any other infringement of right, the appellant must take recourse to the appropriate remedy in that regard. Further, those proceedings will have to be decided on its own merits. The view so taken by the High Court is, in our opinion, unexceptional.We hold that the scope of the award was limited to removal of the structure as it existed at the relevant time. No direction has been issued to respondent No.1 to forebear from carrying on his legitimate activities, including business activities, from the stated plot occupied by him. If the activities of the respondent are in violation of any law or regulation, it would be open to the appellant to approach the concerned statutory authority or appropriate forum and seek relief in that regard as per law. Thus, we find no infirmity in the impugned judgment of the High Court.

Delhi Cloth & General Mills Company Limited Vs. Thejvir Singh

to the appellant to recoach their witnesses to enable them to give improved statements. In this view the request of the management to adduce evidence was rejected by the same order. Ultimately, the application filed by the management No. 17 of 1966 was dismissed, and the permission asked for was refused. 12. Before us Mr. H. L. Anand, learned counsel for the appellant raised two contentions : (1) That the view of the Industrial Tribunal about the enquiry proceedings not being proper is not correct; and (2) in any event the Tribunal erred in law in declining to permit the appellant to adduce evidence on merits. 13. In Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, [1972 - I L.L.J. - 180], where the present appellant was also a party, we have elaborately considered the nature of the jurisdiction exercised by a Tribunal in dealing with such a matter and also the stage when an application for adducing evidence has to be made by the management and, therefore, we do not think it necessary to cover the ground over again. 14. Regarding the first contention it is enough to state that even a reference to a few facts will make it clear that the enquiry proceedings conducted by the management were grossly unfair to the workman. 15. It was on February 18, 1966 that the workman was informed that the enquiry will take place at 8 A.M. on the next day, i.e., February 19, 1966 and the workman was desired to be present to face the enquiry and be ready with his witnesses in defence. Therefore, the interval between the date of the notice and the time when the enquiry was to start itself was very short. As soon as the enquiry commenced on February 19, 1966, there is no controversy that the respondent made a written request to the enquiry officer to postpone the enquiry for two or three days to enable him to contact his representative to represent him in the enquiry and also to bring his witnesses. This very reasonable request was summarily rejected by the enquiry officer on the ground that as the notice of the enquiry dated February 18, 1966 specifically asked the workman to be ready with his witnesses, he should have been ready when the enquiry commenced and that he had already sufficient time. To say the least, it is a very unreasonable attitude to be adopted by an enquiry officer. 16. We have already pointed out that the enquiry officer without any material on record has stated that the representative of the workman is one Babu Ram Mishra Kunta working in the third shift and that he is easily available. The workman never mentioned that Babu Ram Mishra Kunta is the person whom he has in view for representing him in the enquiry. As to how the enquiry officer got this information or impression is not made clear from the record. The enquiry officer very curtly declined the request for adjournment. The result was that the management, on the same day, examined as many as three witnesses. These witnesses also produced a number of notifications and conciliation settlements with which, it is reasonable to infer, the workman would not have been familiar at all. It is not surprising that under those circumstances the workmen was not in position to effectively cross-examine those three witnesses. As soon as the evidence of these three witnesses was completed at about 12.30 P.M. the workman was immediately called upon to enter on his defence. He again made a request for adjournment to enable him to produce his witnesses. He was given just an hours time and the enquiry again commenced at 1.30 P.M. on the same day. The workman was able to get only one witness who spoke to the respondent merely mentioning to the people that there was strike on that day. There is no evidence to the effect that the workman was actively inciting any workman to go on strike. The enquiry officer on these materials has held that the respondent is guilty of misconduct alleged against him and this finding has been accepted by the management. The above fact clearly shows that the enquiry has been conducted in gross violation of the principles of natural justice without giving a real and fair opportunity to the workmen to participate in the proceedings. Therefore, the Tribunal was perfectly justified in holding that the enquiry proceedings were not properly held. 17. Coming to the second contention which relates to the request made by the management in its application dated March 15, 1966 for being given an opportunity to adduce evidence if the domestic enquiry is held to be defective we agree with the Tribunal when it rejected the application, but, however, we do not agree with the reasons given by the Tribunal for rejecting the same. In its order the Tribunal has stated that if the management is allowed to adduce evidence it will mean that it can coach up its witnesses so as to give improved statements before the Tribunal. This is not a proper approach to be made when dealing with such an application. The nature of the evidence to be let in before the Tribunal is entirely a matter for the management and if such witnesses give a version different from the one given in the domestic enquiry, then it will be a matter for the Tribunal to consider those aspects in appreciating their evidence. 18. The legal position regarding the stage when such a request is to be made has also been very fully discussed by us, as pointed out earlier in Delhi Cloth and General Mills v. Ludh Budh Singh, [1972 - I L.L.J. 180]. Having due regard to the principles stated therein, we are of the opinion that the application filed by the appellant for adducing additional evidence has not been filed at a proper stage and, therefore, the Tribunal was justified in rejecting the said application.

0[ds]14. Regarding the first contention it is enough to state that even a reference to a few facts will make it clear that the enquiry proceedings conducted by the management were grossly unfair to the workman15. It was on February 18, 1966 that the workman was informed that the enquiry will take place at 8 A.M. on the next day, i.e., February 19, 1966 and the workman was desired to be present to face the enquiry and be ready with his witnesses in defence. Therefore, the interval between the date of the notice and the time when the enquiry was to start itself was very short. As soon as the enquiry commenced on February 19, 1966, there is no controversy that the respondent made a written request to the enquiry officer to postpone the enquiry for two or three days to enable him to contact his representative to represent him in the enquiry and also to bring his witnesses. This very reasonable request was summarily rejected by the enquiry officer on the ground that as the notice of the enquiry dated February 18, 1966 specifically asked the workman to be ready with his witnesses, he should have been ready when the enquiry commenced and that he had already sufficient time. To say the least, it is a very unreasonable attitude to be adopted by an enquiry officer16. We have already pointed out that the enquiry officer without any material on record has stated that the representative of the workman is one Babu Ram Mishra Kunta working in the third shift and that he is easily available. The workman never mentioned that Babu Ram Mishra Kunta is the person whom he has in view for representing him in the enquiry. As to how the enquiry officer got this information or impression is not made clear from the record. The enquiry officer very curtly declined the request for adjournment. The result was that the management, on the same day, examined as many as three witnesses. These witnesses also produced a number of notifications and conciliation settlements with which, it is reasonable to infer, the workman would not have been familiar at all. It is not surprising that under those circumstances the workmen was not in position to effectively cross-examine those three witnesses. As soon as the evidence of these three witnesses was completed at about 12.30 P.M. the workman was immediately called upon to enter on his defence. He again made a request for adjournment to enable him to produce his witnesses. He was given just an hours time and the enquiry again commenced at 1.30 P.M. on the same day. The workman was able to get only one witness who spoke to the respondent merely mentioning to the people that there was strike on that day. There is no evidence to the effect that the workman was actively inciting any workman to go on strike. The enquiry officer on these materials has held that the respondent is guilty of misconduct alleged against him and this finding has been accepted by the management. The above fact clearly shows that the enquiry has been conducted in gross violation of the principles of natural justice without giving a real and fair opportunity to the workmen to participate in the proceedings. Therefore, the Tribunal was perfectly justified in holding that the enquiry proceedings were not properly held17. Coming to the second contention which relates to the request made by the management in its application dated March 15, 1966 for being given an opportunity to adduce evidence if the domestic enquiry is held to be defective we agree with the Tribunal when it rejected the application, but, however, we do not agree with the reasons given by the Tribunal for rejecting the same. In its order the Tribunal has stated that if the management is allowed to adduce evidence it will mean that it can coach up its witnesses so as to give improved statements before the Tribunal. This is not a proper approach to be made when dealing with such an application. The nature of the evidence to be let in before the Tribunal is entirely a matter for the management and if such witnesses give a version different from the one given in the domestic enquiry, then it will be a matter for the Tribunal to consider those aspects in appreciating their evidence18. The legal position regarding the stage when such a request is to be made has also been very fully discussed by us, as pointed out earlier in Delhi Cloth and General Mills v. Ludh Budh Singh, [1972 - I L.L.J. 180]. Having due regard to the principles stated therein, we are of the opinion that the application filed by the appellant for adducing additional evidence has not been filed at a proper stage and, therefore, the Tribunal was justified in rejecting the said application.

### 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: to the appellant to recoach their witnesses to enable them to give improved statements. In this view the request of the management to adduce evidence was rejected by the same order. Ultimately, the application filed by the management No. 17 of 1966 was dismissed, and the permission asked for was refused. 12. Before us Mr. H. L. Anand, learned counsel for the appellant raised two contentions : (1) That the view of the Industrial Tribunal about the enquiry proceedings not being proper is not correct; and (2) in any event the Tribunal erred in law in declining to permit the appellant to adduce evidence on merits. 13. In Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, [1972 - I L.L.J. - 180], where the present appellant was also a party, we have elaborately considered the nature of the jurisdiction exercised by a Tribunal in dealing with such a matter and also the stage when an application for adducing evidence has to be made by the management and, therefore, we do not think it necessary to cover the ground over again. 14. Regarding the first contention it is enough to state that even a reference to a few facts will make it clear that the enquiry proceedings conducted by the management were grossly unfair to the workman. 15. It was on February 18, 1966 that the workman was informed that the enquiry will take place at 8 A.M. on the next day, i.e., February 19, 1966 and the workman was desired to be present to face the enquiry and be ready with his witnesses in defence. Therefore, the interval between the date of the notice and the time when the enquiry was to start itself was very short. As soon as the enquiry commenced on February 19, 1966, there is no controversy that the respondent made a written request to the enquiry officer to postpone the enquiry for two or three days to enable him to contact his representative to represent him in the enquiry and also to bring his witnesses. This very reasonable request was summarily rejected by the enquiry officer on the ground that as the notice of the enquiry dated February 18, 1966 specifically asked the workman to be ready with his witnesses, he should have been ready when the enquiry commenced and that he had already sufficient time. To say the least, it is a very unreasonable attitude to be adopted by an enquiry officer. 16. We have already pointed out that the enquiry officer without any material on record has stated that the representative of the workman is one Babu Ram Mishra Kunta working in the third shift and that he is easily available. The workman never mentioned that Babu Ram Mishra Kunta is the person whom he has in view for representing him in the enquiry. As to how the enquiry officer got this information or impression is not made clear from the record. The enquiry officer very curtly declined the request for adjournment. The result was that the management, on the same day, examined as many as three witnesses. These witnesses also produced a number of notifications and conciliation settlements with which, it is reasonable to infer, the workman would not have been familiar at all. It is not surprising that under those circumstances the workmen was not in position to effectively cross-examine those three witnesses. As soon as the evidence of these three witnesses was completed at about 12.30 P.M. the workman was immediately called upon to enter on his defence. He again made a request for adjournment to enable him to produce his witnesses. He was given just an hours time and the enquiry again commenced at 1.30 P.M. on the same day. The workman was able to get only one witness who spoke to the respondent merely mentioning to the people that there was strike on that day. There is no evidence to the effect that the workman was actively inciting any workman to go on strike. The enquiry officer on these materials has held that the respondent is guilty of misconduct alleged against him and this finding has been accepted by the management. The above fact clearly shows that the enquiry has been conducted in gross violation of the principles of natural justice without giving a real and fair opportunity to the workmen to participate in the proceedings. Therefore, the Tribunal was perfectly justified in holding that the enquiry proceedings were not properly held. 17. Coming to the second contention which relates to the request made by the management in its application dated March 15, 1966 for being given an opportunity to adduce evidence if the domestic enquiry is held to be defective we agree with the Tribunal when it rejected the application, but, however, we do not agree with the reasons given by the Tribunal for rejecting the same. In its order the Tribunal has stated that if the management is allowed to adduce evidence it will mean that it can coach up its witnesses so as to give improved statements before the Tribunal. This is not a proper approach to be made when dealing with such an application. The nature of the evidence to be let in before the Tribunal is entirely a matter for the management and if such witnesses give a version different from the one given in the domestic enquiry, then it will be a matter for the Tribunal to consider those aspects in appreciating their evidence. 18. The legal position regarding the stage when such a request is to be made has also been very fully discussed by us, as pointed out earlier in Delhi Cloth and General Mills v. Ludh Budh Singh, [1972 - I L.L.J. 180]. Having due regard to the principles stated therein, we are of the opinion that the application filed by the appellant for adducing additional evidence has not been filed at a proper stage and, therefore, the Tribunal was justified in rejecting the said application. ### Response: 0 ### Explanation: 14. Regarding the first contention it is enough to state that even a reference to a few facts will make it clear that the enquiry proceedings conducted by the management were grossly unfair to the workman15. It was on February 18, 1966 that the workman was informed that the enquiry will take place at 8 A.M. on the next day, i.e., February 19, 1966 and the workman was desired to be present to face the enquiry and be ready with his witnesses in defence. Therefore, the interval between the date of the notice and the time when the enquiry was to start itself was very short. As soon as the enquiry commenced on February 19, 1966, there is no controversy that the respondent made a written request to the enquiry officer to postpone the enquiry for two or three days to enable him to contact his representative to represent him in the enquiry and also to bring his witnesses. This very reasonable request was summarily rejected by the enquiry officer on the ground that as the notice of the enquiry dated February 18, 1966 specifically asked the workman to be ready with his witnesses, he should have been ready when the enquiry commenced and that he had already sufficient time. To say the least, it is a very unreasonable attitude to be adopted by an enquiry officer16. We have already pointed out that the enquiry officer without any material on record has stated that the representative of the workman is one Babu Ram Mishra Kunta working in the third shift and that he is easily available. The workman never mentioned that Babu Ram Mishra Kunta is the person whom he has in view for representing him in the enquiry. As to how the enquiry officer got this information or impression is not made clear from the record. The enquiry officer very curtly declined the request for adjournment. The result was that the management, on the same day, examined as many as three witnesses. These witnesses also produced a number of notifications and conciliation settlements with which, it is reasonable to infer, the workman would not have been familiar at all. It is not surprising that under those circumstances the workmen was not in position to effectively cross-examine those three witnesses. As soon as the evidence of these three witnesses was completed at about 12.30 P.M. the workman was immediately called upon to enter on his defence. He again made a request for adjournment to enable him to produce his witnesses. He was given just an hours time and the enquiry again commenced at 1.30 P.M. on the same day. The workman was able to get only one witness who spoke to the respondent merely mentioning to the people that there was strike on that day. There is no evidence to the effect that the workman was actively inciting any workman to go on strike. The enquiry officer on these materials has held that the respondent is guilty of misconduct alleged against him and this finding has been accepted by the management. The above fact clearly shows that the enquiry has been conducted in gross violation of the principles of natural justice without giving a real and fair opportunity to the workmen to participate in the proceedings. Therefore, the Tribunal was perfectly justified in holding that the enquiry proceedings were not properly held17. Coming to the second contention which relates to the request made by the management in its application dated March 15, 1966 for being given an opportunity to adduce evidence if the domestic enquiry is held to be defective we agree with the Tribunal when it rejected the application, but, however, we do not agree with the reasons given by the Tribunal for rejecting the same. In its order the Tribunal has stated that if the management is allowed to adduce evidence it will mean that it can coach up its witnesses so as to give improved statements before the Tribunal. This is not a proper approach to be made when dealing with such an application. The nature of the evidence to be let in before the Tribunal is entirely a matter for the management and if such witnesses give a version different from the one given in the domestic enquiry, then it will be a matter for the Tribunal to consider those aspects in appreciating their evidence18. The legal position regarding the stage when such a request is to be made has also been very fully discussed by us, as pointed out earlier in Delhi Cloth and General Mills v. Ludh Budh Singh, [1972 - I L.L.J. 180]. Having due regard to the principles stated therein, we are of the opinion that the application filed by the appellant for adducing additional evidence has not been filed at a proper stage and, therefore, the Tribunal was justified in rejecting the said application.

State of Gujarat and Ors Vs. Patel Ramjibhai Danabhai and Ors

restricted in its application to the case of an unregistered dealer whose modus operandi to evade tax involves ab initio disregard of the law. It does not apply to a registered dealer who has escaped assessment or has been under-assessed or assessed at a lower rate or has been wrongly allowed any deduction or has concealed any material particulars relating to sales or purchases or has knowingly furnished incorrect returns. The case of such a registered dealer will fall under Section 35 and not under Section 33(6). Section 33(6) is a special provision confined to a particular class of tax-evaders, namely, unregistered dealers; while Section 35 is a general provision to deal with cases of escaped assessment or under assessment. Generalia specialibus non derogant is a cardinal principle of interpretation. It means that the general provisions must always yield to the special provisions. Construed in accordance with this fundamental principle the special class of unregistered dealers covered by Section 33(6) must be taken to have been excluded from the purview of the general provisions in Section 35. Thus considered, it is clear that the case of an unregistered dealer who evades tax by committing the double default specified in Section 33(6), action can be taken only under that Section and not under Section 35. 27. It is true that no limitation has been prescribed for taking action under Section 33(6) against an unregistered dealer falling thereunder. But, there is rational basis for not putting any restriction as to the length of time within which action can be taken under Section 33(6). The reason is that tax evasion by the unregistered dealers in this class because of the clandestine modus operandi adopted by them, and wholesale disregard of the law, is more contumacious in character, more sinister in its effect both on the law-abiding tax-payers and the collection of public revenue, and more difficult to detect than tax-evasion by a registered dealer. When a dealer applies for and obtains a registration certificate under the Act, he thereby admits his liability to pay tax. In his case, the Sales-tax Authorities, have basic information, in pursuance of which, they can, by the exercise of due vigilance , check and detect any tax-evasion by him within a reasonable time. This reasonable time is the period of limitation fixed by the Legislature, in its wisdom, in Section 35. But the case of a tax-evading unregistered dealer is different. In his case, the Authorities have on their record no such basic information such as the registration record which would supply them a lead to work upon. For lack of information, or want of adequate staff, resources and time at the disposal of the Department, and the secretive nature of the modus operandi, tax-evading activities of an unregistered dealer may go on undetected for years on end. That is why for taking action under Section 33(6) against a tax-evading unregistered dealer, the Legislature has not fixed any period of limitation. Thus, putting the unregistered dealer who, though liable to pay tax, fails to get himself registered and does not pay any tax, in a separate class, to be dealt with under Section 33(6), differently from other dealers falling under Section 35, rests on intelligible differentia having a rational nexus with the object of preventing tax-evasion. 28. The question of limitation apart, it cannot be said that the procedure provided in Section 33(6) is more onerous than the one specified in Section 35. The requirement as to issue of a notice to the defaulter and giving of an opportunity of being heard, is a common feature of both the sections. It is true that under Section 33(6), the assessment is made on best-judgment basis. Nevertheless, it cannot be made arbitrarily or capriciously. It has to be made after taking into account all relevant material gathered by the Taxation Officer or produced before him by the assessee in response to the notice. If an assessment under Section 33(6) is made upon inadequate materials, but on honest and fair guess-work, then it will be but due to the deliberate default of the assessee in supplying the necessary information. The differential mode of assessment under Section 33(6) is thus founded upon rational criteria. 29. The ratio of Anandji Haridas is not applicable to the facts of the present cases. Therein, this Court was dealing with the case of a registered dealer under the C.P. and Berar Sales Tax Act 1947. It was in that context that this Court, by a majority of 3 to 2, held that Section 11(4)(a) of that Act was violative of Article 14 of the Constitution. Here we are concerned with the cases of unregistered dealers under the Bombay Act. In our opinion, upon a proper construction of the two provisions, in juxtaposition to each other, such unregistered dealers can be proceeded against under Section 33(6) of the Bombay Act of 1959 or Section 14(6) of the Bombay Act of 1953, as the case may be, and not under Section 35/Section 15 of the said Acts. There is no overlapping between these two, because Section 35 cannot be applied to the case of an unregistered dealer falling within the purview of the special provision in Section 33(6). This was clear from Sub-section (2) of Section 35, as it stood at the time material to these cases. 30. For the foregoing reasons, we are of opinion that Section 33(6) of the 1959 Act and Section 14(6) of the 1953 Act do not violate Article 14 of the Constitution, and are valid. 31. We may mention in passing that the question raised with regard to the constitutional validity of the aforesaid provisions has become largely academic because mostly the impugned notices or assessments were within the period of limitation prescribed for taking action under Section 35 of the 1959 Act. In such cases, the question of subjecting the respondents to a more onerous procedure than the one envisaged in Section 35 in the matter of limitation, does not arise.

1[ds]Authorisation means an authorisation granted under Section 24. Dealer under Sub-section (6) of the same Section is defined to mean any person who carries on the business of selling or buying goods in the pre-Reorganisation State of Bombay, excluding the transferred territories, whether for commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which sells goods to or buys goods from its members. Then, there is an Exception appended to this definition which excludes an agriculturist who sells exclusively agricultural produce grown on land cultivated by him personally, from the definition.21. The definition of Dealer in Section 2(6) of the 1953 Act is substantially the same.25. An analysis of Section 33(6) of the 1959 Act (corresponding to Section 14(6) of the 1953 Act) will show that it applies to tot particular class of dealers, liable to pay tax, who-(i) fail to apply for registration as required by law (vide Section 22); and(ii) who fail to pay the tax in respect of any period.26. Thus, Section 33(6) is, in terms, restricted in its application to the case of an unregistered dealer whose modus operandi to evade tax involves ab initio disregard of the law. It does not apply to a registered dealer who has escaped assessment or has been under-assessed or assessed at a lower rate or has been wrongly allowed any deduction or has concealed any material particulars relating to sales or purchases or has knowingly furnished incorrect returns. The case of such a registered dealer will fall under Section 35 and not under Section 33(6). Section 33(6) is a special provision confined to a particular class of tax-evaders, namely, unregistered dealers; while Section 35 is a general provision to deal with cases of escaped assessment or under assessment. Generalia specialibus non derogant is a cardinal principle of interpretation. It means that the general provisions must always yield to the special provisions. Construed in accordance with this fundamental principle the special class of unregistered dealers covered by Section 33(6) must be taken to have been excluded from the purview of the general provisions in Section 35. Thus considered, it is clear that the case of an unregistered dealer who evades tax by committing the double default specified in Section 33(6), action can be taken only under that Section and not under Section 35.27. It is true that no limitation has been prescribed for taking action under Section 33(6) against an unregistered dealer falling thereunder. But, there is rational basis for not putting any restriction as to the length of time within which action can be taken under Section 33(6). The reason is that tax evasion by the unregistered dealers in this class because of the clandestine modus operandi adopted by them, and wholesale disregard of the law, is more contumacious in character, more sinister in its effect both on the law-abiding tax-payers and the collection of public revenue, and more difficult to detect than tax-evasion by a registered dealer. When a dealer applies for and obtains a registration certificate under the Act, he thereby admits his liability to pay tax. In his case, the Sales-tax Authorities, have basic information, in pursuance of which, they can, by the exercise of due vigilance , check and detect any tax-evasion by him within a reasonable time. This reasonable time is the period of limitation fixed by the Legislature, in its wisdom, in Section 35. But the case of a tax-evading unregistered dealer is different. In his case, the Authorities have on their record no such basic information such as the registration record which would supply them a lead to work upon. For lack of information, or want of adequate staff, resources and time at the disposal of the Department, and the secretive nature of the modus operandi, tax-evading activities of an unregistered dealer may go on undetected for years on end. That is why for taking action under Section 33(6) against a tax-evading unregistered dealer, the Legislature has not fixed any period of limitation. Thus, putting the unregistered dealer who, though liable to pay tax, fails to get himself registered and does not pay any tax, in a separate class, to be dealt with under Section 33(6), differently from other dealers falling under Section 35, rests on intelligible differentia having a rational nexus with the object of preventing tax-evasion.28. The question of limitation apart, it cannot be said that the procedure provided in Section 33(6) is more onerous than the one specified in Section 35. The requirement as to issue of a notice to the defaulter and giving of an opportunity of being heard, is a common feature of both the sections. It is true that under Section 33(6), the assessment is made on best-judgment basis. Nevertheless, it cannot be made arbitrarily or capriciously. It has to be made after taking into account all relevant material gathered by the Taxation Officer or produced before him by the assessee in response to the notice. If an assessment under Section 33(6) is made upon inadequate materials, but on honest and fair guess-work, then it will be but due to the deliberate default of the assessee in supplying the necessary information. The differential mode of assessment under Section 33(6) is thus founded upon rational criteria.29. The ratio of Anandji Haridas is not applicable to the facts of the present cases. Therein, this Court was dealing with the case of a registered dealer under the C.P. and Berar Sales Tax Act 1947. It was in that context that this Court, by a majority of 3 to 2, held that Section 11(4)(a) of that Act was violative of Article 14 of the Constitution. Here we are concerned with the cases of unregistered dealers under the Bombay Act. In our opinion, upon a proper construction of the two provisions, in juxtaposition to each other, such unregistered dealers can be proceeded against under Section 33(6) of the Bombay Act of 1959 or Section 14(6) of the Bombay Act of 1953, as the case may be, and not under Section 35/Section 15 of the said Acts. There is no overlapping between these two, because Section 35 cannot be applied to the case of an unregistered dealer falling within the purview of the special provision in Section 33(6). This was clear from Sub-section (2) of Section 35, as it stood at the time material to these cases.30. For the foregoing reasons, we are of opinion that Section 33(6) of the 1959 Act and Section 14(6) of the 1953 Act do not violate Article 14 of the Constitution, and are valid.31. We may mention in passing that the question raised with regard to the constitutional validity of the aforesaid provisions has become largely academic because mostly the impugned notices or assessments were within the period of limitation prescribed for taking action under Section 35 of the 1959 Act. In such cases, the question of subjecting the respondents to a more onerous procedure than the one envisaged in Section 35 in the matter of limitation, does not arise.

### 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: restricted in its application to the case of an unregistered dealer whose modus operandi to evade tax involves ab initio disregard of the law. It does not apply to a registered dealer who has escaped assessment or has been under-assessed or assessed at a lower rate or has been wrongly allowed any deduction or has concealed any material particulars relating to sales or purchases or has knowingly furnished incorrect returns. The case of such a registered dealer will fall under Section 35 and not under Section 33(6). Section 33(6) is a special provision confined to a particular class of tax-evaders, namely, unregistered dealers; while Section 35 is a general provision to deal with cases of escaped assessment or under assessment. Generalia specialibus non derogant is a cardinal principle of interpretation. It means that the general provisions must always yield to the special provisions. Construed in accordance with this fundamental principle the special class of unregistered dealers covered by Section 33(6) must be taken to have been excluded from the purview of the general provisions in Section 35. Thus considered, it is clear that the case of an unregistered dealer who evades tax by committing the double default specified in Section 33(6), action can be taken only under that Section and not under Section 35. 27. It is true that no limitation has been prescribed for taking action under Section 33(6) against an unregistered dealer falling thereunder. But, there is rational basis for not putting any restriction as to the length of time within which action can be taken under Section 33(6). The reason is that tax evasion by the unregistered dealers in this class because of the clandestine modus operandi adopted by them, and wholesale disregard of the law, is more contumacious in character, more sinister in its effect both on the law-abiding tax-payers and the collection of public revenue, and more difficult to detect than tax-evasion by a registered dealer. When a dealer applies for and obtains a registration certificate under the Act, he thereby admits his liability to pay tax. In his case, the Sales-tax Authorities, have basic information, in pursuance of which, they can, by the exercise of due vigilance , check and detect any tax-evasion by him within a reasonable time. This reasonable time is the period of limitation fixed by the Legislature, in its wisdom, in Section 35. But the case of a tax-evading unregistered dealer is different. In his case, the Authorities have on their record no such basic information such as the registration record which would supply them a lead to work upon. For lack of information, or want of adequate staff, resources and time at the disposal of the Department, and the secretive nature of the modus operandi, tax-evading activities of an unregistered dealer may go on undetected for years on end. That is why for taking action under Section 33(6) against a tax-evading unregistered dealer, the Legislature has not fixed any period of limitation. Thus, putting the unregistered dealer who, though liable to pay tax, fails to get himself registered and does not pay any tax, in a separate class, to be dealt with under Section 33(6), differently from other dealers falling under Section 35, rests on intelligible differentia having a rational nexus with the object of preventing tax-evasion. 28. The question of limitation apart, it cannot be said that the procedure provided in Section 33(6) is more onerous than the one specified in Section 35. The requirement as to issue of a notice to the defaulter and giving of an opportunity of being heard, is a common feature of both the sections. It is true that under Section 33(6), the assessment is made on best-judgment basis. Nevertheless, it cannot be made arbitrarily or capriciously. It has to be made after taking into account all relevant material gathered by the Taxation Officer or produced before him by the assessee in response to the notice. If an assessment under Section 33(6) is made upon inadequate materials, but on honest and fair guess-work, then it will be but due to the deliberate default of the assessee in supplying the necessary information. The differential mode of assessment under Section 33(6) is thus founded upon rational criteria. 29. The ratio of Anandji Haridas is not applicable to the facts of the present cases. Therein, this Court was dealing with the case of a registered dealer under the C.P. and Berar Sales Tax Act 1947. It was in that context that this Court, by a majority of 3 to 2, held that Section 11(4)(a) of that Act was violative of Article 14 of the Constitution. Here we are concerned with the cases of unregistered dealers under the Bombay Act. In our opinion, upon a proper construction of the two provisions, in juxtaposition to each other, such unregistered dealers can be proceeded against under Section 33(6) of the Bombay Act of 1959 or Section 14(6) of the Bombay Act of 1953, as the case may be, and not under Section 35/Section 15 of the said Acts. There is no overlapping between these two, because Section 35 cannot be applied to the case of an unregistered dealer falling within the purview of the special provision in Section 33(6). This was clear from Sub-section (2) of Section 35, as it stood at the time material to these cases. 30. For the foregoing reasons, we are of opinion that Section 33(6) of the 1959 Act and Section 14(6) of the 1953 Act do not violate Article 14 of the Constitution, and are valid. 31. We may mention in passing that the question raised with regard to the constitutional validity of the aforesaid provisions has become largely academic because mostly the impugned notices or assessments were within the period of limitation prescribed for taking action under Section 35 of the 1959 Act. In such cases, the question of subjecting the respondents to a more onerous procedure than the one envisaged in Section 35 in the matter of limitation, does not arise. ### Response: 1 ### Explanation: Section 33(6) is, in terms, restricted in its application to the case of an unregistered dealer whose modus operandi to evade tax involves ab initio disregard of the law. It does not apply to a registered dealer who has escaped assessment or has been under-assessed or assessed at a lower rate or has been wrongly allowed any deduction or has concealed any material particulars relating to sales or purchases or has knowingly furnished incorrect returns. The case of such a registered dealer will fall under Section 35 and not under Section 33(6). Section 33(6) is a special provision confined to a particular class of tax-evaders, namely, unregistered dealers; while Section 35 is a general provision to deal with cases of escaped assessment or under assessment. Generalia specialibus non derogant is a cardinal principle of interpretation. It means that the general provisions must always yield to the special provisions. Construed in accordance with this fundamental principle the special class of unregistered dealers covered by Section 33(6) must be taken to have been excluded from the purview of the general provisions in Section 35. Thus considered, it is clear that the case of an unregistered dealer who evades tax by committing the double default specified in Section 33(6), action can be taken only under that Section and not under Section 35.27. It is true that no limitation has been prescribed for taking action under Section 33(6) against an unregistered dealer falling thereunder. But, there is rational basis for not putting any restriction as to the length of time within which action can be taken under Section 33(6). The reason is that tax evasion by the unregistered dealers in this class because of the clandestine modus operandi adopted by them, and wholesale disregard of the law, is more contumacious in character, more sinister in its effect both on the law-abiding tax-payers and the collection of public revenue, and more difficult to detect than tax-evasion by a registered dealer. When a dealer applies for and obtains a registration certificate under the Act, he thereby admits his liability to pay tax. In his case, the Sales-tax Authorities, have basic information, in pursuance of which, they can, by the exercise of due vigilance , check and detect any tax-evasion by him within a reasonable time. This reasonable time is the period of limitation fixed by the Legislature, in its wisdom, in Section 35. But the case of a tax-evading unregistered dealer is different. In his case, the Authorities have on their record no such basic information such as the registration record which would supply them a lead to work upon. For lack of information, or want of adequate staff, resources and time at the disposal of the Department, and the secretive nature of the modus operandi, tax-evading activities of an unregistered dealer may go on undetected for years on end. That is why for taking action under Section 33(6) against a tax-evading unregistered dealer, the Legislature has not fixed any period of limitation. Thus, putting the unregistered dealer who, though liable to pay tax, fails to get himself registered and does not pay any tax, in a separate class, to be dealt with under Section 33(6), differently from other dealers falling under Section 35, rests on intelligible differentia having a rational nexus with the object of preventing tax-evasion.28. The question of limitation apart, it cannot be said that the procedure provided in Section 33(6) is more onerous than the one specified in Section 35. The requirement as to issue of a notice to the defaulter and giving of an opportunity of being heard, is a common feature of both the sections. It is true that under Section 33(6), the assessment is made on best-judgment basis. Nevertheless, it cannot be made arbitrarily or capriciously. It has to be made after taking into account all relevant material gathered by the Taxation Officer or produced before him by the assessee in response to the notice. If an assessment under Section 33(6) is made upon inadequate materials, but on honest and fair guess-work, then it will be but due to the deliberate default of the assessee in supplying the necessary information. The differential mode of assessment under Section 33(6) is thus founded upon rational criteria.29. The ratio of Anandji Haridas is not applicable to the facts of the present cases. Therein, this Court was dealing with the case of a registered dealer under the C.P. and Berar Sales Tax Act 1947. It was in that context that this Court, by a majority of 3 to 2, held that Section 11(4)(a) of that Act was violative of Article 14 of the Constitution. Here we are concerned with the cases of unregistered dealers under the Bombay Act. In our opinion, upon a proper construction of the two provisions, in juxtaposition to each other, such unregistered dealers can be proceeded against under Section 33(6) of the Bombay Act of 1959 or Section 14(6) of the Bombay Act of 1953, as the case may be, and not under Section 35/Section 15 of the said Acts. There is no overlapping between these two, because Section 35 cannot be applied to the case of an unregistered dealer falling within the purview of the special provision in Section 33(6). This was clear from Sub-section (2) of Section 35, as it stood at the time material to these cases.30. For the foregoing reasons, we are of opinion that Section 33(6) of the 1959 Act and Section 14(6) of the 1953 Act do not violate Article 14 of the Constitution, and are valid.31. We may mention in passing that the question raised with regard to the constitutional validity of the aforesaid provisions has become largely academic because mostly the impugned notices or assessments were within the period of limitation prescribed for taking action under Section 35 of the 1959 Act. In such cases, the question of subjecting the respondents to a more onerous procedure than the one envisaged in Section 35 in the matter of limitation, does not arise.

Krishna Vs. State Of Maharashtra

for the parties and after perusing the language of the sections, we have no hesitation to hold, that the field of Section 6 and Section 10 are separate. The removal spoken under Section 6 is removal without any stigma while the removal under Section 10 is removal with penal consequences attaching stigma. If submission for the appellant is accepted, viz. Section 6 empowers and Section 10 lay down condition and procedure to remove then removal of trustee could only be for penal consequences and not otherwise. If that be so, there could be no reason to enact Section 6 as Section 10 covers such cases. It is significant, the removal under Section 6 is confined only to such Trustees who are covered under Clause (e) of sub-section (1) of Section 4 and who are also nominated by the State Government. Rights of Trustees falling under the aforesaid Clause (e) are rights created under a statute and hence that very creator can always limit or curtail such right. In such cases, if a Trustee is removed, he cannot project any grievance that no opportunity was given to him. If any right which is creature of statute, is limited or curtailed by that very statute, in the absence of any other right under that very statute or the Constitution of India, such Trustee cannot claim any right based on the principle of Natural Justice. 9. The removal spoken here neither casts any sigma nor leads to any penal consequences. This clearly reveals doctrine of pleasure which is implicit in this section. In any statute expression of the will of the legislature may be explicit or it may be implicit. It is open for the courts, while interpreting any provision to spell or read with other provisions of the statute if so intended to read implicitly, in the absence of any explicit words that subserve the intent of the legislature. 10. In the present statute Section 6 refers to the trustee falling under Clause (e), sub-section (1), Section 7 refers to Trustees falling under Clauses (b) and (c) and sub-section (2) refers of Trustees falling under Clause (d) and sub-section (3) refers to Trustees falling in Clause (f) of sub-section (1) of Section 4 and Section 10 refers to cases of removal of trustees by way of stigma, and Section 11 refers to the disability of such removed trustees. In view of this we have no hesitation to hold that removal of Trustee under Section 6 is based on the principle of doctrine of pleasure. We may only strike a note here if the legislature would have used some other words for the word `removed for expressing curtailment of the tenure of such trustee in Section, this possible confusion would not have arisen. Once doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving opportunity before removal would arise. It is significant when stigma is cast then sub-section (3) of Section 10 specially provides for giving an opportunity to such incumbent before passing an order of removal under Section 10, while there is no such corresponding sub-section under Section 6. Thus intent of legislature is very clear which reinforces the inference which we have drawn that doctrine of pleasure is implicit under Section 6. In Om Narain Agarwal and others v. Nagpur Palika, Shahjahanpur and others, 1993(2) SCC 242, this Court was considering the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 of 1990, which made provision for the nomination of two women members by the State Government, and fourth proviso provides that the nomination of such two members is at the pleasure of the State Government. This Court held: "The initial nomination of the two women members itself depend on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority to any residents of the Municipal Board behind them as may be present in the case of an elected member..............But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal not the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations." 11. This decision clearly covers the point as against the appellant. 12. Learned senior counsel for the appellant tried to distinguish this case by submitting that doctrine of pleasure was incorporated in the section itself. In our opinion this does not make difference. It may be in this case doctrine of pleasure is explicit but if on another statute it is implicit, which we have held in this case, the same principle would be equally applicable. Accordingly we do not find any merit in this submission.13. For the aforesaid reasons we hold the present appeal has no merit and the High Court was right in dismissing the writ petition filed by the appellant. We hold the removal of the appellant as Trustee of the second respondent by order dated 9.2.2000 was valid.

0[ds]10. In the present statute Section 6 refers to the trustee falling under Clause (e),(1), Section 7 refers to Trustees falling under Clauses (b) and (c) and(2) refers of Trustees falling under Clause (d) and(3) refers to Trustees falling in Clause (f) of(1) of Section 4 and Section 10 refers to cases of removal of trustees by way of stigma, and Section 11 refers to the disability of such removed trustees. In view of this we have no hesitation to hold that removal of Trustee under Section 6 is based on the principle of doctrine of pleasure. We may only strike a note here if the legislature would have used some other words for the word `removed for expressing curtailment of the tenure of such trustee in Section, this possible confusion would not have arisen.Learned senior counsel for the appellant tried to distinguish this case by submitting that doctrine of pleasure was incorporated in the section itself. In our opinion this does not make difference. It may be in this case doctrine of pleasure is explicit but if on another statute it is implicit, which we have held in this case, the same principle would be equally applicable. Accordingly we do not find any merit in this submission.13. For the aforesaid reasons we hold the present appeal has no merit and the High Court was right in dismissing the writ petition filed by the appellant. We hold the removal of the appellant as Trustee of the second respondent by order dated 9.2.2000 was valid.

### 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: for the parties and after perusing the language of the sections, we have no hesitation to hold, that the field of Section 6 and Section 10 are separate. The removal spoken under Section 6 is removal without any stigma while the removal under Section 10 is removal with penal consequences attaching stigma. If submission for the appellant is accepted, viz. Section 6 empowers and Section 10 lay down condition and procedure to remove then removal of trustee could only be for penal consequences and not otherwise. If that be so, there could be no reason to enact Section 6 as Section 10 covers such cases. It is significant, the removal under Section 6 is confined only to such Trustees who are covered under Clause (e) of sub-section (1) of Section 4 and who are also nominated by the State Government. Rights of Trustees falling under the aforesaid Clause (e) are rights created under a statute and hence that very creator can always limit or curtail such right. In such cases, if a Trustee is removed, he cannot project any grievance that no opportunity was given to him. If any right which is creature of statute, is limited or curtailed by that very statute, in the absence of any other right under that very statute or the Constitution of India, such Trustee cannot claim any right based on the principle of Natural Justice. 9. The removal spoken here neither casts any sigma nor leads to any penal consequences. This clearly reveals doctrine of pleasure which is implicit in this section. In any statute expression of the will of the legislature may be explicit or it may be implicit. It is open for the courts, while interpreting any provision to spell or read with other provisions of the statute if so intended to read implicitly, in the absence of any explicit words that subserve the intent of the legislature. 10. In the present statute Section 6 refers to the trustee falling under Clause (e), sub-section (1), Section 7 refers to Trustees falling under Clauses (b) and (c) and sub-section (2) refers of Trustees falling under Clause (d) and sub-section (3) refers to Trustees falling in Clause (f) of sub-section (1) of Section 4 and Section 10 refers to cases of removal of trustees by way of stigma, and Section 11 refers to the disability of such removed trustees. In view of this we have no hesitation to hold that removal of Trustee under Section 6 is based on the principle of doctrine of pleasure. We may only strike a note here if the legislature would have used some other words for the word `removed for expressing curtailment of the tenure of such trustee in Section, this possible confusion would not have arisen. Once doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving opportunity before removal would arise. It is significant when stigma is cast then sub-section (3) of Section 10 specially provides for giving an opportunity to such incumbent before passing an order of removal under Section 10, while there is no such corresponding sub-section under Section 6. Thus intent of legislature is very clear which reinforces the inference which we have drawn that doctrine of pleasure is implicit under Section 6. In Om Narain Agarwal and others v. Nagpur Palika, Shahjahanpur and others, 1993(2) SCC 242, this Court was considering the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 of 1990, which made provision for the nomination of two women members by the State Government, and fourth proviso provides that the nomination of such two members is at the pleasure of the State Government. This Court held: "The initial nomination of the two women members itself depend on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority to any residents of the Municipal Board behind them as may be present in the case of an elected member..............But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal not the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations." 11. This decision clearly covers the point as against the appellant. 12. Learned senior counsel for the appellant tried to distinguish this case by submitting that doctrine of pleasure was incorporated in the section itself. In our opinion this does not make difference. It may be in this case doctrine of pleasure is explicit but if on another statute it is implicit, which we have held in this case, the same principle would be equally applicable. Accordingly we do not find any merit in this submission.13. For the aforesaid reasons we hold the present appeal has no merit and the High Court was right in dismissing the writ petition filed by the appellant. We hold the removal of the appellant as Trustee of the second respondent by order dated 9.2.2000 was valid. ### Response: 0 ### Explanation: 10. In the present statute Section 6 refers to the trustee falling under Clause (e),(1), Section 7 refers to Trustees falling under Clauses (b) and (c) and(2) refers of Trustees falling under Clause (d) and(3) refers to Trustees falling in Clause (f) of(1) of Section 4 and Section 10 refers to cases of removal of trustees by way of stigma, and Section 11 refers to the disability of such removed trustees. In view of this we have no hesitation to hold that removal of Trustee under Section 6 is based on the principle of doctrine of pleasure. We may only strike a note here if the legislature would have used some other words for the word `removed for expressing curtailment of the tenure of such trustee in Section, this possible confusion would not have arisen.Learned senior counsel for the appellant tried to distinguish this case by submitting that doctrine of pleasure was incorporated in the section itself. In our opinion this does not make difference. It may be in this case doctrine of pleasure is explicit but if on another statute it is implicit, which we have held in this case, the same principle would be equally applicable. Accordingly we do not find any merit in this submission.13. For the aforesaid reasons we hold the present appeal has no merit and the High Court was right in dismissing the writ petition filed by the appellant. We hold the removal of the appellant as Trustee of the second respondent by order dated 9.2.2000 was valid.

State Of Punjab Vs. Amar Singh Harika

that no suit shall be instituted by any private individual against the State or any State Officer in respect of his dismissal from State service. After Patiala merged with and became a part of the Patiala and East Punjab States Union, all laws, rules and regulations in the erstwhile State of Patiala were made applicable to the newly formed Union. As such, the Farman-i-Shahi also continued to be in operation; but, as has been pointed out by the High Court, S. 13 of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 BK. (No. XVI of 2005 BK) (hereinafter referred to as "the Ordinance") expressly provided that Government may sue or be sued by the name of the Government of the State or in such other manner as may, by notification, be directed by the Government, though S. 12 retained the bar of certain suits against the State as therein provided. The question is whether in view of S. 13 of the Ordinance, the present suit is competent or not; and in deciding this question, it is necessary to refer to S. 14 of the Ordinance. Section 14 reads thus :- "(1) Subject to the provisions of sub-s. (2), the Rajpramukh or any authority authorised in this behalf by the Rajpramukh, may - (a) regulate the recruitment and conditions of service of persons appointed to public services, and to posts in connection with the affairs of the Government, or (b) make rules or regulations for the conduct of Government servants who are members of the public services or are holding posts in connection with the affairs of the Government, or for any other matter relating to them. (2) No person who is a member of a civil service of the State or holds any Civil Post in the State shall be dismissed from service or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him." There is a proviso to this section which is not relevant for our purpose. The High Court has taken the view that having regard to the specific provisions of S. 14 (2) of the Ordinance, the bar created by the Farman-i-Shahi against the competence of all suits must be deemed to have been removed in regard to cases of public servants who seek to challenge the legality or the validity of the orders of dismissal passed against them on the ground that they contravene the mandatory provisions of S. 14 (2) of the Ordinance. Section 14, in substance, corresponds to Art. 311 of the Constitution; and in our opinion, the High Court is right in holding that having regard to the significance and importance of the guarantee contained in S. 14 (2) of the Ordinance, it would be reasonable to hold that suits filed by public servants for the purpose of challenging the validity of orders of dismissal passed against them in contravention of S. 14 (2) are competent. Besides, S. 13 of the Ordinance itself seems to authorise the institution of such a suit and the High Court has observed that "the protection afforded by the said section would be not only meaningless but wholly elusive if a suit like the present is held to be incompetent. "Therefore, we are not satisfied that Mr. Bishan Narain can successfully challenge the correctness of the decision of the High Court that the suit filed by the respondent is competent. It will be noticed that this conclusion is based on S. 14 of the Ordinance quite apart from the provisions of Art. 311 of the Constitution. 13. That leaves only one question to be considered; did the respondent get the benefit of S. 14 (2) of the Ordinance? The answer to this question must clearly be in favour of the respondent. The enquiry held against the respondent seems to us to be illegal and invalid from beginning to end. What purports to be the chargesheet framed against the respondent is no more than questionnaire, and some of these questions clearly show that the approach adopted by the authorities that drafted the said questions, was completely unreasonable, if not perverse. One of the questions which was put in this questionnaire was: on whose authority the respondent cancelled the permits issued by him to the bogus representative? It is surprising that the substance of the charge being that permits for the procurement of 1000 mds. of Bajra were issued to a bogus representative, it should have been suggested that in canceling the said permits, the respondent had done something which was wrong. Another question seems to suggest that when the respondent in self-defence pleaded that he had acted under the orders of the higher authorities, that itself, it was thought, constituted misconduct. Therefore, what purports to be the charge-sheet itself discloses a serious infirmity in the approach adopted in initiating the proceedings against the respondent. 14. Then as to the reasonable opportunity guaranteed by S. 14 (2) of the Ordinance, it is clear that a copy of the report made against him has not been supplied to the respondent; and even when he was heard before the order of dismissal was passed against him, he had no means of knowing what grounds had weighed with the Enquiry Committee when it made a report against him. Having regard to the procedure adopted by the State authorities in appointing the Enquiry Committee, in formulating the questionnaire containing the charges against the respondent, in making the report, and in dealing with the recommendations made by the Chief Secretary from time to time, we are satisfied that the High Court was right in coming to the conclusion that the respondent had not received a reasonable opportunity to make his defence, and that the proceedings of the enquiry and the report made by the Committee, as well as the final order of dismissal passed against respondent have contravened the safeguards guaranteed by S. 14 (2) of the Ordinance.

0[ds]It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may fell that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him ? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951It is true that the Farman-i-Shahi which was the law in Patiala at the relevant time had provided that no suit shall be instituted by any private individual against the State or any State Officer in respect of his dismissal from State service. After Patiala merged with and became a part of the Patiala and East Punjab States Union, all laws, rules and regulations in the erstwhile State of Patiala were made applicable to the newly formed Union. As such, the Farman-i-Shahi also continued to be in operation; but, as has been pointed out by the High Court, S. 13 of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 BK. (No. XVI of 2005 BK) (hereinafter referred to as "the Ordinance") expressly provided that Government may sue or be sued by the name of the Government of the State or in such other manner as may, by notification, be directed by the Government, though S. 12 retained the bar of certain suits against the State as therein provided. The question is whether in view of S. 13 of the Ordinance, the present suit is competent or not; and in deciding this question, it is necessary to refer to S. 14 of the OrdinanceThere is a proviso to this section which is not relevant for our purpose. The High Court has taken the view that having regard to the specific provisions of S. 14 (2) of the Ordinance, the bar created by the Farman-i-Shahi against the competence of all suits must be deemed to have been removed in regard to cases of public servants who seek to challenge the legality or the validity of the orders of dismissal passed against them on the ground that they contravene the mandatory provisions of S. 14 (2) of the Ordinance. Section 14, in substance, corresponds to Art. 311 of the Constitution; and in our opinion, the High Court is right in holding that having regard to the significance and importance of the guarantee contained in S. 14 (2) of the Ordinance, it would be reasonable to hold that suits filed by public servants for the purpose of challenging the validity of orders of dismissal passed against them in contravention of S. 14 (2) are competent. Besides, S. 13 of the Ordinance itself seems to authorise the institution of such a suit and the High Court has observed that "the protection afforded by the said section would be not only meaningless but wholly elusive if a suit like the present is held to be incompetent. "Therefore, we are not satisfied that Mr. Bishan Narain can successfully challenge the correctness of the decision of the High Court that the suit filed by the respondent is competent. It will be noticed that this conclusion is based on S. 14 of the Ordinance quite apart from the provisions of Art. 311 of the ConstitutionThe answer to this question must clearly be in favour of the respondent. The enquiry held against the respondent seems to us to be illegal and invalid from beginning to end. What purports to be the chargesheet framed against the respondent is no more than questionnaire, and some of these questions clearly show that the approach adopted by the authorities that drafted the said questions, was completely unreasonable, if not perverse. One of the questions which was put in this questionnaire was: on whose authority the respondent cancelled the permits issued by him to the bogus representative? It is surprising that the substance of the charge being that permits for the procurement of 1000 mds. of Bajra were issued to a bogus representative, it should have been suggested that in canceling the said permits, the respondent had done something which was wrong. Another question seems to suggest that when the respondent in self-defence pleaded that he had acted under the orders of the higher authorities, that itself, it was thought, constituted misconduct. Therefore, what purports to be the charge-sheet itself discloses a serious infirmity in the approach adopted in initiating the proceedings against the respondent14. Then as to the reasonable opportunity guaranteed by S. 14 (2) of the Ordinance, it is clear that a copy of the report made against him has not been supplied to the respondent; and even when he was heard before the order of dismissal was passed against him, he had no means of knowing what grounds had weighed with the Enquiry Committee when it made a report against him. Having regard to the procedure adopted by the State authorities in appointing the Enquiry Committee, in formulating the questionnaire containing the charges against the respondent, in making the report, and in dealing with the recommendations made by the Chief Secretary from time to time, we are satisfied that the High Court was right in coming to the conclusion that the respondent had not received a reasonable opportunity to make his defence, and that the proceedings of the enquiry and the report made by the Committee, as well as the final order of dismissal passed against respondent have contravened the safeguards guaranteed by S. 14 (2) of the Ordinance.

### 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: that no suit shall be instituted by any private individual against the State or any State Officer in respect of his dismissal from State service. After Patiala merged with and became a part of the Patiala and East Punjab States Union, all laws, rules and regulations in the erstwhile State of Patiala were made applicable to the newly formed Union. As such, the Farman-i-Shahi also continued to be in operation; but, as has been pointed out by the High Court, S. 13 of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 BK. (No. XVI of 2005 BK) (hereinafter referred to as "the Ordinance") expressly provided that Government may sue or be sued by the name of the Government of the State or in such other manner as may, by notification, be directed by the Government, though S. 12 retained the bar of certain suits against the State as therein provided. The question is whether in view of S. 13 of the Ordinance, the present suit is competent or not; and in deciding this question, it is necessary to refer to S. 14 of the Ordinance. Section 14 reads thus :- "(1) Subject to the provisions of sub-s. (2), the Rajpramukh or any authority authorised in this behalf by the Rajpramukh, may - (a) regulate the recruitment and conditions of service of persons appointed to public services, and to posts in connection with the affairs of the Government, or (b) make rules or regulations for the conduct of Government servants who are members of the public services or are holding posts in connection with the affairs of the Government, or for any other matter relating to them. (2) No person who is a member of a civil service of the State or holds any Civil Post in the State shall be dismissed from service or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him." There is a proviso to this section which is not relevant for our purpose. The High Court has taken the view that having regard to the specific provisions of S. 14 (2) of the Ordinance, the bar created by the Farman-i-Shahi against the competence of all suits must be deemed to have been removed in regard to cases of public servants who seek to challenge the legality or the validity of the orders of dismissal passed against them on the ground that they contravene the mandatory provisions of S. 14 (2) of the Ordinance. Section 14, in substance, corresponds to Art. 311 of the Constitution; and in our opinion, the High Court is right in holding that having regard to the significance and importance of the guarantee contained in S. 14 (2) of the Ordinance, it would be reasonable to hold that suits filed by public servants for the purpose of challenging the validity of orders of dismissal passed against them in contravention of S. 14 (2) are competent. Besides, S. 13 of the Ordinance itself seems to authorise the institution of such a suit and the High Court has observed that "the protection afforded by the said section would be not only meaningless but wholly elusive if a suit like the present is held to be incompetent. "Therefore, we are not satisfied that Mr. Bishan Narain can successfully challenge the correctness of the decision of the High Court that the suit filed by the respondent is competent. It will be noticed that this conclusion is based on S. 14 of the Ordinance quite apart from the provisions of Art. 311 of the Constitution. 13. That leaves only one question to be considered; did the respondent get the benefit of S. 14 (2) of the Ordinance? The answer to this question must clearly be in favour of the respondent. The enquiry held against the respondent seems to us to be illegal and invalid from beginning to end. What purports to be the chargesheet framed against the respondent is no more than questionnaire, and some of these questions clearly show that the approach adopted by the authorities that drafted the said questions, was completely unreasonable, if not perverse. One of the questions which was put in this questionnaire was: on whose authority the respondent cancelled the permits issued by him to the bogus representative? It is surprising that the substance of the charge being that permits for the procurement of 1000 mds. of Bajra were issued to a bogus representative, it should have been suggested that in canceling the said permits, the respondent had done something which was wrong. Another question seems to suggest that when the respondent in self-defence pleaded that he had acted under the orders of the higher authorities, that itself, it was thought, constituted misconduct. Therefore, what purports to be the charge-sheet itself discloses a serious infirmity in the approach adopted in initiating the proceedings against the respondent. 14. Then as to the reasonable opportunity guaranteed by S. 14 (2) of the Ordinance, it is clear that a copy of the report made against him has not been supplied to the respondent; and even when he was heard before the order of dismissal was passed against him, he had no means of knowing what grounds had weighed with the Enquiry Committee when it made a report against him. Having regard to the procedure adopted by the State authorities in appointing the Enquiry Committee, in formulating the questionnaire containing the charges against the respondent, in making the report, and in dealing with the recommendations made by the Chief Secretary from time to time, we are satisfied that the High Court was right in coming to the conclusion that the respondent had not received a reasonable opportunity to make his defence, and that the proceedings of the enquiry and the report made by the Committee, as well as the final order of dismissal passed against respondent have contravened the safeguards guaranteed by S. 14 (2) of the Ordinance. ### Response: 0 ### Explanation: on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951It is true that the Farman-i-Shahi which was the law in Patiala at the relevant time had provided that no suit shall be instituted by any private individual against the State or any State Officer in respect of his dismissal from State service. After Patiala merged with and became a part of the Patiala and East Punjab States Union, all laws, rules and regulations in the erstwhile State of Patiala were made applicable to the newly formed Union. As such, the Farman-i-Shahi also continued to be in operation; but, as has been pointed out by the High Court, S. 13 of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 BK. (No. XVI of 2005 BK) (hereinafter referred to as "the Ordinance") expressly provided that Government may sue or be sued by the name of the Government of the State or in such other manner as may, by notification, be directed by the Government, though S. 12 retained the bar of certain suits against the State as therein provided. The question is whether in view of S. 13 of the Ordinance, the present suit is competent or not; and in deciding this question, it is necessary to refer to S. 14 of the OrdinanceThere is a proviso to this section which is not relevant for our purpose. The High Court has taken the view that having regard to the specific provisions of S. 14 (2) of the Ordinance, the bar created by the Farman-i-Shahi against the competence of all suits must be deemed to have been removed in regard to cases of public servants who seek to challenge the legality or the validity of the orders of dismissal passed against them on the ground that they contravene the mandatory provisions of S. 14 (2) of the Ordinance. Section 14, in substance, corresponds to Art. 311 of the Constitution; and in our opinion, the High Court is right in holding that having regard to the significance and importance of the guarantee contained in S. 14 (2) of the Ordinance, it would be reasonable to hold that suits filed by public servants for the purpose of challenging the validity of orders of dismissal passed against them in contravention of S. 14 (2) are competent. Besides, S. 13 of the Ordinance itself seems to authorise the institution of such a suit and the High Court has observed that "the protection afforded by the said section would be not only meaningless but wholly elusive if a suit like the present is held to be incompetent. "Therefore, we are not satisfied that Mr. Bishan Narain can successfully challenge the correctness of the decision of the High Court that the suit filed by the respondent is competent. It will be noticed that this conclusion is based on S. 14 of the Ordinance quite apart from the provisions of Art. 311 of the ConstitutionThe answer to this question must clearly be in favour of the respondent. The enquiry held against the respondent seems to us to be illegal and invalid from beginning to end. What purports to be the chargesheet framed against the respondent is no more than questionnaire, and some of these questions clearly show that the approach adopted by the authorities that drafted the said questions, was completely unreasonable, if not perverse. One of the questions which was put in this questionnaire was: on whose authority the respondent cancelled the permits issued by him to the bogus representative? It is surprising that the substance of the charge being that permits for the procurement of 1000 mds. of Bajra were issued to a bogus representative, it should have been suggested that in canceling the said permits, the respondent had done something which was wrong. Another question seems to suggest that when the respondent in self-defence pleaded that he had acted under the orders of the higher authorities, that itself, it was thought, constituted misconduct. Therefore, what purports to be the charge-sheet itself discloses a serious infirmity in the approach adopted in initiating the proceedings against the respondent14. Then as to the reasonable opportunity guaranteed by S. 14 (2) of the Ordinance, it is clear that a copy of the report made against him has not been supplied to the respondent; and even when he was heard before the order of dismissal was passed against him, he had no means of knowing what grounds had weighed with the Enquiry Committee when it made a report against him. Having regard to the procedure adopted by the State authorities in appointing the Enquiry Committee, in formulating the questionnaire containing the charges against the respondent, in making the report, and in dealing with the recommendations made by the Chief Secretary from time to time, we are satisfied that the High Court was right in coming to the conclusion that the respondent had not received a reasonable opportunity to make his defence, and that the proceedings of the enquiry and the report made by the Committee, as well as the final order of dismissal passed against respondent have contravened the safeguards guaranteed by S. 14 (2) of the Ordinance.

ARUNA OSWAL Vs. PANKAJ OSWAL & ORS.

and Ors. v. M/s. Gwalior Sugar Co. Ltd. and Ors., AIR 2005 SC 83 , this Court considered the object of prescribing a qualifying percentage of shares to entertain petition under sections 397 and 398. It was held that the object is to ensure that frivolous litigation is not indulged in by persons, who have no legal stake in the company. If the Court is satisfied that the petitioners represents the body of shareholders holding the requisite percentage, the Court may proceed with the matter. This Court held thus: 47. The object of prescribing a qualifying percentage of shares in petitioners and their supporters to file petitions under Sections 397 and 398 is clearly to ensure that frivolous litigation is not indulged in by persons who have no real stake in the company. However, it is of interest that the English Companies Act contains no such limitation. What is required in these matters is a broad commonsense approach. If the Court is satisfied that the petitioners represent a body of shareholders holding the requisite percentage, it can assume that the involvement of the company in litigation is not lightly done and that it should pass orders to bring to an end the matters complained of and not reject it on a technical requirement. Substance must take precedence over form. Of course, there are some rules which are vital and go to the root of the matter which cannot be broken. There are others where non-compliance may be condoned or dispensed with. In the latter case, the rule is merely directory provided there is substantial compliance with the rules read as a whole and no prejudice is caused. (See Pratap Singh v. Shri Krishna Gupta, (AIR 1956 SC 140 ). In our judgment, Section 399(3) and Regulation 18 have been substantially complied with in this case. (emphasis supplied) In the instant case, considering on the anvil of aforesaid decisions, we are satisfied that respondent no.1, as pleaded by him, had nothing to do with the affairs of the company and he is not a registered owner. The rights in estate/shares, if any, of respondent no.1 are protected in the civil suit. Thus, we are satisfied that respondent no.1 does not represent the body of shareholders holding requisite percentage of shares in the company, necessary in order to maintain such a petition. 25. It is also not disputed that the High Court in the pending civil suit passed an order maintaining the status quo concerning shareholding and other properties. Because of the status quo order, shares have to be held in the name of Mrs. Aruna Oswal until the suit is finally decided. It would not be appropriate given the order passed by the civil Court to treat the shareholding in the name of respondent No.1 by NCLT before ownership rights are finally decided in the civil suit, and propriety also demands it. The question of right, title, and interest is essentially adjudication of civil rights between the parties, as to the effect of the nomination decision in a civil suit is going to govern the parties rights. It would not be appropriate to entertain these parallel proceedings and give waiver as claimed under section 244 before the civil suits decision. Respondent No.1 had himself chosen to avail the remedy of civil suit, as such filing of an application under sections 241 and 242 after that is nothing but an afterthought. 26. Learned senior counsel for appellants argued that respondent No.1, a disgruntled son disowned by family, settled in Australia for the last 25-30 years. He admittedly did not have anything to do with the affairs of the company. On the other hand, it was vigorously argued by Mr. Siddhartha Dave, learned senior counsel appearing for the respondent, that owing to the rampant COVID-19 pandemic, respondent No.1 is in Dubai. Be that as it may. Merely disowning a son by late father or by the family, is not going to deprive him of any right in the property to which he may be otherwise entitled in accordance with the law. The pertinent question needs to be tried in a civil suit and adjudicated finally, it cannot be decided by NCLT in proceedings in question. Hence, we refrain from deciding the aforesaid question raised on behalf of the appellants in the present proceedings. In the facts and circumstances, it would not be appropriate to permit respondent No.1 to continue the proceedings for mismanagement initiated under sections 241 and 242, that too in the absence of having 10% shareholding and firmly establishing his rights in civil proceedings to the extent he is claiming in the shareholding of the companies. 27. We refrain to decide the question finally in these proceedings concerning the effect of nomination, as it being a civil dispute, cannot be decided in these proceedings and the decision may jeopardise parties rights and interest in the civil suit. With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings. It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT. 28. It prima facie does not appear to be a case of oppression and mismanagement. Our attention was drawn by the learned senior counsel appearing for respondent No.1 to certain company transactions. From transactions simpliciter, it cannot be inferred that it is a case of oppression and mismanagement. 29. We are of the opinion that the proceedings before the NCLT filed under sections 241 and 242 of the Act should not be entertained because of the pending civil dispute and considering the minuscule extent of holding of 0.03%, that too, acquired after filing a civil suit in company securities, of respondent no. 1.

1[ds]15. It is quite apparent from a bare reading of the aforesaid provisions of section 72(1), every holder of securities has a right to nominate any person to whom his securities shall vest in the event of his death. In the case of joint-holders also, they have a right to nominate any person to whom all the rights in the securities shall vest in the event of death of all joint holders. Sub-section (3) of section 72 contains a non-obstante clause in respect of anything contained in any other law for the time being in force or any disposition, whether testamentary or otherwise, where a nomination is validly made in the prescribed manner, it purports to confer on any person the right to vest the securities of the company, all the rights in the securities shall vest in the nominee unless a nomination is varied or cancelled in the prescribed manner. It is prima facie apparent that vesting is absolute, and the provisions supersede by virtue of a non-obstante clause any other law for the time being in force. Prima facie shares vest in a nominee, and he becomes absolute owner of the securities on the strength of nomination. Rule 19(2) of the Companies (Share Capital and Debentures) Rules, 2014 framed under the Act, also indicates to the same effect. Under Rule 19(8), a nominee becomes entitled to receive the dividends or interests and other advantages to which he would have been entitled to if he were the registered holder of the securities; and after becoming a registered holder, he can participate in the meetings of the company.The effect of nomination did not fall for consideration before this Court in World Wide Agencies Pvt. Ltd. & Anr. (supra). There is no doubt that in the absence of nomination, a legal representative cannot be denied the right to maintain a petition regarding oppression and mismanagement. In the instant case, the nomination had been made, and the nominee is registered as the holder of shares. What is the effect of the same is required to be decided to determine the extent of shareholding of respondent No. 1, concerning which civil suit filed earlier in point of time is pending consideration.17. Learned senior counsel has also placed reliance on Smt. Sarbati Devi & Anr. v. Smt. Usha Devi, (1984) 1 SCC 424 in which question came up for consideration regarding section 39 of the Life Insurance Act, 1938 concerning rights of a nominee in the amount covered under policy when the assured died intestate. It was held that nomination was subject to a claim of the heirs of the assured under the law of succession. The provisions of section 39 of the Life Insurance Act, 1938, are quite different from the provisions contained in section 72 of the Act. The rights of the nominee would depend upon what is provided statutorily. There was no vesting of interest provided in the nominee under section 39 of the Act of 1938. Hence, the decision does not espouse the cause of the appellant.18. Learned senior counsel also referred to the decision in Vishin N. Khanchandani & Anr. v. Vidya Lachmandas Khanchandani & Anr., (2000) 6 SCC 724 ,wherein the provisions of sections 6 to 8 of the Government Savings Certificates Act, 1959 came up for consideration. It was held that the nominee was entitled to receive the sum due on the savings certificates, yet he retained the same for the persons entitled to it under the relevant law of succession. The argument that the non-obstante clause in section 6 entitled the nominee to utilise the sum so received by him, in the manner he likes, was rejected. In the sections mentioned above of Act of 1959, vesting was not provided; thus, the provisions being quite different, the decision is distinguishable.19. Learned senior counsel representing respondent No.1, lastly referred to Ram Chander Talwar & Anr. v. Devender Kumar Talwar & Ors., (2010) 10 SCC 671 ,wherein section 45-ZA(2) of the Banking Regulation Act, 1949 was considered by this Court as well as the provisions of the Hindu Succession Act, 1925 and that of 1956. Nomination made under the provisions of section 45-ZA of the said Act was to receive the amount of deposit from the banking company on the death of the sole depositor. There was no similar provision regarding the vesting of rights in nominee in section 45-ZA(2). Hence, the decision is to no avail.20. Admittedly, respondent No.1 is not holding the shares to the extent of eligibility threshold of 10% as stipulated under section 244 in order to maintain an application under sections 241 and 242. He has purchased the holding of 0.03% in M/s. Oswal Agro Mills Ltd. in June 2017 after filing civil suit and remaining 9.97% is in dispute, he is claiming on the strength of his being a legal representative. In M/s. Oswal Greentech Ltd., the shareholding of the deceased was 11.11%, out of which one-fourth share is claimed by respondent No.1. Admittedly, in a civil suit for partition, he is also claiming a right in the shares held by the deceased to the extent of one-fourth. The question as to the right of respondent no.1 is required to be adjudicated finally in the civil suit, including what is the effect of nomination in favour of his mother Mrs. Aruna Oswal, whether absolute right, title, and interest vested in the nominee or not, is to be finally determined in the said suit. The decision in a civil suit would be binding between the parties on the question of right, title, or interest. It is the domain of a civil court to determine the right, title, and interest in an estate in a suit for partition.22. In Sangramsinh P. Gaekwad and Ors. v. Shantadevi P. Gaekwad (Dead) through LRs. and Ors., (2005) 11 SCC 314 , it was held that the dispute as to inheritance of shares is eminently a civil dispute and cannot be said to be a dispute as regards oppression and/or mismanagement so as to attract Company Courts jurisdiction under sections 397 and 398. Adjudication of the question of ownership of shares is not contemplated under Section 397. The relevant portion is extracted hereunder:143. It is also not in dispute that the matter relating to her claim to succeed FRG as his Class I heir is pending adjudication in Civil Suit No. 725 of 1991 in the Baroda Civil Court. She claimed title in respect of 8000 shares by inheritance in terms of the Hindu Succession Act. Indisputably, in terms of Section 15 of the said Act she is a Class I heir but the appellants herein contend that the said provision has no application having regard to Section 5(2) thereof as inheritance in the family is governed by the rule of primogeniture. A pure question of title is alien to an application under Section 397 of the Companies Act wherefor the lack of probity is the only test. Furthermore, it is now well settled that the jurisdiction of the civil court is not completely ousted by the provisions of the Companies Act, 1956. (See Dwarka Prasad Agarwal v. Ramesh Chander Agarwal , (2003) 6 SCC 220 )144. A dispute as regards right of inheritance between the parties is eminently a civil dispute and cannot be said to be a dispute as regards oppression of minority shareholders by the majority shareholders and/or mismanagement.In view of the aforesaid decision, we are of the opinion that the basis of the petition is the claim by way of inheritance of 1/4 th shareholding so as to constitute 10% of the holding, which right cannot be decided in proceedings under section 241/242 of the Act. Thus, filing of the petition under sections 241 and 242 seeking waiver is a misconceived exercise, firstly, respondent no.1 has to firmly establish his right of inheritance before a civil court to the extent of the shares he is claiming; more so, in view of the nomination made as per the provisions contained in Section 71 of the Companies Act, 2013.In the instant case, considering on the anvil of aforesaid decisions, we are satisfied that respondent no.1, as pleaded by him, had nothing to do with the affairs of the company and he is not a registered owner. The rights in estate/shares, if any, of respondent no.1 are protected in the civil suit. Thus, we are satisfied that respondent no.1 does not represent the body of shareholders holding requisite percentage of shares in the company, necessary in order to maintain such a petition.25. It is also not disputed that the High Court in the pending civil suit passed an order maintaining the status quo concerning shareholding and other properties. Because of the status quo order, shares have to be held in the name of Mrs. Aruna Oswal until the suit is finally decided. It would not be appropriate given the order passed by the civil Court to treat the shareholding in the name of respondent No.1 by NCLT before ownership rights are finally decided in the civil suit, and propriety also demands it. The question of right, title, and interest is essentially adjudication of civil rights between the parties, as to the effect of the nomination decision in a civil suit is going to govern the parties rights. It would not be appropriate to entertain these parallel proceedings and give waiver as claimed under section 244 before the civil suits decision. Respondent No.1 had himself chosen to avail the remedy of civil suit, as such filing of an application under sections 241 and 242 after that is nothing but an afterthought.Be that as it may. Merely disowning a son by late father or by the family, is not going to deprive him of any right in the property to which he may be otherwise entitled in accordance with the law. The pertinent question needs to be tried in a civil suit and adjudicated finally, it cannot be decided by NCLT in proceedings in question. Hence, we refrain from deciding the aforesaid question raised on behalf of the appellants in the present proceedings. In the facts and circumstances, it would not be appropriate to permit respondent No.1 to continue the proceedings for mismanagement initiated under sections 241 and 242, that too in the absence of having 10% shareholding and firmly establishing his rights in civil proceedings to the extent he is claiming in the shareholding of the companies.27. We refrain to decide the question finally in these proceedings concerning the effect of nomination, as it being a civil dispute, cannot be decided in these proceedings and the decision may jeopardise parties rights and interest in the civil suit. With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings. It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT.28. It prima facie does not appear to be a case of oppression and mismanagement. Our attention was drawn by the learned senior counsel appearing for respondent No.1 to certain company transactions. From transactions simpliciter, it cannot be inferred that it is a case of oppression and mismanagement.29. We are of the opinion that the proceedings before the NCLT filed under sections 241 and 242 of the Act should not be entertained because of the pending civil dispute and considering the minuscule extent of holding of 0.03%, that too, acquired after filing a civil suit in company securities, of respondent no. 1.

### 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: and Ors. v. M/s. Gwalior Sugar Co. Ltd. and Ors., AIR 2005 SC 83 , this Court considered the object of prescribing a qualifying percentage of shares to entertain petition under sections 397 and 398. It was held that the object is to ensure that frivolous litigation is not indulged in by persons, who have no legal stake in the company. If the Court is satisfied that the petitioners represents the body of shareholders holding the requisite percentage, the Court may proceed with the matter. This Court held thus: 47. The object of prescribing a qualifying percentage of shares in petitioners and their supporters to file petitions under Sections 397 and 398 is clearly to ensure that frivolous litigation is not indulged in by persons who have no real stake in the company. However, it is of interest that the English Companies Act contains no such limitation. What is required in these matters is a broad commonsense approach. If the Court is satisfied that the petitioners represent a body of shareholders holding the requisite percentage, it can assume that the involvement of the company in litigation is not lightly done and that it should pass orders to bring to an end the matters complained of and not reject it on a technical requirement. Substance must take precedence over form. Of course, there are some rules which are vital and go to the root of the matter which cannot be broken. There are others where non-compliance may be condoned or dispensed with. In the latter case, the rule is merely directory provided there is substantial compliance with the rules read as a whole and no prejudice is caused. (See Pratap Singh v. Shri Krishna Gupta, (AIR 1956 SC 140 ). In our judgment, Section 399(3) and Regulation 18 have been substantially complied with in this case. (emphasis supplied) In the instant case, considering on the anvil of aforesaid decisions, we are satisfied that respondent no.1, as pleaded by him, had nothing to do with the affairs of the company and he is not a registered owner. The rights in estate/shares, if any, of respondent no.1 are protected in the civil suit. Thus, we are satisfied that respondent no.1 does not represent the body of shareholders holding requisite percentage of shares in the company, necessary in order to maintain such a petition. 25. It is also not disputed that the High Court in the pending civil suit passed an order maintaining the status quo concerning shareholding and other properties. Because of the status quo order, shares have to be held in the name of Mrs. Aruna Oswal until the suit is finally decided. It would not be appropriate given the order passed by the civil Court to treat the shareholding in the name of respondent No.1 by NCLT before ownership rights are finally decided in the civil suit, and propriety also demands it. The question of right, title, and interest is essentially adjudication of civil rights between the parties, as to the effect of the nomination decision in a civil suit is going to govern the parties rights. It would not be appropriate to entertain these parallel proceedings and give waiver as claimed under section 244 before the civil suits decision. Respondent No.1 had himself chosen to avail the remedy of civil suit, as such filing of an application under sections 241 and 242 after that is nothing but an afterthought. 26. Learned senior counsel for appellants argued that respondent No.1, a disgruntled son disowned by family, settled in Australia for the last 25-30 years. He admittedly did not have anything to do with the affairs of the company. On the other hand, it was vigorously argued by Mr. Siddhartha Dave, learned senior counsel appearing for the respondent, that owing to the rampant COVID-19 pandemic, respondent No.1 is in Dubai. Be that as it may. Merely disowning a son by late father or by the family, is not going to deprive him of any right in the property to which he may be otherwise entitled in accordance with the law. The pertinent question needs to be tried in a civil suit and adjudicated finally, it cannot be decided by NCLT in proceedings in question. Hence, we refrain from deciding the aforesaid question raised on behalf of the appellants in the present proceedings. In the facts and circumstances, it would not be appropriate to permit respondent No.1 to continue the proceedings for mismanagement initiated under sections 241 and 242, that too in the absence of having 10% shareholding and firmly establishing his rights in civil proceedings to the extent he is claiming in the shareholding of the companies. 27. We refrain to decide the question finally in these proceedings concerning the effect of nomination, as it being a civil dispute, cannot be decided in these proceedings and the decision may jeopardise parties rights and interest in the civil suit. With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings. It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT. 28. It prima facie does not appear to be a case of oppression and mismanagement. Our attention was drawn by the learned senior counsel appearing for respondent No.1 to certain company transactions. From transactions simpliciter, it cannot be inferred that it is a case of oppression and mismanagement. 29. We are of the opinion that the proceedings before the NCLT filed under sections 241 and 242 of the Act should not be entertained because of the pending civil dispute and considering the minuscule extent of holding of 0.03%, that too, acquired after filing a civil suit in company securities, of respondent no. 1. ### Response: 1 ### Explanation: Shantadevi P. Gaekwad (Dead) through LRs. and Ors., (2005) 11 SCC 314 , it was held that the dispute as to inheritance of shares is eminently a civil dispute and cannot be said to be a dispute as regards oppression and/or mismanagement so as to attract Company Courts jurisdiction under sections 397 and 398. Adjudication of the question of ownership of shares is not contemplated under Section 397. The relevant portion is extracted hereunder:143. It is also not in dispute that the matter relating to her claim to succeed FRG as his Class I heir is pending adjudication in Civil Suit No. 725 of 1991 in the Baroda Civil Court. She claimed title in respect of 8000 shares by inheritance in terms of the Hindu Succession Act. Indisputably, in terms of Section 15 of the said Act she is a Class I heir but the appellants herein contend that the said provision has no application having regard to Section 5(2) thereof as inheritance in the family is governed by the rule of primogeniture. A pure question of title is alien to an application under Section 397 of the Companies Act wherefor the lack of probity is the only test. Furthermore, it is now well settled that the jurisdiction of the civil court is not completely ousted by the provisions of the Companies Act, 1956. (See Dwarka Prasad Agarwal v. Ramesh Chander Agarwal , (2003) 6 SCC 220 )144. A dispute as regards right of inheritance between the parties is eminently a civil dispute and cannot be said to be a dispute as regards oppression of minority shareholders by the majority shareholders and/or mismanagement.In view of the aforesaid decision, we are of the opinion that the basis of the petition is the claim by way of inheritance of 1/4 th shareholding so as to constitute 10% of the holding, which right cannot be decided in proceedings under section 241/242 of the Act. Thus, filing of the petition under sections 241 and 242 seeking waiver is a misconceived exercise, firstly, respondent no.1 has to firmly establish his right of inheritance before a civil court to the extent of the shares he is claiming; more so, in view of the nomination made as per the provisions contained in Section 71 of the Companies Act, 2013.In the instant case, considering on the anvil of aforesaid decisions, we are satisfied that respondent no.1, as pleaded by him, had nothing to do with the affairs of the company and he is not a registered owner. The rights in estate/shares, if any, of respondent no.1 are protected in the civil suit. Thus, we are satisfied that respondent no.1 does not represent the body of shareholders holding requisite percentage of shares in the company, necessary in order to maintain such a petition.25. It is also not disputed that the High Court in the pending civil suit passed an order maintaining the status quo concerning shareholding and other properties. Because of the status quo order, shares have to be held in the name of Mrs. Aruna Oswal until the suit is finally decided. It would not be appropriate given the order passed by the civil Court to treat the shareholding in the name of respondent No.1 by NCLT before ownership rights are finally decided in the civil suit, and propriety also demands it. The question of right, title, and interest is essentially adjudication of civil rights between the parties, as to the effect of the nomination decision in a civil suit is going to govern the parties rights. It would not be appropriate to entertain these parallel proceedings and give waiver as claimed under section 244 before the civil suits decision. Respondent No.1 had himself chosen to avail the remedy of civil suit, as such filing of an application under sections 241 and 242 after that is nothing but an afterthought.Be that as it may. Merely disowning a son by late father or by the family, is not going to deprive him of any right in the property to which he may be otherwise entitled in accordance with the law. The pertinent question needs to be tried in a civil suit and adjudicated finally, it cannot be decided by NCLT in proceedings in question. Hence, we refrain from deciding the aforesaid question raised on behalf of the appellants in the present proceedings. In the facts and circumstances, it would not be appropriate to permit respondent No.1 to continue the proceedings for mismanagement initiated under sections 241 and 242, that too in the absence of having 10% shareholding and firmly establishing his rights in civil proceedings to the extent he is claiming in the shareholding of the companies.27. We refrain to decide the question finally in these proceedings concerning the effect of nomination, as it being a civil dispute, cannot be decided in these proceedings and the decision may jeopardise parties rights and interest in the civil suit. With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings. It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT.28. It prima facie does not appear to be a case of oppression and mismanagement. Our attention was drawn by the learned senior counsel appearing for respondent No.1 to certain company transactions. From transactions simpliciter, it cannot be inferred that it is a case of oppression and mismanagement.29. We are of the opinion that the proceedings before the NCLT filed under sections 241 and 242 of the Act should not be entertained because of the pending civil dispute and considering the minuscule extent of holding of 0.03%, that too, acquired after filing a civil suit in company securities, of respondent no. 1.

Central Bank Of India Vs. Shri Gokal Chand

accommodation in premises No. 17, Alipur Road consisted of more than three rooms and consequently, the respondent did not bona fide require the premises in dispute for his own occupation and praying for the issue of a commission to go to No. 17, Alipur Road and to prepare a plan of the premises. By his order dated May, 29, 1965 the Controller rejected the application. He said:"The petitioner came into the witness box and the responder had full opportunity to cross-examine him regarding the extent of accommodation in his possession. He has stated that the other portions of 17, Alipur Road, Delhi are in possession of other persons. Previously also, such an application was made by the tenant which was disallowed by me, vide my order dated 7th March, 1964. I see no further reason to review my previous order and allow this application." From this order the appellant filed an appeal to the Rent Control Tribunal. The Tribunal hold that no appeal lay from the aforesaid order of the Controller under S. 38 (1) of the Delhi Rent Control Act, 1958, and on this finding dismissed the appeal. The High Court agreed with this decision of the Tribunal. The appellant now appeals to this Court by special leave. The question in this appeal is whether an appeal lay to the Tribunal under S. 38 (1) from the aforesaid order of the Controller. 2. The Delhi Rent Control Act, 1958 empowers the Controller to pass orders for, fixing the standard rent or lawful increase thereof evictions of tenants and various other orders on the applications filed before him by the landlord or the tenant. Under Ss. 36 and 37(2), the Controller may pass interlocutory orders in a pending proceeding. Under S. 36, he may pass orders for the summoning of witnesses, the issue of commissions for examinations of witnesses, discovery, production and inspection of documents and inspection of premises. By S. 37(2), he is required to follow as far as may be the practice and procedure of a Court of small causes, and following such practice and procedure, he may pass other interlocutory orders. Section 38 gives a right of appeal to the Rent Control Tribunal from every order of the Controller made under the Act. The Tribunal has all the powers vested in a Court under the Code of Civil Procedure, 1908 when hearing an appeal. Under S. 43, save as expressly provided in the Act, every order made by the Controller or an order passed on appeal under the Act is final and cannot be called in question in any original suit, application or execution proceeding. Section 38(1) reads:"An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette." 3. The object of S. 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. 38 (l),the words "every order of the Controller made under this Act"! though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the find adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S. 37(2) is an order passed under the Act and is subject to appeal under S.38 (1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal. 4. Similar considerations have induced the Courts to give a limited construction on the apparently wide words of other statutes conferring rights of appeal. Section 202 of the Indian Companies Act, 1913 confers a right of appeal "from any order or decision made or given in the matter of the winding up of a company by the Court." In Shankarlal Aggarwal v. Shankarlal Poddar, (1964) 1 SCR 717 at p. 736: (AIR 1965 SC 507 at p. 514) this Court decided that these words, though wide, would exclude merely procedural orders or those which did not affect the rights or liabilities of parties. 5. The order of the Controller dated May 29, 1965 refusing to issue a commission for inspection and preparation of a plan of premises No. 17, Alipur Road was a mere procedural order not affecting any right or liability of the appellant. The issue of a commission is only a step for assisting the parties in the prosecution of their case. It is open to the appellant to canvass the error defect or irregularity, if any, in the order in an appeal from the final order passed in the proceeding for eviction. But no appeal from the order lay to the Rent Control Tribunal under S. .38 (1).

0[ds]3. The object of S. 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. 38 (l),the words "every order of the Controller made under this Act"! though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the find adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S. 37(2) is an order passed under the Act and is subject to appeal under S.38 (1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal5. The order of the Controller dated May 29, 1965 refusing to issue a commission for inspection and preparation of a plan of premises No. 17, Alipur Road was a mere procedural order not affecting any right or liability of the appellant. The issue of a commission is only a step for assisting the parties in the prosecution of their case. It is open to the appellant to canvass the error defect or irregularity, if any, in the order in an appeal from the final order passed in the proceeding for eviction. But no appeal from the order lay to the Rent Control Tribunal under S. .38 (1).

### 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: accommodation in premises No. 17, Alipur Road consisted of more than three rooms and consequently, the respondent did not bona fide require the premises in dispute for his own occupation and praying for the issue of a commission to go to No. 17, Alipur Road and to prepare a plan of the premises. By his order dated May, 29, 1965 the Controller rejected the application. He said:"The petitioner came into the witness box and the responder had full opportunity to cross-examine him regarding the extent of accommodation in his possession. He has stated that the other portions of 17, Alipur Road, Delhi are in possession of other persons. Previously also, such an application was made by the tenant which was disallowed by me, vide my order dated 7th March, 1964. I see no further reason to review my previous order and allow this application." From this order the appellant filed an appeal to the Rent Control Tribunal. The Tribunal hold that no appeal lay from the aforesaid order of the Controller under S. 38 (1) of the Delhi Rent Control Act, 1958, and on this finding dismissed the appeal. The High Court agreed with this decision of the Tribunal. The appellant now appeals to this Court by special leave. The question in this appeal is whether an appeal lay to the Tribunal under S. 38 (1) from the aforesaid order of the Controller. 2. The Delhi Rent Control Act, 1958 empowers the Controller to pass orders for, fixing the standard rent or lawful increase thereof evictions of tenants and various other orders on the applications filed before him by the landlord or the tenant. Under Ss. 36 and 37(2), the Controller may pass interlocutory orders in a pending proceeding. Under S. 36, he may pass orders for the summoning of witnesses, the issue of commissions for examinations of witnesses, discovery, production and inspection of documents and inspection of premises. By S. 37(2), he is required to follow as far as may be the practice and procedure of a Court of small causes, and following such practice and procedure, he may pass other interlocutory orders. Section 38 gives a right of appeal to the Rent Control Tribunal from every order of the Controller made under the Act. The Tribunal has all the powers vested in a Court under the Code of Civil Procedure, 1908 when hearing an appeal. Under S. 43, save as expressly provided in the Act, every order made by the Controller or an order passed on appeal under the Act is final and cannot be called in question in any original suit, application or execution proceeding. Section 38(1) reads:"An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette." 3. The object of S. 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. 38 (l),the words "every order of the Controller made under this Act"! though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the find adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S. 37(2) is an order passed under the Act and is subject to appeal under S.38 (1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal. 4. Similar considerations have induced the Courts to give a limited construction on the apparently wide words of other statutes conferring rights of appeal. Section 202 of the Indian Companies Act, 1913 confers a right of appeal "from any order or decision made or given in the matter of the winding up of a company by the Court." In Shankarlal Aggarwal v. Shankarlal Poddar, (1964) 1 SCR 717 at p. 736: (AIR 1965 SC 507 at p. 514) this Court decided that these words, though wide, would exclude merely procedural orders or those which did not affect the rights or liabilities of parties. 5. The order of the Controller dated May 29, 1965 refusing to issue a commission for inspection and preparation of a plan of premises No. 17, Alipur Road was a mere procedural order not affecting any right or liability of the appellant. The issue of a commission is only a step for assisting the parties in the prosecution of their case. It is open to the appellant to canvass the error defect or irregularity, if any, in the order in an appeal from the final order passed in the proceeding for eviction. But no appeal from the order lay to the Rent Control Tribunal under S. .38 (1). ### Response: 0 ### Explanation: 3. The object of S. 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. 38 (l),the words "every order of the Controller made under this Act"! though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the find adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S. 37(2) is an order passed under the Act and is subject to appeal under S.38 (1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal5. The order of the Controller dated May 29, 1965 refusing to issue a commission for inspection and preparation of a plan of premises No. 17, Alipur Road was a mere procedural order not affecting any right or liability of the appellant. The issue of a commission is only a step for assisting the parties in the prosecution of their case. It is open to the appellant to canvass the error defect or irregularity, if any, in the order in an appeal from the final order passed in the proceeding for eviction. But no appeal from the order lay to the Rent Control Tribunal under S. .38 (1).

Manimala Devi Vs. Indu Bala Debya & Others

mortgage debt.The High Court of Madras was right in holding in Pavayi v. Palamiyela Goundan, ILR 1940 Mad 872 : (AIR 1940 Mad 470 ) (FB) that a mortgagor who has lost all interest in the mortgaged property cannot by payment of interest or principal within the meaning of S. 20 bind the person on whom the interest has devolved. But the mortgagors interest in Mauza Bahaldih subsisted on the date of payment by him of Rs. 100/- towards the principal and interest, and such payment having been made within twelve years from April 14, 1925, the plaintiffs claim to enforce the mortgage dated August 27, 1922, was at the date of the suit not barred by limitation.10. The amount due under the mortgage dated June 14, 1922, was repayable on April 14, 1925, and on April 1, 1937, Rs. 600/- were paid by the mortgagor to the mortgagee and the endorsement regarding payment was made on the mortgage-deed recording such payment, and on that date the period of twelve years commencing from April 14, 1925, under Art. 132 of the Limitation Act, had not expired. But before that date the mortgagor had lost interest in all the properties mortgaged by him - in Mauza Bansjora on May 17, 1927, in Mauza Simitanr on October 2, 1927, and in Mauza Bahaldih by the auction sale which became effective from January 16, 1937. The period of limitation in respect of the first mortgage could not, for reasons already set out, be extended by part payment made after the mortgagor lost all his interest in the property mortgaged. The plaintiff has not relied upon any other part payment in respect of the first mortgage before the mortgagors interest in the mortgaged properties was transferred, to extend the period of limitation for a suit to enforce the mortgage.11. But the plaintiff relied upon the sale of the mortgagors interest at a Court auction, and his dispossession as furnishing a fresh cause of action for enforcement of the mortgage. It was urged that by the covenants in the mortgage-deed dated June 14, 1922, a usufructuary mortgage was created on the mortgagors interest in Mauza Bahaldih, and by the attornment made pursuant to paragraph 7 of the mortgage, the mortgagor must be deemed to be in possession till the mortgagors interest, in that property was sold, and under S. 68 (1) (d) of the Transfer of Property Act dispossession of the mortgagee from Mauza Bahaldih by virtue of the sale under the money decree passed against the mortgagor, a cause of action accrued to the mortgagee to enforce the mortgage, and the plaintiffs suit filed within twelve years from the date of dispossession was within time.A suit to enforce a mortgage is governed by Art. 132 of the Limitation Act and has to be filed within twelve years from the date on which the money sued for became due, unless the period of limitation so prescribed is extended in the manner provided by part III of the Limitation Act, Dispossession of the mortgagee is not one of the grounds prescribed by the Act for extension of the time prescribed for filing a suit.12. Section 68 of the Transfer of Property Act confers a right upon the mortgagee to sue for the mortgage money in four different classes of cases and no others. These classes are:-"(a) where the mortgagor binds himself to repay the mortgage money;(b) where,. by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is; wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;(d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor.The section does not deal with the period of limitation for filing a suit or extension of the period prescribed by the Limitation Act for filing a suit. The right conferred by S. 68 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when mortgagor has bound himself to repay the same is governed by Art. 116 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not secured in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Art. 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security possession and not from the date when the mortgage money is repayable:(sic)Unichaman v. Ahmed, ILR 21 Mad 242, Assuming therefore that by the two deeds that mortgagees were placed in possession of the right to recover royalty in respect of Mauza Bahaldih, and that the sale of that property in enforcement of the decree of a Civil Court constituted deprivation of the security or disturbance of their possession by the creditors of the mortgagor, dispossession having taken place in 1937 the suit filed on July 12, 1946, regarded as one to enforce the claim to recover the mortgage money under S. 68 of the Transfer of Property Act was barred by the law of limitation.

1[ds]9. The High Court, in our view, was in error in holding that the mortgagors interest in Mauzas Bansjora and Simitanr only was mortgaged.The question of limitation may now be considered in the light of the finding that Mauza Bahaldih was mortgaged under the two mortgage-deeds.The later mortgage was executed on August 27, 1922, and the amount due thereunder was payable on April 14, 1925. On August 16, 1934, an amount of Rs. 100/- was paid by ;the mortgagor and an endorsement in that behalf was made on the mortgage-bond under his signature, and on that date the mortgagors interest in Mauza Bahaldih was notsection does not deal with the period of limitation for filing a suit or extension of the period prescribed by the Limitation Act for filing a suit. The right conferred by S. 68 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when mortgagor has bound himself to repay the same is governed by Art. 116 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not secured in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Art. 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security possession and not from the date when the mortgage money is repayable:(sic)Unichaman v. Ahmed, ILR 21 Mad 242, Assuming therefore that by the two deeds that mortgagees were placed in possession of the right to recover royalty in respect of Mauza Bahaldih, and that the sale of that property in enforcement of the decree of a Civil Court constituted deprivation of the security or disturbance of their possession by the creditors of the mortgagor, dispossession having taken place in 1937 the suit filed on July 12, 1946, regarded as one to enforce the claim to recover the mortgage money under S. 68 of the Transfer of Property Act was barred by the law of limitation.

### 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: mortgage debt.The High Court of Madras was right in holding in Pavayi v. Palamiyela Goundan, ILR 1940 Mad 872 : (AIR 1940 Mad 470 ) (FB) that a mortgagor who has lost all interest in the mortgaged property cannot by payment of interest or principal within the meaning of S. 20 bind the person on whom the interest has devolved. But the mortgagors interest in Mauza Bahaldih subsisted on the date of payment by him of Rs. 100/- towards the principal and interest, and such payment having been made within twelve years from April 14, 1925, the plaintiffs claim to enforce the mortgage dated August 27, 1922, was at the date of the suit not barred by limitation.10. The amount due under the mortgage dated June 14, 1922, was repayable on April 14, 1925, and on April 1, 1937, Rs. 600/- were paid by the mortgagor to the mortgagee and the endorsement regarding payment was made on the mortgage-deed recording such payment, and on that date the period of twelve years commencing from April 14, 1925, under Art. 132 of the Limitation Act, had not expired. But before that date the mortgagor had lost interest in all the properties mortgaged by him - in Mauza Bansjora on May 17, 1927, in Mauza Simitanr on October 2, 1927, and in Mauza Bahaldih by the auction sale which became effective from January 16, 1937. The period of limitation in respect of the first mortgage could not, for reasons already set out, be extended by part payment made after the mortgagor lost all his interest in the property mortgaged. The plaintiff has not relied upon any other part payment in respect of the first mortgage before the mortgagors interest in the mortgaged properties was transferred, to extend the period of limitation for a suit to enforce the mortgage.11. But the plaintiff relied upon the sale of the mortgagors interest at a Court auction, and his dispossession as furnishing a fresh cause of action for enforcement of the mortgage. It was urged that by the covenants in the mortgage-deed dated June 14, 1922, a usufructuary mortgage was created on the mortgagors interest in Mauza Bahaldih, and by the attornment made pursuant to paragraph 7 of the mortgage, the mortgagor must be deemed to be in possession till the mortgagors interest, in that property was sold, and under S. 68 (1) (d) of the Transfer of Property Act dispossession of the mortgagee from Mauza Bahaldih by virtue of the sale under the money decree passed against the mortgagor, a cause of action accrued to the mortgagee to enforce the mortgage, and the plaintiffs suit filed within twelve years from the date of dispossession was within time.A suit to enforce a mortgage is governed by Art. 132 of the Limitation Act and has to be filed within twelve years from the date on which the money sued for became due, unless the period of limitation so prescribed is extended in the manner provided by part III of the Limitation Act, Dispossession of the mortgagee is not one of the grounds prescribed by the Act for extension of the time prescribed for filing a suit.12. Section 68 of the Transfer of Property Act confers a right upon the mortgagee to sue for the mortgage money in four different classes of cases and no others. These classes are:-"(a) where the mortgagor binds himself to repay the mortgage money;(b) where,. by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is; wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;(d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor.The section does not deal with the period of limitation for filing a suit or extension of the period prescribed by the Limitation Act for filing a suit. The right conferred by S. 68 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when mortgagor has bound himself to repay the same is governed by Art. 116 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not secured in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Art. 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security possession and not from the date when the mortgage money is repayable:(sic)Unichaman v. Ahmed, ILR 21 Mad 242, Assuming therefore that by the two deeds that mortgagees were placed in possession of the right to recover royalty in respect of Mauza Bahaldih, and that the sale of that property in enforcement of the decree of a Civil Court constituted deprivation of the security or disturbance of their possession by the creditors of the mortgagor, dispossession having taken place in 1937 the suit filed on July 12, 1946, regarded as one to enforce the claim to recover the mortgage money under S. 68 of the Transfer of Property Act was barred by the law of limitation. ### Response: 1 ### Explanation: 9. The High Court, in our view, was in error in holding that the mortgagors interest in Mauzas Bansjora and Simitanr only was mortgaged.The question of limitation may now be considered in the light of the finding that Mauza Bahaldih was mortgaged under the two mortgage-deeds.The later mortgage was executed on August 27, 1922, and the amount due thereunder was payable on April 14, 1925. On August 16, 1934, an amount of Rs. 100/- was paid by ;the mortgagor and an endorsement in that behalf was made on the mortgage-bond under his signature, and on that date the mortgagors interest in Mauza Bahaldih was notsection does not deal with the period of limitation for filing a suit or extension of the period prescribed by the Limitation Act for filing a suit. The right conferred by S. 68 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when mortgagor has bound himself to repay the same is governed by Art. 116 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not secured in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Art. 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security possession and not from the date when the mortgage money is repayable:(sic)Unichaman v. Ahmed, ILR 21 Mad 242, Assuming therefore that by the two deeds that mortgagees were placed in possession of the right to recover royalty in respect of Mauza Bahaldih, and that the sale of that property in enforcement of the decree of a Civil Court constituted deprivation of the security or disturbance of their possession by the creditors of the mortgagor, dispossession having taken place in 1937 the suit filed on July 12, 1946, regarded as one to enforce the claim to recover the mortgage money under S. 68 of the Transfer of Property Act was barred by the law of limitation.

THE STATE OF KARNATAKA Vs. M/S VEDANATA LIMITED (FORMERLY KNOWN AS SESA STERLITE LIMITED)

15.12.2015. On 15.12.2015, the Court in Crime No. 2/2014 passed the following order: “Complainant by name Sri Manjunatha Annigeri, Superintendent of police attached Special Investigation Team, Karnataka Lokayuktha, Bengaluru is present and submits that he has gone through the records which disclosed that no case is made out against all the accused at the conclusion of investigation. He submits that he has no objection to accept the ‘B’ report. I have gone through the records. It is seen that according to the Investigating Officer, there is no convincing evidence to arrive at conclusion that allegations against all the accused are made out. After having gone through the ‘B’ report I find that there are no grounds to proceed further against all the accused and accordingly ‘B’ report is accepted. (V. G. BOPAIAH) XXIII ACC and Spl. Judge, Bangalore City.” 16. From the above, it is clear that the final Report which was accepted on 15.12.2015, was final report in case Crime No. 2/2014 which was registered after the investigation by SIT in pursuance of order of this Court passed in Writ Petition No. 562 of 2009 and in the above case, no offence was found against the respondent. 17. The Order dated 08.05.2015 was passed allowing the application under Section 451/457 Cr.P.C. of the State in Special C.C. No. 268/2013 and C.C. No. 11, 14, 15, 36, 37, 38, 53 & 54 of 2014 which is mentioned in the operative portion of the order itself. It is useful to extract the operative portion of the Order dated 08.05.2015 which is to the following effect: “ ORDER The Application filed by the State Government U/ss. 451/457 of Cr.P.C., are allowed permitting the Applicant/State to dispose off the seized iron ore through e-tender with the following terms and conditions: 1.The auction of the property shall be through e-tender under the supervision of the ‘Monitoring committee’ constituted by the Hon’ble Supreme Court. 2.The e-tender auction shall be conducted by involving the CBI Authorities and under intimation to the Lokayukta Department. 3.The e-tender auction shall be conducted only after measurement of the quality and quantity of each of the 56 iron ore heaps separately through mines and Geology Department. 4.The e-auction shall be conducted after taking samples of each of the 56 iron ore heaps separately for which Panchanama shall be drawn. 5.The e-auction process is over the disposal off the iron ore be covered by videography. 6.The auction amount shall be deposited immediately with the Court in Spl. CC. No. 268/2013 and a copy of the document for having deposited the amount be kept in connected cases. 7.The DMG shall keep records of the exact quantity of iron ore transported by the successful bidder of the property. The Original of the Order be kept in Spl. CC. No. 268/13 and a copy thereof be kept in Spl. CC. Nos. 11/14, 14/14, 15/14, 36/14, 37/14, 38/14, 53/14 & 54/14. (Directed to the Judgment Writer, transcribed by the corrected and then signed and pronounced by me in the open court on this 8 th day of May 2015), Sd/-08/05 (Pradeep S. Balikal) XXXII Addl. City Civil and Sessions Judge and Spl. Judge for CBI Cases, Bangalore” 18. From the above, it is clear that Order dated 08.05.2015 was passed in different proceedings which proceedings commenced by registration of FIR dated 15.03.2010, Ankola Police Station Crime No. 189/2010. After investigation by CID/CBI chargesheets were filed, which were the cases as referred above. Iron ore which was directed to be released by Order dated 08.05.2015 was iron ore seized on 20.03.2010. In the additional documents filed by the appellant, IA filed on behalf of the respondent under Section 451/457 Cr.P.C. dated 08.03.2016 has been brought on record. It is useful to extract the prayer made in the application of the respondent, which is to the following effect: “ PRAYER Wherefore, it is prayed that this Hon’ble Court be pleased to allow the above application and direct the release in favour of the applicant company herein, of about 34,544 MT of Iron Ore belonging to the applicant company that has been seized on 20.03.2010 and is lying at the plot allotted to applicant company by Shree Mallikarjun Shipping Private Limited in Belekeri Port area, in the interest of justice & equity. Place: Bangalore Date 08.03.2016 Applicant [Anand Prakash Dubey, Advocate for Applicant Head-Finance, (K.N. Phanindra)” Iron Ore Karnataka] 19. It is, thus, clear that seizure of the iron ore was not in case Crime No. 2/2014 in which final report has been accepted on 15.12.2015 rather seizure of the iron ore was in different proceeding in which proceeding Order dated 08.05.2015 was passed. When release of iron ore on an application filed by the State under Section 451/457 Cr.P.C. was in different proceeding, there was no effect or consequence of acceptance of the final report vide Order dated 15.12.2015 in case Crime No. 2/2014 and the High Court committed error in allowing the Writ Petition on the strength of the final report accepted on 15.12.2015. We have already extracted the entire consideration of the High Court while allowing the Writ Petition from paragraphs 8 to 15 of the judgment. High Court while allowing the Writ Petition had only relied on acceptance of the final report by CBI Judge dated 15.12.2015 which as has been noted above, was not relevant with regard to Order dated 08.05.2015 passed by the trial court. 20. Learned Senior Counsel for the appellant has also brought on record subsequent judgment of the High Court where High Court in Writ Petition filed against the same Order dated 08.05.2015 by another writ petitioner has disposed off the Writ Petition granting liberty to that Writ Petitioner to approach Jurisdictional Criminal Court for release of the seized iron ore by establishing its existence and ownership rights. Reference has been made to the Order of the Karnataka High Court dated 20.11.2017 in Writ Petition Nos. 29527-29531 of 2017 and Writ Petition Nos. 29881-29884 of 2017 filed as Annexure P-11.

1[ds]16. From the above, it is clear that the final Report which was accepted on 15.12.2015, was final report in case Crime No. 2/2014 which was registered after the investigation by SIT in pursuance of order of this Court passed in Writ Petition No. 562 of 2009 and in the above case, no offence was found against the respondent.From the above, it is clear that Order dated 08.05.2015 was passed in different proceedings which proceedings commenced by registration of FIR dated 15.03.2010, Ankola Police Station Crime No. 189/2010. After investigation by CID/CBI chargesheets were filed, which were the cases as referred above. Iron ore which was directed to be released by Order dated 08.05.2015 was iron ore seized on 20.03.2010.It is, thus, clear that seizure of the iron ore was not in case Crime No. 2/2014 in which final report has been accepted on 15.12.2015 rather seizure of the iron ore was in different proceeding in which proceeding Order dated 08.05.2015 was passed. When release of iron ore on an application filed by the State under Section 451/457 Cr.P.C. was in different proceeding, there was no effect or consequence of acceptance of the final report vide Order dated 15.12.2015 in case Crimeand the High Court committed error in allowing the Writ Petition on the strength of the final report accepted on 15.12.2015. We have already extracted the entire consideration of the High Court while allowing the Writ Petition from paragraphs 8 to 15 of the judgment. High Court while allowing the Writ Petition had only relied on acceptance of the final report by CBI Judge dated 15.12.2015 which as has been noted above, was not relevant with regard to Order dated 08.05.2015 passed by the trial court.21. In result of foregoing discussion, we are of the view that order and judgment of the High Court is wholly unsustainable

### 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: 15.12.2015. On 15.12.2015, the Court in Crime No. 2/2014 passed the following order: “Complainant by name Sri Manjunatha Annigeri, Superintendent of police attached Special Investigation Team, Karnataka Lokayuktha, Bengaluru is present and submits that he has gone through the records which disclosed that no case is made out against all the accused at the conclusion of investigation. He submits that he has no objection to accept the ‘B’ report. I have gone through the records. It is seen that according to the Investigating Officer, there is no convincing evidence to arrive at conclusion that allegations against all the accused are made out. After having gone through the ‘B’ report I find that there are no grounds to proceed further against all the accused and accordingly ‘B’ report is accepted. (V. G. BOPAIAH) XXIII ACC and Spl. Judge, Bangalore City.” 16. From the above, it is clear that the final Report which was accepted on 15.12.2015, was final report in case Crime No. 2/2014 which was registered after the investigation by SIT in pursuance of order of this Court passed in Writ Petition No. 562 of 2009 and in the above case, no offence was found against the respondent. 17. The Order dated 08.05.2015 was passed allowing the application under Section 451/457 Cr.P.C. of the State in Special C.C. No. 268/2013 and C.C. No. 11, 14, 15, 36, 37, 38, 53 & 54 of 2014 which is mentioned in the operative portion of the order itself. It is useful to extract the operative portion of the Order dated 08.05.2015 which is to the following effect: “ ORDER The Application filed by the State Government U/ss. 451/457 of Cr.P.C., are allowed permitting the Applicant/State to dispose off the seized iron ore through e-tender with the following terms and conditions: 1.The auction of the property shall be through e-tender under the supervision of the ‘Monitoring committee’ constituted by the Hon’ble Supreme Court. 2.The e-tender auction shall be conducted by involving the CBI Authorities and under intimation to the Lokayukta Department. 3.The e-tender auction shall be conducted only after measurement of the quality and quantity of each of the 56 iron ore heaps separately through mines and Geology Department. 4.The e-auction shall be conducted after taking samples of each of the 56 iron ore heaps separately for which Panchanama shall be drawn. 5.The e-auction process is over the disposal off the iron ore be covered by videography. 6.The auction amount shall be deposited immediately with the Court in Spl. CC. No. 268/2013 and a copy of the document for having deposited the amount be kept in connected cases. 7.The DMG shall keep records of the exact quantity of iron ore transported by the successful bidder of the property. The Original of the Order be kept in Spl. CC. No. 268/13 and a copy thereof be kept in Spl. CC. Nos. 11/14, 14/14, 15/14, 36/14, 37/14, 38/14, 53/14 & 54/14. (Directed to the Judgment Writer, transcribed by the corrected and then signed and pronounced by me in the open court on this 8 th day of May 2015), Sd/-08/05 (Pradeep S. Balikal) XXXII Addl. City Civil and Sessions Judge and Spl. Judge for CBI Cases, Bangalore” 18. From the above, it is clear that Order dated 08.05.2015 was passed in different proceedings which proceedings commenced by registration of FIR dated 15.03.2010, Ankola Police Station Crime No. 189/2010. After investigation by CID/CBI chargesheets were filed, which were the cases as referred above. Iron ore which was directed to be released by Order dated 08.05.2015 was iron ore seized on 20.03.2010. In the additional documents filed by the appellant, IA filed on behalf of the respondent under Section 451/457 Cr.P.C. dated 08.03.2016 has been brought on record. It is useful to extract the prayer made in the application of the respondent, which is to the following effect: “ PRAYER Wherefore, it is prayed that this Hon’ble Court be pleased to allow the above application and direct the release in favour of the applicant company herein, of about 34,544 MT of Iron Ore belonging to the applicant company that has been seized on 20.03.2010 and is lying at the plot allotted to applicant company by Shree Mallikarjun Shipping Private Limited in Belekeri Port area, in the interest of justice & equity. Place: Bangalore Date 08.03.2016 Applicant [Anand Prakash Dubey, Advocate for Applicant Head-Finance, (K.N. Phanindra)” Iron Ore Karnataka] 19. It is, thus, clear that seizure of the iron ore was not in case Crime No. 2/2014 in which final report has been accepted on 15.12.2015 rather seizure of the iron ore was in different proceeding in which proceeding Order dated 08.05.2015 was passed. When release of iron ore on an application filed by the State under Section 451/457 Cr.P.C. was in different proceeding, there was no effect or consequence of acceptance of the final report vide Order dated 15.12.2015 in case Crime No. 2/2014 and the High Court committed error in allowing the Writ Petition on the strength of the final report accepted on 15.12.2015. We have already extracted the entire consideration of the High Court while allowing the Writ Petition from paragraphs 8 to 15 of the judgment. High Court while allowing the Writ Petition had only relied on acceptance of the final report by CBI Judge dated 15.12.2015 which as has been noted above, was not relevant with regard to Order dated 08.05.2015 passed by the trial court. 20. Learned Senior Counsel for the appellant has also brought on record subsequent judgment of the High Court where High Court in Writ Petition filed against the same Order dated 08.05.2015 by another writ petitioner has disposed off the Writ Petition granting liberty to that Writ Petitioner to approach Jurisdictional Criminal Court for release of the seized iron ore by establishing its existence and ownership rights. Reference has been made to the Order of the Karnataka High Court dated 20.11.2017 in Writ Petition Nos. 29527-29531 of 2017 and Writ Petition Nos. 29881-29884 of 2017 filed as Annexure P-11. ### Response: 1 ### Explanation: 16. From the above, it is clear that the final Report which was accepted on 15.12.2015, was final report in case Crime No. 2/2014 which was registered after the investigation by SIT in pursuance of order of this Court passed in Writ Petition No. 562 of 2009 and in the above case, no offence was found against the respondent.From the above, it is clear that Order dated 08.05.2015 was passed in different proceedings which proceedings commenced by registration of FIR dated 15.03.2010, Ankola Police Station Crime No. 189/2010. After investigation by CID/CBI chargesheets were filed, which were the cases as referred above. Iron ore which was directed to be released by Order dated 08.05.2015 was iron ore seized on 20.03.2010.It is, thus, clear that seizure of the iron ore was not in case Crime No. 2/2014 in which final report has been accepted on 15.12.2015 rather seizure of the iron ore was in different proceeding in which proceeding Order dated 08.05.2015 was passed. When release of iron ore on an application filed by the State under Section 451/457 Cr.P.C. was in different proceeding, there was no effect or consequence of acceptance of the final report vide Order dated 15.12.2015 in case Crimeand the High Court committed error in allowing the Writ Petition on the strength of the final report accepted on 15.12.2015. We have already extracted the entire consideration of the High Court while allowing the Writ Petition from paragraphs 8 to 15 of the judgment. High Court while allowing the Writ Petition had only relied on acceptance of the final report by CBI Judge dated 15.12.2015 which as has been noted above, was not relevant with regard to Order dated 08.05.2015 passed by the trial court.21. In result of foregoing discussion, we are of the view that order and judgment of the High Court is wholly unsustainable

Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil And Others

by the special circumstances of the case." 9. As pointed out in 47 Ind. App.255: (A.I.R. 1921 P.C. 50 (B) the power exercised was undoubtedly one within the discretion of the learned judges. All that can be urged is that the discretion was exercised in the on a wrong principle. We do not think that it was so exercised in the present case. The facts of the present case are very similar to those of the case before their Lordships of the Privy Council.In the latter, the respondents sued for a declaration of their right of pre-emption, over certain land, a form of suit which would not lie having regard to the proviso to S. 42 of the Specific Relief Act (I of 1877). The trial Judge and the first appellate Court refused to allow the plaint to be amended by claiming possession on pre-emption, since the time had expired for bringing a suit to enforce the right. Upon a second appeal the court allowed the amendment to be made, there being no ground for suspecting that the plaintiffs had not acted in good faith, and the proposed amendment not altering the nature of the relief sought. In the case before us, there was a similar defect in the plaint, and the trial judge refused to allow the plaint to be amended on the ground that the period of limitation for a suit under O.21, r. 103, Civil P.C., had expired. The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought. 10. Learned counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba, 33 Bom. 644 at p.655 (C), and placed great reliance on the observations of Beaman J., at page 655:"In my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? It not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the rule, to be allowed." He contended that the first test laid down in the aforesaid observations was not fulfilled in the present case. We do not agree with this contention. First, it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula. Secondly, we do not think that the "quantity of relief", an expression somewhat difficult of appreciation or application in all circumstances was in any way affected by the amendments allowed to be made in this case. What happened in the present case was that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he asked for; that defect was removed by the amendments. The quality and quantity of the reliefs sought remained the same; whether the reliefs should be granted or not is a different matter as to which we are not called upon to express any opinion at this stage. We think that the correct principles were enunciated by Batchelor J. in his judgement in the same case, viz., 33 Born. 644 at p. 655 (c), when he said at pp. 649-650:"All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?" Batchelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4001. At that date the claim for the money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim. 11. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.

0[ds]We think that the correct principles were enunciated by Batchelor J. in his judgement in the same case, viz., 33 Born. 644 at p. 655 (c), when he said at pp. 649-650:"All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"Batchelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4001. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.

### 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: by the special circumstances of the case." 9. As pointed out in 47 Ind. App.255: (A.I.R. 1921 P.C. 50 (B) the power exercised was undoubtedly one within the discretion of the learned judges. All that can be urged is that the discretion was exercised in the on a wrong principle. We do not think that it was so exercised in the present case. The facts of the present case are very similar to those of the case before their Lordships of the Privy Council.In the latter, the respondents sued for a declaration of their right of pre-emption, over certain land, a form of suit which would not lie having regard to the proviso to S. 42 of the Specific Relief Act (I of 1877). The trial Judge and the first appellate Court refused to allow the plaint to be amended by claiming possession on pre-emption, since the time had expired for bringing a suit to enforce the right. Upon a second appeal the court allowed the amendment to be made, there being no ground for suspecting that the plaintiffs had not acted in good faith, and the proposed amendment not altering the nature of the relief sought. In the case before us, there was a similar defect in the plaint, and the trial judge refused to allow the plaint to be amended on the ground that the period of limitation for a suit under O.21, r. 103, Civil P.C., had expired. The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought. 10. Learned counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba, 33 Bom. 644 at p.655 (C), and placed great reliance on the observations of Beaman J., at page 655:"In my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? It not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the rule, to be allowed." He contended that the first test laid down in the aforesaid observations was not fulfilled in the present case. We do not agree with this contention. First, it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula. Secondly, we do not think that the "quantity of relief", an expression somewhat difficult of appreciation or application in all circumstances was in any way affected by the amendments allowed to be made in this case. What happened in the present case was that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he asked for; that defect was removed by the amendments. The quality and quantity of the reliefs sought remained the same; whether the reliefs should be granted or not is a different matter as to which we are not called upon to express any opinion at this stage. We think that the correct principles were enunciated by Batchelor J. in his judgement in the same case, viz., 33 Born. 644 at p. 655 (c), when he said at pp. 649-650:"All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?" Batchelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4001. At that date the claim for the money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim. 11. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation. ### Response: 0 ### Explanation: We think that the correct principles were enunciated by Batchelor J. in his judgement in the same case, viz., 33 Born. 644 at p. 655 (c), when he said at pp. 649-650:"All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"Batchelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4001. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.

Lakshmi Devi Sugar Mills Ltd Vs. Pt. Ram Sarup.(And Connected Appeal)

the morning of 27-5-1952, that they were suspended till further orders immediately after the receipt by the General Manager of the first series of reports from the section engineers, that they were prevented from entering the premises at 1 p. m. but entered the same threatening violence. If this is the true position it follows that there was no lockout declared by the appellant much less an illegal lock-out. The workmen had resorted to an illegal strike and the General Manager rightly ordered that the workmen indulging in such strike should be suspended pending further orders which obviously meant pending enquiry into their conduct and the obtaining of the permission to dismiss them as a result of such enquiry if the management thought fit. If there was thus no illegal lockout at all, the conclusion reached by the Labour Appellate Tribunal in that behalf was absolutely unjustified. Even if there had been a lockout as concluded by the Labour Appellate Tribunal the same was in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of S.24 (3), of the Industrial Disputes Act 1947 be deemed to be illegal.11. There is, however, a more fundamental objection that, even if the appellant be held responsible for having declared an illegal lockout, the lockout would not come within the ban of S.22 of the Act. The Labour Appellate Tribunal had before it an earlier decision of its own in Jute Workers Federation, Calcutta v. Clive Jute Mills, 1951-2 Lab LJ 344(Cal)(A), in which the same question had been considered with reference to S. 33 of the Industrial Dispute Act 1947. In that case, a lockout had been involved 4,000 workers of the company and a preliminary contention was urged that there was no contravention of the provisions of S.33 of the Industrial Disputes Act, 1947. The Labour Appellate Tribunal considered the question whether the lockout had (1) in fact altered the conditions of service of the workmen to their prejudice, or (2) had the, effect of discharge, or (3) amounted to punishment of the workmen. It did not also amount to punishment for punishment presupposes an offence or misconduct. A lockout is generally adopted as a security measure and may in certain cases be used as a weapon corresponding to what the employees have in the shape of a strike and that, therefore, S.33 (b) would not be contravened by the company by declaring a lockout. The Labour Appellate Tribunal then considered whether a lockout would attract the operation of S.33 (a). It was of opinion that no automatic termination of the services of the employees was brought about by a lockout and the question was whether any of the conditions of services was altered thereby to their prejudice. The contention of the Union was that the conditions of service were altered to the prejudice of the workmen because those employees did not in fact get their pay during the period of the lockout with the possibility of losing it. This contention was negatived and the Labour Appellate Tribunal was of opinion that the conditions of their service would be altered by the lockout if the employees lost their right to receive their pay during the period of lockout in all circumstances but the question whether they would be entitled to get their pay during that period could not be postulated with certainty for that would depend on a variety of considerations. In the opinion of the Labour Appellate Tribunal to bring a case within S.33 (a) the questioned act of the employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerns that is to say; the moment the lockout was declared. The possibility that they may or may not get their payment that the lockout may or may not alter the conditions of their service to their prejudice. Section 33 (a) would not, therefore, be attracted by the mere fact of a lockout. The Labour Appellate Tribunal thus came to the conclusion that neither S.33(a) nor S.33 (b) would be contravened by the company in declaring the lockout.12. This decision of the Labour Appellate Tribunal was followed in Colliery Mazdoor Congress, Asansol v. New Beerbhoom Coal Co. Ltd., 1952 Lab A C 219 (Cal) (B), and the Labour Appellate Tribunal there held that a lockout did not come within the ambit of S.33 and, therefore, no permission under that section was required for declaring a lockout.13.We agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl. (a) nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl. (b) of S.33 of the Industrial Disputes Act, 1947, or S.22 of the Industrial Disputes (Appellate Tribunal) Act 1950, and that therefore, no permission of the Conciliation Officer, Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared. If the lockout is legal, no question can at all arise. If, on the other hand, the lockout is illegal, a remedy is provided in S.26 of the Industrial Disputes Act, 1947. The employees affected by a lockout would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto.14. The Labour Appellate Tribunal was, therefore, clearly in error when it came to the conclusion that the conduct of the appellant came within the definition of a lockout and it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of S. 22 (b) of the Act. The application of the respondents under S.23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour Appellate Tribunal

1[ds]10. Civil Appeal No. 245 of 1954 which is directed against the order of the Labour Appellate Tribunal under S.23 of Act may be disposed of atunfortunately the Labour Appellate Tribunal did not do and it came to record its conclusion that the conduct of the management came within the definition of a lockout without realizing that such conclusion was inconsistent with what it had stated a little earlier that the management as a matter of fact never thought of a lockout. We have been taken through the whole evidence by the learned counsel for the appellant and there is a clear documentary evidence to show that the 76 workmen resorted to a tools-down strike from 7 a.m. onthis is the true position it follows that there was no lockout declared by the appellant much less an illegal lock-out. The workmen had resorted to an illegal strike and the General Manager rightly ordered that the workmen indulging in such strike should be suspended pending further orders which obviously meant pending enquiry into their conduct and the obtaining of the permission to dismiss them as a result of such enquiry if the management thought fit. If there was thus no illegal lockout at all, the conclusion reached by the Labour Appellate Tribunal in that behalf was absolutely unjustified. Even if there had been a lockout as concluded by the Labour Appellate Tribunal the same was in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of S.24 (3), of the Industrial Disputes Act 1947 be deemed to be illegal.e agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl. (a) nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl. (b) of S.33 of the Industrial Disputes Act, 1947, or S.22 of the Industrial Disputes (Appellate Tribunal) Act 1950, and that therefore, no permission of the Conciliation Officer, Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared. If the lockout is legal, no question can at all arise. If, on the other hand, the lockout is illegal, a remedy is provided in S.26 of the Industrial Disputes Act, 1947. The employees affected by a lockout would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto.14. The Labour Appellate Tribunal was, therefore, clearly in error when it came to the conclusion that the conduct of the appellant came within the definition of a lockout and it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of S. 22 (b) of the Act. The application of the respondents under S.23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour AppellateAppeal No.244 ofhave already pointed out the circumstances under which the 76 workmen resorted to the tools-down strike from 7 a.m. on 27-5-1952, and recorded the finding that they not only resorted to such strike but persisted in their attitude in spite of the persuasions of the Chief Engineer and the General Manager of the appellant. The appellant having being declared a public utility concern, the workmen were not entitled to resort to such strike without giving to the appellant notice of the strike in terms of S.22 (1) of the Industrial Disputes Act, 1947, and the tools-down strike which was resorted to by them was, therefore, an illegal strike. The fact that the strike was of a short duration, viz., from 7 a.m. till 10-30 a.m. would not exculpate the respondents from the consequences of having resorted to such illegal strike, the avowed intention of the strikers being not to resume work until their pre-concerned plan conceived at the meeting held on the previous night was carried out. The strike resorted to by the workmen was of an indefinite duration and the management having failed in its attempts to persuade the workmen to resume their work, was well within its rights to suspend these workmen pending furtherThis reasoning of the Labour Appellate Tribunal was unsound. Having once come to the conclusion that the delay was not unreasonable, there was no justification for the further conclusion reached by the Labour Appellate Tribunal that the tension created by the non-corporation of the workers was not a sufficient reason for extending the period of such suspension. The workmen had forcibly entered the premises of the mills in spite of the warning of the watchmen and the Jemadar and had also entered the workshop, the boiling house and the mill house and continued to stay there threatening violence. In their letter dated June 3, 1952, they had also threatened the General Manager that if he did not mend his illegal mistakes and did not take the workmen back on duty he would be responsible for any breach of peace. This was enough evidence of their mentality and the management naturally enough apprehended breach of peace at the hands of these workmen. If this was the tense atmosphere created by the non-co-operation of the workmen, the management was perfectly justified in postponing the enquiry by a few days and continuing the workmen under suspension. The delay which was thus caused in furnishing the charge sheets and giving notice of the enquiry to these workmen on June 2, 1952, was therefore sufficiently explained and if there was any one responsible for this delay it was the workmen and not the management. It did not then lie in the mouth of the workmen to protest against this delay in the enquiry and trot out their suspension for a period exceeding four days as an excuse for abstaining from the enquiry. As a matter of fact, the management intimated to the workmen that in spite of June 6, 1952, having been fixed as the date for the open enquiry, the management would be prepared to take up the enquiry earlier provided an intimation was received either from the workmen or from their Union to that effect. Instead of responding to this gesture of the appellant the workmen persisted in asking for an independent enquiry and non-co-operated with the management in the enquiry which was ultimately held by it as notified at 8 a.m. on June 6, 1952. We are of opinion that under the circumstances the appellant was not guilty of having contravened cl. L. 12 of the Standing Orders and the Labour Appellate Tribunal was in error when it came to the contrary conclusion and dismissed the application of the p73 appellant under S. 22 merely on that ground without making any further enquiry into the circumstances of the case. It appears that the Labour Appellate Tribunal was driven to take this step because it found itself unable to hold definitely as to what was the exact situation on May, 27, 1952. We shall only observe that if the Labour Appellate Tribunal had really applied its mind to the question it would have come to the conclusion that the respondents in fact did resort to the illegal strike from 7 a.m. on May, 27,1952, and that there was no contravention of cl. L. 12 of the Standing Orders by thenotice of the enquiry was given to the respondents by the letter of the management addressed to them on June 2, 1952 and if the respondents did not avail themselves of the opportunity of presenting themselves and defending their action at the enquiry they had only themselves to blame for it. It was within the province of the management to hold such an enquiry after giving due notice thereof to the respondents and to come to its own conclusion as a result of such enquiry whether the respondents were guilty of the charges which had been levelled against them. If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves it could not be said that the enquiry was anything but fair. No principles of natural justice were violated and the management was at liberty to come to its own conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and in sub-ordination proved against them. If the, ban which is imposed by S. 22 of the Act had not been in existence, the management would have been entitled to impose the punishment on the respondents and dismiss them without anything more, if it honestly came to the conclusion that dismissal of these workmen was the only punishment which should be meted out to them in all the circumstances of the case. The respondents would no doubt then have been entitled to refer the industrial disputes which arose out of their dismissal for adjudication by adopting the proper procedure set out in the Industrial Disputes Act. 1947, and the Industrial Tribunal appointed by the Government for the adjudication of such dispute would have been in a position to thrash out all the circumstances and award to them the appropriate relief. This course was, however, not open to the appellant by reason of the pendency of the appeal before the Labour Appellate Tribunal and the only thing which the appellant could do, therefore, was, after coming to its own conclusion as a result of such enquiry, to apply to the Labour Appellate Tribunal under S.22 of the Act for permission to dismiss the respondents and this the appellant did on June 8, 1952. It was not open to the respondents then, having regard to the attitude which they had adopted throughout in relation to the said enquiry, to urge that the enquiry was not fair or impartial or that the principles of natural justice had been violated by the General Manager of the appellant in the conduct of thedo not accept this contention. It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permissions of the Tribunal under the relevant section could not be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal had passed orders thereupon. If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension. There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all. Such suspension would of necessity be of an indefinite duration because to get a written permission of the tribunal would mean delay and no Tribunal would likely issue any order without notice and without hearing all the parties concerned Orders for suspension were meant only as security measures or precautionary ones taken in the interest of the industry itself or its employees in general. These measures were sometimes called for immediately after an incident and any delay, however small, might defeat the purpose for which such measures were intended. It would therefore be, necessary to adopt these measures immediately and to suspend the workman pending the enquiry as also the permission to be obtained from the appropriate Tribunal for dismissing him if as a result of the enquiry the management thought fit to inflict such punishment upon him. The suspension, however, would not be a punishment bysuspension under such circumstances, therefore, could not be a punishment even though it may be of an indefinite duration and would not attract the operation of S.22 of the Act. It could not be contended, therefore that suspension without pay even for an indefinite period pending enquiry or pending the permission of the appropriate Tribunal to dismiss the workman would be a punishment which would require permission under S.22 of the Act before the same could be mated out to the workman.In the circumstance of the present case once the appellant succeeded in establishing that the workmen had resorted to an illegal strike from 7 a. m. on 27-5-1952, that a fair enquiry into the alleged misconduct and insubordination of the workmen had been held by the management without violating any principles of natural justice, that the management had as a result of such enquiry found that the workmen had been found the guilty of misconduct and insubordination with which they had been charged and that the management had come to the bona fide conclusion that continuing the workmen in its employ was detrimental to discipline and dangerous in the interests of the appellant the Labour Appellate Tribunal ought to have held that a prima facie case for the dismissal of the workmen had been made out by the appellant and ought to have granted the appellant the permission to dismiss the workmen.21. We are, therefore, of opinion that the Labour Appellate Tribunal was clearly in error in rejecting the application of the appellant under S. 22 of the Act refusing it the permission to discharge the respondents from its employ.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: the morning of 27-5-1952, that they were suspended till further orders immediately after the receipt by the General Manager of the first series of reports from the section engineers, that they were prevented from entering the premises at 1 p. m. but entered the same threatening violence. If this is the true position it follows that there was no lockout declared by the appellant much less an illegal lock-out. The workmen had resorted to an illegal strike and the General Manager rightly ordered that the workmen indulging in such strike should be suspended pending further orders which obviously meant pending enquiry into their conduct and the obtaining of the permission to dismiss them as a result of such enquiry if the management thought fit. If there was thus no illegal lockout at all, the conclusion reached by the Labour Appellate Tribunal in that behalf was absolutely unjustified. Even if there had been a lockout as concluded by the Labour Appellate Tribunal the same was in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of S.24 (3), of the Industrial Disputes Act 1947 be deemed to be illegal.11. There is, however, a more fundamental objection that, even if the appellant be held responsible for having declared an illegal lockout, the lockout would not come within the ban of S.22 of the Act. The Labour Appellate Tribunal had before it an earlier decision of its own in Jute Workers Federation, Calcutta v. Clive Jute Mills, 1951-2 Lab LJ 344(Cal)(A), in which the same question had been considered with reference to S. 33 of the Industrial Dispute Act 1947. In that case, a lockout had been involved 4,000 workers of the company and a preliminary contention was urged that there was no contravention of the provisions of S.33 of the Industrial Disputes Act, 1947. The Labour Appellate Tribunal considered the question whether the lockout had (1) in fact altered the conditions of service of the workmen to their prejudice, or (2) had the, effect of discharge, or (3) amounted to punishment of the workmen. It did not also amount to punishment for punishment presupposes an offence or misconduct. A lockout is generally adopted as a security measure and may in certain cases be used as a weapon corresponding to what the employees have in the shape of a strike and that, therefore, S.33 (b) would not be contravened by the company by declaring a lockout. The Labour Appellate Tribunal then considered whether a lockout would attract the operation of S.33 (a). It was of opinion that no automatic termination of the services of the employees was brought about by a lockout and the question was whether any of the conditions of services was altered thereby to their prejudice. The contention of the Union was that the conditions of service were altered to the prejudice of the workmen because those employees did not in fact get their pay during the period of the lockout with the possibility of losing it. This contention was negatived and the Labour Appellate Tribunal was of opinion that the conditions of their service would be altered by the lockout if the employees lost their right to receive their pay during the period of lockout in all circumstances but the question whether they would be entitled to get their pay during that period could not be postulated with certainty for that would depend on a variety of considerations. In the opinion of the Labour Appellate Tribunal to bring a case within S.33 (a) the questioned act of the employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerns that is to say; the moment the lockout was declared. The possibility that they may or may not get their payment that the lockout may or may not alter the conditions of their service to their prejudice. Section 33 (a) would not, therefore, be attracted by the mere fact of a lockout. The Labour Appellate Tribunal thus came to the conclusion that neither S.33(a) nor S.33 (b) would be contravened by the company in declaring the lockout.12. This decision of the Labour Appellate Tribunal was followed in Colliery Mazdoor Congress, Asansol v. New Beerbhoom Coal Co. Ltd., 1952 Lab A C 219 (Cal) (B), and the Labour Appellate Tribunal there held that a lockout did not come within the ambit of S.33 and, therefore, no permission under that section was required for declaring a lockout.13.We agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl. (a) nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl. (b) of S.33 of the Industrial Disputes Act, 1947, or S.22 of the Industrial Disputes (Appellate Tribunal) Act 1950, and that therefore, no permission of the Conciliation Officer, Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared. If the lockout is legal, no question can at all arise. If, on the other hand, the lockout is illegal, a remedy is provided in S.26 of the Industrial Disputes Act, 1947. The employees affected by a lockout would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto.14. The Labour Appellate Tribunal was, therefore, clearly in error when it came to the conclusion that the conduct of the appellant came within the definition of a lockout and it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of S. 22 (b) of the Act. The application of the respondents under S.23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour Appellate Tribunal ### Response: 1 ### Explanation: was no contravention of cl. L. 12 of the Standing Orders by thenotice of the enquiry was given to the respondents by the letter of the management addressed to them on June 2, 1952 and if the respondents did not avail themselves of the opportunity of presenting themselves and defending their action at the enquiry they had only themselves to blame for it. It was within the province of the management to hold such an enquiry after giving due notice thereof to the respondents and to come to its own conclusion as a result of such enquiry whether the respondents were guilty of the charges which had been levelled against them. If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves it could not be said that the enquiry was anything but fair. No principles of natural justice were violated and the management was at liberty to come to its own conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and in sub-ordination proved against them. If the, ban which is imposed by S. 22 of the Act had not been in existence, the management would have been entitled to impose the punishment on the respondents and dismiss them without anything more, if it honestly came to the conclusion that dismissal of these workmen was the only punishment which should be meted out to them in all the circumstances of the case. The respondents would no doubt then have been entitled to refer the industrial disputes which arose out of their dismissal for adjudication by adopting the proper procedure set out in the Industrial Disputes Act. 1947, and the Industrial Tribunal appointed by the Government for the adjudication of such dispute would have been in a position to thrash out all the circumstances and award to them the appropriate relief. This course was, however, not open to the appellant by reason of the pendency of the appeal before the Labour Appellate Tribunal and the only thing which the appellant could do, therefore, was, after coming to its own conclusion as a result of such enquiry, to apply to the Labour Appellate Tribunal under S.22 of the Act for permission to dismiss the respondents and this the appellant did on June 8, 1952. It was not open to the respondents then, having regard to the attitude which they had adopted throughout in relation to the said enquiry, to urge that the enquiry was not fair or impartial or that the principles of natural justice had been violated by the General Manager of the appellant in the conduct of thedo not accept this contention. It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permissions of the Tribunal under the relevant section could not be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal had passed orders thereupon. If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension. There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all. Such suspension would of necessity be of an indefinite duration because to get a written permission of the tribunal would mean delay and no Tribunal would likely issue any order without notice and without hearing all the parties concerned Orders for suspension were meant only as security measures or precautionary ones taken in the interest of the industry itself or its employees in general. These measures were sometimes called for immediately after an incident and any delay, however small, might defeat the purpose for which such measures were intended. It would therefore be, necessary to adopt these measures immediately and to suspend the workman pending the enquiry as also the permission to be obtained from the appropriate Tribunal for dismissing him if as a result of the enquiry the management thought fit to inflict such punishment upon him. The suspension, however, would not be a punishment bysuspension under such circumstances, therefore, could not be a punishment even though it may be of an indefinite duration and would not attract the operation of S.22 of the Act. It could not be contended, therefore that suspension without pay even for an indefinite period pending enquiry or pending the permission of the appropriate Tribunal to dismiss the workman would be a punishment which would require permission under S.22 of the Act before the same could be mated out to the workman.In the circumstance of the present case once the appellant succeeded in establishing that the workmen had resorted to an illegal strike from 7 a. m. on 27-5-1952, that a fair enquiry into the alleged misconduct and insubordination of the workmen had been held by the management without violating any principles of natural justice, that the management had as a result of such enquiry found that the workmen had been found the guilty of misconduct and insubordination with which they had been charged and that the management had come to the bona fide conclusion that continuing the workmen in its employ was detrimental to discipline and dangerous in the interests of the appellant the Labour Appellate Tribunal ought to have held that a prima facie case for the dismissal of the workmen had been made out by the appellant and ought to have granted the appellant the permission to dismiss the workmen.21. We are, therefore, of opinion that the Labour Appellate Tribunal was clearly in error in rejecting the application of the appellant under S. 22 of the Act refusing it the permission to discharge the respondents from its employ.

Indra Singh and Sons Private Limited Vs. Sales Tax Officer, Raigarh Circle, Raigarh and Others

motor vehicles including motor tyres and tubes, I have to repeat that as they are not directly used for the production of coal they cannot be specified in your registration certificate."4. Thereupon the appellant filed a revision under section 39(1) of the Madhya Pradesh General Sales Tax Act (Madhya Pradesh Act II of 1959). The Commissioner of Sales Tax by his order dated August 16, 1960, upheld the order of the Sales Tax Officer. On February 6, 1961, the appellant filed an application under Articles 226 and 227 of the Constitution. The High Court dismissed the application by its order dated October 12, 1961.Eight items, namely, iron and steel, medicines and insecticides, welding sticks, sanitary fittings, spare parts for motor vehicles including tyres and tubes, furniture, stationery and motor trucks were the subject-matter of the revision and the application under Articles 226 and 227 of the Constitution, but in view of the decision of this Court in Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar ([1965] 16 S.T.C. 259), the learned counsel for the appellant pressed his case in respect of four items only, namely sanitary goods, spare parts for motor vehicles including tyres and tubes, furniture and motor trucks. In the Indian Copper Corporation case ([1965] 16 S.T.C. 259), this Court had occasion to construe rule 13 of the Central Rules, and it held that "locomotives and motor vehicles, accessories and spare parts for motor vehicles and locomotives, and tyres and tubes for motor vehicles, laboratory fittings used for sampling and analysis of the ore and other raw materials in the mining operations and in the process of manufacture for sale and cane baskets used for carrying ore and other materials used in the course of manufacture, should be specified in the certificate of registration." But this Court rejected the claim of the Indian Copper Corporation in respect of household, hospital equipment with furnishing and fittings, and medical supplies, stationery and cane baskets used for collecting refuse to protect the health and cleanliness in the colony of workmen. Shah, J., speaking for the Court, observed in respect of locomotives and motor vehicles as follows :"It appears that the process of mining ore and manufacture with the aid of ore copper goods is an integrated process and there would be no ground for exclusion from the vehicles those which are used for removing goods to the factory after the mining operations are concluded. Nor is there any ground for excluding locomotives and motor vehicles used in carrying finished products from the factory. The expression goods intended for use in the manufacturing or processing of goods for sale may ordinarily include such vehicles as are intended to be used for removal of processed goods from the factory to the place of storage."The learned counsel for the appellant relying on the above observations contends that the appellant here was also carrying on the business of manufacturing coke and selling it, and he says that for that reason the appellant required motor trucks and spare parts for motor vehicles, including tyres and tubes, for transporting coal to the factory for manufacturing coke. But on looking through the record, we find that this is the first time that this point is being made in the course of these proceedings. In the application for registration before the Sales Tax Officer no mention is made that the appellant is carrying on the business of manufacturing coke. In its application under Article 226 in the opening para it only mentions that it is carrying on the business of mining coal and trading in coal and coke, as the owner of the mines. The learned counsel has not been able to point out any documentary evidence to show that the appellant was actually manufacturing coke, and, therefore, we cannot allow him to raise this new point at this stage.5. In the alternative, the learned counsel for the appellant contends that the appellant requires these motor trucks for transporting coal to the railway siding at the nearest railway station. He says that the appellant has to deliver coal f.o.r. railway siding, and in order to fulfil its commitments it must transport coal to the railway siding. He says that one cannot carry on the activity of mining without sending coal to the railway station for being loaded on the trains. He urges that we should regard the railway siding as similar to a warehouse or place of storage. We are unable to accept the submissions of the learned counsel. We cannot read the expression "in mining" in rule 13 of the Central Rules to mean in the business of mining. The goods must be intended for use only in the actual activity of mining which would include raising the coal and storing it in heaps or in warehouses. But in our opinion the expression cannot be extended to include delivering the coal to a siding at the railway station. Therefore, the High Court was right in holding that these two items, namely, spare parts of motor vehicles including tyres and tubes, and motor trucks cannot be included in the registration certificate of the appellant.As far as furniture and sanitary fittings are concerned, these are covered by the ratio of the decision of this Court in the Indian Copper Corporation case ([1965] 16 S.T.C. 259). In dealing with stationery, Shah, J., observed that "stationery also is not intended for use in the manufacture or processing of goods for sale or for mining operations. Use of stationery undoubtedly facilitates the carrying on of a business of manufacturing goods or of processing goods or even mining operation but the expression intended to be used cannot be equated with likely to facilitate the conduct of the business of manufacturing or of processing goods or of mining." These observations apply to the items "furniture" and "sanitary fittings". These two items are likely to facilitate the business of mining but it cannot be said that they are intended to be used in mining.

0[ds]But on looking through the record, we find that this is the first time that this point is being made in the course of these proceedings. In the application for registration before the Sales Tax Officer no mention is made that the appellant is carrying on the business of manufacturing coke. In its application under Article 226 in the opening para it only mentions that it is carrying on the business of mining coal and trading in coal and coke, as the owner of the mines. The learned counsel has not been able to point out any documentary evidence to show that the appellant was actually manufacturing coke, and, therefore, we cannot allow him to raise this new point at thisare unable to accept the submissions of the learned counsel. We cannot read the expression "in mining" in rule 13 of the Central Rules to mean in the business of mining. The goods must be intended for use only in the actual activity of mining which would include raising the coal and storing it in heaps or in warehouses. But in our opinion the expression cannot be extended to include delivering the coal to a siding at the railway station. Therefore, the High Court was right in holding that these two items, namely, spare parts of motor vehicles including tyres and tubes, and motor trucks cannot be included in the registration certificate of the appellant.As far as furniture and sanitary fittings are concerned, these are covered by the ratio of the decision of this Court in the Indian Copper Corporation case ([1965] 16 S.T.C. 259). In dealing with stationery, Shah, J., observed that "stationery also is not intended for use in the manufacture or processing of goods for sale or for mining operations. Use of stationery undoubtedly facilitates the carrying on of a business of manufacturing goods or of processing goods or even mining operation but the expression intended to be used cannot be equated with likely to facilitate the conduct of the business of manufacturing or of processing goods or of mining." These observations apply to the items "furniture" and "sanitary fittings". These two items are likely to facilitate the business of mining but it cannot be said that they are intended to be used in mining.

### 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: motor vehicles including motor tyres and tubes, I have to repeat that as they are not directly used for the production of coal they cannot be specified in your registration certificate."4. Thereupon the appellant filed a revision under section 39(1) of the Madhya Pradesh General Sales Tax Act (Madhya Pradesh Act II of 1959). The Commissioner of Sales Tax by his order dated August 16, 1960, upheld the order of the Sales Tax Officer. On February 6, 1961, the appellant filed an application under Articles 226 and 227 of the Constitution. The High Court dismissed the application by its order dated October 12, 1961.Eight items, namely, iron and steel, medicines and insecticides, welding sticks, sanitary fittings, spare parts for motor vehicles including tyres and tubes, furniture, stationery and motor trucks were the subject-matter of the revision and the application under Articles 226 and 227 of the Constitution, but in view of the decision of this Court in Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar ([1965] 16 S.T.C. 259), the learned counsel for the appellant pressed his case in respect of four items only, namely sanitary goods, spare parts for motor vehicles including tyres and tubes, furniture and motor trucks. In the Indian Copper Corporation case ([1965] 16 S.T.C. 259), this Court had occasion to construe rule 13 of the Central Rules, and it held that "locomotives and motor vehicles, accessories and spare parts for motor vehicles and locomotives, and tyres and tubes for motor vehicles, laboratory fittings used for sampling and analysis of the ore and other raw materials in the mining operations and in the process of manufacture for sale and cane baskets used for carrying ore and other materials used in the course of manufacture, should be specified in the certificate of registration." But this Court rejected the claim of the Indian Copper Corporation in respect of household, hospital equipment with furnishing and fittings, and medical supplies, stationery and cane baskets used for collecting refuse to protect the health and cleanliness in the colony of workmen. Shah, J., speaking for the Court, observed in respect of locomotives and motor vehicles as follows :"It appears that the process of mining ore and manufacture with the aid of ore copper goods is an integrated process and there would be no ground for exclusion from the vehicles those which are used for removing goods to the factory after the mining operations are concluded. Nor is there any ground for excluding locomotives and motor vehicles used in carrying finished products from the factory. The expression goods intended for use in the manufacturing or processing of goods for sale may ordinarily include such vehicles as are intended to be used for removal of processed goods from the factory to the place of storage."The learned counsel for the appellant relying on the above observations contends that the appellant here was also carrying on the business of manufacturing coke and selling it, and he says that for that reason the appellant required motor trucks and spare parts for motor vehicles, including tyres and tubes, for transporting coal to the factory for manufacturing coke. But on looking through the record, we find that this is the first time that this point is being made in the course of these proceedings. In the application for registration before the Sales Tax Officer no mention is made that the appellant is carrying on the business of manufacturing coke. In its application under Article 226 in the opening para it only mentions that it is carrying on the business of mining coal and trading in coal and coke, as the owner of the mines. The learned counsel has not been able to point out any documentary evidence to show that the appellant was actually manufacturing coke, and, therefore, we cannot allow him to raise this new point at this stage.5. In the alternative, the learned counsel for the appellant contends that the appellant requires these motor trucks for transporting coal to the railway siding at the nearest railway station. He says that the appellant has to deliver coal f.o.r. railway siding, and in order to fulfil its commitments it must transport coal to the railway siding. He says that one cannot carry on the activity of mining without sending coal to the railway station for being loaded on the trains. He urges that we should regard the railway siding as similar to a warehouse or place of storage. We are unable to accept the submissions of the learned counsel. We cannot read the expression "in mining" in rule 13 of the Central Rules to mean in the business of mining. The goods must be intended for use only in the actual activity of mining which would include raising the coal and storing it in heaps or in warehouses. But in our opinion the expression cannot be extended to include delivering the coal to a siding at the railway station. Therefore, the High Court was right in holding that these two items, namely, spare parts of motor vehicles including tyres and tubes, and motor trucks cannot be included in the registration certificate of the appellant.As far as furniture and sanitary fittings are concerned, these are covered by the ratio of the decision of this Court in the Indian Copper Corporation case ([1965] 16 S.T.C. 259). In dealing with stationery, Shah, J., observed that "stationery also is not intended for use in the manufacture or processing of goods for sale or for mining operations. Use of stationery undoubtedly facilitates the carrying on of a business of manufacturing goods or of processing goods or even mining operation but the expression intended to be used cannot be equated with likely to facilitate the conduct of the business of manufacturing or of processing goods or of mining." These observations apply to the items "furniture" and "sanitary fittings". These two items are likely to facilitate the business of mining but it cannot be said that they are intended to be used in mining. ### Response: 0 ### Explanation: But on looking through the record, we find that this is the first time that this point is being made in the course of these proceedings. In the application for registration before the Sales Tax Officer no mention is made that the appellant is carrying on the business of manufacturing coke. In its application under Article 226 in the opening para it only mentions that it is carrying on the business of mining coal and trading in coal and coke, as the owner of the mines. The learned counsel has not been able to point out any documentary evidence to show that the appellant was actually manufacturing coke, and, therefore, we cannot allow him to raise this new point at thisare unable to accept the submissions of the learned counsel. We cannot read the expression "in mining" in rule 13 of the Central Rules to mean in the business of mining. The goods must be intended for use only in the actual activity of mining which would include raising the coal and storing it in heaps or in warehouses. But in our opinion the expression cannot be extended to include delivering the coal to a siding at the railway station. Therefore, the High Court was right in holding that these two items, namely, spare parts of motor vehicles including tyres and tubes, and motor trucks cannot be included in the registration certificate of the appellant.As far as furniture and sanitary fittings are concerned, these are covered by the ratio of the decision of this Court in the Indian Copper Corporation case ([1965] 16 S.T.C. 259). In dealing with stationery, Shah, J., observed that "stationery also is not intended for use in the manufacture or processing of goods for sale or for mining operations. Use of stationery undoubtedly facilitates the carrying on of a business of manufacturing goods or of processing goods or even mining operation but the expression intended to be used cannot be equated with likely to facilitate the conduct of the business of manufacturing or of processing goods or of mining." These observations apply to the items "furniture" and "sanitary fittings". These two items are likely to facilitate the business of mining but it cannot be said that they are intended to be used in mining.

Controller Of Estate Duty, Kerala Vs. V. Venugopala Varma Rajah

cultivation, so that the State must prove that it is non-agricultural in order to establish that it could be the subject matter of legislation which was within Parliaments legislative competence, and, therefore, covered by the Act, is to mix up the question of legislative competence and that of taxability of what is, on the face of it, taxable as part of the estate or property of the assessee within the meaning of Section 5 of the Act set out above. Indeed, the question of legislative competence of Parliament was neither in issue nor part of the question referred even if such a question could have been referred at all by a Tribunal functioning under the Act. We think that the burden of establishing the exemption lay upon the assessee respondent as was rightly held by the High Court. We think that the High Court was not correct in placing the burden upon the Department, after it was admitted that it was "forest land", on the ground that the further question of an immunity of the subject matter from taxation by Par- liament arose here and that, therefore, the onus lay on the Department. Even if there could be such an onus here, it was, we think, sufficiently discharged by the admission that this was "forest land" covered with natural or wild growths. After that, at any rate, the assessee had to prove change of its character.10. In Commissioner of Wealth Tax, Andhra Pradesh v. Officer-incharge (Court of Wards) Paigah, (supra), in which we heard arguments together with arguments in the case now before us, we found that there was some evidence of the agricultural character of land in the shape of entries in revenue record. We do not find what could similarly constitute evidence of agricultural character of the land involved in this case. On the other hand, the assessees admission that the land under consideration was "forest land", covered by wild and natural growth of forests, constituted evidence to the contrary. We think that, unless there was evidence that such lands had been, in some way, set apart or earmarked for or linked up with an agricultural purpose, by their owners or occupiers, it could not be held that they are agricultural lands.We think that the view of the Kerala High Court, that "all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes", is too wide. It is erroneous for the reasons we have already set out in our judgment in the case from the Andhra Pradesh High Court. The question has to be decided on evidence of actual or intended user for which land may have been prepared or set apart.11. In the case before us now, the Tribunal said in its referring order:"The Tribunal permitted the accountable person to raise the contention that the value of the forest lands has to be excluded as they were agricultural lands. So far as this contention was concerned, the following facts were not in dispute: viz., that the forest consisted of trees of spontaneous growth; that no operations in the nature of forest development were being carried on; and, that only operations in the nature of exploitation of the forest were being conducted. The accountable person, however, contended that these lands were capable of being brought under cultivation at a future date and that therefore they must be deemed to be agricultural lands. Reliance was sought to be placed upon the decision of the Madras High Court in Sarojini Devi v. Shri Krishna (AIR 1944 Madras p. 401) in which it was held that the expression agricultural lands must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. The Tribunal was, however, of the view that in the said decision their Lordships did not intend to lay down a definition of the expression agricultural lands for all purposes, and that, on the other hand, they clearly indicated that the expression admits of different interpretations and that it was only from the context of the particular enactment in which this expression is used that its meaning has to be inferred. The Tribunal observed that the very wide definition of the expression agricultural lands laid down in the above cited decision was not applicable to cases under the Estate Duty Act. The Tribunal, therefore, negatived the contention of the accountable person that the forest lands had to be excluded fro m the value of the assessable estate of the deceased".Thus, it is clear that the assessee, after having been given due opportunity to lead evidence to show that what was prima facie nonagricultural land, in the sense that it was covered by the spontaneous or natural growth of forests, was really agricultural land, had led no such evidence. It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately. It appears that the nature of exploitation of the forest lands was simply to give contracts for cutting of the trees. The assessee not having led any evidence of any intention to prepare or appropriate or ear-mark the land for any agricultural use or purpose, but, on the other hand, having contended that mere possibility of using such land for agricultural purposes in future was enough, could not be said to have discharged his onus of proof. After the assessees admission that it was "forest land" which presumably prevented cultivation, no evidence was led as we have already observed to indicate any change of character of this land or its conversion into agricultural land. We therefore think that the Appellate Tribunal was correct in expressing the view it had taken and the conclusions it had recorded. And, no case is made out for sending the case back to the Tribunal for any fresh decision.12.

1[ds]It seems clear to us that this Court, by explaining why, for certain special reasons and in an unusual context, certain land described as "forest land" was to be treated as though it had become "agricultural", implied that ordinarily this is not so. In Rajah Anand Brahma Shah v. State of U.P. &Ors., ([1967] 1 S.C.R. 373 at p. 379.) this Court held forest land to be nonarable which meant "non-agricultural". We think that, without evidence to show that such land had been cleared and prepared or earmarked for agricultural purposes, it must be treated as prima facie nonagriculturalbeing no evidence or finding of such a character before the events which attracted the estate duty, we cannot take notice of such a statement by Counsel. It is irrelevant for the purpose of the cases before us.So far as the question of burden of proof is concerned, we think that to proceed on the assumption that all land is prima facie capable of cultivation, so that the State must prove that it is non-agricultural in order to establish that it could be the subject matter of legislation which was within Parliaments legislative competence, and, therefore, covered by the Act, is to mix up the question of legislative competence and that of taxability of what is, on the face of it, taxable as part of the estate or property of the assessee within the meaning of Section 5 of the Act set out above. Indeed, the question of legislative competence of Parliament was neither in issue nor part of the question referred even if such a question could have been referred at all by a Tribunal functioning under the Act. We think that the burden of establishing the exemption lay upon the assessee respondent as was rightly held by the High Court. We think that the High Court was not correct in placing the burden upon the Department, after it was admitted that it was "forest land", on the ground that the further question of an immunity of the subject matter from taxation by Par- liament arose here and that, therefore, the onus lay on the Department. Even if there could be such an onus here, it was, we think, sufficiently discharged by the admission that this was "forest land" covered with natural or wild growths. After that, at any rate, the assessee had to prove change of itsdo not find what could similarly constitute evidence of agricultural character of the land involved in this case. On the other hand, the assessees admission that the land under consideration was "forest land", covered by wild and natural growth of forests, constituted evidence to the contrary. We think that, unless there was evidence that such lands had been, in some way, set apart or earmarked for or linked up with an agricultural purpose, by their owners or occupiers, it could not be held that they are agricultural lands.We think that the view of the Kerala High Court, that "all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes", is too wide. It is erroneous for the reasons we have already set out in our judgment in the case from the Andhra Pradesh High Court. The question has to be decided on evidence of actual or intended user for which land may have been prepared or setTribunal observed that the very wide definition of the expression agricultural lands laid down in the above cited decision was not applicable to cases under the Estate Duty Act. The Tribunal, therefore, negatived the contention of the accountable person that the forest lands had to be excluded fro m the value of the assessable estate of theit is clear that the assessee, after having been given due opportunity to lead evidence to show that what was prima facie nonagricultural land, in the sense that it was covered by the spontaneous or natural growth of forests, was really agricultural land, had led no such evidence. It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately. It appears that the nature of exploitation of the forest lands was simply to give contracts for cutting of the trees. The assessee not having led any evidence of any intention to prepare or appropriate or ear-mark the land for any agricultural use or purpose, but, on the other hand, having contended that mere possibility of using such land for agricultural purposes in future was enough, could not be said to have discharged his onus of proof. After the assessees admission that it was "forest land" which presumably prevented cultivation, no evidence was led as we have already observed to indicate any change of character of this land or its conversion into agricultural land. We therefore think that the Appellate Tribunal was correct in expressing the view it had taken and the conclusions it had recorded. And, no case is made out for sending the case back to the Tribunal for any fresh decision.

### 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: cultivation, so that the State must prove that it is non-agricultural in order to establish that it could be the subject matter of legislation which was within Parliaments legislative competence, and, therefore, covered by the Act, is to mix up the question of legislative competence and that of taxability of what is, on the face of it, taxable as part of the estate or property of the assessee within the meaning of Section 5 of the Act set out above. Indeed, the question of legislative competence of Parliament was neither in issue nor part of the question referred even if such a question could have been referred at all by a Tribunal functioning under the Act. We think that the burden of establishing the exemption lay upon the assessee respondent as was rightly held by the High Court. We think that the High Court was not correct in placing the burden upon the Department, after it was admitted that it was "forest land", on the ground that the further question of an immunity of the subject matter from taxation by Par- liament arose here and that, therefore, the onus lay on the Department. Even if there could be such an onus here, it was, we think, sufficiently discharged by the admission that this was "forest land" covered with natural or wild growths. After that, at any rate, the assessee had to prove change of its character.10. In Commissioner of Wealth Tax, Andhra Pradesh v. Officer-incharge (Court of Wards) Paigah, (supra), in which we heard arguments together with arguments in the case now before us, we found that there was some evidence of the agricultural character of land in the shape of entries in revenue record. We do not find what could similarly constitute evidence of agricultural character of the land involved in this case. On the other hand, the assessees admission that the land under consideration was "forest land", covered by wild and natural growth of forests, constituted evidence to the contrary. We think that, unless there was evidence that such lands had been, in some way, set apart or earmarked for or linked up with an agricultural purpose, by their owners or occupiers, it could not be held that they are agricultural lands.We think that the view of the Kerala High Court, that "all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes", is too wide. It is erroneous for the reasons we have already set out in our judgment in the case from the Andhra Pradesh High Court. The question has to be decided on evidence of actual or intended user for which land may have been prepared or set apart.11. In the case before us now, the Tribunal said in its referring order:"The Tribunal permitted the accountable person to raise the contention that the value of the forest lands has to be excluded as they were agricultural lands. So far as this contention was concerned, the following facts were not in dispute: viz., that the forest consisted of trees of spontaneous growth; that no operations in the nature of forest development were being carried on; and, that only operations in the nature of exploitation of the forest were being conducted. The accountable person, however, contended that these lands were capable of being brought under cultivation at a future date and that therefore they must be deemed to be agricultural lands. Reliance was sought to be placed upon the decision of the Madras High Court in Sarojini Devi v. Shri Krishna (AIR 1944 Madras p. 401) in which it was held that the expression agricultural lands must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. The Tribunal was, however, of the view that in the said decision their Lordships did not intend to lay down a definition of the expression agricultural lands for all purposes, and that, on the other hand, they clearly indicated that the expression admits of different interpretations and that it was only from the context of the particular enactment in which this expression is used that its meaning has to be inferred. The Tribunal observed that the very wide definition of the expression agricultural lands laid down in the above cited decision was not applicable to cases under the Estate Duty Act. The Tribunal, therefore, negatived the contention of the accountable person that the forest lands had to be excluded fro m the value of the assessable estate of the deceased".Thus, it is clear that the assessee, after having been given due opportunity to lead evidence to show that what was prima facie nonagricultural land, in the sense that it was covered by the spontaneous or natural growth of forests, was really agricultural land, had led no such evidence. It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately. It appears that the nature of exploitation of the forest lands was simply to give contracts for cutting of the trees. The assessee not having led any evidence of any intention to prepare or appropriate or ear-mark the land for any agricultural use or purpose, but, on the other hand, having contended that mere possibility of using such land for agricultural purposes in future was enough, could not be said to have discharged his onus of proof. After the assessees admission that it was "forest land" which presumably prevented cultivation, no evidence was led as we have already observed to indicate any change of character of this land or its conversion into agricultural land. We therefore think that the Appellate Tribunal was correct in expressing the view it had taken and the conclusions it had recorded. And, no case is made out for sending the case back to the Tribunal for any fresh decision.12. ### Response: 1 ### Explanation: It seems clear to us that this Court, by explaining why, for certain special reasons and in an unusual context, certain land described as "forest land" was to be treated as though it had become "agricultural", implied that ordinarily this is not so. In Rajah Anand Brahma Shah v. State of U.P. &Ors., ([1967] 1 S.C.R. 373 at p. 379.) this Court held forest land to be nonarable which meant "non-agricultural". We think that, without evidence to show that such land had been cleared and prepared or earmarked for agricultural purposes, it must be treated as prima facie nonagriculturalbeing no evidence or finding of such a character before the events which attracted the estate duty, we cannot take notice of such a statement by Counsel. It is irrelevant for the purpose of the cases before us.So far as the question of burden of proof is concerned, we think that to proceed on the assumption that all land is prima facie capable of cultivation, so that the State must prove that it is non-agricultural in order to establish that it could be the subject matter of legislation which was within Parliaments legislative competence, and, therefore, covered by the Act, is to mix up the question of legislative competence and that of taxability of what is, on the face of it, taxable as part of the estate or property of the assessee within the meaning of Section 5 of the Act set out above. Indeed, the question of legislative competence of Parliament was neither in issue nor part of the question referred even if such a question could have been referred at all by a Tribunal functioning under the Act. We think that the burden of establishing the exemption lay upon the assessee respondent as was rightly held by the High Court. We think that the High Court was not correct in placing the burden upon the Department, after it was admitted that it was "forest land", on the ground that the further question of an immunity of the subject matter from taxation by Par- liament arose here and that, therefore, the onus lay on the Department. Even if there could be such an onus here, it was, we think, sufficiently discharged by the admission that this was "forest land" covered with natural or wild growths. After that, at any rate, the assessee had to prove change of itsdo not find what could similarly constitute evidence of agricultural character of the land involved in this case. On the other hand, the assessees admission that the land under consideration was "forest land", covered by wild and natural growth of forests, constituted evidence to the contrary. We think that, unless there was evidence that such lands had been, in some way, set apart or earmarked for or linked up with an agricultural purpose, by their owners or occupiers, it could not be held that they are agricultural lands.We think that the view of the Kerala High Court, that "all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes", is too wide. It is erroneous for the reasons we have already set out in our judgment in the case from the Andhra Pradesh High Court. The question has to be decided on evidence of actual or intended user for which land may have been prepared or setTribunal observed that the very wide definition of the expression agricultural lands laid down in the above cited decision was not applicable to cases under the Estate Duty Act. The Tribunal, therefore, negatived the contention of the accountable person that the forest lands had to be excluded fro m the value of the assessable estate of theit is clear that the assessee, after having been given due opportunity to lead evidence to show that what was prima facie nonagricultural land, in the sense that it was covered by the spontaneous or natural growth of forests, was really agricultural land, had led no such evidence. It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately. It appears that the nature of exploitation of the forest lands was simply to give contracts for cutting of the trees. The assessee not having led any evidence of any intention to prepare or appropriate or ear-mark the land for any agricultural use or purpose, but, on the other hand, having contended that mere possibility of using such land for agricultural purposes in future was enough, could not be said to have discharged his onus of proof. After the assessees admission that it was "forest land" which presumably prevented cultivation, no evidence was led as we have already observed to indicate any change of character of this land or its conversion into agricultural land. We therefore think that the Appellate Tribunal was correct in expressing the view it had taken and the conclusions it had recorded. And, no case is made out for sending the case back to the Tribunal for any fresh decision.

United India Insurance Co. Ltd Vs. Narendra Pandurang Kadam

raised by the bus driver, the owner of the vehicle and the insurance company. The preliminary objection did not succeed. The Tribunal after a review of the evidence produced before it held that the claimants had proved that the accident was due to rash and negligent driving on the part of the driver of the bus. The Tribunal found that the claimant had been hospitalised at Goa Medical College for three months for treatment of injuries suffered by him. Having regard to the injuries suffered by the claimant, the Tribunal held he was entitled to a compensation of Rs 1, 50, 000.5.Aggrieved by the order of the Tribunal, Narendra preferred an appeal to the Bombay High Court. A Division Bench of the Bombay High Court upheld the finding of the Tribunal that the accident was due to rash and negligent driving by the bus driver. The cross-objection filed by the insurance company was dismissed. After taking into consideration the prospect of the appellant in life and his potential earning capacity before the accident, it observed that the injuries sustained by the appellant, unfortunately, left him completely disabled and his life, henceforth, will be miserable. Therefore, the pain and agony, loss of amenities in life and permanent disability, as well as the necessity to provide for future expenses incidental to the injuries sustained, fully justify a higher compensation. The compensation was enhanced from Rs 1, 50, 000 to a total of Rs 2, 70, 000 with interest at the rate of 12 per cent per annum from the date of the accident till actual payment. This compensation had to be paid jointly and severally by the respondents. Costs were to be paid by the respondents.6.The insurance company has now come up in appeal before this Court. On 17-7-1987 an order was passed condoning delay of 330 days in preferring this appeal and also directing issue of notice to the respondents. The notice was confined to only one question i.e. whether the direction issued by the High Court relating to the payment of interest was in conformity with Section 110-CC of the Motor Vehicles Act. The appellant was directed to pay Rs 1 000 by way of cost to the respondent within two weeks.7.The contention of the appellant is that a court or a tribunal cannot allow interest from a date earlier than the date of making of the claim for compensation. The contention of the appellant appears to be borne out by the clear language of the statute. Section 110-CC provides: "110-CC. Award of interest where any claim is allowed.- Where any Court or Claims Tribunal allows a claim for compensation made under this chapter, such Court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf." * 8. Ideally a claim should be settled as soon as it is made. Because of the delay in settlement of the claim by legal process or otherwise interest may be awarded but such interest cannot be from a date earlier than the date of the claim. The language of Section 110-CC is clear that the interest c an be awarded by the Court or Tribunal at such rate as it thinks fit but the interest cannot be made payable from a date earlier than the date of the claim. The contention of the appellant on this point appears to be prima facie correct. 9. This, however, is not the end of the problem in this case. The accident caused by the rash and negligent driving of the bus No. GDS-1574 has ruined the life of the claimant. Considering that the claimant was a young man of good health, a sportsman and a bright student, the amount of compensation given by the Bombay High Court does not appear to be on the high side. The claim made was for a total sum of Rs 6, 25, 000 made up as under: 1. Pain and mental shock. Rs 2 5, 000 2. Fracture of left leg and shortening of leg, skin Rs 25, 000 grafting. 3. Right index finger operated. Rs 5000 4. Fracture of 6th and 7th ribs. Rs 5000 5. Right kidney removed . Rs 10, 000 6. Loss of vision of both eyes. Rs 50, 000 7. Loss of future, income and enjoyment of lifeRs4, 50, 000 (average pay Rs 1500 p.m. x 12 x 25 years). 8. No chances of marriage. Rs 25, 000 9. Medical expenses and other expenses, extra Rs 25, 000 food, fruits, travelling railway charges, medical bills, expenses etc. 10. One more operation on left leg. Rs 5000 Total Rs 6, 25, 000 10. The claimant was able to get a small amount of the claim. In fact, the claim of Rs 4, 50, 000 on account of loss of future income and enjoyment of life was made on a very modest basis of Rs 1500 per month. Even that was not allowed in full. The amount of compensation was brought down to Rs 2, 70, 000. Considering the enormity of the suffering underwent by the claimant and also the permanent injuries sustained by him as well as loss of future income and enjoyment of life, we are disinclined to interfere with the order directing payment of interest. This will have the effect of further reduction in the quantum of compensation awarded by the High Court.11. There was also enormous delay of 330 days for coming to this Court by the appellant. The claim was not settled promptly. On the contrary, the case has been dragged on mercilessly. The appellant also did not pay Narendra, Respondent 1, Rs 1000 as directed by this Court in time. Respondent 1 will be entitled to retain the said sum of Rs 1000. The appellant will pay the Respondent 1 a further sum of Rs 5000 by way of costs.

0[ds]The contention of the appellant appears to be borne out by the clear language of the statute.The claimant was able to get a small amount of the claim. In fact, the claim of Rs 4, 50, 000 on account of loss of future income and enjoyment of life was made on a very modest basis of Rs 1500 per month. Even that was not allowed in full. The amount of compensation was brought down to Rs 2, 70, 000. Considering the enormity of the suffering underwent by the claimant and also the permanent injuries sustained by him as well as loss of future income and enjoyment of life, we are disinclined to interfere with the order directing payment of interest. This will have the effect of further reduction in the quantum of compensation awarded by the High Court.11. There was also enormous delay of 330 days for coming to this Court by the appellant. The claim was not settled promptly. On the contrary, the case has been dragged on mercilessly. The appellant also did not pay Narendra, Respondent 1, Rs 1000 as directed by this Court in time. Respondent 1 will be entitled to retain the said sum of Rs 1000. The appellant will pay the Respondent 1 a further sum of Rs 5000 by way of costs.

### 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: raised by the bus driver, the owner of the vehicle and the insurance company. The preliminary objection did not succeed. The Tribunal after a review of the evidence produced before it held that the claimants had proved that the accident was due to rash and negligent driving on the part of the driver of the bus. The Tribunal found that the claimant had been hospitalised at Goa Medical College for three months for treatment of injuries suffered by him. Having regard to the injuries suffered by the claimant, the Tribunal held he was entitled to a compensation of Rs 1, 50, 000.5.Aggrieved by the order of the Tribunal, Narendra preferred an appeal to the Bombay High Court. A Division Bench of the Bombay High Court upheld the finding of the Tribunal that the accident was due to rash and negligent driving by the bus driver. The cross-objection filed by the insurance company was dismissed. After taking into consideration the prospect of the appellant in life and his potential earning capacity before the accident, it observed that the injuries sustained by the appellant, unfortunately, left him completely disabled and his life, henceforth, will be miserable. Therefore, the pain and agony, loss of amenities in life and permanent disability, as well as the necessity to provide for future expenses incidental to the injuries sustained, fully justify a higher compensation. The compensation was enhanced from Rs 1, 50, 000 to a total of Rs 2, 70, 000 with interest at the rate of 12 per cent per annum from the date of the accident till actual payment. This compensation had to be paid jointly and severally by the respondents. Costs were to be paid by the respondents.6.The insurance company has now come up in appeal before this Court. On 17-7-1987 an order was passed condoning delay of 330 days in preferring this appeal and also directing issue of notice to the respondents. The notice was confined to only one question i.e. whether the direction issued by the High Court relating to the payment of interest was in conformity with Section 110-CC of the Motor Vehicles Act. The appellant was directed to pay Rs 1 000 by way of cost to the respondent within two weeks.7.The contention of the appellant is that a court or a tribunal cannot allow interest from a date earlier than the date of making of the claim for compensation. The contention of the appellant appears to be borne out by the clear language of the statute. Section 110-CC provides: "110-CC. Award of interest where any claim is allowed.- Where any Court or Claims Tribunal allows a claim for compensation made under this chapter, such Court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf." * 8. Ideally a claim should be settled as soon as it is made. Because of the delay in settlement of the claim by legal process or otherwise interest may be awarded but such interest cannot be from a date earlier than the date of the claim. The language of Section 110-CC is clear that the interest c an be awarded by the Court or Tribunal at such rate as it thinks fit but the interest cannot be made payable from a date earlier than the date of the claim. The contention of the appellant on this point appears to be prima facie correct. 9. This, however, is not the end of the problem in this case. The accident caused by the rash and negligent driving of the bus No. GDS-1574 has ruined the life of the claimant. Considering that the claimant was a young man of good health, a sportsman and a bright student, the amount of compensation given by the Bombay High Court does not appear to be on the high side. The claim made was for a total sum of Rs 6, 25, 000 made up as under: 1. Pain and mental shock. Rs 2 5, 000 2. Fracture of left leg and shortening of leg, skin Rs 25, 000 grafting. 3. Right index finger operated. Rs 5000 4. Fracture of 6th and 7th ribs. Rs 5000 5. Right kidney removed . Rs 10, 000 6. Loss of vision of both eyes. Rs 50, 000 7. Loss of future, income and enjoyment of lifeRs4, 50, 000 (average pay Rs 1500 p.m. x 12 x 25 years). 8. No chances of marriage. Rs 25, 000 9. Medical expenses and other expenses, extra Rs 25, 000 food, fruits, travelling railway charges, medical bills, expenses etc. 10. One more operation on left leg. Rs 5000 Total Rs 6, 25, 000 10. The claimant was able to get a small amount of the claim. In fact, the claim of Rs 4, 50, 000 on account of loss of future income and enjoyment of life was made on a very modest basis of Rs 1500 per month. Even that was not allowed in full. The amount of compensation was brought down to Rs 2, 70, 000. Considering the enormity of the suffering underwent by the claimant and also the permanent injuries sustained by him as well as loss of future income and enjoyment of life, we are disinclined to interfere with the order directing payment of interest. This will have the effect of further reduction in the quantum of compensation awarded by the High Court.11. There was also enormous delay of 330 days for coming to this Court by the appellant. The claim was not settled promptly. On the contrary, the case has been dragged on mercilessly. The appellant also did not pay Narendra, Respondent 1, Rs 1000 as directed by this Court in time. Respondent 1 will be entitled to retain the said sum of Rs 1000. The appellant will pay the Respondent 1 a further sum of Rs 5000 by way of costs. ### Response: 0 ### Explanation: The contention of the appellant appears to be borne out by the clear language of the statute.The claimant was able to get a small amount of the claim. In fact, the claim of Rs 4, 50, 000 on account of loss of future income and enjoyment of life was made on a very modest basis of Rs 1500 per month. Even that was not allowed in full. The amount of compensation was brought down to Rs 2, 70, 000. Considering the enormity of the suffering underwent by the claimant and also the permanent injuries sustained by him as well as loss of future income and enjoyment of life, we are disinclined to interfere with the order directing payment of interest. This will have the effect of further reduction in the quantum of compensation awarded by the High Court.11. There was also enormous delay of 330 days for coming to this Court by the appellant. The claim was not settled promptly. On the contrary, the case has been dragged on mercilessly. The appellant also did not pay Narendra, Respondent 1, Rs 1000 as directed by this Court in time. Respondent 1 will be entitled to retain the said sum of Rs 1000. The appellant will pay the Respondent 1 a further sum of Rs 5000 by way of costs.

Sri Chandre Prabhuji Jain Temple And Ors Vs. Harikrishna And Another

AIR 1960 SC 1349 the question whether in such circumstances, a respondent who has not appealed from the decree can be allowed to urge such a plea in answer to a claim by an appellant for a further decree although the plea might imperil the decree already obtained was left undecided. But the Full Bench decision of the Madras H. C. in Venkata Rao v. Satyanarayanamurthy ILR (1944) Mad 147 = (AIR 1943 Mad 698 ) (FB) has held that it is open to a respondent who had not filed cross-objection with respect to the portion of the decree which had gone against him "to urge in" opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have necessitated the total dismissal of the suit" but that the decree in so far as it was against him would stand. The decree of the High Court here in so far as it held that the mortgage money can be recovered only from the half share in the properties was also a decree in favour of the respondents as it did not allow the claim of the appellants to recover it from the entire interest in the properties. To that extent, the respondents had a decree in their favour. That decree they could support on any of the grounds decided against them by the court which passed the decree. And when they do this, they are only supporting and not attacking that decree. We think that the rule laid down by the Madras High Court in the above decision is sound. And there is no reason why the respondents should be barred from urging the plea. So even though we hold that the power of Manorama as guardian to mortgage the properties extended to the entire interest in the properties, it would not follow that the appellants would be entitled to a decree charging the entire interest in the properties as the orders of sanction on the basis of which alone Manorama got the power to alienate the properties were invalid. 21.The position that emerges from this discussion is: under-the will Manorama had no power to alienate the properties. As the existence of the will and the curb on her powers of alienation were not disclosed to the court when she applied for sanction and as the court did not by order in writing remove the fetters on her power of alienation, the sanctions cannot be regarded as having been obtained under Section 28; nor could the sanctions, as they were given under Section 31 (2) on the applications filed under Section 29, be regarded as valid, as Section 29 has no application when there is a will appointing a person as guardian. 22. The question then is whether the appellants are entitled to get the money advanced under the mortgages as a charge on the entire interest in these properties. 23. The appellants advanced the amounts bona fide believing that there was necessity on the strength of the orders of sanction and there is no finding that there was no necessity. These orders were not void, even though they were obtained by fraud. That was the view of Balakrishna Ayyar, J. and it was on the basis that the orders were voidable and that, until set aside, they were valid, that the learned Judge granted a decree. A disposal of property in contravention of the provisions of Section 28 or Section 29 is only voidable (see Section 30). We think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondents should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minors interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, rule 33 of the Civil Procedure Code clothes the appellate court with the power to pass any decree or order which the trial court ought to have passed or made and to pass or make such further or other decree or order as the Justice of the case may require. 24. Though the respondents are entitled to avoid the orders of sanction in defence without the necessity of filing a suit, it is dust and proper that as a condition for doing so, they must give restitution. The High Courts in this country have taken the view, and we think rightly that as condition for setting aside a disposal of immovable property made in contravention of Sec. 28 or Sec. 29 which is voidable under Sec. 30, it is just that there must be restitution of the benefits received.(see Parshotam Das v. Nazir Hussain, 54 Ind Cas 846 = (AIR 1920 Oudh 53 (2) ); Peria Karuppan Chetty v. Kandasamy Chetty, 1933 Mad WN 791; Abbas Husain v. Kiran Shashi Devi, AIR 1942 Nag 12). 25. In this view, we do not think it necessary to express any opinion on the correctness or otherwise of the view of the High Court on the nature and effect of an order passed under Section 31(2). Suffice it to say that different views have been expressed by the High Courts.

1[ds]19A. It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties.In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtains d by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea21.The position that emerges from this discussion is: under-the will Manorama had no power to alienate the properties. As the existence of the will and the curb on her powers of alienation were not disclosed to the court when she applied for sanction and as the court did not by order in writing remove the fetters on her power of alienation, the sanctions cannot be regarded as having been obtained under Section 28; nor could the sanctions, as they were given under Section 31 (2) on the applications filed under Section 29, be regarded as valid, as Section 29 has no application when there is a will appointing a person as guardianWe think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondents should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minors interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, rule 33 of the Civil Procedure Code clothes the appellate court with the power to pass any decree or order which the trial court ought to have passed or made and to pass or make such further or other decree or order as the Justice of the case may require24. Though the respondents are entitled to avoid the orders of sanction in defence without the necessity of filing a suit, it is dust and proper that as a condition for doing so, they must give restitution. The High Courts in this country have taken the view, and we think rightly that as condition for setting aside a disposal of immovable property made in contravention of Sec. 28 or Sec. 29 which is voidable under Sec. 30, it is just that there must be restitution of the benefits received25. In this view, we do not think it necessary to express any opinion on the correctness or otherwise of the view of the High Court on the nature and effect of an order passed under Section 31(2). Suffice it to say that different views have been expressed by the High Courts.

### 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: AIR 1960 SC 1349 the question whether in such circumstances, a respondent who has not appealed from the decree can be allowed to urge such a plea in answer to a claim by an appellant for a further decree although the plea might imperil the decree already obtained was left undecided. But the Full Bench decision of the Madras H. C. in Venkata Rao v. Satyanarayanamurthy ILR (1944) Mad 147 = (AIR 1943 Mad 698 ) (FB) has held that it is open to a respondent who had not filed cross-objection with respect to the portion of the decree which had gone against him "to urge in" opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have necessitated the total dismissal of the suit" but that the decree in so far as it was against him would stand. The decree of the High Court here in so far as it held that the mortgage money can be recovered only from the half share in the properties was also a decree in favour of the respondents as it did not allow the claim of the appellants to recover it from the entire interest in the properties. To that extent, the respondents had a decree in their favour. That decree they could support on any of the grounds decided against them by the court which passed the decree. And when they do this, they are only supporting and not attacking that decree. We think that the rule laid down by the Madras High Court in the above decision is sound. And there is no reason why the respondents should be barred from urging the plea. So even though we hold that the power of Manorama as guardian to mortgage the properties extended to the entire interest in the properties, it would not follow that the appellants would be entitled to a decree charging the entire interest in the properties as the orders of sanction on the basis of which alone Manorama got the power to alienate the properties were invalid. 21.The position that emerges from this discussion is: under-the will Manorama had no power to alienate the properties. As the existence of the will and the curb on her powers of alienation were not disclosed to the court when she applied for sanction and as the court did not by order in writing remove the fetters on her power of alienation, the sanctions cannot be regarded as having been obtained under Section 28; nor could the sanctions, as they were given under Section 31 (2) on the applications filed under Section 29, be regarded as valid, as Section 29 has no application when there is a will appointing a person as guardian. 22. The question then is whether the appellants are entitled to get the money advanced under the mortgages as a charge on the entire interest in these properties. 23. The appellants advanced the amounts bona fide believing that there was necessity on the strength of the orders of sanction and there is no finding that there was no necessity. These orders were not void, even though they were obtained by fraud. That was the view of Balakrishna Ayyar, J. and it was on the basis that the orders were voidable and that, until set aside, they were valid, that the learned Judge granted a decree. A disposal of property in contravention of the provisions of Section 28 or Section 29 is only voidable (see Section 30). We think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondents should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minors interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, rule 33 of the Civil Procedure Code clothes the appellate court with the power to pass any decree or order which the trial court ought to have passed or made and to pass or make such further or other decree or order as the Justice of the case may require. 24. Though the respondents are entitled to avoid the orders of sanction in defence without the necessity of filing a suit, it is dust and proper that as a condition for doing so, they must give restitution. The High Courts in this country have taken the view, and we think rightly that as condition for setting aside a disposal of immovable property made in contravention of Sec. 28 or Sec. 29 which is voidable under Sec. 30, it is just that there must be restitution of the benefits received.(see Parshotam Das v. Nazir Hussain, 54 Ind Cas 846 = (AIR 1920 Oudh 53 (2) ); Peria Karuppan Chetty v. Kandasamy Chetty, 1933 Mad WN 791; Abbas Husain v. Kiran Shashi Devi, AIR 1942 Nag 12). 25. In this view, we do not think it necessary to express any opinion on the correctness or otherwise of the view of the High Court on the nature and effect of an order passed under Section 31(2). Suffice it to say that different views have been expressed by the High Courts. ### Response: 1 ### Explanation: 19A. It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties.In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtains d by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea21.The position that emerges from this discussion is: under-the will Manorama had no power to alienate the properties. As the existence of the will and the curb on her powers of alienation were not disclosed to the court when she applied for sanction and as the court did not by order in writing remove the fetters on her power of alienation, the sanctions cannot be regarded as having been obtained under Section 28; nor could the sanctions, as they were given under Section 31 (2) on the applications filed under Section 29, be regarded as valid, as Section 29 has no application when there is a will appointing a person as guardianWe think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondents should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minors interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, rule 33 of the Civil Procedure Code clothes the appellate court with the power to pass any decree or order which the trial court ought to have passed or made and to pass or make such further or other decree or order as the Justice of the case may require24. Though the respondents are entitled to avoid the orders of sanction in defence without the necessity of filing a suit, it is dust and proper that as a condition for doing so, they must give restitution. The High Courts in this country have taken the view, and we think rightly that as condition for setting aside a disposal of immovable property made in contravention of Sec. 28 or Sec. 29 which is voidable under Sec. 30, it is just that there must be restitution of the benefits received25. In this view, we do not think it necessary to express any opinion on the correctness or otherwise of the view of the High Court on the nature and effect of an order passed under Section 31(2). Suffice it to say that different views have been expressed by the High Courts.

Bharat Sanchar Nigam Ltd Vs. Pawan Kumar Gupta

is under the absolute control of the Central Government, nonetheless, it shall not be construed as the Central Government for the reason that the appellant-company is a separate legal entity. It also cannot claim that it is entitled to the benefit under Article 112 of the Limitation Act on the ground that a debt recoverable from the subscriber is an actionable claim in terms of Section 3 of the TP Act, even if the same has been transferred under Section 130 of the TP Act by execution of the Office Memorandum, referred to supra, thereby vesting in it the rights and the remedies vis-a-vis the same. No doubt, by execution of the said instrument it has got the actionable claim transferred, the assets that must be recoverable debts from the debtors and subscribers. As could be seen from the claim, the undisputed facts of these appeals are that on the date of the transfer, some of the claims were time barred, therefore, the company cannot construe that the time barred debts are also an actionable claim by way of transfer in its favour, which entitles it to avail the benefit of Section 112 of the Limitation Act i.e. the period of thirty years to institute suits for recovery of the same. Such an interpretation is contrary to Article 112 of the Limitation Act, 1963. A careful reading of Article 112 of the Limitation Act clearly reveals that in any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir, the period of limitation would be thirty years. The period of limitation time from which the period begins to run is mentioned under Column 3 of the above Article of the Limitation in the Schedule, which reads as follows. “When the period of limitation would begin to run under this Act against a like suit by a private person.” By a careful reading of the aforesaid Article, it makes abundantly clear, that a suit can be instituted by or on behalf of the Central Government. It is not the case of the appellant herein that it has filed the suit on behalf of the Central Government. This is for the reason that the appellant-company has instituted the suit on the basis of the instrument of Office Memorandum wherein the DoT has transferred its assets and actionable claims. It cannot be said that it has filed the suit on behalf of the Central Government because the appellant/plaintiff is a company, a distinctly independent and separate entity. Therefore, the reliance placed upon the aforesaid Article 112 of the Limitation Act to claim that there would be thirty years of limitation period as the asset transferred is an actionable claim due to the DoT is wholly misconceived in law. The other argument advanced by the learned senior counsel on behalf of the appellant-company that it is an agency or instrumentality under the Central Government which falls within the inclusive definition as defined under Section 3(8) of the General Clauses Act is wholly misconceived for the reason that Article 112 of the Limitation Act speaks of the Central Government or the State Government. Its agencies or instrumentalities are not incorporated under Article 112 of the Limitation Act. Such an argument is contrary to the Constitution Bench judgment of this Court in the case of Padma Sundara Rao (Dead) and Ors. vs. State of T.N. and Ors. reported in (2002) 3 SCC 533. In paragraph 14 of the said judgment it is categorically stated that the legislative casus omissus cannot be supplied by judicial interpretative process and the Court cannot do the legislative functions. Para 14 of the said judgment reads thus: “14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiahs case, (1996) 3 SCC 88. In Nanjudaiahs case, (1996) 10 SCC 619 , the period was further stretched to have the time period run from date of service of High Courts order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.” (Emphasis supplied by this Court) In the connected matter i.e. Civil Appeal No. 2409/2009, learned counsel appearing for the respondent has placed reliance on two judgments of this Court in the cases of A.K. Bindal & Anr. vs. U.O.I. & Ors., (2003) 5 SCC 163 paras 5, 14 and 17 and Food Corporation of India vs. Municipal Committee, Jalalabad & Anr., (1999) 6 SCC 74 , in support of the contention that the expressions Central Government or State Government in terms of Section 3(8) and Section 3(60) of the General Clauses Act do not include in their purview or definition their agencies or instrumentalities. In view of the aforesaid judgments of this Court, the legal contention urged by the learned senior counsel appearing on behalf of the appellant that the appellant being the agency or instrumentality of the Central Government is entitled to maintain the suit claims within thirty years as provided under Article 112 of the Schedule in the Limitation Act or alternatively, whatever the limitation period which was available for the Central Government, within three years from the date of execution of the agreement are wholly unsustainable in law.

0[ds]Civil Appeal Nos. 1085/2008 andview of the aforesaid judgments of this Court, the legal contention urged by the learned senior counsel appearing on behalf of the appellant that the appellant being the agency or instrumentality of the Central Government is entitled to maintain the suit claims within thirty years as provided under Article 112 of the Schedule in the Limitation Act or alternatively, whatever the limitation period which was available for the Central Government, within three years from the date of execution of the agreement are wholly unsustainable in>In our considered view, the questions a, d, e and f framed by the appellant Company in the Memorandum of Appeal would not arise as substantial questions of law in terms of Section 100 of CPC for the consideration of this Court, in its statutory appeal having regard to the undisputed fact that the Tribunal has recorded the finding of fact on the basis of the relevant clauses of the interconnect agreement between the parties and also with reference to the legal contentions urged on behalf of the appellant that it, being an instrumentality of the Central Government, is entitled to the protection under Article 112 of the Limitation Act and, therefore, it was covered by the limitation period of 30 years. The said contention is not tenable in law for the reasons already enumerated in the earlier part of this judgment.Therefore, the finding of fact recorded rejecting the aforesaid contention by the Tribunal is perfectly legal and valid. The same cannot be re-agitated by the appellant Company by framing the substantial questions of law namely a, d, e and f. The said finding is based on proper interpretation of undisputed facts and the relevant clauses of the interconnect agreement and relevant clauses of the Schedule in the Limitation Act.Insofar as the substantial questions framed at b & c in the memorandum of appeal filed are concerned, they also cannot be termed as substantial question of law as it is a question of finding of fact recorded by the Tribunal particularly having regard to the undisputed fact that the Tribunal on the same day of pronouncement of judgment, has awarded interest on the amount of Rs.60,00,000/- payable after the reconciliation of the account that is required to be done by the parties. The said amount was deposited by virtue of an interim order granted by the Tribunal not to disconnect the connection of the respondent, as the disconnection notice issued by the appellant Company was stayed by the Tribunal and such direction was subject to payment of interest etc. on the amount of deposit repayable by the appellant Company after reconciliation and adjustment of the amount legally due to the respondent. That means, the claim of the appellant is not within the period of limitation and therefore, the same do not constitute and cannot be termed as substantial questions of law for consideration of this Court and answer thereof.

### 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: is under the absolute control of the Central Government, nonetheless, it shall not be construed as the Central Government for the reason that the appellant-company is a separate legal entity. It also cannot claim that it is entitled to the benefit under Article 112 of the Limitation Act on the ground that a debt recoverable from the subscriber is an actionable claim in terms of Section 3 of the TP Act, even if the same has been transferred under Section 130 of the TP Act by execution of the Office Memorandum, referred to supra, thereby vesting in it the rights and the remedies vis-a-vis the same. No doubt, by execution of the said instrument it has got the actionable claim transferred, the assets that must be recoverable debts from the debtors and subscribers. As could be seen from the claim, the undisputed facts of these appeals are that on the date of the transfer, some of the claims were time barred, therefore, the company cannot construe that the time barred debts are also an actionable claim by way of transfer in its favour, which entitles it to avail the benefit of Section 112 of the Limitation Act i.e. the period of thirty years to institute suits for recovery of the same. Such an interpretation is contrary to Article 112 of the Limitation Act, 1963. A careful reading of Article 112 of the Limitation Act clearly reveals that in any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir, the period of limitation would be thirty years. The period of limitation time from which the period begins to run is mentioned under Column 3 of the above Article of the Limitation in the Schedule, which reads as follows. “When the period of limitation would begin to run under this Act against a like suit by a private person.” By a careful reading of the aforesaid Article, it makes abundantly clear, that a suit can be instituted by or on behalf of the Central Government. It is not the case of the appellant herein that it has filed the suit on behalf of the Central Government. This is for the reason that the appellant-company has instituted the suit on the basis of the instrument of Office Memorandum wherein the DoT has transferred its assets and actionable claims. It cannot be said that it has filed the suit on behalf of the Central Government because the appellant/plaintiff is a company, a distinctly independent and separate entity. Therefore, the reliance placed upon the aforesaid Article 112 of the Limitation Act to claim that there would be thirty years of limitation period as the asset transferred is an actionable claim due to the DoT is wholly misconceived in law. The other argument advanced by the learned senior counsel on behalf of the appellant-company that it is an agency or instrumentality under the Central Government which falls within the inclusive definition as defined under Section 3(8) of the General Clauses Act is wholly misconceived for the reason that Article 112 of the Limitation Act speaks of the Central Government or the State Government. Its agencies or instrumentalities are not incorporated under Article 112 of the Limitation Act. Such an argument is contrary to the Constitution Bench judgment of this Court in the case of Padma Sundara Rao (Dead) and Ors. vs. State of T.N. and Ors. reported in (2002) 3 SCC 533. In paragraph 14 of the said judgment it is categorically stated that the legislative casus omissus cannot be supplied by judicial interpretative process and the Court cannot do the legislative functions. Para 14 of the said judgment reads thus: “14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiahs case, (1996) 3 SCC 88. In Nanjudaiahs case, (1996) 10 SCC 619 , the period was further stretched to have the time period run from date of service of High Courts order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.” (Emphasis supplied by this Court) In the connected matter i.e. Civil Appeal No. 2409/2009, learned counsel appearing for the respondent has placed reliance on two judgments of this Court in the cases of A.K. Bindal & Anr. vs. U.O.I. & Ors., (2003) 5 SCC 163 paras 5, 14 and 17 and Food Corporation of India vs. Municipal Committee, Jalalabad & Anr., (1999) 6 SCC 74 , in support of the contention that the expressions Central Government or State Government in terms of Section 3(8) and Section 3(60) of the General Clauses Act do not include in their purview or definition their agencies or instrumentalities. In view of the aforesaid judgments of this Court, the legal contention urged by the learned senior counsel appearing on behalf of the appellant that the appellant being the agency or instrumentality of the Central Government is entitled to maintain the suit claims within thirty years as provided under Article 112 of the Schedule in the Limitation Act or alternatively, whatever the limitation period which was available for the Central Government, within three years from the date of execution of the agreement are wholly unsustainable in law. ### Response: 0 ### Explanation: Civil Appeal Nos. 1085/2008 andview of the aforesaid judgments of this Court, the legal contention urged by the learned senior counsel appearing on behalf of the appellant that the appellant being the agency or instrumentality of the Central Government is entitled to maintain the suit claims within thirty years as provided under Article 112 of the Schedule in the Limitation Act or alternatively, whatever the limitation period which was available for the Central Government, within three years from the date of execution of the agreement are wholly unsustainable in>In our considered view, the questions a, d, e and f framed by the appellant Company in the Memorandum of Appeal would not arise as substantial questions of law in terms of Section 100 of CPC for the consideration of this Court, in its statutory appeal having regard to the undisputed fact that the Tribunal has recorded the finding of fact on the basis of the relevant clauses of the interconnect agreement between the parties and also with reference to the legal contentions urged on behalf of the appellant that it, being an instrumentality of the Central Government, is entitled to the protection under Article 112 of the Limitation Act and, therefore, it was covered by the limitation period of 30 years. The said contention is not tenable in law for the reasons already enumerated in the earlier part of this judgment.Therefore, the finding of fact recorded rejecting the aforesaid contention by the Tribunal is perfectly legal and valid. The same cannot be re-agitated by the appellant Company by framing the substantial questions of law namely a, d, e and f. The said finding is based on proper interpretation of undisputed facts and the relevant clauses of the interconnect agreement and relevant clauses of the Schedule in the Limitation Act.Insofar as the substantial questions framed at b & c in the memorandum of appeal filed are concerned, they also cannot be termed as substantial question of law as it is a question of finding of fact recorded by the Tribunal particularly having regard to the undisputed fact that the Tribunal on the same day of pronouncement of judgment, has awarded interest on the amount of Rs.60,00,000/- payable after the reconciliation of the account that is required to be done by the parties. The said amount was deposited by virtue of an interim order granted by the Tribunal not to disconnect the connection of the respondent, as the disconnection notice issued by the appellant Company was stayed by the Tribunal and such direction was subject to payment of interest etc. on the amount of deposit repayable by the appellant Company after reconciliation and adjustment of the amount legally due to the respondent. That means, the claim of the appellant is not within the period of limitation and therefore, the same do not constitute and cannot be termed as substantial questions of law for consideration of this Court and answer thereof.

CHENNADI JALAPATHI REDDY Vs. BADDAM PRATAPA REDDY (DEAD) THROUGH LRS. AND ANR

at hand, DW-3, in his cross-examination, has identified the disputed signature of the first defendant (his elder brother) on Ext. A-1. He also stated that the suit schedule house was constructed when he was 25 years old; a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house; and that he finally sold his share in 1996 (when he was aged about 58 years). This goes on to show that DW-3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW-3 identified the first defendant?s signature on Ext. B- 1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW-3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW-3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Section 47. At this juncture, it would be apposite to observe that the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to notice and observe the handwriting, his own power of observation, and how recent such observations were. In light of the facts discussed above, which go on to show the familiarity of DW-3 with the handwriting of the first defendant, we conclude that the testimony of DW-3 may safely be relied upon, and must be accorded similar, if not greater, weight than the expert evidence adduced by the defendants to advance their case. This conclusion is further strengthened by the fact that the first defendant neither challenged DW-3?s admission nor his acquaintance with the disputed handwriting, although it was open for him to do so by way of re-examination. 15. The admission by DW-3 is further supported by the cogent and consistent testimony of the plaintiff (PW-1) and attesting witnesses (PWs 2 and 3), and the fact that the first defendant has not denied his signature on Ext. A-2 (the receipt of payment of earnest money). Having regard to the totality of the facts and circumstances, we conclude that the disputed signature of the first defendant on Ext. A-1 is genuine. Moreover, keeping in mind the principle that expert evidence should not be given precedence over substantive evidence, in our considered opinion, the High Court was not justified in giving precedence to the opinion of the expert (DW-2) and solely relying upon his testimony to set aside the judgment and decree of the Trial Court. In any case, to satisfy our conscience, we have examined the admitted and disputed signatures ourselves, and find that the signatures are virtually the same. However, in this case, it is unnecessary for us to rely on our own comparison in light of the material on record, as discussed above. We hasten to emphasize that we have not been prejudiced by our own comparison in appreciating the evidence and reaching our conclusion. 16. There is another reason why we are not inclined to place reliance on the opinion of the expert DW-2. From a perusal of his report Ext. B-2, it is evident that barring the signature on a written statement in a prior suit, all other admitted signatures of the first defendant are of a period subsequent to the filing of the plaint (i.e. on the vakalatnama and the written statement filed in this suit itself). These admitted signatures taken subsequent to the filing of the suit could not have been used as a valid basis of comparison, and their use for this purpose casts serious doubt on the reliability of the entire report Ext. B-2. Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court. 17. Moreover, the High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. In the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/- and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract. 18. In view of the aforementioned reasons, the impugned judgment of the High Court is liable to be set aside.

1[ds]5. From the discussion of the High Court in arriving at this conclusion, we find that it has not assigned any valid reason for disbelieving the attesting witnesses PWs 2 and 3. In fact, with respect to their evidence, the High Court made certain observations which are against the evidence on record. Similarly, with respect to PW-1, the High Court observed that he had not deposed as to the presence of the third attestor, Krishna Murthy, at the time of execution of the agreement of sale. However, it is clear from the evidence of PW-1 that he has specifically deposed about the presence of Krishna Murthy at that time. It was also wrongly observed by the High Court that PWs 1 and 2 are silent as to the time and place of the execution of the agreement. However, in his examination-in-chief, PW-2 has clarified that the first defendant executed this agreement at the suit schedule house, at a time when he was residing there and the plaintiff was residing in the western side of the house, etc. From the aforementioned facts, it is clear that the High Court disbelieved the evidence of the plaintiff (PW1) and the attestors (PWs 2 and 3) on mere assumptions and wrong reasons.In any case, to satisfy our conscience, we have gone through the evidence of PWs 1, 2, and 3. As rightly observed by the Trial Court, there is no reason to disbelieve these witnesses, whose evidence is consistent, cogent, and reliable. Though they were subjected to lengthy cross-examination, nothing noteworthy has been brought out from their deposition to discard their evidence. Thus, the evidence of PWs 1, 2, and 3 fully supports the case of the plaintiff and in our considered opinion, the High Court was not justified in rejecting their evidence.In our considered opinion, the decisions in Murari Lal (supra) and Alamgir (supra) strengthen the proposition that it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal (supra) and Alamgir (supra) do not go against the proposition stated in Shashi Kumar Banerjee (supra) that the evidence of a handwriting expert should rarely be given precedence over substantive evidence.As mentioned earlier, Ext. A-1 is the agreement of sale entered into by the plaintiff and the first defendant. Ext. A-2 is the receipt evidencing the payment of earnest money of Rs. 61,200/- in pursuance of this agreement of sale. The receipt bears the signature of the first defendant on the revenue stamps affixed thereon. Curiously, Ext. A-2 was not sent for obtaining expert opinion. At the same time, no reliable material was brought on record that the first defendant has not received the amount under Ext. A-2. In the absence of any challenge to the first defendant?s signature on Ext. A-2, and in the absence of any reliable material produced by the first defendant to deny the receipt of such earnest money, the High Court, in our considered opinion, should have relied upon this receipt. In fact, we find that the High Court has not considered Ext. A-2 in its entire judgment. As a matter of fact, Ext. A-1 and Ext. A-2 go hand in hand, and Ext. A-2 should not have been ignored by the Highmerely because the plaintiff?s signature was not present on the agreement of sale, this would not ipso facto nullify the agreement altogether. This is because the agreement was signed by the first defendant and clearly reveals that he had agreed to sell the property to the plaintiff for a due consideration of Rs. 1,20,000/-. This agreement was followed by Ext. A-2, which shows the payment and receipt of the earnestaddition to the signature of the first defendant, this receipt bears the signature of the plaintiff on revenue stamps. As mentioned earlier, Ext. A-1 and Ext. A-2 are part of the same transaction. Thus, the contention that absence of the plaintiff?s signature on Ext. A-1 nullifies the agreement altogether, cannot be accepted. In addition to this, the evidence of DW-3 (the brother of the first defendant) belies the allegation of the first defendant that the signature found on Ext. A-1 is forged. DW-3 specifically admitted during his cross-examination that he could identify the signature of the first defendant, who is his elder brother. He has further admitted that Ext. A-1 and Ext. B-1 bears the signature of the first defendant. It may be noted here that a partition had taken place between the first defendant and DW-3 in the year 1980, and such partition was effected through Ext. B-1, an unregistered partition deed. Crucially, the first defendant has also admitted his signature on Ext. B-1 in his cross-examination. Thus, it is clear that such admitted signature and the disputed signature of the first defendant have been identified by his brother as those of the first defendant himself.A reading of Section 47 of the Evidence Act makes it clear that this provision is concerned with the relevance of the opinion of a person who is acquainted with the handwriting of another person. The Explanation to this Section goes on to enumerate the circumstances in which a person may be said to have suchthe matter at hand, DW-3, in his cross-examination, has identified the disputed signature of the first defendant (his elder brother) on Ext. A-1. He also stated that the suit schedule house was constructed when he was 25 years old; a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house; and that he finally sold his share in 1996 (when he was aged about 58 years). This goes on to show that DW-3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW-3 identified the first defendant?s signature on Ext. B- 1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW-3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW-3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Sectionthis juncture, it would be apposite to observe that the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to notice and observe the handwriting, his own power of observation, and how recent such observations were. In light of the facts discussed above, which go on to show the familiarity of DW-3 with the handwriting of the first defendant, we conclude that the testimony of DW-3 may safely be relied upon, and must be accorded similar, if not greater, weight than the expert evidence adduced by the defendants to advance their case. This conclusion is further strengthened by the fact that the first defendant neither challenged DW-3?s admission nor his acquaintance with the disputed handwriting, although it was open for him to do so by way of re-examination.The admission by DW-3 is further supported by the cogent and consistent testimony of the plaintiff (PW-1) and attesting witnesses (PWs 2 and 3), and the fact that the first defendant has not denied his signature on Ext. A-2 (the receipt of payment of earnest money). Having regard to the totality of the facts and circumstances, we conclude that the disputed signature of the first defendant on Ext. A-1 is genuine. Moreover, keeping in mind the principle that expert evidence should not be given precedence over substantive evidence, in our considered opinion, the High Court was not justified in giving precedence to the opinion of the expert (DW-2) and solely relying upon his testimony to set aside the judgment and decree of the Trialany case, to satisfy our conscience, we have examined the admitted and disputed signatures ourselves, and find that the signatures are virtually the same. However, in this case, it is unnecessary for us to rely on our own comparison in light of the material on record, as discussed above. We hasten to emphasize that we have not been prejudiced by our own comparison in appreciating the evidence and reaching our conclusion.There is another reason why we are not inclined to place reliance on the opinion of the expert DW-2. From a perusal of his report Ext. B-2, it is evident that barring the signature on a written statement in a prior suit, all other admitted signatures of the first defendant are of a period subsequent to the filing of the plaint (i.e. on the vakalatnama and the written statement filed in this suit itself). These admitted signatures taken subsequent to the filing of the suit could not have been used as a valid basis of comparison, and their use for this purpose casts serious doubt on the reliability of the entire report Ext. B-2. Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court.Moreover, the High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. In the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/- and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract.In view of the aforementioned reasons, the impugned judgment of the High Court is liable to be set aside.

### 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: at hand, DW-3, in his cross-examination, has identified the disputed signature of the first defendant (his elder brother) on Ext. A-1. He also stated that the suit schedule house was constructed when he was 25 years old; a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house; and that he finally sold his share in 1996 (when he was aged about 58 years). This goes on to show that DW-3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW-3 identified the first defendant?s signature on Ext. B- 1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW-3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW-3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Section 47. At this juncture, it would be apposite to observe that the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to notice and observe the handwriting, his own power of observation, and how recent such observations were. In light of the facts discussed above, which go on to show the familiarity of DW-3 with the handwriting of the first defendant, we conclude that the testimony of DW-3 may safely be relied upon, and must be accorded similar, if not greater, weight than the expert evidence adduced by the defendants to advance their case. This conclusion is further strengthened by the fact that the first defendant neither challenged DW-3?s admission nor his acquaintance with the disputed handwriting, although it was open for him to do so by way of re-examination. 15. The admission by DW-3 is further supported by the cogent and consistent testimony of the plaintiff (PW-1) and attesting witnesses (PWs 2 and 3), and the fact that the first defendant has not denied his signature on Ext. A-2 (the receipt of payment of earnest money). Having regard to the totality of the facts and circumstances, we conclude that the disputed signature of the first defendant on Ext. A-1 is genuine. Moreover, keeping in mind the principle that expert evidence should not be given precedence over substantive evidence, in our considered opinion, the High Court was not justified in giving precedence to the opinion of the expert (DW-2) and solely relying upon his testimony to set aside the judgment and decree of the Trial Court. In any case, to satisfy our conscience, we have examined the admitted and disputed signatures ourselves, and find that the signatures are virtually the same. However, in this case, it is unnecessary for us to rely on our own comparison in light of the material on record, as discussed above. We hasten to emphasize that we have not been prejudiced by our own comparison in appreciating the evidence and reaching our conclusion. 16. There is another reason why we are not inclined to place reliance on the opinion of the expert DW-2. From a perusal of his report Ext. B-2, it is evident that barring the signature on a written statement in a prior suit, all other admitted signatures of the first defendant are of a period subsequent to the filing of the plaint (i.e. on the vakalatnama and the written statement filed in this suit itself). These admitted signatures taken subsequent to the filing of the suit could not have been used as a valid basis of comparison, and their use for this purpose casts serious doubt on the reliability of the entire report Ext. B-2. Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court. 17. Moreover, the High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. In the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/- and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract. 18. In view of the aforementioned reasons, the impugned judgment of the High Court is liable to be set aside. ### Response: 1 ### Explanation: enumerate the circumstances in which a person may be said to have suchthe matter at hand, DW-3, in his cross-examination, has identified the disputed signature of the first defendant (his elder brother) on Ext. A-1. He also stated that the suit schedule house was constructed when he was 25 years old; a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house; and that he finally sold his share in 1996 (when he was aged about 58 years). This goes on to show that DW-3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW-3 identified the first defendant?s signature on Ext. B- 1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW-3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW-3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Sectionthis juncture, it would be apposite to observe that the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to notice and observe the handwriting, his own power of observation, and how recent such observations were. In light of the facts discussed above, which go on to show the familiarity of DW-3 with the handwriting of the first defendant, we conclude that the testimony of DW-3 may safely be relied upon, and must be accorded similar, if not greater, weight than the expert evidence adduced by the defendants to advance their case. This conclusion is further strengthened by the fact that the first defendant neither challenged DW-3?s admission nor his acquaintance with the disputed handwriting, although it was open for him to do so by way of re-examination.The admission by DW-3 is further supported by the cogent and consistent testimony of the plaintiff (PW-1) and attesting witnesses (PWs 2 and 3), and the fact that the first defendant has not denied his signature on Ext. A-2 (the receipt of payment of earnest money). Having regard to the totality of the facts and circumstances, we conclude that the disputed signature of the first defendant on Ext. A-1 is genuine. Moreover, keeping in mind the principle that expert evidence should not be given precedence over substantive evidence, in our considered opinion, the High Court was not justified in giving precedence to the opinion of the expert (DW-2) and solely relying upon his testimony to set aside the judgment and decree of the Trialany case, to satisfy our conscience, we have examined the admitted and disputed signatures ourselves, and find that the signatures are virtually the same. However, in this case, it is unnecessary for us to rely on our own comparison in light of the material on record, as discussed above. We hasten to emphasize that we have not been prejudiced by our own comparison in appreciating the evidence and reaching our conclusion.There is another reason why we are not inclined to place reliance on the opinion of the expert DW-2. From a perusal of his report Ext. B-2, it is evident that barring the signature on a written statement in a prior suit, all other admitted signatures of the first defendant are of a period subsequent to the filing of the plaint (i.e. on the vakalatnama and the written statement filed in this suit itself). These admitted signatures taken subsequent to the filing of the suit could not have been used as a valid basis of comparison, and their use for this purpose casts serious doubt on the reliability of the entire report Ext. B-2. Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court.Moreover, the High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. In the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/- and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract.In view of the aforementioned reasons, the impugned judgment of the High Court is liable to be set aside.

District Basic Education Officer Allahabad Vs. Sushila Jaiswal (dead) through her L.Rs. and Ors

fit for teaching job. Based on this report, the High Court vide its order dated 21.04.2010 directed that 1st Respondent be reinstated and in so far as the period of absence was concerned an appropriate order in accordance with law be passed by the Appellant.7. In compliance of the order dated 21.04.2010, the Appellant vide order dated 05.05.2010 directed 1st Respondent to join services in Junior High School of Lohandi, Block-Karchhana, Allahabad as no post was available in her former School namely Junior High School, Dandupur, Chaka, Allahabad. Accordingly, 1st Respondent joined the services on 15.05.2010. On 17.05.2010 an order was passed by the Appellant treating the period between 01.08.2001 to 14.05.2010 as period of absence and directed that 1st Respondent was not entitled to payment of salary for that period on the basis of "no work no pay" as per the provisions of UP Financial Handbook and concerned rules. 1st Respondent who had joined on 15.05.2010 worked till 20.05.2010 whereafter the School closed for summer vacation. It re-opened on 01.07.2010 and by her application dated 17.07.2010 1st Respondent applied for voluntary retirement and retired on 31.07.2010 i.e. much before her normal date of superannuation which was to be 30.06.2011.8. In the meantime, 1st Respondent had filed Writ Petition No. 30948 of 2010 in the High Court challenging the aforesaid order dated 17.05.2010. Said writ petition was disposed of by the High Court on 25.05.2010 giving liberty to 1st Respondent to make a representation ventilating her grievances which were then to be looked into and to be dealt with by passing a reasoned speaking order. A representation so preferred by 1st Respondent was dealt with by Secretary, Department of Basic Education, and by communication dated 29.04.2011 the representation was rejected. It was observed,:The report of the Basic Education Officer, Allahabad and the representation of the Petitioner received through the Director Education (Basic) and after examining them, it is found that Smt. Jaiswal continuously absented herself from her teaching job from 01.08.2001 to 14.05.2010 and during this period, she did not make any serious effort. Therefore, there is no logic in paying the salary for the period between 01.08.2001 to 14.05.2010, when she had absented herself from the work. In the Financial Hand Book Volume-II, Part 2 to 4 and Rule 18 also the theory of no work no pay has been described. Therefore on the basis of aforesaid Rules and the circumstances described above, the representation of the Petitioner is rejected and matter is disposed of.9. The aforesaid communication was challenged by 1st Respondent by filing Writ Petition No. 30513 of 2011 which was allowed by Single Judge of the High Court vide order dated 10.03.2015. The Single Judge set aside the communication dated 29.04.2011 and directed that 1st Respondent was entitled to arrears of salary with effect from 06.09.2002 till the date she resumed her duties i.e. till 15.05.2010 with 81/2 % interest thereon, if paid within three months. If the amount was not paid within three months, 1st Respondent was held entitled to interest at the rate of 12%. She was also awarded costs quantified at Rs. 20,000/-. The order of the Single Judge was put in challenge by the Appellant by filing Special Appeal (Defective) No. 374 of 2015 and by its order dated 21.03.2017, which is presently under appeal the Division Bench of the High Court dismissed said special appeal.10. While issuing notice, this Court stayed the operation of the judgment and order under appeal, whereafter pleadings were exchanged. We heard Mr. Rakesh Mishra, learned Advocate for the Appellant while the legal representatives of 1st Respondent were represented by Mr. Sanjay Singh, learned Advocate. It was contended by the Appellant that after 31.07.2001 1st Respondent had worked only for a period of 36 days but under the orders of the High Court she was to be paid salary for the entire period from 06.09.2002 till 15.05.2010. It was further submitted that the Department had regularly been paying the pension to 1st Respondent from her retirement on 31.07.2010.11. The facts on record are clear that despite the requisition dated 19.10.2002 by the Appellant requesting Chief Medical Officer, Allahabad for medically examining 1st Respondent to certify her fitness and subsequent requests, no such report was sent to the Department. The writ petition filed by 1st Respondent in the year 2006 was dismissed for non-appearance and no further steps were taken to revive the petition. When 1st Respondent appeared before the Appellant, the order dated 14.01.2010 records that she was unable to stand on her own and she was not fit for teaching job. It is true that pursuant to the order issued by the High Court, a medical test was conducted by Chief Medical Officer, Allahabad who found 1st Respondent to be unable to stand on her legs for long but found her to be capable of teaching. In accordance with the orders issued by the High Court 1st Respondent was ordered to be reinstated and did join the Institution on 15.05.2010, shortly whereafter there was a summer break. After she rejoined on 01.07.2010, within few days she applied for voluntary retirement. These facts certainly indicate the physical discomfort and disinclination on part of 1st Respondent. The facts further show that right from 2002 no serious effort was made by 1st Respondent to pursue her legal rights. The first action in point of time was in the year 2006 which culminated in dismissal of writ petition in default. In the face of these facts, the order passed by the Appellant holding 1st Respondent not to be entitled to any salary in respect of period of absence was correct and justified. The effect of the orders passed by the High Court, on the other hand, is that 1st Respondent is to be paid salary for nearly 10 years when in reality she had actually worked for only 36 days during that period. She herself sought pre-mature voluntary retirement and was allowed to retire and was extended all retired benefits.

1[ds]11. The facts on record are clear that despite the requisition dated 19.10.2002 by the Appellant requesting Chief Medical Officer, Allahabad for medically examining 1st Respondent to certify her fitness and subsequent requests, no such report was sent to the Department. The writ petition filed by 1st Respondent in the year 2006 was dismissed for non-appearance and no further steps were taken to revive the petition. When 1st Respondent appeared before the Appellant, the order dated 14.01.2010 records that she was unable to stand on her own and she was not fit for teaching job. It is true that pursuant to the order issued by the High Court, a medical test was conducted by Chief Medical Officer, Allahabad who found 1st Respondent to be unable to stand on her legs for long but found her to be capable of teaching. In accordance with the orders issued by the High Court 1st Respondent was ordered to be reinstated and did join the Institution on 15.05.2010, shortly whereafter there was a summer break. After she rejoined on 01.07.2010, within few days she applied for voluntary retirement. These facts certainly indicate the physical discomfort and disinclination on part of 1st Respondent. The facts further show that right from 2002 no serious effort was made by 1st Respondent to pursue her legal rights. The first action in point of time was in the year 2006 which culminated in dismissal of writ petition in default. In the face of these facts, the order passed by the Appellant holding 1st Respondent not to be entitled to any salary in respect of period of absence was correct and justified. The effect of the orders passed by the High Court, on the other hand, is that 1st Respondent is to be paid salary for nearly 10 years when in reality she had actually worked for only 36 days during that period. She herself sought pre-mature voluntary retirement and was allowed to retire and was extended all retired benefits.

### 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: fit for teaching job. Based on this report, the High Court vide its order dated 21.04.2010 directed that 1st Respondent be reinstated and in so far as the period of absence was concerned an appropriate order in accordance with law be passed by the Appellant.7. In compliance of the order dated 21.04.2010, the Appellant vide order dated 05.05.2010 directed 1st Respondent to join services in Junior High School of Lohandi, Block-Karchhana, Allahabad as no post was available in her former School namely Junior High School, Dandupur, Chaka, Allahabad. Accordingly, 1st Respondent joined the services on 15.05.2010. On 17.05.2010 an order was passed by the Appellant treating the period between 01.08.2001 to 14.05.2010 as period of absence and directed that 1st Respondent was not entitled to payment of salary for that period on the basis of "no work no pay" as per the provisions of UP Financial Handbook and concerned rules. 1st Respondent who had joined on 15.05.2010 worked till 20.05.2010 whereafter the School closed for summer vacation. It re-opened on 01.07.2010 and by her application dated 17.07.2010 1st Respondent applied for voluntary retirement and retired on 31.07.2010 i.e. much before her normal date of superannuation which was to be 30.06.2011.8. In the meantime, 1st Respondent had filed Writ Petition No. 30948 of 2010 in the High Court challenging the aforesaid order dated 17.05.2010. Said writ petition was disposed of by the High Court on 25.05.2010 giving liberty to 1st Respondent to make a representation ventilating her grievances which were then to be looked into and to be dealt with by passing a reasoned speaking order. A representation so preferred by 1st Respondent was dealt with by Secretary, Department of Basic Education, and by communication dated 29.04.2011 the representation was rejected. It was observed,:The report of the Basic Education Officer, Allahabad and the representation of the Petitioner received through the Director Education (Basic) and after examining them, it is found that Smt. Jaiswal continuously absented herself from her teaching job from 01.08.2001 to 14.05.2010 and during this period, she did not make any serious effort. Therefore, there is no logic in paying the salary for the period between 01.08.2001 to 14.05.2010, when she had absented herself from the work. In the Financial Hand Book Volume-II, Part 2 to 4 and Rule 18 also the theory of no work no pay has been described. Therefore on the basis of aforesaid Rules and the circumstances described above, the representation of the Petitioner is rejected and matter is disposed of.9. The aforesaid communication was challenged by 1st Respondent by filing Writ Petition No. 30513 of 2011 which was allowed by Single Judge of the High Court vide order dated 10.03.2015. The Single Judge set aside the communication dated 29.04.2011 and directed that 1st Respondent was entitled to arrears of salary with effect from 06.09.2002 till the date she resumed her duties i.e. till 15.05.2010 with 81/2 % interest thereon, if paid within three months. If the amount was not paid within three months, 1st Respondent was held entitled to interest at the rate of 12%. She was also awarded costs quantified at Rs. 20,000/-. The order of the Single Judge was put in challenge by the Appellant by filing Special Appeal (Defective) No. 374 of 2015 and by its order dated 21.03.2017, which is presently under appeal the Division Bench of the High Court dismissed said special appeal.10. While issuing notice, this Court stayed the operation of the judgment and order under appeal, whereafter pleadings were exchanged. We heard Mr. Rakesh Mishra, learned Advocate for the Appellant while the legal representatives of 1st Respondent were represented by Mr. Sanjay Singh, learned Advocate. It was contended by the Appellant that after 31.07.2001 1st Respondent had worked only for a period of 36 days but under the orders of the High Court she was to be paid salary for the entire period from 06.09.2002 till 15.05.2010. It was further submitted that the Department had regularly been paying the pension to 1st Respondent from her retirement on 31.07.2010.11. The facts on record are clear that despite the requisition dated 19.10.2002 by the Appellant requesting Chief Medical Officer, Allahabad for medically examining 1st Respondent to certify her fitness and subsequent requests, no such report was sent to the Department. The writ petition filed by 1st Respondent in the year 2006 was dismissed for non-appearance and no further steps were taken to revive the petition. When 1st Respondent appeared before the Appellant, the order dated 14.01.2010 records that she was unable to stand on her own and she was not fit for teaching job. It is true that pursuant to the order issued by the High Court, a medical test was conducted by Chief Medical Officer, Allahabad who found 1st Respondent to be unable to stand on her legs for long but found her to be capable of teaching. In accordance with the orders issued by the High Court 1st Respondent was ordered to be reinstated and did join the Institution on 15.05.2010, shortly whereafter there was a summer break. After she rejoined on 01.07.2010, within few days she applied for voluntary retirement. These facts certainly indicate the physical discomfort and disinclination on part of 1st Respondent. The facts further show that right from 2002 no serious effort was made by 1st Respondent to pursue her legal rights. The first action in point of time was in the year 2006 which culminated in dismissal of writ petition in default. In the face of these facts, the order passed by the Appellant holding 1st Respondent not to be entitled to any salary in respect of period of absence was correct and justified. The effect of the orders passed by the High Court, on the other hand, is that 1st Respondent is to be paid salary for nearly 10 years when in reality she had actually worked for only 36 days during that period. She herself sought pre-mature voluntary retirement and was allowed to retire and was extended all retired benefits. ### Response: 1 ### Explanation: 11. The facts on record are clear that despite the requisition dated 19.10.2002 by the Appellant requesting Chief Medical Officer, Allahabad for medically examining 1st Respondent to certify her fitness and subsequent requests, no such report was sent to the Department. The writ petition filed by 1st Respondent in the year 2006 was dismissed for non-appearance and no further steps were taken to revive the petition. When 1st Respondent appeared before the Appellant, the order dated 14.01.2010 records that she was unable to stand on her own and she was not fit for teaching job. It is true that pursuant to the order issued by the High Court, a medical test was conducted by Chief Medical Officer, Allahabad who found 1st Respondent to be unable to stand on her legs for long but found her to be capable of teaching. In accordance with the orders issued by the High Court 1st Respondent was ordered to be reinstated and did join the Institution on 15.05.2010, shortly whereafter there was a summer break. After she rejoined on 01.07.2010, within few days she applied for voluntary retirement. These facts certainly indicate the physical discomfort and disinclination on part of 1st Respondent. The facts further show that right from 2002 no serious effort was made by 1st Respondent to pursue her legal rights. The first action in point of time was in the year 2006 which culminated in dismissal of writ petition in default. In the face of these facts, the order passed by the Appellant holding 1st Respondent not to be entitled to any salary in respect of period of absence was correct and justified. The effect of the orders passed by the High Court, on the other hand, is that 1st Respondent is to be paid salary for nearly 10 years when in reality she had actually worked for only 36 days during that period. She herself sought pre-mature voluntary retirement and was allowed to retire and was extended all retired benefits.

Khandesh Spg. & Wvg. Mills Co. Ltd Vs. The Rashtriya Girni Kamgar Sangh,Jalgaon

p. 1086 of AIR), thus:"Moreover, no objection was urged in this behalf, nor was any finding to the contrary recorded by the tribunal."In that case it was conceded that the reserves were in fact used as working capital. It is suggested that the learned Judge solely relied upon the relevant items in the balance-sheet in support of his conclusion and that the said observation was only an additional ground given by him, but we are inclined to think that the Court would not have accepted the items in the balance-sheet as proof of user if it was not satisfied that no objection was taken in that behalf. In Tata Oil Mills Company Ltd. v. Its Workmen, 1959-2 Lab LJ 250 at p. 256: (AIR 1959 SC 1065 at p. 1070), a similar question was raised. It was contended by the labour in that case that the depreciation reserve was not used as working capital and therefore no return should be allowed on the said reserve. The Chief Accountant of the Company made an affidavit on behalf of the Company that the said depreciation reserve, along with others, had been used as working capital. This Court accepted the affidavit for the year in question, but made the following observations for future guidance:"It will, however, be open to the workmen in future to show by proper cross-examination of the companys witnesses or by proper evidence that the amount shown as the depreciation reserve was not available in whole or in part to be used as working capital and that whatever may be available was not in fact so used in the sense explained above. In the present appeal, however, we must accept the affidavit of the chief accountant."These observations also recognized the necessity to give an opportunity to the workmen to cross-examine the witnesses put forward by the management to prove the user of any particular reserve as working capital. This Court once again dealt with the same subject in Anil Starch Products Ltd. v. Ahmedabad Chemical Workers Union. Civil Appeal No. 684 of 1957 (S.C). That appeal also raised the question whether return should be allowed on the depreciation reserve used as working capital. It was contended for the labour in that case that the depreciation reserve was not used as working capital. Rejecting the said contention, Wanchoo, J., observed:"It is enough to say in that connection that an affidavit was filed by the manager of the company to the effect that all its reserves including the depreciation fund had been used as working capital. The Manager appeared as a witness for the company before the Tribunal and swore that the affidavit made by him was correct. He was cross-examined as to the amount required for rehabilitation, which was also given by him in that affidavit; but no question was put to him to challenge his statement that the entire depreciation reserve had been used as working capital ........In the circumstances, we must accept the affidavit so far as the present year is concerned and hold that the working capital was Rs. 34 lacs."Notwithstanding the said finding, the learned Judge took care to reserve the rights of the workmen in future by making the following observations:"It will, however, be open to the workmen in future to show by proper cross-examination of the companys witnesses or by proper evidence that the amount shown as depreciation reserve was not available in whole or in part as explained above to be used as working capital and that whatever was available was not in fact so used."This judgment again reinforces the view of this Court that proper opportunity should be given to the labour to test the correctness of the evidence given on affidavit on behalf of the management in regard to the user of the reserves as working capital.11. What is the position in the present case? It is not suggested that there is any reserve which has been reasonably earmarked to discharge a contractual or statutory obligation. We are only concerned with general reserves. The learned Solicitor General contends that the balance-sheet discloses that the entire reserves have been used as working capital and that the respondent did not canvass this position in the statement filed by it before the Industrial Court. We have already pointed out that the balance-sheet, without its being proved by a person competent to do so, cannot prove that any reserves have been utilised as working capital. In the written-statement filed by the appellant before the Industrial Court, no specific allegation is made that the reserves were utilised as working capital, though in its statement of calculations the said reserves were not excluded from the amount claimed towards rehabilitation. As there is no specific allegation, the respondent also in its statement did not deny the said fact, but in its statement of calculations it did not deduct the reserves from the rehabilitation amount, Therefore, it must be held that the respondent did not accept the position that the reserve funds were utilised as working capital. Strong reliance is placed upon the evidence of the General Superintendent of the appellant-Company, but a persual of that evidence discloses that the said witness has not deposed that the Company used the reserves as working capital; nor does the said witness seek to prove either the balance-sheet or any extract taken therefrom. In the circumstances, the respondent had no opportunity to cross-examine him in respect of the alleged user of the reserves. For the aforesaid reasons, we have no option but to hold that Rs. 51 lakhs representing the reserves were not used as working capital and, therefore, the said amount was rightly deducted by the Industrial Court from Rs. 60 lakhs fixed by it towards rehabilitation. As the balance of Rs. 9 lakhs spread over 15 years came to only Rs. 60,000 during the bonus year and as the statutory depreciation was Rs. 83,639, the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus.

0[ds]These observations did not record any finding that the reserves were used as working capital. It was only an assumption made by the Industrial Court, as, in the view taken by it, it was immaterial whether the reserves were used as working capital or not. We do not think that the aforesaid opinion expressed by the Industrial Court is sound. In ascertaining the surplus for the purpose of fixing the bonus for a particular year, the state of affairs in that year is the guiding factor. If a subsequent year any part of the reserves used as working capital is released, that amount will have to be taken into account in ascertaining the surplus for that year and so on for subsequent years: otherwise it will lead to the anomaly of the reserves being excluded from the amount required for rehabilitation, though as a matter of fact the entire reserves were utilised as working capital, and though in future years they were expected to be released but in fact not so released. This would lead to a result inconsistent with the decisions on the subject which have clearly laid down that the reserves which have been used as working capital shall not be deducted from the amount fixed fordo not think that by using the said words this Court meant to depart from the well-recognized principle that if the general reserves have not been used as working capital, they cannot be deducted from the rehabilitation amount. The reserves may be of two kinds. Moneys may be set apart by a company to meet future payments which the company is under a contractual or statutory obligation to meet, such as gratuity etc. These amounts are set apart and tied down for a specific purpose and,. therefore, they are not available to the employer for rehabilitation purposes. But the same thing cannot be said of the general reserves: they would be available to the employer unless he has used them as working capital. The use of the words "reasonably earmarked" is also deliberate and significant. The mere nominal allocation for binding purposes, such as gratuity etc., in the companys books is not enough. It must be ascertained by the Industrial Court on the material placed before it whether the said amount is far in excess of the requirements of the particular purpose for which it is so earmarked and whether it is only a device to reduce the claim of the labour for bonus. We do not suggest that it is the duty of the Industrial Court to ascertain the correct or exact figure required for a particular purpose; but it is certainly its duty to discover whether the so-called earmarking for a particular purpose is a device to circumvent the formula. If it is satisfied that there is such a device, it shall deduct that figure in calculating the rehabilitation amount and if possible arrive at a real figure for that purpose. So too, in the case of general reserves when an employer claims that a specific amount reserved has been used as working capital, it is the duty of the Industrial Court to arrive at a finding whether the said reserves, or any part of them, have been used as working capital and, if so, to what extent during the bonus year.Shortly stated before a particular reserve can be deducted from the rehabilitation amount it must be established that it has been reasonably earmarked for a binding purpose or the whole or a part of it has been used as working capital and that only such part of the reserves coming under either of the two heads can be deducted from the saidthe company has specifically earmarked certain amounts for specific binding purposes in 1954 or earlier to meet future binding obligations, such as gratuity etc.; or has reserved amounts for general purposes but not to meet any contractual or statutory obligations and has not utilised the same as working capital. In the former case the amount must be deemed to have been utilised and, therefore, it cannot be deducted from the rehabilitation amount; but in the latter case ,as the said amounts were not utilised by the employer as working capital, they shall be deducted from the rehabilitationburden is obviously on the employer who claims the exclusion of the reserves from the rehabilitation amount on the ground that they are used as working capital or reasonably earmarked for a specific purpose to establish the said facts and to prove the same by relevant and acceptableimportance of this question in the context of fixing the amount required for rehabilitation cannot be over-estimated. The item of rehabilitation is generally a major item that enters into the calculations for the purpose of ascertaining the surplus and, therefore, the amount of bonus. So, there would be a tendency on the part of the employer to inflate this figure and the employees to deflate it. The accounts of a company are prepared by the management. The balance-sheet and the profit and loss account are also prepared by the companys officers. The labour have no concern in it.When so much depends on this item, the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the correctness of the particulars furnished by the employer.8. Cases coming before us disclose that the Industrial Courts and Labour Tribunals are not bestowing so much attention on this aspect of the case as theyis not suggested that there is any reserve which has been reasonably earmarked to discharge a contractual or statutory obligation. We are only concerned with generalhave already pointed out that the balance-sheet, without its being proved by a person competent to do so, cannot prove that any reserves have been utilised as working capital. In the written-statement filed by the appellant before the Industrial Court, no specific allegation is made that the reserves were utilised as working capital, though in its statement of calculations the said reserves were not excluded from the amount claimed towards rehabilitation. As there is no specific allegation, the respondent also in its statement did not deny the said fact, but in its statement of calculations it did not deduct the reserves from the rehabilitation amount, Therefore, it must be held that the respondent did not accept the position that the reserve funds were utilised as working capital. Strong reliance is placed upon the evidence of the General Superintendent of the appellant-Company, but a persual of that evidence discloses that the said witness has not deposed that the Company used the reserves as working capital; nor does the said witness seek to prove either the balance-sheet or any extract taken therefrom. In the circumstances, the respondent had no opportunity to cross-examine him in respect of the alleged user of the reserves. For the aforesaid reasons, we have no option but to hold that Rs. 51 lakhs representing the reserves were not used as working capital and, therefore, the said amount was rightly deducted by the Industrial Court from Rs. 60 lakhs fixed by it towards rehabilitation. As the balance of Rs. 9 lakhs spread over 15 years came to only Rs. 60,000 during the bonus year and as the statutory depreciation was Rs. 83,639, the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus.

### 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: p. 1086 of AIR), thus:"Moreover, no objection was urged in this behalf, nor was any finding to the contrary recorded by the tribunal."In that case it was conceded that the reserves were in fact used as working capital. It is suggested that the learned Judge solely relied upon the relevant items in the balance-sheet in support of his conclusion and that the said observation was only an additional ground given by him, but we are inclined to think that the Court would not have accepted the items in the balance-sheet as proof of user if it was not satisfied that no objection was taken in that behalf. In Tata Oil Mills Company Ltd. v. Its Workmen, 1959-2 Lab LJ 250 at p. 256: (AIR 1959 SC 1065 at p. 1070), a similar question was raised. It was contended by the labour in that case that the depreciation reserve was not used as working capital and therefore no return should be allowed on the said reserve. The Chief Accountant of the Company made an affidavit on behalf of the Company that the said depreciation reserve, along with others, had been used as working capital. This Court accepted the affidavit for the year in question, but made the following observations for future guidance:"It will, however, be open to the workmen in future to show by proper cross-examination of the companys witnesses or by proper evidence that the amount shown as the depreciation reserve was not available in whole or in part to be used as working capital and that whatever may be available was not in fact so used in the sense explained above. In the present appeal, however, we must accept the affidavit of the chief accountant."These observations also recognized the necessity to give an opportunity to the workmen to cross-examine the witnesses put forward by the management to prove the user of any particular reserve as working capital. This Court once again dealt with the same subject in Anil Starch Products Ltd. v. Ahmedabad Chemical Workers Union. Civil Appeal No. 684 of 1957 (S.C). That appeal also raised the question whether return should be allowed on the depreciation reserve used as working capital. It was contended for the labour in that case that the depreciation reserve was not used as working capital. Rejecting the said contention, Wanchoo, J., observed:"It is enough to say in that connection that an affidavit was filed by the manager of the company to the effect that all its reserves including the depreciation fund had been used as working capital. The Manager appeared as a witness for the company before the Tribunal and swore that the affidavit made by him was correct. He was cross-examined as to the amount required for rehabilitation, which was also given by him in that affidavit; but no question was put to him to challenge his statement that the entire depreciation reserve had been used as working capital ........In the circumstances, we must accept the affidavit so far as the present year is concerned and hold that the working capital was Rs. 34 lacs."Notwithstanding the said finding, the learned Judge took care to reserve the rights of the workmen in future by making the following observations:"It will, however, be open to the workmen in future to show by proper cross-examination of the companys witnesses or by proper evidence that the amount shown as depreciation reserve was not available in whole or in part as explained above to be used as working capital and that whatever was available was not in fact so used."This judgment again reinforces the view of this Court that proper opportunity should be given to the labour to test the correctness of the evidence given on affidavit on behalf of the management in regard to the user of the reserves as working capital.11. What is the position in the present case? It is not suggested that there is any reserve which has been reasonably earmarked to discharge a contractual or statutory obligation. We are only concerned with general reserves. The learned Solicitor General contends that the balance-sheet discloses that the entire reserves have been used as working capital and that the respondent did not canvass this position in the statement filed by it before the Industrial Court. We have already pointed out that the balance-sheet, without its being proved by a person competent to do so, cannot prove that any reserves have been utilised as working capital. In the written-statement filed by the appellant before the Industrial Court, no specific allegation is made that the reserves were utilised as working capital, though in its statement of calculations the said reserves were not excluded from the amount claimed towards rehabilitation. As there is no specific allegation, the respondent also in its statement did not deny the said fact, but in its statement of calculations it did not deduct the reserves from the rehabilitation amount, Therefore, it must be held that the respondent did not accept the position that the reserve funds were utilised as working capital. Strong reliance is placed upon the evidence of the General Superintendent of the appellant-Company, but a persual of that evidence discloses that the said witness has not deposed that the Company used the reserves as working capital; nor does the said witness seek to prove either the balance-sheet or any extract taken therefrom. In the circumstances, the respondent had no opportunity to cross-examine him in respect of the alleged user of the reserves. For the aforesaid reasons, we have no option but to hold that Rs. 51 lakhs representing the reserves were not used as working capital and, therefore, the said amount was rightly deducted by the Industrial Court from Rs. 60 lakhs fixed by it towards rehabilitation. As the balance of Rs. 9 lakhs spread over 15 years came to only Rs. 60,000 during the bonus year and as the statutory depreciation was Rs. 83,639, the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus. ### Response: 0 ### Explanation: deducted from the rehabilitation amount. The reserves may be of two kinds. Moneys may be set apart by a company to meet future payments which the company is under a contractual or statutory obligation to meet, such as gratuity etc. These amounts are set apart and tied down for a specific purpose and,. therefore, they are not available to the employer for rehabilitation purposes. But the same thing cannot be said of the general reserves: they would be available to the employer unless he has used them as working capital. The use of the words "reasonably earmarked" is also deliberate and significant. The mere nominal allocation for binding purposes, such as gratuity etc., in the companys books is not enough. It must be ascertained by the Industrial Court on the material placed before it whether the said amount is far in excess of the requirements of the particular purpose for which it is so earmarked and whether it is only a device to reduce the claim of the labour for bonus. We do not suggest that it is the duty of the Industrial Court to ascertain the correct or exact figure required for a particular purpose; but it is certainly its duty to discover whether the so-called earmarking for a particular purpose is a device to circumvent the formula. If it is satisfied that there is such a device, it shall deduct that figure in calculating the rehabilitation amount and if possible arrive at a real figure for that purpose. So too, in the case of general reserves when an employer claims that a specific amount reserved has been used as working capital, it is the duty of the Industrial Court to arrive at a finding whether the said reserves, or any part of them, have been used as working capital and, if so, to what extent during the bonus year.Shortly stated before a particular reserve can be deducted from the rehabilitation amount it must be established that it has been reasonably earmarked for a binding purpose or the whole or a part of it has been used as working capital and that only such part of the reserves coming under either of the two heads can be deducted from the saidthe company has specifically earmarked certain amounts for specific binding purposes in 1954 or earlier to meet future binding obligations, such as gratuity etc.; or has reserved amounts for general purposes but not to meet any contractual or statutory obligations and has not utilised the same as working capital. In the former case the amount must be deemed to have been utilised and, therefore, it cannot be deducted from the rehabilitation amount; but in the latter case ,as the said amounts were not utilised by the employer as working capital, they shall be deducted from the rehabilitationburden is obviously on the employer who claims the exclusion of the reserves from the rehabilitation amount on the ground that they are used as working capital or reasonably earmarked for a specific purpose to establish the said facts and to prove the same by relevant and acceptableimportance of this question in the context of fixing the amount required for rehabilitation cannot be over-estimated. The item of rehabilitation is generally a major item that enters into the calculations for the purpose of ascertaining the surplus and, therefore, the amount of bonus. So, there would be a tendency on the part of the employer to inflate this figure and the employees to deflate it. The accounts of a company are prepared by the management. The balance-sheet and the profit and loss account are also prepared by the companys officers. The labour have no concern in it.When so much depends on this item, the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the correctness of the particulars furnished by the employer.8. Cases coming before us disclose that the Industrial Courts and Labour Tribunals are not bestowing so much attention on this aspect of the case as theyis not suggested that there is any reserve which has been reasonably earmarked to discharge a contractual or statutory obligation. We are only concerned with generalhave already pointed out that the balance-sheet, without its being proved by a person competent to do so, cannot prove that any reserves have been utilised as working capital. In the written-statement filed by the appellant before the Industrial Court, no specific allegation is made that the reserves were utilised as working capital, though in its statement of calculations the said reserves were not excluded from the amount claimed towards rehabilitation. As there is no specific allegation, the respondent also in its statement did not deny the said fact, but in its statement of calculations it did not deduct the reserves from the rehabilitation amount, Therefore, it must be held that the respondent did not accept the position that the reserve funds were utilised as working capital. Strong reliance is placed upon the evidence of the General Superintendent of the appellant-Company, but a persual of that evidence discloses that the said witness has not deposed that the Company used the reserves as working capital; nor does the said witness seek to prove either the balance-sheet or any extract taken therefrom. In the circumstances, the respondent had no opportunity to cross-examine him in respect of the alleged user of the reserves. For the aforesaid reasons, we have no option but to hold that Rs. 51 lakhs representing the reserves were not used as working capital and, therefore, the said amount was rightly deducted by the Industrial Court from Rs. 60 lakhs fixed by it towards rehabilitation. As the balance of Rs. 9 lakhs spread over 15 years came to only Rs. 60,000 during the bonus year and as the statutory depreciation was Rs. 83,639, the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus.

Real Value Appliances Limited Vs. Vardhaman Spinning & General Mills Limited

or to cause an inquiry to be made into any industrial company under sub-section (1), which naturally can be only after application of mind by the Board to the facts and circumstances of the case and in case of a reference by the industrial company, on consideration thereof. Inquiry under section 16 cannot commence merely on filing of a reference or registration of the same by the Registrar or the Secretary.15. This view of ours also gets support from the proviso to sub-section (3) of section 16 which enacts a legal fiction for the purpose of that sub-section that an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board. This legal fiction has been created for the purpose of sub-section (3) only and it cannot be expanded beyond that. By specifically providing that it was only for the purposes of sub-section (3) of section 16, the legislature has made its intention abundantly clear. Hence, for the purposes of the Act (except sub-section (3) of section (16) something more is necessary to commence an inquiry and that something is the opinion of the Board, formed on an application of mind to the reference or the information, that the case is a fit one to make an inquiry. This is also clear from Chapters II and III of the BIFR Regulations. Regulation 19 deals with reference under section 15. It provides for filing of the reference, scrutiny of same by the Secretary or the Registrar, registration of the same by them if found to be in order and refusal to register the same if it is not found to be in order. It is made clear that a reference declined to be registered shall be deemed not to have been made. Appeal is also provided against the order declining to register a reference. Chapter III contains general provisions regarding inquiry. Chapter IV deals with the manner of inquiry.Regulation 21 is important. It reads :"21. Upon a reference with respect to an industrial company under section 15 or upon information received with respect to such company, or upon its own knowledge as to the financial condition of the company, the Board may --(a) itself make such inquiry, as it may deem fit, for determining whether the industrial company has become a sick industrial company; or(b) if it deems necessary or expedient so to do, for the expeditious disposal of inquiry mentioned at (a) above, direct by an order, an operating agency, to be specified in the order, to enquire into and make a report with respect to such matters, as may be specified in the order :Provided that reasonable opportunity for making submissions shall be given by the Board to the informant, and to the concerned industrial company, if it is not the informant, before deciding whether the said company has become a sick industrial company or not."It is clear from Regulation 21 that after registration of the reference under section 15, the first step, is to determine or decide whether to make inquiry or to direct the operating agency to do the same. That being so, an inquiry under section 16 can be said to have commenced only when the Bench of the BIFR, to which the reference is assigned by the Chairman after its registration, deems it fit to make an inquiry or to cause an inquiry to be made by the operating agency. Till that stage, it is merely a reference registered by the office of the Board. It cannot be said that an inquiry has commenced and is pending.16. We are strengthened in our above conclusion by Clause 4 of the 1992 Guidelines of the BIFR, which deals with "Procedure in BIFR" where it is categorically stated :"4.2.1 The inquiry is made under section 16 of the Act.4.2.2 The inquiry commences with the hearing of the parties invited by the Bench as per notice issued."(Emphasis supplied)17. From the foregoing discussion, it is clear that inquiry under section 16 can be said to have commenced only when an inquiry is ordered by the Board and at that stage only legal proceedings set out in sub-section (1) of section 22 of the Sick Industrial Companies Act would be suspended. We are supported in our above conclusion by the following observations of the Supreme Court in (Gram Panchayat v. Shree Vallabh Glass Works Ltd.)7, 1990(3) Bom.C.R. 109 :1990 Bank.J. 595 (S.C.) : 1991(71) Comp. Cas. 169."As soon as the inquiry under section 16 is ordered by the Board, the various proceedings set out under sub-section (1) of section 22 would be deemed to have been suspended."18. We are also supported in our above conclusion by the decision of the Calcutta High Court in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), wherein the Division Bench of the Calcutta High Court held that inquiry under section 16 of the Sick Industrial Companies Act cannot be said to be pending merely because reference is filed. In the above case, the Calcutta High Court was of the opinion that inquiry under section 16 commences only on the Board taking a decision under sub-section (1) of section 16 to hold a cause an inquiry to be held.19. We have also perused the two Single-Judge decisions of this Court in Oman International Bank S.A.O.G. v. M/s. Madalsa International Ltd. (supra) and Central Bank of India v. Madalasa International Ltd. (supra) where, following the Calcutta High Court decision in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), it has been held that by mere filing of a reference under section 15 or registration of the same, it cannot be said that inquiry has commenced and is pending. We are in agreement with the above conclusion.20. In view of the foregoing discussion, we are of the clear opinion that in the facts and circumstances of the present case, section 22 of the Sick Industrial Companies Act had no application.

0[ds]18. We are also supported in our above conclusion by the decision of the Calcutta High Court in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), wherein the Division Bench of the Calcutta High Court held that inquiry under section 16 of the Sick Industrial Companies Act cannot be said to be pending merely because reference is filed. In the above case, the Calcutta High Court was of the opinion that inquiry under section 16 commences only on the Board taking a decision under(1) of section 16 to hold a cause an inquiry to be held.19. We have also perused the twodecisions of this Court in Oman International Bank S.A.O.G. v. M/s. Madalsa International Ltd. (supra) and Central Bank of India v. Madalasa International Ltd. (supra) where, following the Calcutta High Court decision in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), it has been held that by mere filing of a reference under section 15 or registration of the same, it cannot be said that inquiry has commenced and is pending. We are in agreement with the above conclusion.From the foregoing discussion, it is clear that inquiry under section 16 can be said to have commenced only when an inquiry is ordered by the Board and at that stage only legal proceedings set out in(1) of section 22 of the Sick Industrial Companies Act would be suspended. We are supported in our above conclusion by the following observations of the Supreme Court in (Gram Panchayat v. Shree Vallabh Glass Works Ltd.)7, 1990(3) Bom.C.R. 109 :1990 Bank.J. 595 (S.C.) : 1991(71) Comp. Cas. 169."As soon as the inquiry under section 16 is ordered by the Board, the various proceedings set out under(1) of section 22 would be deemed to have been suspended.It is clear from a perusal of the above provisions of section 1516 that there is a material difference between reference and inquiry. When a reference under(1) of section 15 is made to the BIFR and it is found to be in order, it is registered. This is done by the Secretary or the Registrar of the BIFR. After registration, it has to be placed before the Chairman of the BIFR for assigning it to a Bench. Thereafter only the question of inquiry can arise, because power to conduct inquiry under section 16 is vested in the Board and not in the Secretary or Registrar of the BIFR. The expression used in section 22 is "an inquiry under section 16 is pending". The power to commence and conduct an inquiry under section 16 is vested only in the Board, which means the Board for Industrial and Financial Reconstruction established under section 4, comprising of the Chairman and the members. Registrar or the Secretary of the BIFR is not "Board". It is when only the Bench of not less than 2 members, to which the reference is assigned by the Chairman of the Board, takes up the matter and decides to make such inquiry as it may deem fit, that inquiry can be said to have commenced. It is thus clear that inquiry under section 16 commences only when the Board deems it fit to make an inquiry or to cause an inquiry to be made into any industrial company under(1), which naturally can be only after application of mind by the Board to the facts and circumstances of the case and in case of a reference by the industrial company, on consideration thereof. Inquiry under section 16 cannot commence merely on filing of a reference or registration of the same by the Registrar or the Secretary.15. This view of ours also gets support from the proviso to(3) of section 16 which enacts a legal fiction for the purpose of thatthat an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board.

### 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: or to cause an inquiry to be made into any industrial company under sub-section (1), which naturally can be only after application of mind by the Board to the facts and circumstances of the case and in case of a reference by the industrial company, on consideration thereof. Inquiry under section 16 cannot commence merely on filing of a reference or registration of the same by the Registrar or the Secretary.15. This view of ours also gets support from the proviso to sub-section (3) of section 16 which enacts a legal fiction for the purpose of that sub-section that an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board. This legal fiction has been created for the purpose of sub-section (3) only and it cannot be expanded beyond that. By specifically providing that it was only for the purposes of sub-section (3) of section 16, the legislature has made its intention abundantly clear. Hence, for the purposes of the Act (except sub-section (3) of section (16) something more is necessary to commence an inquiry and that something is the opinion of the Board, formed on an application of mind to the reference or the information, that the case is a fit one to make an inquiry. This is also clear from Chapters II and III of the BIFR Regulations. Regulation 19 deals with reference under section 15. It provides for filing of the reference, scrutiny of same by the Secretary or the Registrar, registration of the same by them if found to be in order and refusal to register the same if it is not found to be in order. It is made clear that a reference declined to be registered shall be deemed not to have been made. Appeal is also provided against the order declining to register a reference. Chapter III contains general provisions regarding inquiry. Chapter IV deals with the manner of inquiry.Regulation 21 is important. It reads :"21. Upon a reference with respect to an industrial company under section 15 or upon information received with respect to such company, or upon its own knowledge as to the financial condition of the company, the Board may --(a) itself make such inquiry, as it may deem fit, for determining whether the industrial company has become a sick industrial company; or(b) if it deems necessary or expedient so to do, for the expeditious disposal of inquiry mentioned at (a) above, direct by an order, an operating agency, to be specified in the order, to enquire into and make a report with respect to such matters, as may be specified in the order :Provided that reasonable opportunity for making submissions shall be given by the Board to the informant, and to the concerned industrial company, if it is not the informant, before deciding whether the said company has become a sick industrial company or not."It is clear from Regulation 21 that after registration of the reference under section 15, the first step, is to determine or decide whether to make inquiry or to direct the operating agency to do the same. That being so, an inquiry under section 16 can be said to have commenced only when the Bench of the BIFR, to which the reference is assigned by the Chairman after its registration, deems it fit to make an inquiry or to cause an inquiry to be made by the operating agency. Till that stage, it is merely a reference registered by the office of the Board. It cannot be said that an inquiry has commenced and is pending.16. We are strengthened in our above conclusion by Clause 4 of the 1992 Guidelines of the BIFR, which deals with "Procedure in BIFR" where it is categorically stated :"4.2.1 The inquiry is made under section 16 of the Act.4.2.2 The inquiry commences with the hearing of the parties invited by the Bench as per notice issued."(Emphasis supplied)17. From the foregoing discussion, it is clear that inquiry under section 16 can be said to have commenced only when an inquiry is ordered by the Board and at that stage only legal proceedings set out in sub-section (1) of section 22 of the Sick Industrial Companies Act would be suspended. We are supported in our above conclusion by the following observations of the Supreme Court in (Gram Panchayat v. Shree Vallabh Glass Works Ltd.)7, 1990(3) Bom.C.R. 109 :1990 Bank.J. 595 (S.C.) : 1991(71) Comp. Cas. 169."As soon as the inquiry under section 16 is ordered by the Board, the various proceedings set out under sub-section (1) of section 22 would be deemed to have been suspended."18. We are also supported in our above conclusion by the decision of the Calcutta High Court in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), wherein the Division Bench of the Calcutta High Court held that inquiry under section 16 of the Sick Industrial Companies Act cannot be said to be pending merely because reference is filed. In the above case, the Calcutta High Court was of the opinion that inquiry under section 16 commences only on the Board taking a decision under sub-section (1) of section 16 to hold a cause an inquiry to be held.19. We have also perused the two Single-Judge decisions of this Court in Oman International Bank S.A.O.G. v. M/s. Madalsa International Ltd. (supra) and Central Bank of India v. Madalasa International Ltd. (supra) where, following the Calcutta High Court decision in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), it has been held that by mere filing of a reference under section 15 or registration of the same, it cannot be said that inquiry has commenced and is pending. We are in agreement with the above conclusion.20. In view of the foregoing discussion, we are of the clear opinion that in the facts and circumstances of the present case, section 22 of the Sick Industrial Companies Act had no application. ### Response: 0 ### Explanation: 18. We are also supported in our above conclusion by the decision of the Calcutta High Court in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), wherein the Division Bench of the Calcutta High Court held that inquiry under section 16 of the Sick Industrial Companies Act cannot be said to be pending merely because reference is filed. In the above case, the Calcutta High Court was of the opinion that inquiry under section 16 commences only on the Board taking a decision under(1) of section 16 to hold a cause an inquiry to be held.19. We have also perused the twodecisions of this Court in Oman International Bank S.A.O.G. v. M/s. Madalsa International Ltd. (supra) and Central Bank of India v. Madalasa International Ltd. (supra) where, following the Calcutta High Court decision in Bengal Lamps Ltd. v. Furmanite Nico Ltd. (supra), it has been held that by mere filing of a reference under section 15 or registration of the same, it cannot be said that inquiry has commenced and is pending. We are in agreement with the above conclusion.From the foregoing discussion, it is clear that inquiry under section 16 can be said to have commenced only when an inquiry is ordered by the Board and at that stage only legal proceedings set out in(1) of section 22 of the Sick Industrial Companies Act would be suspended. We are supported in our above conclusion by the following observations of the Supreme Court in (Gram Panchayat v. Shree Vallabh Glass Works Ltd.)7, 1990(3) Bom.C.R. 109 :1990 Bank.J. 595 (S.C.) : 1991(71) Comp. Cas. 169."As soon as the inquiry under section 16 is ordered by the Board, the various proceedings set out under(1) of section 22 would be deemed to have been suspended.It is clear from a perusal of the above provisions of section 1516 that there is a material difference between reference and inquiry. When a reference under(1) of section 15 is made to the BIFR and it is found to be in order, it is registered. This is done by the Secretary or the Registrar of the BIFR. After registration, it has to be placed before the Chairman of the BIFR for assigning it to a Bench. Thereafter only the question of inquiry can arise, because power to conduct inquiry under section 16 is vested in the Board and not in the Secretary or Registrar of the BIFR. The expression used in section 22 is "an inquiry under section 16 is pending". The power to commence and conduct an inquiry under section 16 is vested only in the Board, which means the Board for Industrial and Financial Reconstruction established under section 4, comprising of the Chairman and the members. Registrar or the Secretary of the BIFR is not "Board". It is when only the Bench of not less than 2 members, to which the reference is assigned by the Chairman of the Board, takes up the matter and decides to make such inquiry as it may deem fit, that inquiry can be said to have commenced. It is thus clear that inquiry under section 16 commences only when the Board deems it fit to make an inquiry or to cause an inquiry to be made into any industrial company under(1), which naturally can be only after application of mind by the Board to the facts and circumstances of the case and in case of a reference by the industrial company, on consideration thereof. Inquiry under section 16 cannot commence merely on filing of a reference or registration of the same by the Registrar or the Secretary.15. This view of ours also gets support from the proviso to(3) of section 16 which enacts a legal fiction for the purpose of thatthat an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board.

Subhaschandra Balchandra Badjate Vs. The Director General

petitioner in such a case these provisions need to be kept in mind. Circumstance of fraud mentioned in section 11-A (4) of the Central Excise Act is prima facie made out in the present matter. There is prima facie case for evasion of estate duty and also non payment of income tax on the income made by utilizing aforesaid modus operandi. Thus not only the duty payable is to be ascertained under the present Act but the Income Tax authorities need to take action in present case. The provisions of sections 11, 11A, 11AA, 11E etc. are independent of the provisions giving power of confiscation. Provision of Section 226(4) and (5) of the Income Tax Act need to be kept in mind by officers of the Central Excise and it is their duty to see that in such cases information is given to the Income Tax Department also. When such matter comes before Court it is also duty of the Court to see that the Income Tax Department is heard in such a case and intimation of the incident is given to the Income Tax Department also. In view of these circumstances, this Court holds that the amount cannot be returned to the petitioner. Returning of the amount will amount to virtually disposing of the property which can also be attached under the aforesaid provisions. This Court has no hesitation to hold that the amount cannot be returned to the present petitioner and so he is not entitled to such a relief. Learned counsel for the Department has placed reliance on a case reported as AIR 1974 SC 348 (Pooran Mal v. Director of Inspection).29. The relief of quashing the adjudication proceeding started against the present petitioner also cannot be given to the petitioner in view of the material already discussed. The material is sufficient to make out a prima facie case that he was involved in running of the business and he was collecting money, sale proceeds in respect of the excisable goods. He was actively involved in evasion of the excise duty. Thus the proceeding of confiscation and imposition of penalty can go on against him. The learned counsel for the Department has placed reliance on the following cases reported as (1) 1997 (96) E.L.T. 21 (S.C.) (Union of India v. Polar Marmo Agglomerates Ltd); and, (2) AIR 2004 SC 3328 (Commissioner of Customs v. M/s Charminar Nonwovens Ltd.).30. The submission for the present petitioner that his arrest was illegal and the offence is bailable is also not acceptable. The material collected shows that false record was created for evasion of excise duty. Thus, it is a case of forgery and fraud also. There has been evasion of excise duty in respect of goods worth more than Rs.140 crore. Provisions of sections 9, 9-A and 9-AA of the Central Excise Act show that this offence is cognizable and non bailable. The duty evaded apparently exceeded Rs.50 lakh (for old provision Rs. 30 lakh) and there is such specific allegation of the Department. When a case is filed in Criminal Court, the Court has also power to forfeit such amount and that can be seen in the provisions of the Code of Criminal Procedure and also section 110 of the Central Excise Act. The learned counsel for the Department has placed reliance on a case of Rajasthan High Court reported as (2006) 202 CTR Raj 231 (Harvest Gold Food (India) Pvt. v. Union of India).31. The provision of Section 13 of the Central Excise Act shows that there is a power to Excise Officer not below the rank of Inspector to arrest the person like present petitioner involved in such offence if he has authorization as provided in section 13 of the Act. The provision of section 14 of the Act shows that there is power to the empowered officer to issue summons to a person like present petitioner and call him to the office. Section 14(2) of the Act shows that persons so summoned is bound to comply with the summons and the conditions of the summons. Provision of Section 18 gives procedure for such an arrest. Provision of Section 19 of this Act runs as under:-"19. Disposal of persons arrested.-- Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station."32. In the present case summons was served on the petitioner and he was called to Pune to appear before the empowered officer. He failed to comply with this summons. Authorization of arrest was then given. It is submitted for the Department that Excise Officer empowered to arrest person like the petitioner was at Pune and so the petitioner was taken to Pune. Admittedly the petitioner was produced before the Magistrate from Pune by such empowered officer and within the prescribed period. It is non bailable offence and the Magistrate refused bail to the two sons of the present petitioner. Even the Sessions Court refused bail and the High Court granted bail subject to aforesaid conditions to the sons of the petitioner. Only due to the circumstance like petitioners old age, the Magistrate granted him bail. Therefore the submissions that the petitioner ought to have been taken to the nearest police station and he should have been produced before the Magistrate at Jalna cannot be given much weight and these circumstances cannot be used against the Department. The competent officer at Pune has the power under section 21 of the Act which is similar to the power of the officer in charge of a police station. Such officer produced the petitioner before the Magistrate of Pune and within the prescribed period. There is provision in the Act like section 22 taking care of search, seizure etc. Thus no relief as claimed by the petitioner can be given in the present case.

0[ds]28. Though the aforesaid position of law is in favour of the petitioner, the other circumstances of the present case cannot be ignored. The relevant material is already discussed and it shows that present petitioner was involved in running of the business and he was collecting sale proceeds. Thus, the proceeding can go on against him. There is no plausible explanation with the petitioner and there is nothing with him to show that he got such income from which he could have accumulated cash amount of Rs.45 lakh. He is a Tax Consultant. He has given undertaking to the High Court not to dispose of the property and this undertaking was given to see that his sons get bail. Liability of payment of duty, penalty and also interest is to be fixed. There are more provisions in the Central Excise Act like provisions of sections 110 andWhile considering the claim of the petitioner in such a case these provisions need to be kept in mind. Circumstance of fraud mentioned in section(4) of the Central Excise Act is prima facie made out in the present matter. There is prima facie case for evasion of estate duty and also non payment of income tax on the income made by utilizing aforesaid modus operandi. Thus not only the duty payable is to be ascertained under the present Act but the Income Tax authorities need to take action in present case. The provisions of sections 11, 11A, 11AA, 11E etc. are independent of the provisions giving power of confiscation. Provision of Section 226(4) and (5) of the Income Tax Act need to be kept in mind by officers of the Central Excise and it is their duty to see that in such cases information is given to the Income Tax Department also. When such matter comes before Court it is also duty of the Court to see that the Income Tax Department is heard in such a case and intimation of the incident is given to the Income Tax Department also. In view of these circumstances, this Court holds that the amount cannot be returned to the petitioner. Returning of the amount will amount to virtually disposing of the property which can also be attached under the aforesaid provisions. This Court has no hesitation to hold that the amount cannot be returned to the present petitioner and so he is not entitled to such a relief. Learned counsel for the Department has placed reliance on a case reported as AIR 1974 SC 348 (Pooran Mal v. Director of Inspection).The submission for the present petitioner that his arrest was illegal and the offence is bailable is also not acceptable. The material collected shows that false record was created for evasion of excise duty. Thus, it is a case of forgery and fraud also. There has been evasion of excise duty in respect of goods worth more than Rs.140 crore. Provisions of sections 9,AA of the Central Excise Act show that this offence is cognizable and non bailable. The duty evaded apparently exceeded Rs.50 lakh (for old provision Rs. 30 lakh) and there is such specific allegation of the Department. When a case is filed in Criminal Court, the Court has also power to forfeit such amount and that can be seen in the provisions of the Code of Criminal Procedure and also section 110 of the Central Excise Act. The learned counsel for the Department has placed reliance on a case of Rajasthan High Court reported as (2006) 202 CTR Raj 231 (Harvest Gold Food (India) Pvt. v. Union of India).In the present case summons was served on the petitioner and he was called to Pune to appear before the empowered officer. He failed to comply with this summons. Authorization of arrest was then given. It is submitted for the Department that Excise Officer empowered to arrest person like the petitioner was at Pune and so the petitioner was taken to Pune. Admittedly the petitioner was produced before the Magistrate from Pune by such empowered officer and within the prescribed period. It is non bailable offence and the Magistrate refused bail to the two sons of the present petitioner. Even the Sessions Court refused bail and the High Court granted bail subject to aforesaid conditions to the sons of the petitioner. Only due to the circumstance like petitioners old age, the Magistrate granted him bail. Therefore the submissions that the petitioner ought to have been taken to the nearest police station and he should have been produced before the Magistrate at Jalna cannot be given much weight and these circumstances cannot be used against the Department. The competent officer at Pune has the power under section 21 of the Act which is similar to the power of the officer in charge of a police station. Such officer produced the petitioner before the Magistrate of Pune and within the prescribed period. There is provision in the Act like section 22 taking care of search, seizure etc. Thus no relief as claimed by the petitioner can be given in the present case.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: petitioner in such a case these provisions need to be kept in mind. Circumstance of fraud mentioned in section 11-A (4) of the Central Excise Act is prima facie made out in the present matter. There is prima facie case for evasion of estate duty and also non payment of income tax on the income made by utilizing aforesaid modus operandi. Thus not only the duty payable is to be ascertained under the present Act but the Income Tax authorities need to take action in present case. The provisions of sections 11, 11A, 11AA, 11E etc. are independent of the provisions giving power of confiscation. Provision of Section 226(4) and (5) of the Income Tax Act need to be kept in mind by officers of the Central Excise and it is their duty to see that in such cases information is given to the Income Tax Department also. When such matter comes before Court it is also duty of the Court to see that the Income Tax Department is heard in such a case and intimation of the incident is given to the Income Tax Department also. In view of these circumstances, this Court holds that the amount cannot be returned to the petitioner. Returning of the amount will amount to virtually disposing of the property which can also be attached under the aforesaid provisions. This Court has no hesitation to hold that the amount cannot be returned to the present petitioner and so he is not entitled to such a relief. Learned counsel for the Department has placed reliance on a case reported as AIR 1974 SC 348 (Pooran Mal v. Director of Inspection).29. The relief of quashing the adjudication proceeding started against the present petitioner also cannot be given to the petitioner in view of the material already discussed. The material is sufficient to make out a prima facie case that he was involved in running of the business and he was collecting money, sale proceeds in respect of the excisable goods. He was actively involved in evasion of the excise duty. Thus the proceeding of confiscation and imposition of penalty can go on against him. The learned counsel for the Department has placed reliance on the following cases reported as (1) 1997 (96) E.L.T. 21 (S.C.) (Union of India v. Polar Marmo Agglomerates Ltd); and, (2) AIR 2004 SC 3328 (Commissioner of Customs v. M/s Charminar Nonwovens Ltd.).30. The submission for the present petitioner that his arrest was illegal and the offence is bailable is also not acceptable. The material collected shows that false record was created for evasion of excise duty. Thus, it is a case of forgery and fraud also. There has been evasion of excise duty in respect of goods worth more than Rs.140 crore. Provisions of sections 9, 9-A and 9-AA of the Central Excise Act show that this offence is cognizable and non bailable. The duty evaded apparently exceeded Rs.50 lakh (for old provision Rs. 30 lakh) and there is such specific allegation of the Department. When a case is filed in Criminal Court, the Court has also power to forfeit such amount and that can be seen in the provisions of the Code of Criminal Procedure and also section 110 of the Central Excise Act. The learned counsel for the Department has placed reliance on a case of Rajasthan High Court reported as (2006) 202 CTR Raj 231 (Harvest Gold Food (India) Pvt. v. Union of India).31. The provision of Section 13 of the Central Excise Act shows that there is a power to Excise Officer not below the rank of Inspector to arrest the person like present petitioner involved in such offence if he has authorization as provided in section 13 of the Act. The provision of section 14 of the Act shows that there is power to the empowered officer to issue summons to a person like present petitioner and call him to the office. Section 14(2) of the Act shows that persons so summoned is bound to comply with the summons and the conditions of the summons. Provision of Section 18 gives procedure for such an arrest. Provision of Section 19 of this Act runs as under:-"19. Disposal of persons arrested.-- Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station."32. In the present case summons was served on the petitioner and he was called to Pune to appear before the empowered officer. He failed to comply with this summons. Authorization of arrest was then given. It is submitted for the Department that Excise Officer empowered to arrest person like the petitioner was at Pune and so the petitioner was taken to Pune. Admittedly the petitioner was produced before the Magistrate from Pune by such empowered officer and within the prescribed period. It is non bailable offence and the Magistrate refused bail to the two sons of the present petitioner. Even the Sessions Court refused bail and the High Court granted bail subject to aforesaid conditions to the sons of the petitioner. Only due to the circumstance like petitioners old age, the Magistrate granted him bail. Therefore the submissions that the petitioner ought to have been taken to the nearest police station and he should have been produced before the Magistrate at Jalna cannot be given much weight and these circumstances cannot be used against the Department. The competent officer at Pune has the power under section 21 of the Act which is similar to the power of the officer in charge of a police station. Such officer produced the petitioner before the Magistrate of Pune and within the prescribed period. There is provision in the Act like section 22 taking care of search, seizure etc. Thus no relief as claimed by the petitioner can be given in the present case. ### Response: 0 ### Explanation: 28. Though the aforesaid position of law is in favour of the petitioner, the other circumstances of the present case cannot be ignored. The relevant material is already discussed and it shows that present petitioner was involved in running of the business and he was collecting sale proceeds. Thus, the proceeding can go on against him. There is no plausible explanation with the petitioner and there is nothing with him to show that he got such income from which he could have accumulated cash amount of Rs.45 lakh. He is a Tax Consultant. He has given undertaking to the High Court not to dispose of the property and this undertaking was given to see that his sons get bail. Liability of payment of duty, penalty and also interest is to be fixed. There are more provisions in the Central Excise Act like provisions of sections 110 andWhile considering the claim of the petitioner in such a case these provisions need to be kept in mind. Circumstance of fraud mentioned in section(4) of the Central Excise Act is prima facie made out in the present matter. There is prima facie case for evasion of estate duty and also non payment of income tax on the income made by utilizing aforesaid modus operandi. Thus not only the duty payable is to be ascertained under the present Act but the Income Tax authorities need to take action in present case. The provisions of sections 11, 11A, 11AA, 11E etc. are independent of the provisions giving power of confiscation. Provision of Section 226(4) and (5) of the Income Tax Act need to be kept in mind by officers of the Central Excise and it is their duty to see that in such cases information is given to the Income Tax Department also. When such matter comes before Court it is also duty of the Court to see that the Income Tax Department is heard in such a case and intimation of the incident is given to the Income Tax Department also. In view of these circumstances, this Court holds that the amount cannot be returned to the petitioner. Returning of the amount will amount to virtually disposing of the property which can also be attached under the aforesaid provisions. This Court has no hesitation to hold that the amount cannot be returned to the present petitioner and so he is not entitled to such a relief. Learned counsel for the Department has placed reliance on a case reported as AIR 1974 SC 348 (Pooran Mal v. Director of Inspection).The submission for the present petitioner that his arrest was illegal and the offence is bailable is also not acceptable. The material collected shows that false record was created for evasion of excise duty. Thus, it is a case of forgery and fraud also. There has been evasion of excise duty in respect of goods worth more than Rs.140 crore. Provisions of sections 9,AA of the Central Excise Act show that this offence is cognizable and non bailable. The duty evaded apparently exceeded Rs.50 lakh (for old provision Rs. 30 lakh) and there is such specific allegation of the Department. When a case is filed in Criminal Court, the Court has also power to forfeit such amount and that can be seen in the provisions of the Code of Criminal Procedure and also section 110 of the Central Excise Act. The learned counsel for the Department has placed reliance on a case of Rajasthan High Court reported as (2006) 202 CTR Raj 231 (Harvest Gold Food (India) Pvt. v. Union of India).In the present case summons was served on the petitioner and he was called to Pune to appear before the empowered officer. He failed to comply with this summons. Authorization of arrest was then given. It is submitted for the Department that Excise Officer empowered to arrest person like the petitioner was at Pune and so the petitioner was taken to Pune. Admittedly the petitioner was produced before the Magistrate from Pune by such empowered officer and within the prescribed period. It is non bailable offence and the Magistrate refused bail to the two sons of the present petitioner. Even the Sessions Court refused bail and the High Court granted bail subject to aforesaid conditions to the sons of the petitioner. Only due to the circumstance like petitioners old age, the Magistrate granted him bail. Therefore the submissions that the petitioner ought to have been taken to the nearest police station and he should have been produced before the Magistrate at Jalna cannot be given much weight and these circumstances cannot be used against the Department. The competent officer at Pune has the power under section 21 of the Act which is similar to the power of the officer in charge of a police station. Such officer produced the petitioner before the Magistrate of Pune and within the prescribed period. There is provision in the Act like section 22 taking care of search, seizure etc. Thus no relief as claimed by the petitioner can be given in the present case.

H.C. Narayanappa & Others Vs. State of Mysore & Others

power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of Art. 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by Art. 19(6).We are therefore of the view that Chapter IVA could competently be enactd by the Parliament under entry No. 21 read with entry NO. 35 of the Concurrent List.11. The plea sought to be founded on the phraseology used in Art. 19(6) that the State intending to carry on trade or business must itself enact the law authorising it to carry on trade or business is equally devoid of force.The expression "the State" as defined in Art. 12 is inclusive of the Government and Parliament of India and the Govt. and the Legislature of each of the States. Under entry No. 21 of the Concurrent List, the Parliament being competent to legislate for creating commercial or trading monopolies, there is nothing in the Constitution which deprives it of the power to create a commercial or trading monopoly in the constituent States.Article 19 (6) is a mere saving provision : its function is not to create a power but to immunise from attack the exercise of legislative power falling within its ambit. The right of the State to carry on trade or business to the exclusion of others does not arise by virtue of Art. 19(6). The right of the State to carry on trade or business is recognised by Art. 298; authority to exclude competitors in the field of such trade or business is conferred on the State by entrusting power to enact laws under Entry 21 of List III of the Seventh Schedule, and the exercise of that power in the context of fundamental rights is secured from attack by Art. 19 (6).12. In any event, the expression "law" as defined in Art. 13(3) (a) includes any ordinance, order, bye-law, rule, regulation, notification, custom etc. and the scheme framed under S. 68C may properly be regarded as "law" within the meaning of Art. 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Art. 19 (1) (g).13. Re. 3 : The plea that the Chief Minister who approved the scheme under S. 68D was of Motor Vehicles Act undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in approving or modifying the scheme proposed by the transport undertaking. G. Nageswara Rao v. Andhra Pradesh Road Transport Corporation, AIR 1959 SC 308 . It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government.The Chief Minister of the State has filed an affidavit in this case stating that the contention of the petitioners that he was "biased in favour of the scheme was baseless"; he has also stated that he heard such objections and representations as were made before him and he had given the fullest opportunity to the objectors to submit their objections individually. The Chief Minister has given detailed reasons for approving the scheme and has dealt with such of the objections as he says were urged before him. In the last paragraph of the reasons given, it is stated that the Government have heard all arguments advanced on behalf of the operators and "after giving full consideration to them, the Government have come to the conclusion that the scheme is necessary in the interest of the public and is accordingly approved subject to the modifications that it shall come into force on May 1, 1959". In the absence of any evidence controverting these averments, the plea of bias must fail.14. Re. 4 : The argument that the Chief Minister did not give "genuine consideration" to the objections raised by operators to the scheme in the light of the conditions prescribed has no force. The order of the Chief Minister discusses the questions of law as well as questions of fact. There is no specific reference in the order to certain objections which werer raised in the reply filed by the objectors, but we are on that account, unable to hold that the Chief Minister did not consider those objections.The guarantee conferred by S. 68D of the Motor Vehicles Act upon persons likely to be affected by the intended scheme is a guarantee of an oportunity to put forth their objections and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representations and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judical approch. But the Legislature does not contemplate an appeal to this Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors.

0[ds]In this case, it is unnecessary to decide whether it is open to a State transport undertaking under a scheme framed for a notified area to limit its application to some only of the routes, because on a true reading of the scheme, it is amply clear that the scheme was approved in relation to fourteen notified routes and not in relation to a notified area. The approved scheme is in the form prescribed by the rules, and in the form prescribed, by column 1, the area in relation to which the scheme is approved is required to be set out.But a scheme under S. 68C must be one in relation to an area or any route or portion thereof wherein the transport service is to be undertaken by the State transport undertaking to the exclusion, either complete or partial, of other operators. Column 1 of the approved scheme undoubtedly describes the area in relation to which the scheme is approved, but by the designation of the area in the scheme, an intention to exclude either wholly or partially te operators of stage carriages from that area is not evinced either expressly or by implication. By column 3, the scheme expressly directs that State transport undertaking will introduce its service to the exclusion of private operators on the specified routes. The scheme must therefore be regarded as one for the fourteen notified routes and not in relation to the area described in columnis averred in para. 13 of the petition that two persons, Chikkaveerappa operating on route Chikkathirupathi to Bangalore via Surjapur, Domsandra and Agara and Krishna Rao operating on route Bangalore to Chikkathirupathi via Agara and Surjapur are not amongst those who are excluded from operating their vehicles on the notified routes. In the affidavit filed by the State and the second respondent, it is submitted that the plea of the petitioners that the two persons operating stage carriages on specified routes were not amongst those to be excluded is incorrect, and that those two persons had been notified by the Secretary of the third respondent that they were "likely to be affected on giving effect to the approved scheme". Undoubtedly, route-item No. 2 in statement 1 to the scheme is "Bangalore to Surjapur or any portion thereof" and the route operates via Agara and Domsandra, but the record does not disclose that the two named persons are, in plying their stage carriages, entitled to operate on the route specified with right to stop at the named places for picking up passengers.It is not clear on the averments made in the petition that the route on which the stage carriages of the two named persons ply are identical; even if the routes on which the stage carriages of these two operators ply overlap the notified route, in the absence of any evidence to show that they had the right to pick up passengers en route, the discrimination alleged cannot be deemed to have been made out.By Chapter IVA, the State transport undertaking which is either a department of the State or a corporation owned or controlled by the State on the approval of a scheme, is entitled, consistently with the scheme, to exclusive right to carry on motor transport business. The Regional Transport Authority is bound to grant permit for the routes covered by the scheme to the State transport undertaking if that authority applies for the same and the Regional Transport Authority is also bound in giving effect to the approved scheme, to modify the terms of existng permits and to refust to entertain applications for renewal of permits of private operators. Chapter IVA is not merely regulatory of the procedure for carrying on business of road transport by the State; it enables the State transport undertaking, subject to the provisions of the scheme, to exclude private operators and to acquire a monopoly, partial or complete, in carrying on transport business, in a notified area or on notifiedNo. 26 of List II of the Seventh Schedule which invests the States with exclusive authority to legislate in respect of trade and commerce within the State, subject to the provision of entry No. 33 of List III, does not derogate from the authority conferred by entry 21 of List III concurrently to the Parliament and the State Legislatures to grant or create by law commercial or industrial monopolies. The amplitude of the powers under the entry in the concurrent list expressly dealing with commercial and industrial monopolies cannot be presumed to be restricted by the generality of the expression "trade and commerce" in the State List.If the argument of the petitioners and the intervener that legislation relating to monopoly in respect of trade and industry is within the exclusive competence of the State be accepted, the Union Parliament cannot legislate to create monopolies in the Union Government in respect of any commercial or trading fentrue even though power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of Art. 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by Art. 19(6).We are therefore of the view that Chapter IVA could competently be enactd by the Parliament under entry No. 21 read with entry NO. 35 of the Concurrentany event, the expression "law" as defined in Art. 13(3) (a) includes any ordinance, order, bye-law, rule, regulation, notification, custom etc. and the scheme framed under S. 68C may properly be regarded as "law" within the meaning of Art. 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Art. 19 (1)plea that the Chief Minister who approved the scheme under S. 68D was of Motor Vehicles Act undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in approving or modifying the scheme proposed by the transport undertaking. G. Nageswara Rao v. Andhra Pradesh Road Transport Corporation, AIR 1959 SC 308 . It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government.The Chief Minister of the State has filed an affidavit in this case stating that the contention of the petitioners that he was "biased in favour of the scheme was baseless"; he has also stated that he heard such objections and representations as were made before him and he had given the fullest opportunity to the objectors to submit their objections individually. The Chief Minister has given detailed reasons for approving the scheme and has dealt with such of the objections as he says were urged before him. In the last paragraph of the reasons given, it is stated that the Government have heard all arguments advanced on behalf of the operators and "after giving full consideration to them, the Government have come to the conclusion that the scheme is necessary in the interest of the public and is accordingly approved subject to the modifications that it shall come into force on May 1, 1959". In the absence of any evidence controverting these averments, the plea of bias mustargument that the Chief Minister did not give "genuine consideration" to the objections raised by operators to the scheme in the light of the conditions prescribed has no force. The order of the Chief Minister discusses the questions of law as well as questions of fact. There is no specific reference in the order to certain objections which werer raised in the reply filed by the objectors, but we are on that account, unable to hold that the Chief Minister did not consider those objections.The guarantee conferred by S. 68D of the Motor Vehicles Act upon persons likely to be affected by the intended scheme is a guarantee of an oportunity to put forth their objections and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representations and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judical approch. But the Legislature does not contemplate an appeal to this Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors.

### 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: power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of Art. 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by Art. 19(6).We are therefore of the view that Chapter IVA could competently be enactd by the Parliament under entry No. 21 read with entry NO. 35 of the Concurrent List.11. The plea sought to be founded on the phraseology used in Art. 19(6) that the State intending to carry on trade or business must itself enact the law authorising it to carry on trade or business is equally devoid of force.The expression "the State" as defined in Art. 12 is inclusive of the Government and Parliament of India and the Govt. and the Legislature of each of the States. Under entry No. 21 of the Concurrent List, the Parliament being competent to legislate for creating commercial or trading monopolies, there is nothing in the Constitution which deprives it of the power to create a commercial or trading monopoly in the constituent States.Article 19 (6) is a mere saving provision : its function is not to create a power but to immunise from attack the exercise of legislative power falling within its ambit. The right of the State to carry on trade or business to the exclusion of others does not arise by virtue of Art. 19(6). The right of the State to carry on trade or business is recognised by Art. 298; authority to exclude competitors in the field of such trade or business is conferred on the State by entrusting power to enact laws under Entry 21 of List III of the Seventh Schedule, and the exercise of that power in the context of fundamental rights is secured from attack by Art. 19 (6).12. In any event, the expression "law" as defined in Art. 13(3) (a) includes any ordinance, order, bye-law, rule, regulation, notification, custom etc. and the scheme framed under S. 68C may properly be regarded as "law" within the meaning of Art. 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Art. 19 (1) (g).13. Re. 3 : The plea that the Chief Minister who approved the scheme under S. 68D was of Motor Vehicles Act undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in approving or modifying the scheme proposed by the transport undertaking. G. Nageswara Rao v. Andhra Pradesh Road Transport Corporation, AIR 1959 SC 308 . It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government.The Chief Minister of the State has filed an affidavit in this case stating that the contention of the petitioners that he was "biased in favour of the scheme was baseless"; he has also stated that he heard such objections and representations as were made before him and he had given the fullest opportunity to the objectors to submit their objections individually. The Chief Minister has given detailed reasons for approving the scheme and has dealt with such of the objections as he says were urged before him. In the last paragraph of the reasons given, it is stated that the Government have heard all arguments advanced on behalf of the operators and "after giving full consideration to them, the Government have come to the conclusion that the scheme is necessary in the interest of the public and is accordingly approved subject to the modifications that it shall come into force on May 1, 1959". In the absence of any evidence controverting these averments, the plea of bias must fail.14. Re. 4 : The argument that the Chief Minister did not give "genuine consideration" to the objections raised by operators to the scheme in the light of the conditions prescribed has no force. The order of the Chief Minister discusses the questions of law as well as questions of fact. There is no specific reference in the order to certain objections which werer raised in the reply filed by the objectors, but we are on that account, unable to hold that the Chief Minister did not consider those objections.The guarantee conferred by S. 68D of the Motor Vehicles Act upon persons likely to be affected by the intended scheme is a guarantee of an oportunity to put forth their objections and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representations and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judical approch. But the Legislature does not contemplate an appeal to this Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors. ### Response: 0 ### Explanation: same and the Regional Transport Authority is also bound in giving effect to the approved scheme, to modify the terms of existng permits and to refust to entertain applications for renewal of permits of private operators. Chapter IVA is not merely regulatory of the procedure for carrying on business of road transport by the State; it enables the State transport undertaking, subject to the provisions of the scheme, to exclude private operators and to acquire a monopoly, partial or complete, in carrying on transport business, in a notified area or on notifiedNo. 26 of List II of the Seventh Schedule which invests the States with exclusive authority to legislate in respect of trade and commerce within the State, subject to the provision of entry No. 33 of List III, does not derogate from the authority conferred by entry 21 of List III concurrently to the Parliament and the State Legislatures to grant or create by law commercial or industrial monopolies. The amplitude of the powers under the entry in the concurrent list expressly dealing with commercial and industrial monopolies cannot be presumed to be restricted by the generality of the expression "trade and commerce" in the State List.If the argument of the petitioners and the intervener that legislation relating to monopoly in respect of trade and industry is within the exclusive competence of the State be accepted, the Union Parliament cannot legislate to create monopolies in the Union Government in respect of any commercial or trading fentrue even though power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of Art. 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by Art. 19(6).We are therefore of the view that Chapter IVA could competently be enactd by the Parliament under entry No. 21 read with entry NO. 35 of the Concurrentany event, the expression "law" as defined in Art. 13(3) (a) includes any ordinance, order, bye-law, rule, regulation, notification, custom etc. and the scheme framed under S. 68C may properly be regarded as "law" within the meaning of Art. 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Art. 19 (1)plea that the Chief Minister who approved the scheme under S. 68D was of Motor Vehicles Act undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in approving or modifying the scheme proposed by the transport undertaking. G. Nageswara Rao v. Andhra Pradesh Road Transport Corporation, AIR 1959 SC 308 . It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government.The Chief Minister of the State has filed an affidavit in this case stating that the contention of the petitioners that he was "biased in favour of the scheme was baseless"; he has also stated that he heard such objections and representations as were made before him and he had given the fullest opportunity to the objectors to submit their objections individually. The Chief Minister has given detailed reasons for approving the scheme and has dealt with such of the objections as he says were urged before him. In the last paragraph of the reasons given, it is stated that the Government have heard all arguments advanced on behalf of the operators and "after giving full consideration to them, the Government have come to the conclusion that the scheme is necessary in the interest of the public and is accordingly approved subject to the modifications that it shall come into force on May 1, 1959". In the absence of any evidence controverting these averments, the plea of bias mustargument that the Chief Minister did not give "genuine consideration" to the objections raised by operators to the scheme in the light of the conditions prescribed has no force. The order of the Chief Minister discusses the questions of law as well as questions of fact. There is no specific reference in the order to certain objections which werer raised in the reply filed by the objectors, but we are on that account, unable to hold that the Chief Minister did not consider those objections.The guarantee conferred by S. 68D of the Motor Vehicles Act upon persons likely to be affected by the intended scheme is a guarantee of an oportunity to put forth their objections and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representations and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judical approch. But the Legislature does not contemplate an appeal to this Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors.